text:
    GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, LTD., Appellant, v. Anne Betts MacKENZIE, Eugene Betts and Elda T. Betts, Appellees.
    No. 80-1212.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied March 16, 1982.

      John Edward Herndon, Jr., of Thornton & Herndon, Miami, for appellant.
    John P. Wiederhold of Pomeroy, Betts, Wiederhold & Moses, West Palm Beach, for appellees.
   DOWNEY, Judge.

Appellant, General Accident Fire & Life Assurance Corporation, Ltd., seeks reversal of a final judgment finding that appellee MacKenzie was entitled to stack the uninsured motorist coverage (UM) contained in her father’s automobile insurance policy covering two automobiles owned by him.

The main question presented is whether the UM coverage available is $100,000 or $200,000. The trial court found the latter coverage was available because the father’s bodily injury limits were $100,000/300,000 on each of his two automobiles. The court made the foregoing finding even though the UM coverage set forth in the policy was $50,000/100,000 on the date of the accident, basing its ruling that MacKenzie was entitled to UM coverage equal to the bodily injury coverage on the ground that the insurer did not prove the father had rejected UM coverage equal to the bodily injury coverage when the policy in effect at the time of the accident was issued. We think the trial judge ruled correctly on this issue.

In Hartford Ace. & Indem. Co. v. Sheffield, 375 So.2d 598 (Fla. 3d DCA 1979), the court held that when a policy, which is not a “renewal” policy, is issued, an insured must be informed that he is entitled to (a) have UM coverage equal to the amount of bodily injury coverage, (b) reject any UM coverage, or (c) choose lesser limits of UM coverage; further the insurer could not rely upon the renewal exception contained in Section 627.727(1), Florida Statutes, to obviate the necessity of obtaining a response from the insured as to which of the foregoing options he selected. Shortly before the policy in effect at the time of the accident was issued the insured requested an increase in his UM coverage from $25,000/50,-000 to $50,000/100,000. This changed the coverage and premium and thus, under the Sheffield case, issuance of this policy was not a renewal and the insurer was required to advise' the insured of his right to UM coverage equal to the bodily injury coverage. The burden of proof was on the insurer to prove the insured rejected the maximum limits of UM coverage available to him or that he knowingly chose lesser limits of UM coverage after being informed of his options. Since the insurer failed to prove such informed choice the trial court was correct in finding full coverage available to MacKenzie.

We have fully considered appellant’s other points on appeal and found them to be without merit.

AFFIRMED.

GLICKSTEIN, J., and PEARSON, DANIEL S., Associate Judge, concur.

      . This court has adopted the Sheffield test for determining whether an insurance policy is a new policy or a renewal policy. United States FideUty & Guaranty Co. v. Wain, 395 So.2d 1211, 1214 (Fla. 4th DCA 1981).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Florida, Appellant, v. Freddy Duane BLAKLEY, Appellee.
    No. 81-192.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied March 17, 1982.

      Michael J. Satz, State Atty., and Paul H. Zacks, Asst. State Atty., Fort Lauderdale, for appellant.
    Timothy J. Hmielewski, Fort Lauderdale, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

The state appeals an order discharging appellee for violation of his constitutional right to a speedy trial. We reverse.

Appellee was arrested in February of 1976 on a felony charge. After several defense continuances, appellee was brought to trial before a jury in July of 1977. On the eve of trial, appellee attempted to discharge his privately retained counsel on the ground that counsel was incompetent and unprepared. The trial court refused to grant a further continuance to permit substitution of counsel because the attorney whom he sought to have replaced was the third one to have represented appellee at that point. Appellee’s conviction was upheld on appeal. Appellee then moved to vacate the judgment under Florida Rule of Criminal Procedure 3.850, and in November of 1979 an order was entered granting the motion to vacate on the basis of ineffective assistance of counsel at trial. Appellee then had pending in the federal court a petition for habeas corpus, which he dismissed after the state indicated it would not appeal from the state court order vacating the judgment. The state, however, did appeal, the order being affirmed by this court in October of 1980. After this court’s mandate went down, a jury trial was scheduled for January 13, 1981. On that date, appellee filed a motion for discharge alleging a violation of his constitutional right to speedy trial, which motion the trial court granted after hearing.

The essential basis upon which the trial court granted appellee’s motion for discharge was the delay of approximately one year due to the state having unsuccessfully appealed from the trial court order of November, 1979, which had vacated the original judgment. The trial court felt that the appeal was frivolous and taken primarily as a dilatory tactic to permit the state to secure attendance at trial of one of its principal witnesses who was then out of the country.

At the time the state took its appeal from the court order of November of 1979 vacating the judgment, it was the law in this jurisdiction that a defendant could not contest the competency of privately retained counsel, Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967), a position which had been uniformly followed and applied by the appellate courts of this state. Thus, if appel-lee’s counsel at his trial in July of 1977 was privately retained, the established law of Florida in November of 1979, when the court entered its order vacating the judgment, would have required a reversal of that order. In fairness, the trial court had entered its order vacating the judgment on the basis of a finding that appellee’s trial counsel, although initially privately retained, became the equivalent of appointed counsel when the judge who presided over the jury trial refused appellee’s request for a further continuance in order to substitute counsel. The validity of this “transformation” of counsel from privately retained to appointed simply by means of post-trial judicial decree certainly, at the very least, would have presented a non-frivolous issue for determination by this court, had it not been for the intervening decision in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Cuyler, decided while the appeal was pending, held for the first time that failure of privately retained counsel to provide adequate assistance can render a trial so fundamentally unfair as to deprive a defendant of a fair trial.

At the time the state appealed from the order vacating the judgment, it was not frivolous. While the state did obtain the benefit of the additional time within which to secure the attendance of its out-of-country witness, the record will not support the trial court’s conclusion that the state’s primary purpose in taking the appeal was to obtain this advantage.

As an additional factor, the trial court, in ordering the discharge of appellee, surmised that had appellee not voluntarily dismissed his federal habeas corpus petition in reliance upon the state’s indication that it would not take the appeal, the federal district court would probably have ordered the state to afford appellee a new trial, which in all likelihood would have avoided the additional year delay caused by the state’s unsuccessful appeal of the order. While we agree with the trial court’s surmise of probability of success in the federal habeas corpus action, it is much too speculative to say how much sooner, if any, appellee would have obtained a new trial had he continued to pursue that action.

REVERSED.

DOWNEY and ANSTEAD, JJ., concur.

      . Blakley v. State, 362 So.2d 309 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1362 (Fla.), cert. denied, 444 U.S. 904, 100 S.Ct. 218, 62 L.Ed.2d 141 (1979).

      . State v. Blakley, 388 So.2d 1106 (Fla. 4th DCA 1980).

      .A number of the cases are cited in the supreme court’s opinion in Vagner v. Wainwright, 398 So.2d 448 (Fla.1981).

      . The court found that the state did not intentionally mislead appellee’s counsel in order to get him to voluntarily dismiss the federal habe-as corpus action.


author: DOWNEY, Judge.

text:
    James Robert SHEEDY, Personal Representative of the Estate of Robert Sheedy, Deceased, Appellant, v. VISTA PROPERTIES, INC., and Robert Ewing, Appellees.
    No. 81-460.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied March 18, 1982.

      Vincent A. Lloyd of Lloyd & Brown, Fort Pierce, for appellant.
    Bradford L. Jefferson of Brennan, McAli-ley, Hayskar & McAliley, Fort Pierce, for appellees.
   DOWNEY, Judge.

Appellee, Vista Properties, Inc., (Vista) owned certain real property upon which it was constructing a condominium project. The construction was being conducted by Vista under a general contractor’s license issued to Vista’s president, appellee Ronald Ewing. In order to finance the project Vista entered into a Loan & Development Agreement with Gibraltar Savings Association (Gibraltar) wherein Gibraltar would finance the cost of construction and divide the profit on the project equally.

Vista contracted with Arlington Electric (Arlington) to perform the electrical work on the project. One of Arlington’s employees, Robert Sheedy, was injured on the job by Vista’s alleged negligence. Although Sheedy received Workers’ Compensation benefits through Arlington he filed a third party tort claim against Vista and Ewing. Vista moved for summary judgment in support of which Vista showed that, as the owner and general contractor on the job, it had provided Workers’ Compensation insurance coverage for all workmen on the job and was thereby entitled to the immunity from tort actions provided by Section 440.-11, Florida Statutes (1980). The trial court granted a summary judgment for Vista based upon a finding that Vista was bound by a contract to construct the improvements for a third party, Gibraltar and was thus required to furnish Workers’ Compensation benefits for Sheedy which in turn entitled Vista to the immunity provided by Section 440.11. This appeal was perfected to review that summary judgment.

The ultimate question for decision in this case is whether Vista was liable for Workers’ Compensation benefits under the Act. If the answer is in the affirmative then Vista is immune from suit because compensation benefits were furnished to Sheedy. If the answer is in the negative then regardless of the fact that benefits were furnished Sheedy, Vista is not immune from a third party tort action and the trial judge’s conclusion would be correct.

The answer to the question presented is to be found in Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954) and State v. Luckie, 145 So.2d 239 (Fla. 1st DCA 1962). In Jones, Florida Power owned the property in question and contracted with several independent contractors Grinnell Company, Inc., and Burns & Roe, Inc., to perform work on the project. Jones, an employee of Grinnell was injured by an employee of Burns & Roe. Florida Power’s contract with the two independent contractors required them to provide Workers’ Compensation insurance and Jones actually received those benefits. Jones filed a third party tort action against Florida Power and Burns & Roe but suffered an adverse summary judgment in favor of said defendants. It is interesting to note that in this final summary judgment the trial judge stated:

“It would be utterly unfair for the Court to hold that Florida Power Corporation, being the project owner, principal contractor and ‘common employer,’ of all the employees of said Grinnell Company and Burns & Roe, after said common employer by its contracts had required both Grinnell Company and Burns & Roe to carry workmen’s compensation for all employees working on the whole construction project, should under the circumstances of this case be considered a third party tort feasor and yet, at the same time, say to said Florida Power Corporation that if it, the Florida Power Corporation, had first employed a ‘general contractor’ for the whole construction project and then let the general contractor subcontract with said Grinnell Company and Burns & Roe as sub-contractors, then said Florida Power Corporation would have been relieved of the responsibility.”

The Supreme Court, however, rejected the trial judge’s conclusions and reversed the summary judgment. In reversing, the Supreme Court stated that the real question was whether Florida Power was an “employer” and a “contractor” within the meaning of the Workmens’ Compensation Act. The court held there was no showing that Florida Power was a common employer of the two independent contractors. Furthermore, the court held that Florida Power was not shown to be a “contractor” within the meaning of the Act “since the clear implication in this part of the Act is that there must be a contractual obligation on the part of the contractor, a portion of which he sublets to another.” The point is made that the effect of subletting is to pass on to another the obligation under a contract for which the sublettor is responsible. Jones establishes that in order for there to be a subletting so as to create a contractor-subcontractor relationship the contractor must be obligated to construct the improvement under a contract with a third person. In Jones Florida Power was the owner constructing an improvement for itself. In the present case Vista was the owner constructing an improvement for itself. Vista’s contract with Arlington was not a subletting but rather an initial contract for work which the owner, Vista wanted performed. It follows that if Vista was neither an employer nor a contractor within the meaning of the Act then it was not liable for Workers’ Compensation insurance to Sheedy. Not being liable under the statute, Vista was not immune. As the court stated in Jones:

It is the liability to secure compensation which gives the employer immunity from suit as a third party tort-feasor. His immunity from suit is commensurate with his liability for securing compensation — no more and no less.

The trial judge in Jones indicated the apparent inequity in holding that a corporation which is the owner and builder on the job and which obtains Workers’ Compensation insurance to cover employees on the job should nonetheless be liable in tort. Whereas, had the same corporation-owner contracted with a general contractor to build the improvement and he in turn had contracted with a subcontractor, the corporation would be immune from a tort action by an injured employee. However, that is a legislative matter and the legislature has provided otherwise.

Vista and Ewing do not appear to disagree with much of what has been set forth heretofore. In their brief they state:

The only real issue on appeal is whether or not the Defendant VISTA PROPERTIES OF VERO BEACH, INC. qualified as a general contractor within the purview of Florida Statute 440.10(1). In order to so qualify VISTA PROPERTIES OF VERO BEACH, INC. had to be under a primary contractual obligation, a portion of which was sublet to the Plaintiff’s employer, Arlington Electric.

Vista contends and the trial judge found that Vista actually had a primary contract with Gibraltar. Therefore, Vista argues that it was in the position of a general contractor vis-a-vis Arlington and the latter’s contract was in reality a subcontract. We are compelled to disagree with this analysis of the facts of the case. The Loan & Development Agreement which Vista had with Gibraltar was to loan Vista the money to procure the property and build the improvements thereon. Vista was to repay the amount loaned and in addition Gibraltar was to receive 50% of Vista’s profit on the project. The Agreement states that, “the relationship between the parties shall be that of an owner and a lender, and in no event shall the contract or services performed hereunder be interpreted as that of a joint venture or partnership.” Nothing in the Agreement creates an obligation on Vista’s part which could be sublet to Arlington. We note also that the provisions of the Agreement which require the development to be in accordance with its terms; the provisions which give Gibraltar approval rights regarding the master plan and specific development plans and other such supervisory provisions of the contract are not unusual in this type of financing arrangement. The necessity of this power to oversee is particularly understandable since Gibraltar was obligated to lend the entire cost of the development. We believe that substantial supervisory control would be consistent with the activities of a sophisticated lender.

In view of the foregoing we hold the entry of summary judgment for appellees was error. Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

BERANEK and HURLEY, JJ., concur.


author: PER CURIAM.

text:
    John FOGELMAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1381.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied March 24, 1982.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Both the public defender and the attorney general agree that the trial court erred in refusing to give appellant credit on his sentence for time served in a mentally disordered sex offender program.

In view of the state’s concession as to the correctness of the public defender’s position and because it covers the only point on appeal, we remand for resentencing. We are disappointed that this cause actively continued to this most obvious final conclusion. In almost all civil cases, the opposing lawyers would have long since jointly dismissed an appeal such as this when both sides are in agreement. However, we recognize a major factor for privately retained attorneys is the justification of costs and attorneys fees to their clients. It would appear that for once the long suffering taxpayer, not to mention our overcrowded appellate docket, should have been given a break.

In any event, we affirm the judgment and conviction, but remand for correction of the sentence by giving appellant credit for time spent in the mentally disordered sex offender program. Since defendant and the state are in agreement, we suggest the more economical approach would have been to present the matter to the trial court in the first instance. See Rule of Criminal Procedure 3.800.

LETTS, C. J., and DOWNEY and BERA-NEK, JJ., concur.


text:
    STATE of Florida, Appellant, v. L. M. H., a child, Appellee.
    No. 80-1273.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, Robert E. Jagger, Public Defender, Clearwater, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

SCHEB, C. J., and GRIMES and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. N. R., a child, Appellee.
    No. 80-1328.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    William Penrose, St. Petersburg, for ap-pellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

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


text:
    Terry TUTEN, Appellant, v. STATE of Florida, Appellee.
    No. VV-321.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.
    Rehearing Denied March 24, 1982.
    Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.

      Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

AFFIRMED. Wilson v. State, 407 So.2d 1078 (Fla. 1st DCA 1982).

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    Sheldon GREENBERG, Appellant, v. SIMMS MERCHANT POLICE SERVICE, and Florida Department of Labor and Employment Security, Unemployment Appeals Commission, Appellees.
    No. AB-25.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.
    Daniel H. Thompson, Tallahassee, for appellant.
    James R. Parks and Noreen Davis, Tallahassee, for appellees.
   PER CURIAM.

Appellant, Sheldon Greenberg, appeals an adverse decision by the Unemployment Appeals Commission which affirmed an order of the Unemployment Appeals Referee denying his claim for unemployment benefits. His appeal is founded upon the contention that the failure of the appeals referee to comply with the rules of procedure for hearing such claims denied him due process of law. We affirm.

Our examination of the record of the proceedings before the appeals referee convinces us that the referee’s examination of the parties was adequate, in view of the non-complex nature of the issues, and that ample opportunity was given to each party to testify, conduct cross-examination, and explain his side of the controversy to the referee. Each party was invited to make any further statement he cared to make before the referee terminated the hearing. Further, appellant has failed to demonstrate any prejudice resulting from the alleged failure of the referee to make known any documentary evidence he intended to consider at the hearing. No documentary evidence was introduced nor discussed at the hearing, and we find no indication that documents not available to appellant were considered by the referee in arriving at his decision.

It is true, as appellant contends, that the rules governing unemployment compensation appeals, found in Chapter 38E, Florida Administrative Code, contain no provision for hearings to be conducted by means of a telephone conference. Notwithstanding, the rules do not prohibit telephone conference hearings, and in this instance, at least, the use of this procedure has been approved by the Unemployment Appeals Commission of the Florida Department of Labor and Employment Security. The statute concerning unemployment compensation claims contains no specific directives concerning procedure, but merely provides that the manner in which appealed claims shall be presented “shall be in accordance with rules prescribed by the Commission.” Section 443.07(4)(d), Florida Statutes (1979).

We have considered appellant’s arguments concerning the telephone conference procedure, including his contention that this form of hearing deprived the referee of the opportunity to ascertain appellant’s “demeanor” while testifying. Appellant points out that Rule 38E-5.14(2)(d) provides that in any appeal in which one or more of the parties resides outside the state of Florida, the referee shall request the assistance of an administrative hearing officer to obtain the evidence of the non-resident party. In this instance, appellant resided in New York at the time he filed his unemployment compensation claim, and on one of the forms supplied to him by the New York Unemployment Insurance Division, he indicated that he desired to attend a hearing on his claim in New York. Thereafter, he received notice from the Florida appeals referee advising him that a hearing on his claim would be held in Fort Lauderdale, Florida, and that in order to dispose of his case as quickly as possible, the hearing would be by means of a telephone conference. Appellant was given specific directions and instructions regarding the telephone conference hearing including, among other things, the request that he furnish a telephone number at which he could be reached at the specific time and date the hearing was scheduled. Appellant furnished this telephone number.

From the standpoint of affording the referee an opportunity to observe his “demean- or,” we think that in this respect a telephone conference is far superior to a cold, written record. In any event, at no time did appellant express his objection or disagreement with the telephone conference procedure, nor did he register any objection to that procedure when he appealed the referee’s decision to the Unemployment Appeals Commission. Thus, the objection on this ground is raised for the first time on his appeal to this court.

It appears that the determination of unemployment compensation appeals by means of a telephone conference is not unprecedented. We note that the same practice has been employed in California, as revealed by the opinion in Slattery v. California Unemployment Insurance Appeals Board, 60 Cal.App.3rd 245, 131 Cal.Rptr. 422 (1976). The Slattery opinion notes that although not mentioned in the California Board’s formally promulgated rules, Board procedure provided for a conference telephone hearing, which the court referred to as “an imaginative attempt to solve ... due process problems . ... ” The court further stated (Id. at 425):

The Board has devised a pragmatic solution, made possible by modern technology, which attempts to reconcile the problems of geographically separated adversaries with the core elements of a fair adversary hearing: the opportunity to cross-examine adverse witnesses and to rebut or explain unfavorable evidence. ...

We fail to find that either the fairness of the proceedings or the correctness of the action has been impaired by any material error in the procedure followed by the appeals referee, or his failure to follow prescribed procedure. Section 120.68(8), Florida Statutes.

Accordingly, the order appealed from is AFFIRMED.

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

      . Contrary to appellant’s assumption, the rules do not provide for the appeals hearing to be held in the state of his residence. The rule provision he relies upon simply means that he would appear before a hearing officer in his resident state to give his testimony, which would then be transcribed and forwarded in written form to the Florida appeals referee.


author: JOANOS, Judge.

text:
    ALTERMAN TRANSPORT LINES, INC., Employer/Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee, and Jerry K. Ray, Claimant/Appellee.
    No. AB-68.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.
    Jesse S. Hogg and Barry Jay Warsch of Hogg, Allen, Ryce, Norton & Blue, Coral Gables, for employer/appellant.
    Donna Erlich, Unemployment Appeals Commission, Tallahassee, for appellee.
   JOANOS, Judge.

Alterman Transport Lines appeals from a commission order that overturned the findings of an appeals referee and instead found that Ray is entitled to unemployment benefits. We reverse.

Ray, manager at the company’s Jacksonville truck terminal, was fired, and he applied for unemployment benefits. At hearing before the referee, Sidney Alterman testified that Ray had used company facilities and employees for his personal business. Ray responded that any such work was done by employees who had their own equipment and were “off the clock.” However, Ray admitted that on at least one occasion he directed employees, working on company time, to load decorator stone to be used on his house. He did not comment on testimony by Alternan that he. had once ordered a company lease driver to pick up a load of wood from a lumber yard and have it delivered to a home he was building. In general, Ray defended his behavior on the ground that past terminal managers had conducted similar activities, and he had learned from them.

The referee found Ray ineligible for benefits because he was discharged for misconduct connected with his work. He reached this decision after finding that Ray had used company facilities, materials and on-the-clock employees to work on his personal projects. The referee concluded that because a reasonable person would have sought permission for such activities, Ray had demonstrated a “substantial disregard of the employer’s interests and of his duties and obligations to his employer.”

Ray then appealed to the commission, which reversed even though it agreed that Ray had utilized company employees on his personal projects at the job site. The commission held that Ray’s activities could not constitute misconduct within the meaning of the statute because there was insufficient evidence that the conduct actually harmed the employer or that Ray was aware that his activities were contrary to Alterman’s rules or policies.

We reverse because without taking further evidence as provided in Section 443.-07(4)(c), Florida Statutes (1979), the commission must honor the referee’s findings of fact if they are founded on competent, substantial evidence. See Catholic Social Services v. Florida Dept. of Commerce, Board of Review, 365 So.2d 427 (Fla. 1st DCA 1978). When, as here, an employer establishes pri-ma facie evidence of misconduct, the burden shifts to the employee to come forward with proof of the propriety of that conduct. Upon viewing a lifeless record, neither we nor the commission may second-guess the fact-finding wisdom of the referee in determining whether Ray met that burden. See Florida Dept. of Professional Regulation v. Wagner, 405 So.2d 471 (Fla. 1st DCA 1981).

Accordingly, the commission’s order is vacated with instructions that the referee’s findings and conclusions be reinstated by the commission.

McCORD and SHIVERS, JJ., concur.

      . F.S. 443.06(1) (1979).

      . F.S. 443.06(9)(b) (1979).

      .In its order, the commission applied the 1980 amendments to Section 443 even though Ray was fired before their effective date. This variance is immaterial, however, because the relevant corresponding passages are identical.


author: WIGGINTON, Judge.

text:
    Sally MALONE, Appellant, v. Cecil G. COSTIN, Jr., and wife Margaret M. Costin and Thomas S. Gibson, Appellees.
    No. AB-69.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1982.
    Rehearing Denied March 16, 1982.

      Sally Malone, pro se.
    Cecil G. Costin, Jr., Port St. Joe, for ap-pellees.
   WIGGINTON, Judge.

This is an appeal of an interlocutory order of the lower court granting appellees, defendants below, attorney’s fees and costs on their motion to compel discovery. Because the order of the lower court is not a nonfinal order which may be reviewed by an interlocutory appeal under rule 9.130, Florida Rules of Appellate Procedure, we hold that this appeal has been improvidently taken. Moreover, although this Court may regard such an appeal as a petition for common law writ of certiorari, Hope v. City of Gainesville, 355 So.2d 1172 (Fla.1977), we decline to do so.

The common law writ of certiorari provides a remedy only where the petitioner has met the heavy burden of showing that a clear departure from the essential requirements of law would otherwise result in irreparable harm. Because of this burden of proof, it is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that since only the most urgent interlocutory orders are appealable under rule 9.130, Florida Rules of Appellate Procedure, there will be very few cases where common law certiorari will provide relief. See Committee Notes, Fla.R.App.P. 9.130; and also Taylor v. Board of Public Instruction of Duval County, 131 So.2d 504 (Fla. 1st DCA 1961).

In Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942), the Florida Supreme Court held that interlocutory orders could be reviewed by common law writ of certiorari when no other adequate remedy would be offered by law. The court reasoned that an appeal would afford an inadequate remedy where discovery had been wrongfully granted. See also Boucher v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1957); Meiklejohn v. American Distributors, Inc., 210 So.2d 259 (Fla. 1st DCA 1968); West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975).

Such is clearly not the situation here, albeit “petitioner,” Ms. Malone, is faced with a Hobson’s choice: pay and participate or decline and, if her action is dismissed under rule 1.420(b), Florida Rules of Civil Procedure, appeal after entry of final judgment. Powell v. Wingard, 402 So.2d 532 (Fla. 5th DCA 1981). The mere fact that compliance with the court’s order will be costly is not, in and of itself, a ground for valid objection. Goodyear Tire & Rubber Co. v. Cooey, 359 So.2d 1200 (Fla. 1st DCA 1978); Ford Motor Co. v. Edwards, 363 So.2d 867 (Fla. 1st DCA 1978).

Accordingly, the petition for writ of cer-tiorari is denied.

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


text:
    The LANDINGS, LTD., Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Department of Business Regulation, Appellee.
    No. AB-455.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.
    Paul F. Hartsfield, Jr., of Watkins, Hill & Marts, and Carl A. Bertoch, Tallahassee, for appellant.
    Richard E. Gentry, staff atty., Div. of Florida Land Sales and Condominiums, Dept, of Business Regulation, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Hovnanian Florida, Inc. v. Division of Florida Land Sales and Condominiums, 401 So.2d 851 (Fla. 1st DCA 1981).

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


text:
    EXXON COMPANY, U.S.A., and Petroleum Casualty Company, Appellants, v. Fidel RODRIGUEZ, Appellee.
    No. AC-415.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.
    Rehearing Denied March 16, 1982.

      Barry A. Pemsler of Richard, Tharp & Pemsler, Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellee.
   WIGGINTON, Judge.

The carrier in this workers' compensation action challenges the award of certain medical expenses and wage-loss benefits, and it contests the deputy commissioner’s finding that Rodriguez suffered a compen-sable anxiety reaction. The carrier also challenges the deputy's reservation of jurisdiction to award an attorney’s fee based upon future benefits. On cross-appeal, the claimant argues that the deputy’s award of a $1,700 fee was too low. We reverse in part.

Preliminarily, we affirm the deputy’s finding that the claimant suffered a compensable injury. Rodriguez, a Cuban emigrant with a limited knowledge of the English language, was working as a mechanic at an Exxon gas station when he attempted to lift a wheel and experienced a sharp back pain. The station manager advised him to sit and rest but the pain became acute, so Rodriguez went home and summoned a doctor, who made a house call the following day. Meanwhile, Rodriguez noticed what he called “intestinal bleeding.” He testified that he had never previously been treated for any problems with intestines, hemorrhoids, or his stomach. After three hospitalizations and batteries of tests, the treating physician diagnosed severe lumbar sprain and bleeding internal hemorrhoids.

The carrier contends it should not be responsible for medical expenses related to the bleeding hemorrhoids because the industrial accident did not create the hemorrhoids. Such a contention is of no consequence. Although the doctor testified the hemorrhoids were not caused by the accident, he also stated that the bleeding could have been caused by the lifting incident Rodriguez described. The combined testimony of the doctor and claimant established that the injury followed on the heels of the accident and that the activity involved in the accident could cause such an injury. There is no hint of any other cause of the bleeding, and no indication that any bleeding would have occurred but for the accident. From these facts, the deputy could properly infer a causal connection between the lifting incident and the onset of bleeding that required medical testing and treatment. See Looney v. W & J Construction Company, 289 So.2d 723 (Fla.1974).

We also reject the carrier’s argument that because the doctors and hospitals did not file reports as required by Section 440.13, Florida Statutes (1979), their bills are not the carrier’s responsibility. When Rodriguez told the employer that he was in need of medical treatment, a supervisor furnished him an insurance card, bearing the name of the company’s group insurer, to present at the hospital. The treating physician directed his bills to that carrier, and he was paid. As a result of this confusing situation which was created by the employer, the doctor was led to believe he had satisfied his reporting requirements, while the hospitals and their physicians were unaware that this was a workers’ compensation case. Under these circumstances, we find that the failure to file reports under § 440.13 was not fatal to Rodriguez’ claim for these medical benefits. See Rodell v. Welty, IRC Order 2-3328 (Jan. 23, 1978) and cases cited therein.

Nevertheless, the deputy erred in awarding payment of medical expenses without record evidence of those expenses. Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980). Therefore, we remand on this point in order that claimant properly introduce the outstanding medical bills. See E. C. Ernst and Company, Inc. and Continental Casualty Company v. Grimmett, 9 FCR 341, cert. denied 336 So.2d 600 (Fla.1976); Reedy Creek Improvement District Fire Department v. LaCorte, IRC Order 2-3696 (Feb. 9, 1979).

We must reverse the deputy’s finding that Rodriguez suffered a compensable anxiety reaction as a result of this injury. Although Rodriguez and his physician both attested to the claimant’s anxiety and nervousness, neither established a causal connection with the industrial accident. The doctor said he was unaware of the claimant’s emotional condition before the accident, and Rodriguez’ testimony never addressed the issue of causation. Therefore, Rodriguez did not show that his anxiety was a com-pensable injury as defined in the Workers’ Compensation Act. See Section 440.02(6), Florida Statutes (1979).

The deputy’s order is ambiguous as it erroneously implies an open-end award of wage-loss compensation benefits. This deficiency in the order might have been avoided by counsel’s prompt application to the deputy. Failing such application and opportunity to correct, we must reverse this point in the order and remand for the deputy to delineate the period for which these benefits were awarded.

On remand, the deputy is also directed to modify the portion of the order in which he reserved jurisdiction to award “an additional attorney’s fee based upon ... future compensation benefits which may be paid or awarded to claimant.” See generally, City of Leesburg v. Padgett, 397 So.2d 732 (Fla. 1st DCA 1981); International Paper Company v. McKinney, 384 So.2d 645 (Fla.1980). As the carrier has noted in its briefs, the deputy may, on remand, increase the attorney’s fee award based on medical bills the claimant may introduce pursuant to this opinion. We disagree with the claimant’s argument on cross-appeal that the deputy abused his discretion by awarding a $1,700 fee based on benefits he considered at the time of the hearing.

Accordingly, this cause is remanded to the deputy commissioner for proceedings consistent with this opinion.

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


text:
    Doris PACHECO and Dulce Marie Pujol, Appellants, v. LINCOLN PALACE CONDOMINIUM, INC., Appellee.
    Nos. 81-593, 81-689.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Rehearing Denied March 23, 1982.

      Robert H. Burns, Miami Beach, and Donald Mates, Hollywood, John A. Murray, Miami, for appellants.
    Wolfson & Diamond and J. William Kirkland, Miami Beach, for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Because appellant Pacheco was a potential purchaser and not a unit owner, and this is not an action between unit owners and/or their condominium association for breach of statutory or contractual provisions governing such associations, we reverse the attorney’s fee award on behalf of Lincoln Palace. § 718.303(1), Fla.Stat. See Saul v. Basse, 399 So.2d 130 (Fla. 2d DCA 1981); The Fountains of Palm Beach Condominium, Inc. v. Farkas, 355 So.2d 163 (Fla. 4th DCA 1978).

The remainder of the summary final judgment is affirmed on the ground that the association properly refused to approve Pacheco’s application based upon the restrictive covenant of the condominium bylaws prohibiting children under the age of twelve. White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979).

Affirmed in part; reversed in part.


text:
    Regina H. SAVERN, Appellant, v. STEINBERG, SOROTA & WOHL, P. A. and Department of Labor and Employment Security, State of Florida, Unemployment Appeals Commission, Appellees.
    No. 81-1454.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Rehearing Denied March 23, 1982.
    Regina H. Savern, in pro. per.
    James R. Parks and Noreen S. Davis, Tallahassee, for appellees.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We affirm the order of the Unemployment Appeals Commission affirming the Appeals Referee and disqualifying appellant from receiving unemployment compensation benefits. The order is supported by competent substantial evidence that appellant left her employment without good cause attributable to her employer. § 443.-06(1), Fla.Stat. (1979).


text:
    Allen FORBES and A. D. Griffen, Sr., Appellants, v. Joseph STEFAN, Appellee.
    No. 81-1617.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Rehearing Denied March 15, 1982.
    Sam Cooper Hill, Fort Lauderdale, for appellants.
    Anderson & Moss, Daniels & Hicks and Patrice A. Talisman, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

Appellants failed to sustain their burden of proof to establish that venue of the action brought against them on an unsecured promissory note was improper, Davis v. Dempsey, 343 So.2d 950 (Fla. 3d DCA 1977); failed to demonstrate the existence of genuine issues of material fact, Reflex N. V. v. UMET Trust, 336 So.2d 473 (Fla. 3d DCA 1976); and failed to show gross abuse of discretion by the trial court in denying a continuance, Edwards v. Pratt, 335 So.2d 597 (Fla. 3d DCA 1976).

Affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    Buford Lee JENRETTE, Petitioner, v. Louie L. WAINWRIGHT, as Secretary, Department of Corrections, State of Florida, Respondent.
    No. 81-2149.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Rehearing Denied March 15, 1982.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for respondent.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

On January 27, 1982, this court, after hearing argument on the petition for writ of habeas corpus and the State’s response, granted the writ and directed the respondent to release forthwith the petitioner from custody. We now set forth the reasons for our action.

Jenrette was incarcerated at the Dade Correctional Institute in the custody of the respondent. He claimed that as of October 5,1981, he was being unlawfully held under an order of the Florida Parole and Probation Commission, which established Jen-rette’s presumptive parole release date as May 5, 1983.

Jenrette claimed that the Commission unlawfully increased his salient factor score, which, in turn, changed the matrix time range for his offense category from 18 to 39 months to 58 to 79 months. Had his salient factor score not been increased, Jen-rette would have been entitled to be released at the end of 39 months, or in October 1981, not, as the Commission decided, in 58 months, or May 1983.

The increase of the salient factor score was first explained by the Commission in its order entered on Jenrette’s request for review:

“... The Commission on May 27, 1981, did not agree with the recommendation of the Hearing Examiners and changed the salient factor score from 0 to 2 based on a conviction in Atlanta, Georgia on August 25,1951 for Simple Larceny and a sentence of 12 months.
“... The conviction and sentence at age 16 gives the inmate a new salient factor score of two, however, it does alter his matrix time range. The Ancient History Rule does not apply in this area according to Florida Administrative Rule 23-19.04. “The appeal is denied, and the presumptive parole release date remains the same. You were set at the bottom of the matrix range of 58 to 79 months with a presumptive parole release date of May 5, 1983.”

This decision in hand, Jenrette petitioned this court for a writ of habeas corpus. The petition was accompanied by Jenrette’s affidavit, which stated that in August 1951, when, at age 16, he was convicted in Georgia, he was financially unable to employ counsel to represent him; he was not advised of his right to, or provided with, appointed counsel; and he was convicted and sentenced to twelve months in prison without the assistance of counsel.

At oral argument, the respondent, for the first time, conceded that the facts set forth in Jenrette’s affidavit should be accepted as true. We would have done this even in the absence of this late and begrudging concession. Section 79.01, Florida Statutes (1981), expressly provides that a habeas petitioner may meet his initial burden of proof, see, e.g., Coleman v. State ex rel. Race, 118 Fla. 201, 159 So. 504, 505 (1935), by affidavit:

“When any person detained in custody, whether charged with a criminal offense or not, applies ... for a writ of habeas corpus and shows by affidavit or evidence probable cause to believe that he is detained without lawful authority, the court ... shall grant the writ forthwith .. . returnable immediately.”

Wood v. Cochran, 118 So.2d 193, 194 (Fla.1980); see also Scott v. Estelle, 567 F.2d 632, 633 (5th Cir. 1978).

Jenrette having satisfied his burden, and this court having issued its preliminary writ, it was incumbent upon respondent to controvert the averred facts. The respondent’s failure to even allege, much less prove, that the conviction at issue was valid required us to accept Jenrette’s affidavit as true. Vellucci v. Cochran, 138 So.2d 510, 511 (Fla.1962); State ex rel. Libtz v. Coleman, 149 Fla. 29, 5 So.2d 60 (1941); Moon v. Smith, 138 Fla. 410, 189 So. 835, 837-38 (1939).

It is therefore an established fact that Jenrette’s 1951 Georgia conviction was obtained without the. assistance or offer of counsel despite his insolvency. That conviction, which resulted in a twelve-month commitment, is accordingly invalid under the Sixth and Fourteenth Amendments. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Even as a prior uncounseled conviction cannot be used to penalize an accused in a subsequent prosecution or sentencing, Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980); Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), a prior uncounseled conviction cannot be used in determining eligibility for parole. Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974). As the court stated in Moore:

“[W]hile there is no absolute right to parole, there is a right to a proper consideration for parole. And this should be free from the consequences of a conviction not meeting the standards of Gideon v. Wainwright, [supra]. The Parole Commission is required, as any other body, to comply with constitutional requirements; it cannot deny parole upon illegal grounds or upon improper considerations .. .. ” Id. at 720.

A “commitment” to prison based upon an unlawful conviction is quite clearly as unlawful as the judgment which supports it. With Jenrette’s prior conviction or commitment eliminated from consideration, as Moore requires, his proper salient factor score is zero, and the matrix time range which applies is 18 to 39 months, not 58 to 79 months.

Finally, we address respondent’s assertion that even if the 1951 conviction of petitioner is invalid, “the Commission should be given the opportunity to recalculate the Petitioner’s presumptive parole release date,” and to reinstate the aggravating factors found by the hearing examiners, but not relied upon by the Commission. Relying upon Section 947.16(4), Florida Statutes (1979), respondent asserted that “[i]f the Commission is unable to utilize the 1951 conviction to extend the Petitioner’s presumptive parole release date, it may well decide to follow the recommendation of the hearing examiner and impose as an aggravating factor the concurrent sentences received by the Petitioner.”

The Commission might well have decided to do what respondent suggests; however, Florida law forbids it. First, the very provision relied upon by respondent, Section 947.16(4), specifically states that the Commission may from time to time review the parole date established for an inmate, but that “the presumptive parole release date shall not be changed except for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview.” In the present case, the parole examiner recommended a nine-month aggravation of the presumptive parole release date based upon a concurrent sentence imposed upon petitioner. This recommendation was specifically rejected by the Commission. It is self-evident that the existence of the concurrent sentence is not new or previously unavailable information upon which the Commission could rely under Section 947.16(4).

Moreover, the decision in McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981), with which we agree, bars recomputation of the presumptive parole release date in the manner suggested by respondent. In McKahn, the petitioner asserted that the Commission had improperly characterized the offense for which he had been convicted in determining the appropriate matrix range. The First District Court of Appeal issued an order to show cause and thereafter ordered the Commission to reduce the matrix range appropriately and to recalculate the presumptive parole release date. After receiving this order, the Commission informed the court that it had previously reduced the matrix range, but had added an additional aggravating factor not previously found “and reached the same presumptive parole release date as previously entered.” McKahn v. Florida Parole and Probation Commission, supra, at 477-78. The court held this coincidental revision unlawful:

“Under the circumstances, the Commission was vested with no discretion to change the offense characteristic, or the salient factor score, or to add an additional aggravating factor in its determination of a parole date. Section 947.172(3) unambiguously states that a presumptive parole release date ‘shall become binding on the commission when agreement on a . .. date is reached.’ The only explicitly stated exceptions to the binding effect of the date are ‘for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview.’ Section 947.16(4). Additionally, we are of the opinion that Section 947.16(4) should be considered in pari materia with Section 947.173(3), permitting the Commission to modify a parole release date ‘for good cause in exceptional circumstances.’ The record fails to show the applicability of any exceptional circumstance. What the Commission has sought to do here is to circumvent the effect of the statute precluding the changing of a presumptive parole release date — without showing the existence of any statutory exceptions, or offering any exceptional circumstances for the modification — by manipulating the criteria upon which parole decisions are made, thereby reaching the same date previously established. This it cannot do.” Id. at 478.

The ruling in McKahn that the Commission had no authority to “add an aggravating factor after it had previously entered its order fixing a presumptive parole release date,” 399 So.2d at 478, is dispositive of the respondent’s request for remand to the Commission.

For the foregoing reasons, we have granted the writ of habeas corpus.

      . Habeas corpus is a proper method of challenging the legality of imprisonment claimed to have been rendered invalid by later events, see, e.g., Sneed v. Mayo, 66 So.2d 865 (Fla.1953); Johnson v. Lindsey, 89 Fla. 143, 103 So. 419 (1925), and the proper method of challenging the validity of a presumptive parole release date when the prisoner claims his entitlement to immediate release. See Smith v. Crockett, 383 So.2d 1166 (Fla. 3d DCA 1980); compare Roberson v. Florida Parole and Probation Commission, 407 So.2d 1044 (Fla. 3d DCA 1982).

      . The presumptive parole release date is fixed under Chapter 23-19 of the Florida Administrative Code. First, a “salient factor score” is computed under Florida Administrative Code Rule 23-19.04; this score is based upon number values which are assigned to various categories (e.g., prior convictions, the length of time previously served in prison, prior parole revocations, etc.) relevant to the inmate. Second, the offense of conviction is located on a scale promulgated by the Commission under Rule 23-19.01, the offense ranging from “Low (Least Serious)” to “Greatest (Most Serious-IV).” Specific ranges of months to be served for each crime are established in the matrix, with the number of months included in each range dependent upon the salient factor score. Third, a specific term within the appropriate range is fixed. This term can be aggravated beyond the maximum number of months or mitigated below the minimum number of months based upon appropriate factors. See Fla.Admin.Code Rule 23-19.03; Battis v. Florida Parole and Probation Commission, 386 So.2d 295 (Fla. 1st DCA 1980).

      . The State moved to dismiss Jenrette’s petition for writ of habeas corpus on the ground that Jenrette failed to exhaust his administrative remedies by seeking review of the Commission’s ruling under' Section 120.54(5), Florida Statutes, or Section 120.56, Florida Statutes. See Comer v. Florida Parole and Probation Commission, 388 So.2d 1341 (Fla. 1st DCA 1980). But Jenrette did take an administrative appeal, and it was only when the Commission issued its ruling thereon that he learned that his salient factor score had been increased by the impermissible consideration of a counsel-less conviction or commitment. There is no provision in Chapter 120 for a second appeal, and we will impose no double exhaustion requirement on Jenrette.

      . The hearing examiner panel gave Jenrette a salient factor score of zero, resulting in a matrix time range of 18 to 39 months; fixed the term at the maximum of 39 months; and, finding a concurrent sentence imposed in another case an aggravating factor, added nine months to that. The presumptive parole release date was set by the hearing examiner panel as June 29, 1982.

      . Jenrette’s petition claimed that (1) the Commission’s Ancient Prior Record Rule, Rule 23-19.04(l)(h) [“If an offender has maintained a conviction free record in the community ... for a period of 10 consecutive years, convictions or commitments prior to such 10 year period should not be counted for computation of Rule 23-19.04(1), (6) ...], itself prohibited consideration of his 1951 conviction or commitment; and (2) even if the Rule did not apply, the conviction was rendered without counsel and could not constitutionally be considered. The respondent argued that the Ancient Prior Record Rule, by its very language, does not bar consideration of a commitment prior to the age of eighteen under Rule 23-19.04(4). As the petitioner pointed out, the irony of this argument is that were the conviction qua conviction considered, Jenrette’s salient factor score would be 1, with no extension of his release date, but by considering the commitment, the salient factor score is 2 and the release date extended. Our grant of habeas corpus is based on petitioner’s constitutional argument, and, therefore, we do not address the applicability of the Ancient Prior Record Rule.

      .The Attorney General has ready access to records which could have refuted Jenrette’s affidavit. See, e.g., State v. Coney, 294 So.2d 82 (Fla.1974). It was, therefore, dilatory for respondent to merely assert, and to persist in this assertion during the several months while these proceedings pended, that the affidavit of petitioner was insufficient.

      . We need not reach the question whether if the Commission were to add the once-rejected aggravating factor after the petitioner’s successful attack upon the Commission’s use of the 1951 counselless conviction, this addition would constitute vindictiveness of the sort condemned by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and violate due process.


author: HERSEY, Judge.

text:
    Harvey Davonne SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 81-667.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Rehearing Denied March 24, 1982.

      Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Harvey Davonne Smith was convicted of manslaughter by an act of culpable negligence and sentenced to a ten-year term of imprisonment.

The principal issue on appeal goes to the admissibility of certain evidence and therefore requires an examination of the facts.

On November 3, 1980, Thomas Williams and Calvin Goodwin were engaged in a fight at the side door of the Blue Heron Bar. While Williams and Goodwin were locked in physical combat on the ground, Goodwin's friend, Earl Snyder, Jr., was standing next to them. Appellant, a friend of Williams, walked out of the Blue Heron Bar where he had been shooting pool. Appellant swung the cue stick he was carrying at Snyder, striking him above the ear on the right side of the head. Snyder ultimately died from this blow.

Appellant testified that Snyder was bending over the men who were fighting. According to appellant, he saw Snyder reach under his shirt in the front. Appellant believed that Snyder was pulling out a revolver and thought he was going to shoot Williams. It was only then that appellant struck Snyder with the cue stick. No revolver was recovered from the scene.

Appellant also testified that Snyder had a reputation in the community for violence. He then told of several specific violent incidents in which Snyder had been involved. In some of those incidents Snyder reportedly used or carried a weapon. Appellant was not present during the occurrence of these incidents, rather he had learned of them from others.

On the basis that appellant’s knowledge of the prior specific acts was through hearsay, the trial court instructed the jury to disregard that testimony. The testimony as to reputation was allowed to stand.

It may be worth mention, in order to differentiate between the two evidentiary rules applied here, that evidence as to reputation is admissible by virtue of a longstanding exception to the hearsay rule, as relevant and material on the issue of the victim’s propensity for violence and the likelihood that the victim was the aggressor. Evidence of prior specific acts of violence falls into another category.

We addressed the question raised by the trial court’s ruling on this issue and traced its history in Williams v. State, 252 So.2d 243 (Fla. 4th DCA), cert. denied, 255 So.2d 682 (Fla.1971). There we concluded that:

where a proper predicate is laid by the showing of some overt act by the deceased at or about the time of the slaying that reasonably indicated a need for action by the defendant in self-defense, evidence of prior specific acts of violence by the deceased known to the defendant at the time of the slaying may be admitted for the limited purpose of proving the reasonableness of the defendant’s apprehension at the time of the slaying. Id. at 247. (Footnotes omitted.)

Such a result does not offend the hearsay rule because the testimony is offered and admitted for the limited purpose of showing the reasonableness of the defendant’s apprehension and not to show the victim’s propensity for violence or the likelihood that the victim was in fact the aggressor. Thus, it is not offered as evidence that the incidents occurred, but only that the defendant believed they occurred.

Appellant relied on defense of another as his principal defense. He testified that his knowledge of these prior acts, three of which involved a gun, led him to believe that the victim was pulling a revolver from his belt with which to shoot Thomas Williams. Under these circumstances we conclude that the testimony was erroneously excluded. As in Williams, supra, and in Banks v. State, 351 So.2d 1071 (Fla. 4th DCA) cert. denied 354 So.2d 986 (Fla.1977), we cannot say that the error was harmless.

In Williams we cautioned that such evidence might be rendered inadmissible if too remote or speculative to be material or where it is not adequately connected with the offense with which the accused is charged.

The record does not indicate whether the incidents testified to by appellant fall within one of these categories and we therefore make no determination in that regard.

Instructing the jury to disregard the testimony of appellant as to specific incidents of violence involving the victim being armed with a gun, on the basis that such testimony was hearsay, was harmful error and, accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED.

BERANEK and DELL, JJ., concur.


text:
    Judi J. BURLESON, Appellant, v. DEPARTMENT OF ADMINISTRATION, DIVISION OF PERSONNEL & Franklin R. Rush, Hearing Coordinator, & Barbara A. Greadington, Chairperson, Florida Parole and Probation Commission, Appellees.
    No. AC-123.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.

      Judi J. Burleson, pro se.
    David V. Kerns, Dept, of Administration, and Catherine L. Dickson, Florida Parole and Probation Commission, Tallahassee, for appellees.
   WIGGINTON, Judge.

Burleson appeals from a Department of Administration letter which informed her the department was “without jurisdiction” to consider her administrative appeal from an earlier action of the Parole Commission, her former employer. We agree with the appellant that the department effectively denied her an opportunity to be heard pursuant to Section 120.57, Florida Statutes (1979), and we remand.

We are asked to decide this appeal on the strength of a record composed solely of letters among the parties. From this correspondence, we have reconstructed these facts: In December, 1979, this Court affirmed a Career Service Commission order requiring that Burleson be reinstated by her employer, the Parole Commission. Florida Parole and Probation Commission v. Burleson, 377 So.2d 208 (Fla. 1st DCA 1979). On either Wednesday, August 6, or Thursday, August 7, 1980, the commission attempted to comply with the order by offering Burleson a position as á revocation specialist, and she was told to report for work on the following Monday. Burleson replied that she could not report on Monday because she needed time to notify her interim employer and make child care arrangements, and because she had already made vacation plans. Apparently Burleson asked if she could take a leave of absence to work out these problems but was told this was impermissible because of the “critical workload level” in the revocation section. She did not report for work on Monday or thereafter.

The next record evidence is an October 15 letter from the Parole Commission, telling Burleson:

If you consider your status as determined by the Career Service Commission order ... to be that of an employee, and not merely a prospective employee, you are hereby notified ... that you were absent without authorized leave for three days and are thus deemed to have abandoned your position and to have resigned from the Career Service.

The letter then notified her of the right to petition the Department of Administration for a review under Florida Administrative Code § 22A-7.10.

Burleson wrote to the Department of Administration, attaching the October 15 letter, requesting a hearing to review the commission’s action. In response, DOA informed her that it would seek personnel information from the Parole Commission and that she “will hear further from this office.”

Several weeks passed and Burleson again wrote to DOA, asking to be told “if this means a hearing is needed, or exactly what my status is.” Three weeks later her answer came in a letter informing her that based on evidence submitted by the Parole Commission, “... we are unable to find that a status of employment was created.” The DOA letter continued:

Without the existence of a status of employment, there can be no abandonment of employment. Therefore, we find there is no issue subject to be reviewed by the Department of Administration under authority of Personnel Rule 22A-7.10(2), F.A.C.
Inasmuch as the Department of Administration is without jurisdiction to review this matter, your request for review .. . is respectfully declined.

Burleson wrote back, stating she was “confused as to how your decision was reached without a review of the facts from both parties involved.” She said there were “other facts” the DOA had not yet considered, and she asked whether the previous DOA letter constituted final agency action. Replying, DOA informed her that it would conduct a hearing only if she could produce facts “contrary” to the facts as stated in the Parole Commission’s October 15 letter. Otherwise, DOA wrote, she should consider the previous letter to her as the agency’s final word on the subject.

We cannot agree with the department that it was “without jurisdiction” here. Section 22A-7.10(2)(a), Fla.Admin. Code, provides in its entirety:

An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service. An employee who separates under such circumstances shall not have the right of appeal to the Career Service Commission; however, any such employee shall have the right to petition the Department of Administration for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

The question before the agency was whether the circumstances constituted abandonment, and DOA answered in the negative without giving Burleson the benefit of § 120.57 proceedings.

The Parole Commission argues that Burleson should have accepted the department’s invitation to submit disputed facts. Without considering Burleson’s explanation that she did not receive that invitation until after she initiated this appeal, we reject the commission’s argument. The existence or nonexistence of disputed facts does not determine a party’s right to § 120.57 proceedings; this merely determines whether those proceedings will be formal or informal. Cf. § 120.57(1) with § 120.57(2).

The department did not give Burle-son a fair opportunity to present her arguments or to introduce additional, and possibly undisputed, facts. After receiving her petition, DOA told her it would investigate, then its next response was a letter informing her that it had already decided the issue. At no time was she given a fair opportunity to contest the department’s de-cisión regarding its lack of jurisdiction. DOA did not advise her of the procedure to be used in obtaining a rehearing, and its rules are silent on the subject. See “Motions for reconsideration,” Fla.Admin.Code 221-2.31. DOA erred because an agency must grant affected parties a clear point of entry to formal or informal proceedings under § 120.57. United States Service Industries-Florida v. Department of Health and Rehabilitative Services, 385 So.2d 1147 (Fla. 1st DCA 1980).

Accordingly, we remand this cause to the Department of Administration for further proceedings consistent with this opinion.

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


text:
    TECHNO INDUSTRIAL CORPORATION, Gil Lozano and Leonor Arango, Appellants, v. COOPER INDUSTRIES, INC., d/b/a Cooper Airmotive, Appellee.
    No. 81-278.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Rehearing Denied March 23, 1982.
    McCormick, Bedford & Backmeyer and Gerald L. Bedford, Leonardo P. Mendez, Miami, for appellants.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Coral Gables, for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The trial judge struck the defendants’ pleadings and entered a default judgment against them because counsel filed a second motion to dismiss eleven days, rather than an answer ten days subsequent to an agreed order which so required. This was much too harsh a sanction for the minor dereliction involved and thus constituted a plain abuse of discretion. Maqueira v. Almas, 409 So.2d 199 (Fla. 3d DC A 1982); Beaver Crane Service, Inc. v. National Surety Corp., 373 So.2d 88 (Fla. 3d DCA 1979). Accordingly, the judgment under review is

Reversed.

      . An answer was in fact filed, after the default had been entered, twelve days after the agreed order.


text:
    Russell Elliott TODD, Jr., Petitioner, v. FLORIDA PAROLE & PROBATION COMMISSION, Respondent.
    No. AD-412.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1982.
    Rehearing Denied March 24, 1982.

      Russell Elliott Todd, Jr., pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for respondent.
   PER CURIAM.

Petitioner, an inmate at Florida State Prison, became eligible for parole in January, 1981. He was given a parole release date conditioned on his waiver of extradition to Maryland. He refused to sign a waiver of extradition procedures and the parole did not become effective. Petitioner has time to serve on a sentence involving another criminal conviction in Maryland. Another offer of parole was “rescinded” in April, 1981, for the same reason.

Petitioner asserts that the Florida Parole and Probation Commission does not have authority to make waiver of his right to statutory extradition procedures a condition of parole in the manner here attempted. The extradition rights of an accused person are set forth in § 941.10, Florida Statutes (1979), a law administered by prescribed officers other than the Commission. The Commission has, however, withheld parole because petitioner has not agreed, as a condition of parole, to sign a waiver of such statutory rights.

The parole plan offered by the Commission contemplated parole to Maryland where petitioner would serve his Maryland sentence while on parole from his Florida sentence. Parole compacts with other states are governed by § 949.07, Florida Statutes (1979), which declares that “[a]ll legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto as to such persons.” (§ 949.07(3)) (e.s.). Waiver is accordingly accomplished by the statute itself, and petitioner’s refusal to accept the terms offered constituted a rejection of the Commission’s proper offer of parole.

We conclude also that the Commission committed no error by holding petitioner following his rejection of proffered parole. It has authority to withhold a grant of parole after authorizing an effective parole release date, if the parties are unable to agree on a satisfactory release plan, or to agree to the terms and conditions of parole. § 947.174(6)(b), Florida Statutes (1979). Even assuming the Commission should have included in the proposed parole plan a reference to its authority for parole to Maryland pursuant to § 949.07, petitioner presents no facts or law supporting any right to parole on terms other than those offered. Petitioner did not accept the plan offered him, and the Commission, therefore, properly withheld parole.

The petition for writ of mandamus is denied.

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

      . Petitioner also claims that the Commission has violated its rules and the decision in Demar v. Wainwright, 354 So.2d 366 (Fla.1977) (holding that the minimum due process rights afforded one in a parole revocation are required in parole rescissions also), by failing to conduct a rescission hearing once his effective parole release date had been established. See § 947.-174(6)(b), Florida Statutes (1979), and Fla.Admin.Code Rule 23-16.091 (repealed Sept. 1, 1981). This issue is not addressed because, although the Commission called its action a parole rescission, parole had not actually been granted petitioner.

      . This case is complicated by the Commission’s failure to adhere to the statutes and its own rules in that there appears to have been no formal written offer of parole, as required by § 947.19(1), Florida Statutes (1979), and Fla. Admin.Code Rule 23-21.15(6). However, petitioner apparently had knowledge that he was wanted in Maryland, although Maryland had not formally lodged a detainer against him. This is also unclear from the record, which contains only a letter from Maryland authorities requesting that a detainer remain in effect while petitioner served his Florida sentence.


author: RYDER, Judge.

text:
    Noel Francis KING, Appellant, v. STATE of Florida, Appellee.
    No. 80-2027.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 1982.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Noel Francis King asks us to hold that the trial court erred by denying his motion to suppress contraband seized pursuant to a search warrant, alleging the supporting affidavit did not specify when a confidential informant observed an illegal act which formed the basis for issuance of the warrant.

The supporting affidavit to the search warrant issued herein reads in pertinent part:

[YJour affiant’s reason for his belief is that within the last six days he met with a confidential and reliable informant who advised him that inside 118 Lake Avenue, Apt. A, Largo, Pinellas County, Florida, he observed one Diana King rolling handmade cigarettes filled with what he believed to be cannabis (marijuana). The cannabis (marijuana) was obtained from a wooden box approximately four inches deep and ten inches long. At the time of said informant’s observation he saw what he believed to be fifteen to twenty marijuana cigarettes on the kitchen table.... (emphasis supplied)

Again we are faced with an effort on the part of law enforcement to protect the identity of informants who provide information utilized in affidavits in support of search warrants. Knowing that the accused will be furnished a copy of the search warrant and its supporting affidavit and being appropriately concerned about protecting their sources’ identity, peace officers oft times attempt to be as vague as possible regarding their informant, yet meet the letter of the law in this area. In such attempts, the use of the phrase “within the last six days” or “within the last fifteen days” or similar other periods has come into vogue. The purpose being, hopefully, that the accused will not recall who did what, where and when within the stated period, thus limiting the chance that the informant’s identity will be discovered.

The courts of this state have, sometimes, upheld and have on other occasions disapproved the use of the phrase “within the” such and such period. The courts approve its use if the information provides probable cause by indicating the informant made an actual purchase or other exchange or actually observed illegal acts within a certain stated period which is not remote to the date of application for the search warrant. State v. Schwarzbauer, 342 So.2d 1085 (Fla. 2d DCA 1977); State v. Bishop, 395 So.2d 238 (Fla. 1st DCA 1981). However, where affidavits to search warrants indicate merely that the police and the informant met or conferred within a certain given period of time, without noting when the informant observed the illegal act, then the courts have disapproved search warrants generally on the theory that the affidavit fails to provide the issuing magistrate probable cause to believe the crime occurred and is continuing to occur in the premises to be searched at the time of the issuance of the search warrant. State v. Mills, 267 So.2d 44 (Fla. 2d DCA 1972); Orr v. State, 382 So.2d 860 (Fla. 1st DCA 1980).

The state argues the affidavit was sufficient, drawing our attention to Borras v. State, 229 So.2d 244 (Fla.1969), appeal dismissed, 400 U.S. 808, 91 S.Ct. 70, 27 L.Ed.2d 37 (1970), which held an affidavit sufficient which used the present tense to allege a violation which was continuing right up to the time the search warrant was issued. In support of its position, the state points out that the affidavit, sub judice, also contains a statement by affiant that, “Affiant believes that the laws of the state .. . are being violated.”

We believe Borras is distinguishable here since the affidavit therein dealt with a controlled buy of contraband and was, as stated, written in the present tense alleging a violation of our laws was continuing. Here, the tense appears to be past. Further, we here are confronted with the question of not when the informant meets the police, but when the informant actually observed the contraband which was the subject of this search. The affidavit givés us no guidance. The affidavit states only that the police officer met and received his information from his informant within the last six days of the date of the affidavit. It is silent regarding the date the illegal activity occurred.

We reembrace our position in Mills, adopt the reasoning in Orr, and hold again that an affidavit supporting a search warrant must contain the specific time or times when the informant observed the illegal activity. Therefore, the trial court having erred in denying appellant’s motion to suppress the evidence seized pursuant to the invalid search warrant, the judgment and sentence herein are REVERSED and the cause REMANDED for further proceedings consistent herewith.

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

      . Had the affidavit read that the informant observed the contraband or other illegal act within the last six days, ten days or such other time period so that the information was not stale then, as in State v. Schwarzbauer, 342 So.2d 1085 (Fla. 2d DCA 1977), the result would be different. We would have affirmed inasmuch as a sufficiently clear and definite statement had been provided and the period encompassed would not be too remote in time for a search warrant to issue.


author: DANAHY, Judge.

text:
    Victor B. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 81-220.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Victor Banks White contends that, because the revocation process was not set in motion prior to the expiration of his probationary period, the trial judge had no authority to revoke his probation. He is correct. We, therefore, vacate that part of the order of the trial judge which revoked White’s probation for the crime of resisting arrest without violence.

On December 27, 1978, the state charged White with grand theft in the second degree and resisting arrest without violence. On January 11, 1979, White pled guilty to both charges. That same day the trial judge withheld adjudication of - guilt and placed White on two years’ probation for grand theft and one year’s probation for resisting arrest. On July 24, 1980, an affidavit for violation of four conditions of probation was filed. On October 31, 1980, an amended affidavit for violation of two conditions of probation was filed. The amended affidavit alleged that White had violated one condition in September and November of 1979 and in January through September, 1980, and the other in August, 1980.

Revocation hearings were held on November 12, December 1, and December 8, 1980. At the conclusion of the hearings, the trial judge found that White had violated the terms of his probation as alleged in the amended affidavit. The judge then adjudicated White guilty of both offenses for which he had been placed on probation and sentenced him to five years’ imprisonment for grand theft and one year’s imprisonment for resisting arrest. The terms of imprisonment were to run consecutively.

A trial court lacks jurisdiction to revoke probation for violations which occur during the probationary period unless the revocation process is set in motion during the probationary period. Gardner v. State, 412 So.2d 10 (Fla.2d DCA 1981); Bouie v. State, 360 So.2d 1142 (Fla.2d DCA 1978); Carpenter v. State, 355 So.2d 492 (Fla.3d DCA 1978); §§ 948.04(2) and 948.06(2), Fla. Stat. (1977). White’s term of probation imposed on the charge of resisting arrest without violence expired on January 10, 1980. Thus, the trial judge lacked jurisdiction to revoke White’s probation for that offense because the term of probation expired before the affidavits were filed. See Polite v. State, 371 So.2d 206 (Fla.2d DCA 1979); § 775.082(4)(a), Fla.Stat. (1977).

Accordingly, we reverse and vacate that part of the trial court’s order which revoked White’s probation for the offense of resisting arrest without violence, adjudicated him guilty, and sentenced him to one year in prison.

We affirm the balance of the order, which revoked White’s probationary term for the crime of grand theft, adjudicated him guilty of that offense, and sentenced him to five years’ imprisonment. We do so because the revocation proceedings were completed during the two years’ probationary period for that felony offense.

Affirmed in part and reversed in part with directions to vacate the order of revocation of probation, adjudication of guilt and sentence for the resisting arrest offense.

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


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Vance LOEFFLER, Norman Roland DeJong, and Nanette Ritter, Appellees.
    Nos. 81-717 to 81-722 and 81-724.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellant.
    Ronald A. Dion of Entin, Schwartz, An-gert, Dion & Broudy, North Miami Beach, and Clyde M. Taylor, Jr., Tallahassee, for appellees.
   GRIMES, Judge.

This opinion focuses on the concept of standing to challenge allegedly illegal searches and arrests in the context of a state appeal from an order granting motions to suppress physical evidence and identifications.

The state charged Vance Loeffler, Norman DeJong and Nanette Ritter with possession of methaqualone. In addition, it charged appellees Loeffler and Ritter with sale of methaqualone, use of a firearm during the commission of a felony, and carrying a concealed firearm, and it charged appellee DeJong with possession of marijuana. All three moved to suppress the evidence which formed the basis for these charges as well as evidence of their identities.

At the outset of the hearing on the motions to suppress, the state asserted that appellees’ motions were insufficient because they failed to demonstrate that appellees had standing to challenge the various searches and seizures. After considerable argument from all parties on the standing issue, the court ruled that the motions were sufficient. The hearing then proceeded, and witnesses gave the following account of the incidents which led to appellees’ arrests.

Detective Tom Ward of the Pinellas County Sheriff’s Department, while working undercover, met with James Schneider in a motel room at a Holiday Inn in Clear-water to arrange for the purchase of 100,-000 quaalude (methaqualone) tablets for $170,000. After counting the money proffered by Ward, Schneider made a phone call, asking for extension 131. Schneider then informed Ward that he was going to leave but would return soon with the pills. He drove away in a Mercury which belonged to his roommate John Gregarsky.

Lieutenant James Coates of the Pinellas County Sheriff’s Department followed Schneider from the Holiday Inn south on U.S. 19 to the Continental Inn. There he observed Schneider, Robert Smith, and possibly a third person place heavy containers in the trunk of Schneider’s car. Coates noted that Schneider had parked adjacent to room 131 of the Continental Inn which was registered in Smith’s name, and he observed both Smith and Schneider go into and come out of that room. He decided that if Schneider and Smith attempted to leave the motel, he would arrest them.

Several detectives then proceeded towards room 131. On the way there, they met Schneider and Smith coming from the room and placed them under arrest. Detectives Platt and Montgomery continued on to room 131 and knocked on the door. In response to a query from inside, Platt said that he was “Jimmy.” When the door was opened about a foot, Detective Montgomery observed quaalude pills on a table. As a result, the officers identified themselves to Mr. DeJong who had opened the door. Montgomery confronted Mr. Loeffler who was in the room and searched him, discovering a loaded, operable gun. The officers then searched Ms. Ritter who was also in the room and found that she too possessed a gun in her purse.

After arresting all five suspects, the officers seized car keys from Mr. Schneider and Mr. DeJong. Detective Montgomery searched the Mercury Monarch driven by Schneider and found open boxes which appeared to contain quaalude tablets in clear plastic bags in the trunk. Montgomery also searched a 1979 Mercury Cougar rented to Mr. Loeffler, the keys to which he had taken from DeJong, and found three boxes identical to the type found in the Monarch.

Following the presentation of evidence and arguments of counsel, the court granted appellees’ motions to suppress all of the evidence found in the motel room and the two cars. The court also suppressed the identities of appellees finding that the officers’ entry into room 131 violated Florida’s “knock and announce” statute and thereby made appellees’ arrests illegal.

On appeal, the state contends that under recent court decisions on both the state and federal level, the trial court erred in not initially requiring appellees to demonstrate that they had standing to challenge the search of the motel room and the two automobiles. Appellees, arguing in support of the trial court’s position on standing, assert that Florida should retain the rule that a defendant charged with a possession offense has automatic standing to challenge the search and seizure which produced those materials on which the charge is based. In addition, they argue that section 901.19, Florida Statutes (1979), which contains Florida’s knock and announce rule also gives automatic standing to defendants who, like them, challenge an arrest made in violation of that statute. Upon consideration, we have concluded that the case must be returned to the trial court for a determination of appellees’ standing to challenge the search of the room and the cars as well as the entry into the motel room which led to their arrest.

We begin our discussion with the question of appellees’ standing to challenge the room and car searches. At the time the trial court made its ruling which in effect gave appellees automatic standing, it did not have the benefit of our decision in State v. Hutchinson, 404 So.2d 361 (Fla. 2d DCA 1981). There we held that the doctrines announced in the case of United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), did in fact control in this state. In Salvucci, the United States Supreme Court rejected the automatic standing rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and held that when a defendant charged with a possessory offense seeks to challenge the seizure of the substance which forms the basis of the charge against him, he must first show that he had a legitimate expectation of privacy in the area searched. This being the law of Florida, it is clear that the court should have required appellees to demonstrate that they had a reasonable expectation of privacy in the motel room and the two cars before it allowed them to challenge the seizure of the drugs and weapons found there. While we are not in a position to determine the issue here, we note that a question as to appellees’ reasonable expectation of privacy does exist since the motel room was registered in none of their names and there is nothing in the present record to indicate that any of them had possession or control over Mr. Schneider’s car. In addition, it is unclear as to who had control over the second car since it was apparently rented to Mr. Loeffler but its car keys were in the possession of Mr. De-Jong. These, of course, are matters which the trial court will be able to sort out on remand.

There remains appellees’ contention that section 901.19(1), Florida Statutes (1979), gave them automatic standing to challenge the police officers’ entry into the motel room and their subsequent arrest. Section 901.19(1) reads as follows:

If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

In making their argument, appellees assert that since the protections offered by section 901.19(1) are independent of constitutional protections against unreasonable searches and seizures, the limited standing rules of cases such as Salvucci and Hutchinson simply do not apply to a defendant seeking to use the statute to invalidate an arrest.

The case law which has developed around section 901.19 makes it clear that absent certain exceptions which are not here relevant, officers who wish to enter a building to effect an arrest must first knock and announce their identity and purpose. In cases where there has been a failure to comply with these requirements, the courts have declared the resulting arrests to be illegal. E.g., Benefield v. State, 160 So.2d 706 (Fla.1964). Practically all of these cases dealt with the owners or permanent occupants of the buildings, so there was never any issue over standing. Presumably because of the automatic standing rule of Jones v. United States, the question was not even raised in the occasional case where there might have been a doubt. E.g., King v. State, 371 So.2d 120 (Fla. 1st DCA 1978), cert. denied, 378 So.2d 349 (Fla.1979). Thus, there is an open question in Florida with respect to whether one must prove standing in order to claim protection under section 901.19.

It is our judgment that the same questions concerning the reasonable expectation of privacy must be considered when a defendant seeks the protection of section 901.-19(1) as when he seeks constitutional protection against illegal searches and seizures. This conviction arises from an examination of the intent behind the enactment of the statute. As the opinion in Benefield points out, the purpose of section 901.19(1) is to protect the privacy of the occupants of a building, a purpose which, of course, is similar to the purpose of the fourth amendment to the United States Constitution and article I, section 12 of the Florida Constitution. See, e.g., Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Thus, the court in Benefield stated:

Entering one’s home without legal authority and neglect to give the occupants notice have been condemned by the law and the common custom of this country and England from time immemorial. It was condemned by the yearbooks of Edward IV, before the discovery of this country by Columbus. Judge Prettyman for the Court of Appeals in Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456, 465, discussed the history and reasons for it. See also 22 Mich.L.Rev. 541, 673, 798, “Arrest Without a Warrant,” by Wilgus.
.... The law forbids the law enforcement officers of the state or the United States to enter before knocking at the door, giving his name and the purpose of his call. There is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office. This is why the law protects its entrance so rigidly. The law so interpreted is nothing more than another expression of the moral emphasis placed on liberty and the sanctity of the home in a free country.

160 So.2d at 709. Viewing the statute in this light, it becomes apparent that as its purpose parallels that of the constitutional guarantees against search and seizure, so should its protection extend no further than do those constitutional protections. Surely, for example, the legislature could not have intended to extend the protection of knock and announce to a trespasser in a building. Thus, we hold that in order for an individual to assert the protections of the knock and announce statute, that person must show that he had a legitimate expectation of' privacy in the building which the police have entered.

Just as there is a question concerning appellees’ legitimate expectation of privacy in the motel room and the automobiles, there is also a question of whether appellees had standing under section 901.-19(1) to object to the officers’ failure to knock and announce their identity and purpose. Accordingly, we reverse the orders granting the motions to suppress and remand the case to the trial court for a determination of appellees’ standing as it relates to all phases of their motions.

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

      . For a discussion of the nature of a reasonable expectation of privacy, see Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

      . If, as appellees suggested in the trial court, the searches of the hotel room and the cars were the fruit of their illegal arrest, this might arguably have given them whatever standing section 901.19(1) provides to challenge those searches independent of the basis for standing we have already discussed. However, we need not explore this further in view of our decision on the scope of standing under section 901.-19(1).

      . The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

      . The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.