author: BROOM, Justice,

text:
    MISSISSIPPI INSURANCE UNDERWRITING ASSOCIATION v. Peter J. MAENZA and Mississippi Insurance Commission.
    No. 53199.
    Supreme Court of Mississippi.
    May 12, 1982.

      Watkins & Eager, P. N. Harkins, III, Jackson, for appellant.
    Michael B. Martz, Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and DARDEN, JJ.
   BROOM, Justice,

for the Court:

Insurance premium payments (renewal of existing policies) mailed two days before expiration of the existing coverage but not received until the day after coverage allegedly expired are background to this property insurance litigation. Mississippi Insurance Underwriting Association (MIUA herein) had written the insurance coverage. The Circuit Court of the First Judicial District of Hinds County upheld the decision of the Mississippi Insurance Commission awarding coverage to the policyholder, Peter J. Maenza. We affirm.

Since 1976, the plain tiff/appellee Maenza had coverage with MIUA on his Biloxi property which received damage from Hurricane Frederic on September 11, 1979. On the premise that Maenza’s coverage lapsed because his premium payment was received one day late rather than on or before the September 10,1979, due date, MIUA rejected his claim. When MIUA received the premium payment on September 11, 1979, the hurricane was in the area and MIUA determined that the coverage could not be made effective “until the hurricane had cleared the gulf.” After MIUA denied coverage, its appeals committee upheld the denial and Maenza appealed to the Mississippi Insurance Commission. Miss.Code Ann. § 83-35-21 (1972). In reversing the appeals committee’s denial of coverage, the Commission directed MIUA to issue the desired coverage effective on the anniversary date of the policy: September 10, 1979. MIUA then appealed to the circuit court where coverage was upheld, and now MIUA appeals here.

Thomas J. Silman of Biloxi, the producing agent for Maenza, testified that he mailed the renewal applications to MIUA from the Biloxi post office on September 8, 1979. Undisputedly, the renewals were not received at the Jackson MIUA office until September 11. MIUA elected to treat the documents as applications for new coverage rather than as renewals of existing policies. On September 20, MIUA sent Silman a letter informing him that the applications could not be processed because Hurricane Frederic had been designated a hurricane as of 5:00 p. m., September 10. According to Rule III, 3(b)(5) of the MIUA Manual of Rules and Procedures, no application for new or increased coverage will be accepted when a designated hurricane is in the Gulf of Mexico. After the hurricane threat passed, five new MIUA policies were issued to Maenza with a September 14, 1979, effective date.

G. O. Leird, MIUA’s office supervisor responsible for office procedures, testified that the documents were treated as applications for new coverage because they were received on September 11 after expiration of the policy one day earlier. Leird said that when the one-year MIUA contracts expire with no notice of renewal, MIUA assumes the business has been placed in the voluntary market because MIUA loses “quite a bit of business” each year to that market. However, Leird’s further testimony was that he knew of no reason why Maenza’s policies would not have been renewed upon receipt of the applications and premium payments other than the fact that they were received when the hurricane was in the Gulf and were received one day after the stated expiration date. When specifically asked by a commissioner whether MIUA would have rewritten the policies on the Maenza property, Leird replied, “I think we would have, yes . . . [h]ad it been on time, we would have.”

Thus arises the issue: is renewal of insurance effective when application and payment are mailed by the insured, or does it become effective when received by MIUA? The Insurance Commission ruled that the renewal became effective when the application and premium payment were deposited in the mails in time to reach MIUA prior to the stated expiration date. This conclusion was reached by the Commission after laying the blame for the confusion in the case “at the door of the United States Postal Authorities.” According to the Commission, the renewal applications would have been received by MIUA on time had the postal service not delayed in handling the letters. Further ruling of the Commission was that as between the parties, the insurer (MIUA) should bear the imputed responsibility for the postal service’s negligence and delay because MIUA invited, requested, authorized and acquiesced in the use of, the mails for transporting all correspondence, applications, premium payments, notices, policies, etc., and thus adopted the postal service as its agent. Appellant MIUA urges reversal of the Commission’s decision on two grounds. First, it argues that agent Silman (Maenza’s representative) made the offer to contract and, as the offeror, Maenza should bear the consequences of any delay on the part of the post office.

Significant and applicable here is Mississippi Code Annotated § 83-35 — 15(2) (1972), which states in part, “[a]ny policy issued pursuant to the provisions of this section shall be renewed annually, upon application therefor, so long as the property meets the definition of ‘insurable property’ set forth in section 83-35-3(d).” (emphasis added). From the plain language of this statute, we find the legislature envisioned that automatic renewals would occur when applications were made therefor. This apparently was MIUA’s policy because, according to Leird, had Maenza’s application been delivered on time and the hurricane not been in the Gulf, the policies would have been automatically renewed. Such automatic renewals show that the offer for renewal is made by MIUA when it sends its notice of expiration, and is accepted by the offeree/insured when he sends in his premium payments to be automatically renewed. Thus MIUA’s first argument lacks merit.

MIUA’s second argument is that its rules require actual receipt of the premium before coverage can be effected. It cites 14 J. Appleman, Insurance Law and Practice, § 7990 (1944), which states in part that “[t]he effect of mailing a premium, as regards payment, depends wholly upon the intention of the parties. . . . [Generally payment of a premium would not be effected until actual receipt by the insurer . . . . ” Appellant MIUA contends that Mississippi Code Annotated § 83-35-15(2) (1972) and the MIUA Manual show an intention by the Association not to be bound until receipt of a premium. The portion of § 83-35-15(2) relied upon by MIUA states, “If the association determines that the property is insurable and that there is no unpaid premium due from the applicant for prior insurance on the property, the association, upon receipt of the premium or such portion thereof as is prescribed in the plan of operation, shall cause to be issued a policy of essential property insurance for a term of one (1) year.” We note that MIUA does not quote the remainder of the subsection, which states,

[a]ny policy issued pursuant to the provisions of this section shall be renewed annually, upon application therefor, so long as the property meets the definition of “insurable property” set forth in section 83-35-3(d).” (emphasis added).

Clearly the portion of the subsection cited by MIUA refers to new coverage, whereas the second sentence in the subsection refers to renewals. Language in the second sentence is that renewals are effected “upon application therefor.” Nowhere is it stated in any statute that renewals are effective only when received. Inasmuch as we are dealing with renewals in the instant ease, our opinion is that the portion of § 83-35-15 cited by MIUA is not controlling.

Likewise, MIUA quotes from Rule 11(9) of the MIUA Manual of Rules and Procedure that “[p]ayment must be received by the Association before coverage can become effective.” Again, this rule is quoted from a section concerning premiums. The MIUA Manual at Rule III, (l)(e) states the following concerning renewals, “A renewal application on form prescribed by the Association must be submitted.” Language in the renewal section speaks of renewals being effective when “submitted.” Nowhere in the section are the words “effective when received” used. MIUA contends that a further showing of intention not to be bound until premium payment is received is the language on the Notice of Expiration stating, “THE RENEWAL APPLICATION MUST BE RETURNED TO THE ASSOCIATION AT LEAST FORTY-FIVE (45) DAYS BEFORE EXPIRATION DATE SHOWN IN ORDER TO PROVIDE THE NECESSARY TIME TO PROCESS YOUR REQUEST AND PREVENT LAPSE IN COVERAGE,” and the language on the application for renewal which states, “THIS IS NOT A BINDER. NO INSURANCE HAS BEEN PLACED.” This Court notes that neither of the quoted passages states with clarity that coverage will not be effective until payment is received.

The appellee Commission urges this Court to apply the so-called postal acceptance rule, which states that where the mail is the method of transmission between the insurer and the insured, a policy will not be forfeited by failure of a remittance mailed in apt time to reach the company on or before the date when the premium falls due. 14 J. Appleman, Insurance Law and Practice, § 7990 (1944). The rule is explained by Appleman thusly:

Where the insurer invites the insured to forward a premium through the mails, the government becomes the agent of the insurer for the purpose of transmitting the premiums, but, in the absence of other circumstances, it will be presumed that the insurer intended that the premium should be mailed in time to reach the office in due course on or before the day the premium is to fall due. If the funds are mailed in apt time to reach the company on or before the premium falls due, it will constitute payment. Under those circumstances, if the premium was mailed in due time, the insurer could not forfeit the contract- merely because the remittance was delayed, and did not actually arrive until after the due date. And where a previous custom of acceptance is shown, the insurer may be concluded thereby.
Thus, where the mail had been the method of transmission between the life insurance company and a policyholder, the policy was not forfeited because of the failure of a remittance mailed in apt time to reach the company until past due. This follows also where the insurer has requested, authorized, or acquiesced in the sending of premiums by mail. Id.

The postal acceptance rule is well established and has been applied in many jurisdictions in situations similar to those in the instant case. Although upon different facts, in Stonewall Life Insurance Co. v. Cooke, 165 Miss. 619, 114 So. 217 (1932) we adopted the rule, and stated that where it is the practice and custom of the insurance company to accept premium payments by mail, the deposit of a check in the mail in time to reach the insurance company will avoid a forfeiture even though the check does not reach the company until after-wards. The Commission correctly points out that many factors show MIUA’s practice and custom was to invite insureds to forward premiums through the mails. First, Rule 11(9) of the MIUA Manual states in part that “[p]ayment may be made in person or by mail.” (emphasis added). Also, MIUA official Leird said that the most common means of transmitting applications, premiums and reports to the Jackson office was by the mails. In this regard, MIUA itself utilized the mails to deliver its notices of expiration and placed upon the face of the notice a statement of mailing: “STATEMENT OF MAILING; I certify that the original of this notice, addressed as above to the insured, and a duplicate, addressed to the agent, were today deposited in the United States mail, first class postage prepaid.” It could hardly be expected that MIUA insureds would not utilize the mails to send premiums since MIUA’s office is in Jackson and the only insureds covered by the statutory program are approximately 130-165 miles away on the coast.

At oral argument, MIUA relied upon our opinion recently handed down in Pasco Enterprises, Inc. v. Southland Insurance Agency, Inc., 408 So.2d 63 (Miss.1981). Pasco is not controlling because of its distinguishing features which contrast with the instant case. Pasco involved the party to whom payments could be made in order to reinstate insurance coverage whereas the instant case involves the mode of payment to renew coverage. In Pasco the question was whether payment of premiums to the local agent to reinstate a policy after the policy had expired will bind the insurance company when the local agent does not forward the payment. Here the issue is whether the deposit in the mail of a premium prior to the expiration date of the policy will be effective to renew the policy when the premium arrives at the insurance company’s office after the expiration date of the policy. Pasco dealt with an insured, a local agent, and an insurance company, whereas the instant case deals with an insured and a statutorily created agency. In Pasco Justice Hawkins noted that the local agent had not received any payments from the insureds before the policies had terminated, but here the policies had not terminated before payment was placed in the mail to renew the policies. In the instant case, MIUA accepted the payment forwarded through the mails and made no attempt to refund. Instead MIUA caused the coverage to have a gap of time during which Maenza’s property was damaged by Hurricane Frederic.

The context of the MIUA program, with MIUA’s main office in Jackson and its only policyholders on the coast, shows that MIUA intended the mails be used for transmitting premiums. It is unreasonable to assume that most policyholders would hand deliver their premiums by driving the distance from the coast to Jackson. Thus, inasmuch as MIUA adopted the postal service as its agent and Silman (Maenza’s insurance agent) mailed the applications two days before the due date, in apt time to reach MIUA’s office, the failure of the applications to reach MIUA until one day past due will not defeat coverage.

Two rules of construction indicate that we should uphold the Commission’s decision. First, statutes designed to regulate the insurance business should be liberally construed in furtherance of the purpose to be served, and thereby prevent or correct evils growing out of the conduct of such business. 44 C.J.S. Insurance § 60 (1945). The legislature created MIUA for the specific purpose of making insurance available to coastal residents who could not obtain insurance on the open market. MIUA’s insureds are rightly entitled to have MIUA rules liberally interpreted in their favor because MIUA is remedial in nature. Secondly, is the general rule in appeals from administrative agencies that this Court must uphold the decisions of the insurance commission absent a showing of capricious and arbitrary action. See e.g. Mississippi Insurance Commission v. Mississippi State Rating Bureau, 220 So.2d 328 (Miss.1969). We find that the Commission’s action was shown to be neither capricious nor arbitrary. After considering all of the factors above discussed, our opinion is that the circuit court’s upholding the Insurance Commission decision was without reversible error. Therefore, affirmance must be ordered here.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and DAR-DEN, JJ., concur.

      . MIUA is a creature of the Mississippi Legislature formed in 1970 to provide property insurance coverage not otherwise available to residents of the Mississippi Gulf Coast. Miss.Code Ann. § 83-35-1 et seq. (1972).


source: Caselaw Access Project

license: Public Domain

text:
    Lonnie Keith LEE v. STATE of Mississippi.
    No. 53173.
    Supreme Court of Mississippi.
    May 12, 1982.
    Wright & Heidelberg, Fielding L. Wright, James H. Heidelberg, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

Before PATTERSON, C. J., and BROOM and DARDEN, JJ.

AFFIRMED.


text:
    Elizabeth Allen MARTIN and Kimberly Michelle Allen, a Minor, by Elizabeth Allen Martin, Next Friend v. JONES COUNTY COMMUNITY HOSPITAL, Burnell Foley, Stephen L. Ernest, Mark Trest, Dale Lucia and Billy Fulcher.
    No. 53450.
    Supreme Court of Mississippi.
    May 12, 1982.
    C. Everette Boutwell, Laurel, for appellants.
    Gibbes, Graves, Mullins, Bullock & Ferris, Brooke Ferris, Laurel, for appellees.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before WALKER, P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    Charles Dane LEATHERS, Petitioner, v. Thomas J. GARDNER, III, Defendant, Tupelo Coffee Company and Aetna Casualty & Surety Company, Intervenors.
    Misc. No. 1317.
    Supreme Court of Mississippi.
    May 12, 1982.
    William S. Lawson, John L. Long, Tupelo, for appellant.
    Mitchell, Eskridge, Voge, Clayton & Beasley, Claude F. Clayton, Jr., Tupelo, Thomas, Price, Alston, Jones & Davis, Alex A. Alston, Jr., Jackson, for appellee.
   ON PETITION FOR REHEARING En Banc.

BROOM, Justice,

for the Court:

Mandamus to compel the enrollment of a Workmen’s Compensation Commission order (judgment) in favor of Charles Dane Leathers (claimant) highlights this case, wherein one of the Justices of this Court ordered Mrs. Fay Estes, the Circuit Clerk of Lee County, to enroll the Workmen’s Compensation Commission order. On appeal here argument is made that the order of this Court requiring the circuit clerk to do an act: enroll the Workmen’s Compensation Commission order, must be vacated because this Court’s order was issued without process or summons upon the circuit clerk. We deal solely with that narrow issue and do not touch upon other aspects of the case mentioned in the briefs and reflected by the papers filed here.

History of the case shows that workmen’s compensation benefits were awarded claimant Leathers on July 18, 1979, which award the Circuit Court of Lee County affirmed. Then the matter was appealed to the Supreme Court of Mississippi and we affirmed on May 28, 1980, without any written opinion. The cause was remanded for computation or calculation of benefits. Calculations were made in due course, as reflected by order of the Workmen’s Compensation Commission dated December 11, 1980, which order precisely adjudicated and stated the amounts and benefits then due claimant Leathers. Leathers sought to enroll the Workmen’s Compensation Commission order (judgment) on the Circuit Clerk’s judgment roll in Lee County, but the Circuit Clerk refused to enroll the judgment. Refusal of the clerk was based upon a letter from the carrier’s attorney that the calculation of benefits as ordered was not an en-rollable judgment — that from the calculation of benefits an appeal had been taken. Whereupon, the claimant, by petition in the Circuit Court of Lee County, unsuccessfully sought to have that court mandamus the circuit clerk to enroll the Workmen’s Compensation Commission order. After the circuit judge denied the mandamus, claimant Leathers filed a mandamus proceeding in the Supreme Court of Mississippi but did not obtain process upon the Circuit Clerk of Lee County. Nevertheless, this Court, without any such process, entered an order dated March 18, 1982, which order directed the circuit clerk to enroll the judgment.

State ex rel. Hewing v. Cox, 285 So.2d 462 (Miss.1973), dealt with the issue of process in a mandamus proceeding wherein we stated:

Obviously, the writ cannot be issued against a judge or anyone else who is not a party to the proceedings. Section 1111 [now § 11-41 — 5] provides that in a suit for mandamus the defendant is entitled to be served with a summons and it is further provided that the case shall be tried as other cases are tried.

Id. at 463.

Accordingly, the mandamus order of this Court requiring the Circuit Clerk of Lee County to enroll the order, without any process upon her, cannot be upheld. Applying the rationale of Herring, supra, we must enter an order here vacating the prior order of a Justice of this Court directing the circuit clerk to enroll the Workmen’s Compensation Commission order (judgment). True enough, the circuit judge, by his answer to the petition, entered his appearance here. Nevertheless his doing so did not authorize this Court to order the circuit clerk, an elective public official serving at the suffrage of the electorate, to perform an affirmative act when the clerk had no legal process served upon her. No authority is cited, and we know of none, to the effect that a circuit j udge can enter his own appearance and the appearance of an elective clerk so as to bind the clerk. In this connection, we note that Mississippi Code Annotated § 9-1-19 (1972) authorizing a member of the Supreme Court to order the issuance of remedial writs (including mandamus) concludes with the language “all such process or writs may be granted. . . . ” We think process is necessary unless specifically and properly waived by any real party to the litigation. The circuit clerk was such a party but in no manner is shown to have waived process. It follows that the prior order of a Justice of this Court which granted mandamus against the circuit clerk is vacated and withdrawn, and the petition for mandamus is denied.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and ROY NOBLE LEE, HAWKINS, DAN M. LEE and DARDEN, JJ., concur.

BOWLING, J, dissents.


text:
    Richard A. RANCOURT, Ernest Perry, Ella Mae Donohoe and H. L. Adams v. Hilda Little HARPER, Martin Lavelle Little and Pema Oil Co., a Louisiana Corporation.
    No. 53434.
    Supreme Court of Mississippi.
    May 19, 1982.
    Larry 0. Norris, Hattiesburg, for appellants.
    Gerald, Brand, Watters, Cox & Hemle-ben, Martha W. Gerald, M. Elise Van Hecke, Jackson, David Shoemake, Collins, for appellees.
   Appeal from Chancery Court, Covington County; J. W. Walker, Chancellor.

Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Mrs. Odis (Tavey) JAMES, Sr. (Octavia James) v. STATE of Mississippi.
    No. 53561.
    Supreme Court of Mississippi.
    May 19, 1982.
    Rex K. Jones, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

Before WALKER, P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


text:
    In the Interest of J. H.
    No. 53453.
    Supreme Court of Mississippi.
    May 19, 1982.
    J. Ronald Parrish, Laurel, for appellant.
    John Jeffries, Laurel, for appellee.
   Appeal from Youth Court, Jones County; Billy Joe Landrum, Youth Court Judge.

Before PATTERSON, C. J., and BROOM and DARDEN, JJ.

AFFIRMED.


text:
    Freddie SPARKS v. STATE of Mississippi.
    No. 53214.
    Supreme Court of Mississippi.
    May 19, 1982.
    Roy O. Parker & Assoc., Nora J. Hall, Tupelo, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Lee County; Neil Biggers, Judge.

Before WALKER, P. J., and BOWLING and HAWKINS, JJ.

AFFIRMED.


author: PER CURIAM.

text:
    Robert O. KELLEY, etc., et al. v. MORETTI-HARRAH MARBLE COMPANY, a corporation, et al.
    81-70.
    Supreme Court of Alabama.
    May 7, 1982.
    B. Greg Wood of Love, Love, Lawrence & Wood, Talladega, for appellants.
    Lyman H. Harris of Lorant, Harris & Yearout, Birmingham, for appellees.
   PER CURIAM.

Counsel for appellants attempts to distinguish this case from that of Slagle v. Parker, 370 So.2d 947 (Ala.1979), on the basis that the plaintiffs in this case, as parents and partial dependents of the decedent Robert Stephen Kelley, a minor, seek “common law” damages from his employer and co-employees for the loss of services of their deceased son, rather than recovery for. wrongful death, as in Slagle. We find that the differentiation is without legal significance, the right of action being controlled exclusively by Code 1975, §§ 25-8 — 11 and-6-5-391.

AFFIRMED.

All the Justices concur.


text:
    Harold TAYLOR, Individually and d/b/a Taylor Construction Company v. Jack JACKSON, et al.
    81-257.
    Supreme Court of Alabama.
    May 21, 1982.
    Clark E. Johnson, III, Arab, for-appellant.
    James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
   PER CURIAM.

This appeal by the Plaintiffs below challenges the trial court’s granting of Defendant Jack Jackson’s motion for summary judgment. Because the Appellants’ pleadings and counter affidavit fail to raise even the slightest hint of a factual issue with respect to the Appellees’ connection with or relationship to the transaction made the basis of Appellants’ claim, the summary judgment appealed from is due to be, and is hereby, affirmed. A.R.C.P. 56.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


text:
    Charles R. WEINSTOCK, Appellant/Cross-Appellee. v. Norma Jean WEINSTOCK, Appellee/Cross-Appellant.
    Nos. 80-2097, 80-2131.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.
    Michael B. Davis of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellant/cross-appellee.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P. A., and Edna L. Caruso, West Palm Beach, for appellee/cross-appellant.
   PER CURIAM.

AFFIRMED.

LETTS, C. J., and HERSEY and HURLEY, JJ., concur.


text:
    Michael CERIONE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1735.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Rehearing Denied June 1, 1982.
    Engel & Saxon and Max P. Engel, Fort Myers, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Albo v. State, 379 So.2d 648 (Fla.1980); State v. Gustafson, 258 So.2d 1 (Fla.1972).


text:
    James PRITCHETT, Appellant, v. The STATE of Florida, Appellee.
    No. 81-439.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Rehearing Denied June 2, 1982.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The defendant’s actions, seen through the eyes of at least five observers, of flying the aircraft so near to the ground that he pulled up to avoid palm trees and antennae; making three or four passes at an altitude of forty or fifty feet above a populated motel causing people on the ground to take cover out of concern for their safety; and stating that the aircraft experienced a mechanical failure [which statement was, independent of the proof of the commission of the crime, shown to be false by expert testimony that the aircraft was in good working order and that the crash was caused by pilot error, see Brown v. State, 391 So.2d 729 (Fla. 3d DCA 1980); Morgan v. State, 303 So.2d 393 (Fla. 2d DCA 1974) ] were sufficient to show his conduct to be of

“. . . a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.”

Filmon v. State, 336 So.2d 586, 589-90 (Fla.1976), quoting Miller v. State, 75 So.2d 312, 313—14 (Fla.1954); see Cannon v. State, 91 Fla. 214, 107 So. 360 (Fla.1926); accord, McCreary v. State, 371 So.2d 1024 (Fla.1979), and to warrant a conviction for manslaughter by culpable negligence of a passenger in the defendant’s plane.

Even if, arguendo, any evidence against the defendant should not have been admitted, but see Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Sobel, 363 So.2d 324 (Fla.1978); Freimuth v. State, 272 So.2d 473 (Fla.1972); State v. Gibson, 362 So.2d 41 (Fla. 3d DCA 1978), the admission of such evidence was harmless and did not unduly prejudice the defendant’s right to a fair trial.

Affirmed.


author: COBB, Judge.

text:
    SHADOW LAKES WOODS, INC., Appellant, v. Arnold W. SCHNEIDER, et ux., et al., Appellees.
    No. 81-637.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.
    Rehearing Denied May 13, 1982.

      Michael J. Appleton of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P.A., for appellant.
    William L. Colbert of Stenstrom, McIntosh, Julian, Colbert & Whigham, and Marcia K. Lippincott, Sanford, for appellees.
   COBB, Judge.

In this case a mandatory injunction, which was not appealed, was entered against the defendant corporation. Later, the corporation moved to dissolve the injunction on the same grounds that it had used as defensive matters at trial. No new grounds occurring subsequent to the entry of the final judgment of injunction were urged in support of the motion to dissolve. Therefore, this was an improper attempt by appellant to evade a court order and gain retrial of the issues without a timely motion for new trial or appeal. The trial court properly denied the motion.

As held by the Indiana Supreme Court in Bird v. Johnson, 234 Ind. 555, 130 N.E.2d 29, 31 (1955):

Appellees have made no showing that they were unable to comply with the original order because of conditions -occurring subsequent to the time the original order was made. Since the sufficiency of the evidence in the original action for injunction was never legally challenged by Appellees, it must be concluded that it was sufficient to indicate that at that time, Appellees were able to comply therewith. Proceedings charging contempt for failure to obey an order cannot be used as a method of reviewing the question of the sufficiency of the evidence to sustain the original action. One can only escape the consequences of his failure to obey the order of the court by showing that conditions existing subsequent to the entering of the order made it impossible for him to obey such order. No showing was made here.

AFFIRMED.

ORFINGER and COWART, JJ., concur.


text:
    EUROPEAN X-RAY DISTRIBUTORS OF AMERICA, INC., a Florida corporation, Appellant, v. SAAB-SCANIA AKTIEBOLAG, a Swedish corporation, Appellee.
    No. 81-283.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Rehearing Denied June 1, 1982.

      Hoffman & Kupfer and Martin L. Hoffman, Fort Lauderdale, for appellant.
    Walton, Lantaff, Schroeder & Carson and James Knight and George W. Chesrow, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

No error or abuse of discretion has been demonstrated with respect to the trial court’s order striking defendant’s pleadings and entering default judgment. See Pinakatt v. Mercy Hospital, Inc., 394 So.2d 441 (Fla. 3d DCA 1981); Overseas Equipment Co., Inc. v. Aceros Arquitectonicos, 374 So.2d 537 (Fla. 3d DCA 1979); Burroughs Corp. v. White Lumber Sales, Inc., 372 So.2d 122 (Fla. 4th DCA 1979). The order expressly recites, and the record conclusively reveals, that the repeated failure of defendant’s president to appear for deposition, after being so directed by the trial court, Remington Construction Co., Inc. vs. Hamilton Electric, Inc., 181 So.2d 183 (Fla. 3d DCA 1965), was a flagrant violation of discovery rules. See Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980); Ramos v. Sanchez, 375 So.2d 51 (Fla. 2d DCA 1979). Accordingly, the judgment under review is

Affirmed.


text:
    Julio VIYELLA, Silvia Viyella, Global International Underwriters, Inc., Global International Development, Inc., Global International Investments, Inc., and Royal International Underwriters, Inc., Appellants, v. Jose A. PINA, Jr., Appellee.
    No. 81-2731.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Rehearing Denied June 7, 1982.
    Gerald E. Rosser, Miami, for appellants.
    Neil J. Berman, Miami, for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We affirm the trial court order holding appellants liable upon their Indemnification Agreement. The Agreement provides that appellants indemnify appellee against “any and all manner of claims . . . matured or unmatured . . . but not limited to litigation costs and attorneys’ fees, which either or both of the said JOSE PINA and MAYRA PINA now have, ever had, or may hereafter have . . .. ” in connection with their business dealings with the named parties.

Affirmed.


text:
    Beverly M. SPECKMAN a/k/a Beverly Maureen Speckmann, Appellant, v. STATE of Florida, Appellee.
    No. 81-1112.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Rehearing Denied June 2, 1982.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Tibbs v. State, 397 So.2d 1120 (Fla.1981).

ANSTEAD, HURLEY and DELL, JJ., concur.


text:
    FLORIDA FARM BUREAU FEDERATION, a Florida corporation, Appellant, v. CHARLES R. PERRY CONSTRUCTION, INC., a Florida corporation, Argonaut Insurance Company, a California corporation, and United States Fidelity and Guaranty Company, a Maryland corporation, Appellees.
    No. AD-263.
    District Court of Appeal of Florida, First District.
    April 14, 1982.
    Rehearing Denied June 1, 1982.
    L. William Graham, of Dell, Graham, Willcox, Barber, Henderson, Monaco & Cates, P. A., Gainesville, for appellant.
    Martin J. Mickler and Robert M. Sharp, of Bullock, Sharp, Childs, Mickler & Cohen, P. A., Jacksonville; and Richard T. Jones and Charles B. Carter, Jr., of Jones & Lang-don, P. A., Gainesville, for appellees.
   PER CURIAM.

A review of the briefs and voluminous record with exhibits relating to this construction contract case reveals there to be no error in the trial court’s Order of Dismissal which is fully supported by competent and substantial evidence and is hereby affirmed.

JOANOS, THOMPSON and WIGGIN-TON, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    Vernon Lee SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1026.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Rehearing Denied June 9, 1982.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

The difference between a prosecutor’s questions to a defense witness which insinuate impeaching facts, the proof of which is nonexistent, so clearly impermissible, see Dukes v. State, 356 So.2d 873 (Fla. 4th DCA 1978); Thorpe v. State, 350 So.2d 552 (Fla. 1st DCA 1977); Marsh v. State, 202 So.2d 222 (Fla. 3d DCA 1967), and questions, such as those asked below, insinuating impeaching facts which, although said to exist, are not later proved, is one of degree only, and either interrogation, because not followed by actual impeachment, is eon-demnable. However, since Smith’s sole objection to the prosecutor’s “didn’t-you-say-to-me-in-a-pre-trial-interview” line of questioning was that the witness could not be impeached by an unrecorded oral statement not witnessed by a third party, an objection devoid of merit, see Mungin v. State, 109 Fla. 310, 147 So. 577 (1933); Stewart v. State, 42 Fla. 591, 28 So. 815 (1900); Mahone v. State, 222 So.2d 769 (Fla. 3d DCA 1969); and since, more importantly, Smith failed to later move for a mistrial, or register any complaint, when no impeaching testimony by the prosecutor was forthcoming, the error was waived.

Affirmed.

      . The prosecutor informed the court that the witness had previously told him that she was with the defendant at a movie on a Tuesday, the crime having been committed on a Wednesday. He stated that her trial testimony that she was with the defendant at a movie on Wednesday was unexpected. Under these circumstances, it cannot be said that the prosecutor could have anticipated he would be a witness in the case and that he was remiss in undertaking the prosecution. See Fla.Bar Code Prof.Resp. D.R. 5-102(A); compare Fla.Bar Code Prof.Resp. EC5-9 with EC5-10. Nor was he remiss in questioning the witness as to her prior interview statement, since, as he correctly noted, the witness might admit the prior inconsistency, obviating any need for impeachment through him. He was, however, remiss in not testifying to the witness’s statements and subjecting himself to cross-examination and in not anticipating the possibility that the witness might change her story and allowing himself to become the sole person who could contradict the witness.


text:
    Frank SAMPSON, Appellant, v. PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-244.
    District Court of Appeal of Florida, First District.
    April 21, 1982.
    Rehearing Denied June 7, 1982.
    Frank Sampson, appellant pro se.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellee.
   PER CURIAM.

The motion to reconsider is granted and the court’s order dated February 9, 1982, is hereby withdrawn. The petition for writ of mandamus has been treated as an appeal. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). The action of the Commission is affirmed.

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


text:
    The STATE of Florida, Appellant, v. Charles ASIA, Appellee.
    No. 81-1313.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 8, 1982.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Stuart H. Gitlitz, Sp. Asst. Public Defender, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Reversed on the authority of State v. Nelson, 414 So.2d 505 (Fla.1982).


text:
    Raymond ETTEL, Appellant, v. Eleanor ETTEL, Appellee.
    No. 81-1380.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 9, 1982.
    Hall & Swann and Gaston Snow & Ely Bartlett and Lee Mandell and Richard H. M. Swann, Coral Gables, for appellant.
    Arthur E. Huttoe, John H. Lipinski, Miami, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Ball v. Ball, 335 So.2d 5 (Fla.1976); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


author: SCHWARTZ, Judge.

text:
    Roger HODDER, Appellant, v. Melinda HODDER, Appellee.
    No. 81-1765.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 7, 1982.
    Monte K. Rassner and Alan C. Gold, Miami, for appellant.
    Leonardo A. Canton, Coral Gables, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

As part of a property settlement agreement, the ex-husband was obliged to pay the wife $35,000 “due and payable over a period of five (5) years from date of October 24, 1979, i.e. October 24, 1984.” The lower court rejected Mr. Hodder’s contention — reasserted on appeal — that, under this provision, he was not required to pay any part of the $35,000 before the five-year period ended on October 24, 1984. Accordingly, on July 17, 1981, judgment was entered in Ms. Hodder’s favor for $10,000. We find no basis to disagree with the trial judge’s construction of the terms of the agreement to this effect. Aetna Casualty & Surety Co. v. Warren Bros. Co., Div. of Ashland Oil, Inc., 355 So.2d 785 (Fla.1978); Clark v. Clark, 79 So.2d 426 (Fla.1955); Font v. Lazarus Homes Corp., 339 So.2d 258 (Fla. 3d DCA 1976).

Affirmed.


text:
    Cathleen D. BUSHEA, Appellant, v. Robert BUSHEA, Appellee.
    No. 81-1884.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 9, 1982.
    Silver & Silver and Ira S. Silver, Miami, for appellant.

      Goodman, Dunberg & Hoehman, P. A. and Richard G. Dunberg, Miami, for appel-lee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See e.g., Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976).


author: COWART, Judge.

text:
    BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND OF the STATE OF FLORIDA, Appellant, v. PARADISE FRUIT COMPANY, INC., a Florida corporation, Appellee.
    No. 81-1175.
    District Court of Appeal of Florida, Fifth District.
    April 28, 1982.
    Rehearing Denied May 24, 1982.
    John W. Williams, Tallahassee, for appellant.
    Charles M. Harris of Crofton, Holland, Starling, Harris & Severs, P. A., Titusville, for appellee.
   COWART, Judge.

This case involves the application of the Marketable Record Title Act (MRTA), § 712.01 et seq., Fla.Stat. (1979), to lands under unmeandered but navigable waters originally constituting sovereignty lands.

The original official federal government surveys did not meander the body of water now known as Lake Poinsett, which is a large fresh water lake through which flows the St. Johns River in Brevard County, Florida. In 1906 appellant, Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, issued a deed to thousands of acres of land, including the lands in question under Lake Poinsett, to the Florida Coastline Canal and Transportation Company. This deed did not reserve any right, title or interest of Florida or any of its officers, boards, commissions or other agencies. A connected chain of title runs from Florida Coastline to appellee, Paradise Fruit Company, Inc. From 1906 to date, taxes on this property have been levied and paid by appellee and its grantors. In 1963, the legislature adopted the Marketable Record Title Act, section 712.02, Florida Statutes (1963), which provides that any person whose chain of title extends from any title transaction recorded over thirty years has a marketable record title free and clear of all claims, with the exception of those set forth in section 712.03.

Appellee brought an action to quiet title against appellant and subsequently moved for a summary judgment which was granted. Appellant then moved for rehearing, attaching affidavits attempting to show that a genuine issue of material fact existed as to whether or not Lake Poinsett was in fact a navigable lake when Florida was admitted into the Union in 1845 and, thus, that the lake bottom was sovereignty lands. The trial court considered the affidavits as sufficient to create an issue of fact as to the navigability of Lake Poinsett and first set aside the summary judgment, but then reconsidered in view of this court’s opinion in State, Department of Natural Resources v. Contemporary Land Sales, Inc., 400 So.2d 488 (Fla. 5th DCA 1981), and reentered summary final judgment for ap-pellee.

It is immaterial whether appellant’s belated affidavits and “historical documents” attached to its motion for rehearing created a question of fact as to the navigability of Lake Poinsett in its present location when Florida was admitted to the Union because whether they were then sovereignty lands does not determine this litigation. Although Contemporary Land Sales did not reach the question as to whether the State or Contemporary owned the land still beneath the waters of Lake Louisa encompassed in Contemporary’s deed, we held that the exposed lands formerly beneath the lake continued to be sovereignty lands after they were exposed. It was the Marketable Record Title Act, and not the lowering of the water level of Lake Louisa with the resulting exposure of dry land, that perfected Contemporary’s title and, conversely, divested state ownership of it as sovereignty lands. Therefore, it likewise follows in this case that the issues are: (1) whether the public records disclosed a record title transaction purporting to create or transfer the estate claimed by appellee which was the last title transaction recorded at least thirty years prior to the time of the inquiry, and (2) whether the rights asserted by appellant were within one of the exceptions in section 712.03, Florida Statutes.

The 1906 deed from appellant to appellee’s remote grantor constitutes appel-lee’s root of title and satisfies the first issue. As to the second issue, from 1963 until it was amended effective June 15, 1978 (Ch. 78-288 § 1, Laws of Florida), section 712.03 contained no exception as to sovereignty lands. Appellant argues that the 1978 amendment, § 712.03(7), Fla.Stat. (1979), excepting state sovereignty lands beneath navigable waters from the Marketable Record Title Act, should be applied retroactively. Since MRTA is not a statute of limitations and acted to terminate all interests to which it applied when it was enacted and continuously since that time, appellee’s title was perfected in 1963 and any retroactive construction of the amendment would unconstitutionally deprive ap-pellee of rights vested in it in 1963.

Lastly, appellant impassionately urges this court to save and preserve sovereignty lands beneath navigable waters for the benefit of all of the people of the State. It was appellant, an executive agency of the State, that wrongfully executed the 1906 deed that is appellee’s “root of title” and it was the state legislature that omitted an exception in favor of sovereignty lands from the original enactment in 1963 of the Marketable Record Title Act, thereby perfecting appellee’s title. Under our constitutional separation of powers doctrine, the state judiciary has no alternative but to read the plain language of MRTA as it existed prior to the 1978 amendment to perfect private ownership of sovereignty lands in applicable cases. This was done in Modrall v. Sawyer, 297 So.2d 562 (Fla.1974) and Odom v. Deltona Corp., 341 So.2d 977 (Fla.1976), and by the trial court in this case. Therefore the final summary judgment is

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur.

      . See § 712.04, Fla.Stat. (1963).

      . Appellant also presented and argued that certain consent decrees in unrelated litigation constituted a claim in favor of the State recorded subsequent to the effective date of appellee’s root of title and, therefore, constituted an exception under section 712.03(4). However, the general reference in those documents to “all the water bottom lying within the boundaries of the following lakes: St. Johns River” is too vague to describe lands sufficiently to identify its location and boundaries if it were otherwise sufficient. See § 712.01(3), Fla.Stat. (1981).

      . This issue was not reached because Contemporary Land Sales did not cross-appeal the trial court’s decision as to those water covered lands.

      . We say “wrongfully” because in 1906 the Trustees of the Internal Improvement Fund of the State of Florida had authority only to sell swamp and overflowed lands and not sovereignty lands beneath navigable waters.

      . § 712.01(2), Fla.Stat. (1981).


text:
    Barry Wayne TOWNSEL, Appellant, v. STATE of Florida, Appellee.
    No. 81-1924.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    Rehearing Denied June 2, 1982.
    Joseph A. Varón of Varón & Stahl, P. A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Smith v. State, 365 So.2d 704 (Fla.1978).

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


author: WENTWORTH, Judge.

text:
    BLACKBURN HOME IMPROVEMENTS and Liberty Mutual Ins. Co., Appellants, v. Elude LEBEL, Appellee.
    No. AE-352.
    District Court of Appeal of Florida, First District.
    April 29, 1982.
    Rehearing Denied June 8, 1982.

      Robert W. Elton, of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellants.
    Edward H. Hurt, of Hurt & Parrish, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a'workers’ compensation order which we affirm except as to the determination that employer/carrier is responsible for payment of claimant’s attorney’s fees. Section 440.34(2)(b), Florida Statutes (1979), provides for the assessment of such a fee in cases “where the deputy commissioner issues an order finding that a carrier has acted in bad faith . . . . ” In the present case the deputy has made no express finding of “bad faith,” and the order does not otherwise indicate whether the attorney’s fee award was predicated on such a conclusion. Section 440.34(2)(a) and (c) establish other instances where an employer/carrier is responsible for a claimant’s attorney’s fee; however, the present case does not involve the application of these provisions. We therefore remand this cause for the deputy to indicate whether the attorney’s fee award was predicated upon a finding of “bad faith.”

The order appealed is affirmed in part and the cause is remanded.

ERVIN and SHIVERS, JJ., concur.


author: SHAW, Judge.

text:
    Marlene MARKS, Appellant, v. STATE of Florida and South Carolina Insurance Company and Crawford and Company, Appellees.
    No. AE-86.
    District Court of Appeal of Florida, First District.
    May 5, 1982.
    Donna L. Bergh of Walker, Buchmaster, Miller & Ketcham, P. A., Orlando, for appellant.
    Jerry V. Wilkey, Coral Gables, for appel-lees.
   SHAW, Judge.

Claimant suffered compensable accidents in February of 1978 when the employer was represented by South Carolina Insurance Company, and May of 1979 when the employer was represented by Crawford and Company, a Division of Risk Management. The deputy commissioner found an overall impairment rating of 25% to the body as a whole, which he apportioned as follows: South Carolina Insurance Company 20%, Crawford and Company 5%. He ordered South Carolina to pay claimant permanent partial disability benefits for 70 weeks at $126.00 a week, and Crawford and Company to pay permanent partial disability benefits for 17.5 weeks at the stipulated compensation rate of $130.00. South Carolina appealed the award, and the Division of Risk Management cross-appealed the use of the 350-week schedule provided in section 440.-15(3)(u)(l), Florida Statutes (1978 Supp.), as amended July 1, 1978. We reversed the award as being unsupported by medical evidence and disallowed penalties, but found no merit in the cross-appeal.

Upon remand the deputy reduced the overall physical impairment rating to 20% of the body as a whole and found South Carolina Insurance Company responsible for 52.5 weeks of permanent partial disability benefits at $126.00 per week. Crawford and Company was ordered to pay 17.5 weeks of permanent partial disability benefits at the weekly compensation rate of $130.00. The deputy later amended the latter award by changing the 17.5 weeks to 8.75 weeks. In her appeal from the amended order, the claimant takes the position that the deputy erred in departing from the 350-week schedule in computing the compensation rate. We agree. In both the original hearing and the hearing on remand, the deputy found that the claimant’s overall disability exceeded 10%, 5% of which he apportioned to the Division of Risk Management. Our rejection of the cross-appeal challenging use of the 350-week schedule is binding upon the deputy upon remand. His departure therefrom was error. See Walker v. Atlantic Coastline Railroad Co., 121 So.2d 713 (Fla. 1st DCA 1960). The amend7 ed order of the deputy commissioner is accordingly REVERSED.

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


text:
    Bobbie Lee MULLIS, d/b/a Public Safe-T Oil Service and Supply, Appellant, v. E. Glenn HENNIG and Mary Emily Hennig, and Division of Administration, State of Florida Department of Transportation, Appellees.
    No. 81-759.
    District Court of Appeal of Florida, Fifth District.
    May 12, 1982.
    Thomas C. Garwood, Jr., of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Jon M. Wilson of van den Berg, Gay & Burke, P.A., Orlando, for appellees Hennig.
    Margaret-Ray Kemper, Tallahassee, for appellee Division of Administration, State of Florida, Dept, of Transp.
   PER CURIAM.

AFFIRMED.

See Jacksonville Expressway Authority v. Henry G. DuPree Co., 108 So.2d 289 (Fla.1958); Orange State Oil Co. v. Jacksonville Expressway Authority, 110 So.2d 687 (Fla. 1st DCA 1959).

DAUKSCH, C. J., SHARP and CO-WART, JJ., concur.


text:
    Joseph David BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1056.
    District Court of Appeal of Florida, Fifth District.
    May 12, 1982.
    W. C. Airth, Jr., of Fowler, Williams & Airth, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

This is an appeal from a final determination in a criminal case following the denial of a motion to dismiss under Florida Rule of Criminal Procedure 3.190(e)(4).

Appellant, while in a department store where he had a charge account, gathered up several items of merchandise. He concealed one item (a travel kit valued at $25) on himself and removed the price tags on all of the other items except one, a pair of pajamas. He then approached a sales clerk, saying that he wished to purchase the pair of pajamas and inferring that he had previously purchased the other items (valued at $91) and was returning them to the store for credit on his account. After accomplishing this scheme, he exited the store with the concealed travel kit, was apprehended and charged with grand theft second degree (§ 812.014(2)(b), Fla.Stat. (1979)), the charging document alleging that appellant endeavored “to obtain or use merchandise, credit and U. S. currency, of a value of $100 or more.”

Appellant’s main contention is that his removal of merchandise from its original place in the store and its “return” to the possession of the store, did not constitute a theft and that, without the addition of its value ($91) to the value of the travel kit ($25), he could not be guilty of obtaining property of a value of $100 or more, as is necessary for grand theft. Appellant’s contentions present a question as to whether credit, as appellant endeavored to obtain by his artifice in this case, can constitute property which is the subject of theft. Section 812.012(3), Florida Statutes (1979), defines “property” as “anything of value,” including “intangible personal property, including rights, privileges, interests, and claims.” We answer appellant’s question in the affirmative and hold that credit on a charge account is property which may be the subject of theft under Florida’s omnibus theft statute, section 812.014, Florida Statutes (1979).

Appellant also contends that, at most, the evidence establishes two misdemeanors of petit theft rather than one felony of grand larceny. Appellant’s argument is based on his assumption that the theft of the credit occurred and was completed before the theft of the travel kit occurred and that the theft of the travel kit did not occur until he left the store without paying for it. The crime of theft encompasses not only the completed theft but also the attempt to steal. § 812.014(1), Fla.Stat. (1979). Therefore, the theft or attempted theft of multiple items, such as the credit and travel kit, at the same time and place, can constitute one theft. See Hearn v. State, 55 So.2d 559 (Fla.1955); Drakes v. State, 400 So.2d 487 (Fla. 5th DCA 1981). The determination as to whether there was one or two factual events is itself a question of fact for the jury.

AFFIRMED.

ORFINGER and SHARP, JJ., concur.


text:
    Daniel Q. ROSS, Jr., Appellant, v. KILLARNEY FIRE DEPARTMENT, Chief Robert Illyes, and the Board of Commissioners of the Killarney Fire Control District, Appellees.
    No. 81-1091.
    District Court of Appeal of Florida, Fifth District.
    May 12, 1982.
    Frank J. Bankowitz, Orlando, for appellant.
    Marcia Ramsdell, Orlando, for appellee.
   COWART, Judge.

Appellant properly sought review of a final decision of the Board of. Commissioners of the Killarney Fire Control District by filing a petition for review of the decision within thirty days of its rendition. See § 120.68(2), Fla.Stat. (1979); Fla.R.App.P. 9.110. Appellant erred, however, in filing the petition with the circuit court and not this court. Florida Rule of Appellate Procedure 9.040(b) provides that “if a proceeding is commenced in an inappropriate court, that court shall transfer the cause to an appropriate court.” The circuit court dismissed the petition, when it should have transferred it to this court. The order dismissing the petition is reversed and the clerk of the circuit court is directed to transfer the cause to this court.

REVERSED WITH DIRECTIONS.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    Joe Nathan GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1092.
    District Court of Appeal of Florida, Fifth District.
    May 12, 1982.
    James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from judgments and sentences for robbery, sexual battery and kidnapping. We find no error relating to the judgments of conviction. The trial judge did err by entering an ex parte order some days after sentencing. This order was entitled “Order Retaining Jurisdiction over Defendant for Review of Future Parole Commission Release Order Pursuant to Florida Statute 947.16.” The trial court lost the chance to properly enter this order when it was not done at the time of sentencing, as the statute requires. Knight v. State, 398 So.2d 833 (Fla. 5th DCA 1981).

The judgment and sentence are affirmed but the order retaining jurisdiction is quashed.

JUDGMENT AND SENTENCE AFFIRMED; ORDER QUASHED.

COBB and SHARP, JJ., concur.


author: PER CURIAM. MILLS, Judge,

text:
    RAMER’S FEED INC., and Florida Farm Bureau Insurance Co., Appellants, v. Benjamin Howard FLEIG, Deceased, Helen LaVicka, Mother & Dependent, Appellee.
    No. AF-331.
    District Court of Appeal of Florida, First District.
    May 12, 1982.
    Rehearing Denied June 7, 1982.

      Bernard F. Grail, Jr., of Grail, Saliba & McDonough, Vero Beach, for appellants.
    Thomas Cassidy of Stanley, Wines & Smith, P. A., Lakeland, for appellee.
   PER CURIAM.

The employer/carrier appeals an order finding that the claimant mother was a dependent of her son, who lived apart from his widowed mother and died in a compen-sable accident. There was evidence that the deceased son regularly contributed $107.00 per month to claimant and that two other children of the claimant contributed a like sum. These contributions, along with social security of approximately $200.00 per month, constituted claimant’s only income. There was also evidence that claimant, who is sixty-nine years old, suffers from a variety of illnesses and has been unable to work for a number of years. Applying the criteria of Panama City Stevedoring Co., Inc. v. Padgett, 149 Fla. 687, 6 So.2d 822 (1942) and MacDon Lumber Co. v. Stevenson, 117 So.2d 487 (Fla.1960), we see no error in the deputy’s finding of dependency.

AFFIRMED.

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

MILLS, J., dissents with opinion.

MILLS, Judge,

dissenting.

I dissent.

Mrs. LaVicka received $821 monthly support. Social security contributed $200; a son contributed $107 plus a rent-free apartment valued at $300; a daughter contributed $107; and the deceased son contributed $107. The contribution of the deceased son amounted to 13% of the mother’s support.

The deputy’s finding of dependency was not supported by competent substantial evidence. The contribution of the deceased son was not substantial, rather, it was nominal. Mrs. LaVicka testified that her standard of living had not declined since she lost the support of her deceased son.

Under the criteria of MacDon Lumber Co. v. Stevenson, 117 So.2d 487 (Fla.1960), this claim should have been dismissed because Mrs. LaVicka failed to prove that substantial contributions were made by her son that enabled her to maintain her accustomed standard of living.


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Brian JOHNSON, Appellee.
    No. 81-1564.
    District Court of Appeal of Florida, Second District.
    May 14, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.
    Allen P. Allweiss, St. Petersburg, for ap-pellee.
   BOARDMAN, Acting Chief Judge.

The state appeals an order of the trial court granting appellee Brian Johnson’s motion to suppress certain tangible evidence and statements made by appellee subsequent to his arrest. We hold that the police action in this case was proper and therefore reverse.

According to the record, Officer DiBello of the Madeira Beach Police Department was checking a Holiday Inn due to the high crime rate there when he sighted a car with two occupants parked in the parking lot. Appellee was occupying the driver’s seat of the car. Standing outside of the car was one Michael Costello, who had what appeared to be an open beer can in his hand. At the time, the city had an ordinance which prohibited the possession of an open container of alcohol in a public place. As the officer approached Costello, Costello handed the beer to one of the occupants of the car.

DiBello then approached the three and asked all of them for identification. Appel-lee tendered to the officer a false driver’s license. The officer then removed appellee from the car and arrested him for unlawful possession of a driver’s license. § 322.-212(1), Fla.Stat. (1979). He then searched the car and found a misdemeanor amount of marijuana in the unlocked glove compartment.

We hold that, prior to the detention and identification check of appellee, the officer had a well-founded suspicion of criminal activity. Furthermore, it was apparent to the officer that appellee was a participant in that activity. Thus, DiBello had grounds under section 901.151(2), Florida Statutes (1979), Florida’s “stop and frisk” law, to detain appellee and require identification from him. The arrest, which was based on probable cause, was also valid. Finally, the search incident to the arrest, which revealed the marijuana, was proper under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and Chapas v. State, 404 So.2d 1102 (Fla. 2d DCA 1981).

Accordingly, we REVERSE and REMAND this cause to the trial court for further proceedings consistent with this opinion.

RYDER and DANAHY, JJ., concur.

      . This appeal is taken pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B).


text:
    Trent COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1579.
    District Court of Appeal of Florida, Second District.
    May 14, 1982.
    Jerry Hill, Public Defender, Bartow, and Neil Polster, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the revocation of appellant’s probation is affirmed.

However, we remand this case to the trial court to correct imperfections in the judgment and sentence. The judgment and sentence recite that appellant was tried and found guilty of assault and battery. Since appellant was initially placed on probation for burglary of a conveyance, the judgment and sentence must be corrected to show that probation for burglary was revoked and that appellant entered a plea of guilty to that burglary. Chester v. State, 355 So.2d 509 (Fla. 2d DCA 1978).

Remanded for correction of the judgment and sentence; otherwise, affirmed. Appellant need not be present for this purpose.

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


text:
    Daniel PHISCO, Appellant, v. STATE of Florida, Appellee.
    No. 81-2242.
    District Court of Appeal of Florida, Second District.
    May 14, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed.

The judgment and sentence, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by section 921.161(1), Florida Statutes. Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975).

Remanded for correction of sentence; otherwise affirmed. Appellant need not be present for this purpose.

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


text:
    Frank CHESNEY, Appellant, v. NATIONAL PROPERTY MANAGEMENT and Liberty Mutual Insurance Company, Appellees.
    No. AF-437.
    District Court of Appeal of Florida, First District.
    May 14, 1982.
    E. Peter Pfaff, St. Petersburg, for appellant.
    George D. Lynn, Jr. of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Pe-tersburg, for appellees.
   PER CURIAM.

Claimant suffered an industrial injury on March 25, 1980, when a motorcycle he was riding overturned. After his release from the hospital, the claimant formally reported the accident to his supervisor in early April and was told “[TJhere’s no way it’s a compensation case.” Claimant thereafter contacted counsel, and a claim was filed with the Division of Workers’ Compensation on April 16, 1980. The employer consistently denied compensability, even when it notified the carrier on April 23 that an accident had occurred. After deposing witnesses and completing its investigation, the carrier informed the claimant on June 16, 1980, the date of the scheduled pre-hearing conference, of the carrier’s decision to accept the case as compensable. The deputy commissioner found that the claimant was not entitled to an attorney’s fee because: (1) the carrier did not deny that an injury occurred for which compensation benefits were payable; (2) there was insufficient evidence to substantiate a claim that the employer/carrier acted in bad faith in the handling of the claim. We agree with the deputy’s conclusions that the carrier did not act in bad faith in handling the claim and never denied that a compensable injury occurred. Nevertheless, a fee is due claimant’s counsel in this instance. Section 440.34(3)(c), Florida Statutes (1979), unambiguously states that a claimant shall be entitled to a reasonable attorney’s fee “where a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability.” The employer in this instance informed the claimant in no uncertain terms that his injury was' not compen-sable. This remained the position of the employer and the carrier for more than two months until the carrier accepted compensa-bility on the day of the pre-hearing conference. Under such circumstances, the claimant is entitled to an attorney’s fee despite the carrier’s subsequent acceptance of the case as compensable.

REVERSED and REMANDED for award of attorney’s fee.

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


author: ROBERT P. SMITH, Jr., Chief Judge.

text:
    Randy Lavern WALKER, Appellant, v. STATE of Florida, Appellee.
    No. AH-317.
    District Court of Appeal of Florida, First District.
    May 14, 1982.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Harry M. Hipler, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Under interrogation by the prosecutor, the law enforcement officer who gave appellant Miranda warnings improperly testified that the defendant refused to answer his questions. The timely motion for mistrial should have been granted. Clark v. State, 363 So.2d 331 (Fla.1978). The prosecutor’s subsequent cross-examination of appellant as to whether he had previously been arrested was conceded error which will be avoided on the necessary retrial. See Harmon v. State, 394 So.2d 121 (Fla. 1st DCA 1980). The court’s refusal to separately charge the jury on the nature and weight of circumstantial evidence was not error, considering the deletion of that charge from Florida Standard Jury Instructions in Criminal Cases (1981 ed.) and the Supreme Court’s explicit order approving that omission. In the Matter of the Use by-the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, - So.2d -, Nos. 57,734 and 58,799 (Fla. Apr. 16, 1981) [1981 FLW 305].

REVERSED and REMANDED for a new trial.

McCORD and BOOTH, JJ., concur.


text:
    John Douglas MADDOX, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AE-272.
    District Court of Appeal of Florida, First District.
    May 18, 1982.

      William B. Richbourg, Pensacola, for appellant.
    Jim Smith, Atty. Gen., Carolyn N. Snur-kowski, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a judgment of conviction and sentence for the unlawful sale of a controlled substance. Appellant has failed to present any point of reversible error, and we accordingly affirm the order appealed.

Among other allegations of error, appellant asserts that the trial court permitted improper testimony regarding the chemical composition of the substance which appellant was found to have sold. The evidence establishes that an undercover police officer purchased the substance from appellant, and then delivered the substance to a laboratory chemist for analysis. The chemist tested the substance and, over appellant’s objection, testified as to the results of the laboratory test. The substance was not received into evidence, despite the state’s proffer, because “chain of custody” was not established subsequent to the laboratory analysis. But since “chain of custody” was established until and including the laboratory analysis, the chemist’s testimony was not thereby inadmissible. Cf., G. E. G. v. State, 389 So.2d 325 (Fla. 5th DCA 1980).

In Johnson v. State, 249 So.2d 470 (Fla. 3d DCA 1971), the state presented expert testimony derived from an examination of tangible evidence which was thereafter lost. Noting that the Florida Rules of Criminal Procedure permit a defendant’s examination of tangible evidence, the court ruled that, insofar as the defendant was precluded from pursuing such discovery the defendant’s “right to a full and complete cross-examination” of the state’s witness was abridged. But in Johnson prior to trial the defendant had requested production of the tangible evidence in order that it might be examined and analyzed by a defense expert. The present case is unlike Johnson in that it does not appear that appellant at any time requested the production of, or indicated a desire to inspect or examine, the tangible evidence. In these circumstances the inadmissibility of the tangible evidence itself does not abridge appellant’s “right to a full and complete cross-examination” of the state’s expert, and this witness was properly allowed to testify regarding the laboratory testing of the substance.

The judgment appealed is affirmed.

ERVIN and SHIVERS, JJ., concur.

      . See Fla.R.Crim.P. 3.220(a)(l)(vi) and (xi).


text:
    J. T. JOHNSON, Appellant, v. STANFILL DRYWALL SERVICE, and Travelers Insurance Company, Appellees.
    No. AF-379.
    District Court of Appeal of Florida, First District.
    May 18, 1982.
    Thomas F. Woods of Woods, Johnston, Carlson & Sanford, Tallahassee, for appellant.
    L. Lee Williams, Jr. of Peeples, Earl, Moore & Blank, P. A., Tallahassee, for ap-pellees.
   PER CURIAM.

This workers’ compensation claimant appeals the deputy commissioner’s denial of his claim for temporary total disability benefits. There is no medical testimony that the claimant was unable to work as a result of his accident, and there is no evidence that he sought work during the period for which he seeks temporary disability benefits. This Court has repeatedly held that the requirement that a claimant test his disability in the job market is not obviated by testimony from the claimant that he finds it painful to work. Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981) and Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975). We accordingly AFFIRM.

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


text:
    CITY OF MIAMI, Appellant, v. Robert X. WRIGHT (Deceased) and Earline M. Wright, Appellees.
    No. AG-285.
    District Court of Appeal of Florida, First District.
    May 18, 1982.

      George F. Knox, Jr., City Atty. and Joseph Hackney, Jr., Asst. City Atty., Miami, for appellant.
    Sam H. Nedelman, Miami, for appellees.
   PER CURIAM.

The City of Miami urges that the Deputy Commissioner erred in awarding to the claimant attorney’s fees. We agree. Since the City of Miami admitted that the claimant, now deceased, suffered a compensable injury and paid to him certain Workers’ Compensation benefits, there is no basis for assessing attorney’s fees pursuant to Section 440.34(2)(c), Florida Statutes (1979). Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981). Dolphin Tire Co. v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981) contains no support for the claimant’s argument, for the carrier in that case denied that a compensable catastrophic injury, as defined by Section 440.15(2)(b), Florida Statutes (1979), occurred. In fact, Dolphin Tire specifically states that it should not be construed to authorize benefits where the employer/carrier does not deny that an injury occurred and the claimant is not required to prove his injury and entitlement to compensation. Id., at 37.

REVERSED.

McCORD, MILLS and SHIVERS, JJ., concur.


text:
    John A. GOMBOS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-169.
    District Court of Appeal of Florida, First District.
    May 18, 1982.
    John A. Gombos, pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

Appellee’s Motion to Dismiss as Frivolous is denied. The action of the Florida Parole and Probation Commission is affirmed.

ROBERT P. SMITH, C. J., and McCORD and BOOTH, JJ., concur.


author: SHIVERS, Judge.

text:
    Tony Charles MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. AJ-250.
    District Court of Appeal of Florida, First District.
    May 18, 1982.
    Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   SHIVERS, Judge.

Appellant was convicted of robbery and judgment and sentence was entered accordingly. On appeal, the assistant public defender has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that she is unable to present any argument for reversal of the judgment of conviction in this case. On review of the record, we find no reversible error and, therefore, affirm.

However, as the assistant public defender has pointed out to this court, the appellant, an indigent, was erroneously required by the judgment and sentence to pay $2 in court costs and $10 to the Crimes Compensation Trust Fund. Accordingly, that portion of the judgment and sentence assessing these costs is stricken. See, Cox v. State, 334 So.2d 568 (Fla.1976); Brown v. State, 400 So.2d 510 (Fla.2d DCA 1981).

McCORD and MILLS, JJ., concur.


text:
    CITY OF MIAMI, Appellant, v. The BOARD OF TRUSTEES OF the MIAMI CITY EMPLOYEES’ RETIREMENT SYSTEM, et al., Appellee.
    No. 80-2266.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    George F. Knox, Jr., City Atty. and Ronald J. Cohen, Asst. City Atty., Paul, Landy, Beiley, Harper & Metsch and Robert M. Sondak, Miami, for appellant.
    Edmond J. Gong, Kaplan, Sicking, Hes-sen, Sugarman, Rosenthal & De Castro and Richard A. Sicking, Irving Weinsoff, Pelzner, Schwedock, Finkelstein & Klaus-ner, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

The trial court’s constitutional stay writ, barring City of Miami ordinances 9168 and 9169 from taking effect, was properly issued to preserve the status quo pending resolution of a prior action in circuit court challenging a city appropriation ordinance affecting funding of the retirement system. See City of North Miami v. Engel, 109 So.2d 33 (Fla. 3d DCA 1959), cert., dism., 115 So.2d 1 (Fla.1959). Art. V, § 5(b), Fla.Const.

Affirmed.


author: NESBITT, Judge.

text:
    The STATE of Florida, Appellant, v. Eusebio DE LA ROSA, Appellee.
    No. 81-268.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.

      Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Deborah Whisnant and Alan R. Dakan, Asst. Public Defenders, for appellee.
    Before NESBITT and JORGENSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   NESBITT, Judge.

The defendant was charged, in Count I, with unlawful display of a firearm in the commission of a felony; to wit: armed robbery; and in Count II, with the commission of a robbery by the use of a firearm. The trial court accepted a somewhat unusual negotiated plea which involved the defendant unconditionally pleading guilty to Count I of the information, for which he was to receive a sentence of five years in the state penitentiary with credit for time served. As to Count II, on his plea of guilty, he was to receive a suspended sentence with the condition that in the event the withholding of sentence was reversed by a paramount court he might withdraw the plea and go to trial as to Count II.

Because Count II carried with it a minimum mandatory sentence of three years pursuant to Section 775.087(2), Florida Statutes (1979), Sowell v. State, 342 So.2d 969 (Fla.1977); State v. Sesler, 386 So.2d 293, 294 (Fla.2d DCA 1980), the entry of a suspended sentence for such an offense was patently erroneous. Consequently, the imposition of a suspended sentence as to Count II is reversed and remanded with directions to impose the appropriate sentence and without prejudice to the right of the defendant to withdraw his conditional plea within a reasonable time after the mandate has been issued.

Reversed and remanded with directions.


text:
    The STATE of Florida, Appellant, v. Eduardo V. SALAZAR, Appellee.
    No. 81-488.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    No appearance, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Reversed and remanded on authority of Ensor v. State, 403 So.2d 349 (Fla.1981).


text:
    Charles FEDERMAN, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    Nos. 81-540, 81-541, 81-542 and 81-543.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Larry V. Bishins, Levine & Green and Bruce Green, Fort Lauderdale, for appellant.
    David M. Maloney and Janice Scott, Tallahassee, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

The appellant Federman is a licensed horse trainer. He appeals from two orders of the Division of Administrative Hearings upholding the validity of rules promulgated by the Division of Pari-Mutuel Wagering and two orders of the Division itself imposing discipline upon him for violation of those rules. We affirm.

For the most part, the legal issues Feder-man raises have already been directly and recently decided against him. Solimena v. State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, 402 So.2d 1240 (Fla. 3d DCA 1981), review denied, 412 So.2d 470 (Fla.1982); Calfin v. State, Department of Business Regulation, 391 So.2d 739 (Fla. 4th DCA 1980); see also, Simmons v. Division of Pari-Mutuel Wagering, Department of Business Regulation, 407 So.2d 269 (Fla. 3d DCA 1981), aff’d, 412 So.2d 357 (Fla.1982).

In addition, however, he challenges the constitutional validity of a war-rantless search of his automobile while it was parked at the Pompano Park racetrack. The search, which was effected without his express consent, and which revealed various hypodermic needles and other contraband, was conducted pursuant to Rule 7E— 4.02(23), Florida Administrative Code. We uphold the validity both of the rule and the search on the authority of the uncannily similar case of Lanchester v. Pennsylvania State Horse Racing Commission, 16 Pa. Cmwlth. 85, 325 A.2d 648 (1974). Accord, Euster v. Pennsylvania State Horse Racing Commission, 431 F.Supp. 828 (E.D.Pa.1977) (following Lanchester). The opinion in Lanchester is so exhaustive and well-reasoned that it would serve no useful purpose to do more than to express our approval.

Finally, there is no merit to the position that any of the factual findings against the appellant are not supported by substantial, competent evidence. Section 120.68(10), Fla.Stat. (1979).

Affirmed.

      . See Major v. State, 389 So.2d 1203 (Fla. 3d DCA 1980), review denied, 408 So.2d 1095 (Fla.1981), and cases cited.

      . The rule provides:
      (23) The Florida State Racing Commission or the Steward representing the Florida State Racing Commission, investigating violations of law or the Rules of the Board, shall have the power to permit persons authorized by either of them to search the person, or enter and search the stables, rooms, vehicles and automobiles or other places within the track enclosure at which a race meeting is held, or other tracks or places where the horses eligible to race at said race meeting are kept, of all persons licensed by the Florida State Racing Commission and of all employees and agents of any race track association licensed by said Florida State Racing Commission; and of all vendors who are permitted by said race track association to sell and distribute their wares and merchandise within the race track enclosure, in order to inspect and examine the personal effects or property on such persons or kept in such automobiles, stables, rooms, vehicles, or other places as aforesaid. Each of such licensees, in accepting a license, does thereby consent to such search as aforesaid and waive and release all claims or possible actions for damages that he may have by virtue of any action taken under this rule. Each employee of a licensed race track association in accepting his employment, and each vendor who is permitted to sell and distribute his merchandise within the race track enclosure, does thereby consent to such search as aforesaid and waive and release claims or possible actions for damages as they may have by virtue of any action taken under this rule.
      Under Solimena, supra, it is clear that the Division had authority to promulgate this rule.


text:
    FIREPAK, INC., Appellant, v. WESTLAND SHOPPING PLAZA PARTNERSHIP, a Florida General Partnership, and Robert A. Peirce Construction Co., Inc., and Chicago Title Insurance Co., Appellees.
    No. 81-995.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Patton, Kanner, Segal, King & Kubit and Dennis G. King, Miami, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Robert T. Wright, Jr., Miami, For-key, Frank & Horowitz and Neil G. Frank, Fort Lauderdale, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Upon due consideration of the various contentions of the parties made in the appeal and cross-appeal, that portion of the amended final judgment which holds Robert A. Peirce Construction Co., Inc. liable to Firepak, Inc. is reversed. The amended final judgment is otherwise affirmed.

Affirmed in part; reversed in part.


text:
    Emmanuel PIERRE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1196.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Upon the authority of State v. Hegstrom, 401 So.2d 1343 (Fla.1981), we vacate the sentence imposed for possession of a firearm while engaged in a criminal offense; we affirm the conviction.

Consistent with our certification in Marshall v. State, 413 So.2d 872 (Fla. 3d DCA 1982) (on rehearing), we certify to the Supreme Court of Florida, as a matter of great public importance, the question of whether trial courts are empowered to impose separate punishments for the statutory offenses relating to the use of a firearm during the commission of a felony and the commission of that same felony by the use of a firearm.

Affirmed.


text:
    Antonio RUIZ, Appellant, v. GREAT LAKES DREDGE AND DOCK COMPANY, Appellee.
    No. 81-1452.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.

      Silverstein & Heilman, P. A. and Maynard J. Heilman, Miami, for appellant.
    Richard F. Ralph, Miami, and Brooks C. Miller, South Miami, and Jorge Pedraza, Miami, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

Antonio Ruiz was a welder who was injured while working in the maintenance yard of his employer, the Great Lakes Dredge and Dock Company. Alleging employer negligence, he sued Great Lakes for his injuries under the Jones Act, 46 U.S.C. § 688, and now appeals from a summary judgment against him which was based on the sole ground that he was not a “seaman” and thus not entitled to maintain such an action. We affirm.

The record, which consists almost entirely of the plaintiff’s own deposition, shows that his duties, including those he was performing when the accident occurred, involved working on the pontoons, pipes and other appurtenances of a dredge operated by Great Lakes. The great bulk of his work, however, took place on shore. He was assigned to work on the vessel at sea only sporadically, perhaps once or twice during a seven-day work week, and then for only a few hours at a time. While on board the dredge itself, he assisted a welder who was exclusively and permanently employed on the vessel.

In our view, the record establishes as a matter of law that Ruiz was simply a shore-based worker who was neither “assigned permanently to . . . [n]or performed a substantial part of his work on the vessel,” as required to satisfy the definitive test of one’s status as a Jones Act seaman. Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959); accord, Beard v. Shell Oil Co., 606 F.2d 515, 517 (5th Cir. 1979); Brown v. Stanwick International, Inc., 367 So.2d 241, 243 (Fla. 3d DCA 1979). This conclusion is in accordance with a number of decisions which hold, as we do, that a jury issue as to seaman status is not presented when an employee’s connection with a vessel is at best irregular and intermittent. Stokes v. B.T. Oilfield Services, Inc., 617 F.2d 1205 (5th Cir. 1980); Fazio v. Lykes Bros. Steamship Co., 567 F.2d 301 (5th Cir. 1978); Holland v. Allied Structural Steel Co., 539 F.2d 476, 484 (5th Cir. 1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1136, 51 L.Ed.2d 557 (1977) (“Evidence of ‘sporadic contacts for brief periods of time’ with waterborne vessels is insufficient to support a jury finding of seaman status.”); Owens v. Diamond M Drilling Co., 487 F.2d 74 (5th Cir. 1973); Burns v. Anchor-Wate Co., 469 F.2d 730 (5th Cir. 1972); Keener v. Transworld Drilling Co., 468 F.2d 729 (5th Cir. 1972).

Affirmed.

      . It is agreed that at least a jury question would be presented as to the status of this employee as a Jones Act seaman.

      . The statement of the standards in Offshore, which we quoted and adopted in Brown v. Stanwick International, Inc., 367 So.2d 241, 243 (Fla. 3d DCA 1979), is as follows:
      (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips, [e. s.]
      266 F.2d at 779. The employer candidly concedes both that the dredge is a vessel, Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957), and that there is evidence that Ruiz’s duties contributed to its function and purpose, see Potashnick-Badgett Dredging, Inc. v. Whitfield, 269 So.2d 36 (Fla. 4th DCA 1972), cert. denied, 272 So.2d 820 (Fla.1973). Thus, only the unmet requirement that the employee be permanently assigned or perform a substantial part of work on board is even in issue in the case.


text:
    E. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1470.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Leeman v. State, 357 So.2d 703 (Fla.1978); Jacobs v. State, 389 So.2d 1054 (Fla.3d DCA 1980).


text:
    Dionisia Maria DUARTE, Appellant, v. SOUTH CAROLINA INSURANCE CO., Appellee.
    No. 81-1921.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Bloom & Feola, P. A., Lawrence & Daniels, and Adam Lawrence, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow and Kathleen M. O’Connor, Miami, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Sec. 627.4132, Fla.Stat. (1977); Kokay v. South Carolina Ins. Co., 380 So.2d 489 (Fla. 3d DCA 1980), aff’d, 398 So.2d 1355 (Fla.1981).


text:
    Judith C. CASH, Appellant, v. Marcian Reginald CASH, Appellee.
    No. 81-1956.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Melvin A. Rubin, Miami, for appellant.
    Joseph H. Young, Coral Gables, for appel-lee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See, Phillips v. Adams, 339 So.2d 665 (Fla. 4th DCA 1976); Denton v. Denton, 147 So.2d 545 (Fla. 2d DCA 1962); Clawson v. Clawson, 125 So.2d 104 (Fla. 3d DCA 1960), cert. denied, 129 So.2d 138 (Fla.1961).


text:
    Thalia RESNICK and Martin Resnick, Appellants, v. ALEXANDER MUSS AND SONS, INC. d/b/a Sea Coast Towers East and Cherokee Ins. Co., Appellees.
    No. 81-1981.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Maguire & Friend and Michael R. Friend, Coral Gables, for appellants.
    Leland E. Stansell, Jr., Miami and Harriet Lewis, for appellees.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

The directed verdict entered in favor of the defendants at the close of the plaintiffs’ case is reversed. Whether the landlord maintained the common areas in a reasonably safe condition is a question for the jury’s resolution. Firth v. Marhoefer, 406 So.2d 521 (Fla. 4th DCA 1981); Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980).

Reversed and remanded for a new trial.


text:
    Cira M. MAURY, Appellant, v. Roberto L. MAURY, Appellee.
    No. 81-1987.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Yates & Fann and William F. Fann, Jr., Miami Shores, for appellant.
    Tew, Critchlow, Sonberg, Traum & Fried-bauer and Ursula Mancusi-Ungaro, Miami, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The Final Judgment appealed from is affirmed without prejudice to having the trial court reconsider the provision in the settlement agreement prohibiting sale of the marital home for less than its appraised value in light of changed market conditions, for which purpose jurisdiction was expressly reserved.

Affirmed.


text:
    Samuel J. HANNON, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 81-2238.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    C. J. Van Delinder, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Robert L. Krawcheck, Asst. County Atty., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1980); Grubstein v. Urban Renewal Agency of City of Tampa, 115 So.2d 745 (Fla.1959).


text:
    Stephen W. JACOBSEN, Appellant, v. Mary Anna JACOBSEN, Appellee.
    No. 81-208.
    District Court of Appeal of Florida, Fifth District.
    May 19, 1982.
    John F. Tierney, III, of Green & Fon-vielle, P. A., Tallahassee, for appellant.
    Michael E. Hamlin, Winter Park, for ap-pellee.
   PER CURIAM.

Because the record does not contain any competent evidence or testimony detailing services performed by counsel, we must reverse the award of attorney’s fees. In Re Estate of Lopez, 410 So.2d 618 (Fla. 4th DCA March 3, 1982); Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981); Nivens v. Nivens, 312 So.2d 201 (Fla. 2d DCA 1975). The balance of the judgment is affirmed.

AFFIRMED IN PART AND REVERSED IN PART.

DAUKSCH, C. J., and COBB and SHARP, JJ., concur.


author: SHARP, Judge.

text:
    Jeffrey William HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-559.
    District Court of Appeal of Florida, Fifth District.
    May 19, 1982.
    James C. Weart, of James C. Weart, P.A., Sanford, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty.. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Harris pled nolo contendere to a charge of possession of a controlled substance, and reserved his right to appeal the trial court’s denial of his motions to suppress certain evidence and to dismiss the amended information. We affirm the judgment. State v. Gieseke, 328 So.2d 16 (Fla.1976); Smith v. State, 411 So.2d 952 (Fla. 2d DCA 1982); Barfield v. State, 396 So.2d 793 (Fla. 1st DCA 1981).

Harris also appeals the legality of his sentence — -three years in prison followed by two years on probation. Harris’ “split sentence” is clearly invalid. Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). We therefore vacate the sentence and remand this cause to the trial court for resentencing. Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982); Boozer v. State, 402 So.2d 585 (Fla. 5th DCA 1981).

JUDGMENT AFFIRMED; SENTENCE VACATED AND REMANDED FOR RE-SENTENCING.

DAUKSCH, C. J., and COBB, J., concur.


text:
    Eric Antonio BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-735.
    District Court of Appeal of Florida, Fifth District.
    May 19, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Brewer v. State, 413 So.2d 1217 Case No. 81-528 (Fla. 5th DCA April 14, 1982).

ORFINGER, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    Chester REID, Appellant, v. STATE of Florida, Appellee.
    No. 81-1172.
    District Court of Appeal of Florida, Fourth District.
    May 19, 1982.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, and Chester Reid, pro se, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. This case is remanded for correction of sentence in that the indigent appellant was required to pay court costs. Such imposition was erroneous and must be stricken. Cox v. State, 334 So.2d 568 (Fla.1976); Jones v. State, 389 So.2d 1092 (Fla. 4th DCA 1980).

LETTS, C. J., and DOWNEY and WALDEN, JJ., concur.


text:
    Heidi H. BOOTHE, Appellant, v. MANATEE COUNTY, Florida, and all unknown assigns, successors in interest, trustees or parties claiming by, through, under or against Manatee County, Florida, Appellee.
    No. 81-1788.
    District Court of Appeal of Florida, Second District.
    May 19, 1982.
    George R. McLain of Harnden, McLain, Spivey & Dart, Sarasota, for appellant.
    Stanton L. Cobb of Mann & Fay, Braden-ton, for appellee.
   PER CURIAM.

Affirmed without prejudice to either party moving to amend the Final Judgment so that it will include a complete legal description of the property described in Paragraphs 1 and 2 of said judgment.

SCHEB, C. J., and OTT and SCHOON-OVER, JJ., concur.


text:
    James Harry TOBIN, Appellant, v. B. A. GREADINGTON, Chairperson, Florida Parole and Probation Commission, Appellee.
    No. AJ-37.
    District Court of Appeal of Florida, First District.
    May 21, 1982.
    James Harry Tobin, pro se.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Comm’n. Tallahassee, for appellee.
   PER CURIAM.

At the time appellant sought review of his presumptive parole release date in the circuit court, this court’s decision in Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), had not been rendered. Appellant properly filed with the circuit court a petition for writ of mandamus, pursuant to the Florida Supreme Court’s decision in Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.1974). There is no time limit on filing of petitions for extraordinary writs, the only requirement being that petitioner exhaust his administrative remedies prior to invoking the jurisdiction of the circuit court. Review of final agency action of the Florida Parole and Probation Commission was not clearly available under Rule 9.110, Fla.R.App.P., until our decision in Daniels, supra.

Therefore, we reverse and remand to the Circuit Court for the Eighth Judicial Circuit for consideration of the petition on its merits.

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