text:
    ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS and Gallagher Bassett Insurance Service, Appellants, v. Richard HANSON, Appellee.
    No. XX-232.
    District Court of Appeal of Florida, First District.
    July 10, 1981.
    James B. Cantrell, of Pitts, Eubanks & Ross, Orlando, for appellants.

      John F. Wilhelm, Orlando, for appellee.
   PEARSON, TILLMAN (Retired), Associate Judge.

In this workers’ compensation appeal, the employer/carrier seeks reversal of an order awarding the claimant 25% permanent partial disability of the body as a whole as well as 10% permanent partial disability of the left arm. The employer/carrier also contests the deputy commissioner’s sanction of penalties for all but 5% of the permanent partial disability ultimately awarded. According to the deputy, penalties were applicable in this case because the employer/carrier did not timely accept the full permanent disability rating given by claimant’s treating physician. We find that both of the employer/carrier’s arguments have merit; the deputy did not sufficiently set forth the basis of his award of permanent partial disability and the penalty sanction was improper.

When claimant fell at work injuring his back and wrist, the employer/carrier paid the necessary temporary total disability. After claimant returned to work under restrictions against heavy lifting, claimant’s treating physician sent the carrier a report stating that claimant’s back injury had resulted in 5% permanent partial disability, which the carrier began paying. Several weeks later, the physician sent a note to the carrier saying that he meant to give a 15%, not a 5%, rating of claimant’s back and that claimant’s wrist injury (not discussed in the first report) had resulted in a 10% permanent disability of the left arm. Instead of accepting either the 15% rating of the back or the 10% rating of the arm, the employer/carrier ordered an independent examination by another physician. That doctor concurred in the 15% back rating but disagreed that any permanent impairment of the wrist existed. The employer/carrier then agreed to pay an additional 10% permanent partial disability benefit for the back injury. In response to the claimant’s request for disability benefits in excess of 15%, a hearing was held in which the depositions of both physicians (claimant’s and the employer/carrier’s) were admitted into evidence. The deposition testimony reflected the same opinions as to disability rating given in their reports.

Despite the fact that the highest impairment rating given by any physician for the back injury was 15%, the deputy found that the claimant “sustained an additional 10% permanent partial disability based on the claimant’s complaints, restrictions and continued disability, even though he has returned to his old job, giving him a total of 25% permanent partial disability of the body as a whole.” The deputy does not explain in his order whether the additional 10% disability resulted from wage-earning capacity loss or anatomical impairment. Since the order fails to sufficiently identify the ultimate facts on which the award is based, we must reverse that portion of the award and remand for a more adequate explanation. See Commercial Union Assurance Co. v. Hyman, 379 So.2d 456 (Fla. 1st DCA 1980).

The employer/carrier also contends that the deputy’s assessment of penalties for its failure to “timely” accept permanent disability was in error. We agree. Section 440.20(5), Florida Statutes (1979), provides for an award of penalties for late payment of compensation absent an award. That section, which is the only arguable authority for a penalty award in this case, has been held not to apply to payments of permanent disability. Kuhl v. Kirk, 177 So.2d 399 (Fla.1965); Massey v. Haynie, 180 So.2d 331 (Fla.1965); Judicial Administrative Commission v. Marks, 394 So.2d 211 (Fla. 1st DCA 1981).

REVERSED AND REMANDED for further consideration consistent with this opinion.

MILLS and SHAW, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Edward Johnson FOREMAN, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-228.
    District Court of Appeal of Florida, First District.
    July 10, 1981.
    Ronald Dexter Trow, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Edward Johnson Foreman appeals from a judgment and sentence for burglary after a plea of nolo contendere with express reservation of the right to appeal the denial of a motion to suppress his confession. He urges that his oral statement and written confession were induced by direct or implied promises of benefit or reward. We agree and reverse.

The only testimony considered in ruling on the motion to suppress was that of the detective who arrested Foreman and questioned him at the sheriff’s office. Although Foreman identifies three verbal exchanges which he urges constituted promises of benefit or reward, we find only one of them to merit discussion. The officer’s testimony established that he not only told the defendant that based on his experience as a police officer it was his observation that it is often helpful with the court if a suspect aids in the recovery of the property, is remorseful, and helps get things cleared up, he further and more explicitly told Foreman that he had talked with the victim and if Foreman returned the property, he did not think the victim was inclined to prosecute. In fact, the officer admitted that he “probably led Mr. Foreman to believe that she was not inclined to prosecute were the property returned to her."

The standard for reviewing the voluntariness of a confession is that it “must not be extracted by any sort of threats or violence, nor obtained by direct or implied promises however siight.” Bram v. United States, 168 U.S. 532,18 S.Ct. 183, 42 L.Ed.2d 568 (1897). [Emphasis supplied] The confession must be excluded if “the attending circumstances, or the declarations of those present at the making of the confession, are calculated to delude the prisoner as to his true position, or to exert improper or undue influence over his mind.” Frazier v. State, 107 So.2d 16 (Fla.1958).

Since the question of whether the confession was voluntary is a question of fact and fact questions are usually to be resolved by the trial court, we recognize that the appropriate test for review of a finding of volun-tariness is the clear error test. Frazier, supra. In the instant case we find that the conclusions of the trial court that the confession was voluntarily made was clearly erroneous. The statement of the officer concerning the victim’s inclination not to prosecute if the property were returned clearly constitutes an implied promise calculated to induce a confession.

In Fullard v. State, 352 So.2d 1271 (Fla. 1st DCA 1977), this Court reversed a conviction where a detective who was investigating a theft told the defendant, “If I get the lawn mower back there won’t be any problem.” The statement made there is quite similar to the one in the instant case. Both at least implied that if the defendant confessed, he would not be charged.

Accordingly, the motion to suppress should have been granted. In view of the stipulation by the State at the time of the entry of the plea of nolo contendere that a ruling which reversed the trial court’s order denying the defendant’s motions to suppress would be dispositive of the case and would terminate any further prosecution of the defendant on the charges contained in the information, the judgment and sentence are reversed.

REVERSED.

ERVIN, J., and LILES, WOODIE A. and PEARSON, TILLMAN (Retired), Associate Judges, concur.


author: FERGUSON, Judge.

text:
    Valeriano SUAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1490.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.

      Mishkin & Buri and Stuart R. Mishkin, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   FERGUSON, Judge.

Valeriano Suarez appeals from a conviction and sentence entered on a plea of nolo contendere where he reserved his right to suppress evidence seized pursuant to a defective warrant. Fla.R.App.P. 9.140(b). The trial court, with the respective counsel for the state and defendant, agreed that the ruling on the motion to suppress would be dispositive of the case. The trial court denied the motion to suppress.

An affidavit for search warrant and the search warrant were prepared from standard forms. The standard warrant provides a statement that the named officer “has probable cause to believe and does believe that at the premises described as: - being in _, (city, if any) Dade County, Florida . .. one of the following crimes, as evidenced by-is occurring. ...” (The officer then selects a crime category from a list of a-f and fills in the space provided immediately after each category of crime specifically what crime is occurring or evidence indicating that the crime is occurring). The form warrant continues, “has been committed, or evidence relevant to proving said felony has been committed, is contained therein, to wit: ...” (ten blank lines are then provided, as stated in parentheses immediately below these lines, for the officer to fill in “descriptions of things to be seized”).

The officer filling out the warrant against Suarez selected crime category “e” and filled in the statement of crime as follows:

(e) the laws of the State of Florida related to narcotics or drug abuse are being violated there, to wit: METHAQUA-LONES

The space provided for description of things to be seized was left blank and the words, description of things to be seized, crossed out.

The sole issue on appeal is whether the search warrant described the items to be seized with sufficient particularity to be valid under the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution (1968). See also § 933.05 Fla.Stat. (1979); Fla.R.Crim.P. 3.190(h)(l)(3). We find that it does not.

A statement of the specific crime being committed and a statement of the objects to be seized are separate requirements. The entry of the word “methaqua-lones” after the crime category fails to state a crime; the leaving blank of the lines provided to describe the items to be seized, is a failure to describe such items at all. See People v. Bishop, 71 Ill.App.3d 52, 27 Ill.Dec. 181, 388 N.E.2d 1144 (1979).

We reject the State’s argument that we should overlook the failure to describe at all the items to be seized as a mere technical defect because the reference to “methaqualones” after the crime category was intended as reference to the items to be seized. Not only would such a holding undermine the requirements of specificity, but the testimony of the officer who prepared the search warrant indicates that the failure to specify the evidence to be seized was more than a mere technical error of putting the description on the wrong line. The testimony demonstrates that the officer failed to understand or to comply with the requirement of a specificity:

Q. Have you ever heard that the search warrant must state with specificity the places to be searched and the items to be seized?
A. (No response.)
Q. Have you every heard of that type of thing?
A. Places to be searched?
Q. And the items to be seized.
A. No, sir.
Q. You never heard of that?
A. (No response.)
Q. You never heard of that; is that correct?
A. No, sir. That’s correct.
Q. Would it be fair to say that the search warrant does not state with specificity—
A. What is to be seized?
Q. —what is to be seized?
A. Yes.
Q. It is correct, it does not state that?
A. That’s correct.

See, e. g., State v. Pezzella, 397 So.2d 1033 (Fla. 3d DCA 1981) (order did not specify evidence to be suppressed).

Although an affidavit for search warrant was prepared, it fails to cure the defective warrant in that it was neither attached to the search warrant nor incorporated in the warrant by reference. Booze v. State, 291 So.2d 262 (Fla. 2d DCA 1974), cert. denied, 297 So.2d 836 (Fla.1974), cert. denied, 419 U.S. 959, 95 S.Ct. 222, 42 L.Ed.2d 177 (1974); Bloom v. State, 283 So.2d 134 (Fla. 4th DCA 1973).

Reversed and remanded with instructions to discharge the defendant.


text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF DRIVER LICENSES, Appellant, v. Richard Milton PURDUM, Appellee.
    No. 80-1975.
    District Court of Appeal of Florida, Second District.
    July 15, 1981.

      Judson M. Chapman and Enoch J. Whitney, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

We quash the writ of certiorari granted below. In statutory certiorari proceedings pursuant to § 322.31, Florida Statutes (1979), the circuit court may not consider the sufficiency of prior traffic convictions forming the basis for revocation of driving privileges. See Wheeler v. Department of Highway Safety & Motor Vehicles, 297 So.2d 128 (Fla.2d DCA 1974).

HOBSON, Acting C. J., and RYDER and DANAHY, JJ., concur.


author: BOARDMAN, Judge.

text:
    Doris CONETTA, Appellant, v. CITY OF SARASOTA, Appellee.
    No. 80-2176.
    District Court of Appeal of Florida, Second District.
    July 15, 1981.
    Stanley Hendricks of Dent, Pflugner, Rosin & Haben, Sarasota, for appellant.
    Robert M. Fournier of Hereford, Taylor & Steves, Sarasota, for appellee.
   BOARDMAN, Judge.

Doris Conetta, petitioner in the circuit court, appeals the denial of her petition for certiorari to review a decision of the Sarasota City Commission denying her application for a special exception to build a guest house on her property. We reverse.

Appellant petitioned appellee City of Sarasota for a special exception allowing her to build a guest house on her property. Appellant also furnished the city with a letter stating that the guest house would not be rented, would be used by members of her family only, would not have any cooking facilities, would not have a separate utility meter, and would be built in accordance with all applicable city ordinances. This letter constituted a promise of compliance with each requirement of the ordinance for the issuance of a special exception.

On January 9, 1980, the city Planning Board met, heard attorney John Dent speak on behalf of appellant’s request, and heard several persons speak against the granting of the requested special exception.

A decision was deferred until the January 23, 1980, meeting, at which time counsel for appellant and two of the people who had previously spoken against the special exception appeared. In addition, letters, in opposition from several residents of the area were brought to the board’s attention.

Many of those opposed to a special exception for appellant gave no reason for their objections. One of the major reasons for objection that was stated was that appellant’s guest house would not conform to the rest of the area. This was because the structure was to be raised on stilts to twelve feet above ground level. This aspect of the design was not of appellant’s own choosing, however; it was mandated by the flood plan zoning currently in effect. Moreover, there was at least one other parcel of property in the neighborhood that contained a raised structure. The other major objection involved the concern that despite appellant’s assurances that she would not rent her guest house, she might later sell her property, and the new owner might rent the guest house. Both a member of the Planning Board and City Manager Thompson noted that the proscription against renting guest houses was difficult to enforce. However, at no time was there any question of appellant’s good faith in regard to her promise not to rent her guest house.

The board ultimately recommended denial of the special exception, and the matter came before the City Commission on April 21, 1980. The City Commission denied the special exception on the basis of the Planning Board’s recommendation. Appellant then filed a petition for certiorari with the circuit court, seeking review of the City Commission’s decision. The circuit court denied the petition, and this appeal followed timely.

It is well settled that the courts will not interfere with administrative decisions of zoning authorities unless such decisions are arbitrary, discriminatory, or unreasonable. City of Naples v. Central Plaza of Naples, Inc., 303 So.2d 423 (Fla.2d DCA 1974). However, the only criteria upon which the Planning Board or the City Commission could rely in passing upon appellant’s special exception request were those spelled out in the pertinent ordinance. North Bay Village v. Blackwell, 88 So.2d 524 (Fla.1956); City of Naples v. Central Plaza of Naples, Inc., supra. They nevertheless decided the matter on the basis of the objections of several residents, none of which objections bears on any of the relevant criteria set forth in section 43-12(8)(f), the applicable section of the city zoning code.

Appellant complied with the terms of the ordinance. This being so, the Planning Board and the City Commission then had the burden of establishing that the use she proposed would adversely affect the public interest. Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla.4th DCA 1975). The court there noted:

There is a distinction between seeking rezoning and seeking a special exception; each involves somewhat different considerations. In rezoning, the burden is upon the applicant to clearly establish such right (as hereinabove indicated). In the case of a special exception, where the applicant has otherwise complied with those conditions set forth in the zoning code, the burden is upon the zoning authority to demonstrate by competent substantial evidence that the special exception is adverse to the public interest. Yokley on Zoning, vol. 2, p. 124. A special exception is a permitted use to which the applicant is entitled unless the zoning authority determines according to the standards in the zoning ordinance that such use would adversely affect the public interest.

Id. at 480.

In the instant case, neither the Planning Board nor the City Commission met their burden. Their decision appears to be based primarily on the sentiments of other residents of Siesta Key as to whether the special exception should be granted. It amounted to no more than a popularity poll of the neighborhood.

In City of Apopka v. Orange County, 299 So.2d 657, 659-660 (Fla.4th DCA 1974), the court quoted with approval from 3 Anderson, American Law of Zoning, § 15.27 as follows:

“The objections of a large number of residents of the affected neighborhood are not a sound basis for the denial of a permit. The quasi-judicial function of a board of adjustment must be exercised on the basis of the facts adduced; numerous objections by adjoining landowners may not properly be given even a cumulative effect. While the facts disclosed by objecting neighbors should be considered, the courts have said that:
‘A mere poll of the neighboring landowners does not serve to assist the board in determining whether the exception applied, for is consistent with the public convenience or welfare or whether it will tend to devaluate the neighboring property.’ ”

The denial of the special exception was based solely on (a) its unpopularity with some Siesta Key residents and (b) the conjecture that a grantee of appellant might thereafter violate the ordinance coupled with the recognition that the proscription against renting guest houses is difficult to enforce. As to the enforcement problem, the remedy would simply be to amend the ordinance to exclude special exceptions for guest houses, as City Manager Thompson recommended to the commission at the hearing.

Lastly, the city urges that the special exception should be denied because the structure would not be compatible and in harmony with the neighborhood. This contention is without merit because under the present zoning ordinance any new buildings constructed in the area would be required to be erected twelve feet above ground level.

There being no proper basis for the City Commission’s denial of the special exception requested by appellant, we REVERSE the circuit court’s denial of appellant’s petition for writ of certiorari and REMAND with directions to grant the writ.

HOBSON, Acting C. J., and GRIMES, J., concur.


author: DANAHY, Judge.

text:
    Mark A. LAWSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-1858, 80-1859.
    District Court of Appeal of Florida, Second District.
    July 15, 1981.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

This appeal concerns the three-year minimum prison term required to be imposed upon certain felons who use firearms or destructive devices in the commission of their crimes. We reverse such a sentence in this case as improper and remand for resen-tencing.

Appellant was charged in a two count information with sexual battery and kidnapping. The defense stipulated that the state could prove a prima facie case, after which appellant pled nolo contendere to sexual battery with the threatened use of deadly force, and kidnapping. The stipulation made no mention of the use of any firearm or destructive device in the perpetration of the two crimes. Prior to sentencing, the trial judge asked the prosecutor: “This is with a weapon, is that correct, Ms. Allen, instead of a firearm?” The prosecutor responded in the affirmative. Appellant was sentenced to ten years’ imprisonment on each charge, each sentence including a three-year minimum. Appellant did not object to the sentences, but now contends in this court that the three-year minimum sentences were unlawful.

Section 775.087, Florida Statutes (1979), provides that any person who is convicted of sexual battery or kidnapping, and who had in his possession a “firearm” as defined in section 790.001(6), Florida Statutes (1979), or a “destructive device” as defined in section 790.001(4), Florida Statutes (1979), shall be sentenced to a minimum term of imprisonment of three years. A firearm is defined in section 790.001(6) to be:

“Firearm” means any weapon (including a starter gun) which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term “firearm” shall not include an antique firearm.

Section 790.001(4) defines “destructive device” as follows:

“Destructive device” means any explosive, incendiary, or poison gas bomb, grenade, mine, rocket, missile, or similar device; and includes any type of weapon which will, or is designed to, or may readily be converted to, expel a projectile by the action of any explosive and has a barrel with a bore of one-half inch or more in diameter and ammunition for such destructive devices, but not including shotgun shells or any other ammunition designed for use in a firearm other than a destructive device.

The information did not allege that appellant possessed a “firearm” or a “destructive device” during the commission of the sexual battery or kidnapping. Furthermore, the court specifically found, and the prosecution agreed, that the crimes were not committed with a “firearm.” Having made this finding, the court could not lawfully impose the three-year minimum sentences. Therefore, unless appellant waived this error by failing to object, the case must be remanded for correction of the sentence.

Ordinarily, the failure to interpose an objection in the trial court precludes the raising of an issue on appeal. Williamson v. Williamson, 335 So.2d 346 (Fla.1st DCA 1976); Security Mutual Casualty Co. v. Bleemer, 327 So.2d 885 (Fla.3d DCA 1976). The reason for this rule is that a trial judge should be afforded the opportunity to correct his mistake and thereby prevent the necessity of a new trial. Corbett v. Dade County Board of Public Instruction, 372 So.2d 971 (Fla.3d DCA 1979), cert. denied, 383 So.2d 1192 (Fla.1980). However, fundamental errors will be corrected by an appellate court even though the aggrieved party failed to object in the trial court. Aiello v. State, 390 So.2d 1205 (Fla.4th DCA 1980); Clark v. State, 336 So.2d 468 (Fla.2d DCA), aff’d, 363 So.2d 331 (Fla.1978). One of the more commonly recognized fundamental errors is the imposition of an illegal sentence. Gonzalez v. State, 392 So.2d 334 (Fla.3d DCA 1981), (and cases cited therein).

As previously noted, the three-year minimum sentences imposed in the case at bar were unlawful. Accordingly, the error was fundamental and was not waived by appellant’s failure to object. The other point raised on appeal is without merit and, therefore, the case is remanded for the sole purpose of correcting appellant’s sentence.

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

      . Appellant was also charged in a second information with escape, to which he pled guilty and was sentenced to twenty-five years’ imprisonment.
      The sexual battery count charged as follows:
      NORMAN S. CANNELLA, Assistant State Attorney of the Thirteenth Judicial Circuit in and for the County of Hillsborough, CHARGES that MARK LAWSON on the 13th day of February, 1980 in the County of Hillsborough, and State of Florida, did unlawfully and feloniously commit sexual battery upon VANESSA AUSTIN, a person over the age of eleven (11) years, without the consent of the said VANESSA AUSTIN, and in the process thereof used or threatened to use a deadly weapon or actual physical force likely to cause serious personal injury.
      Appellant was charged in count two as follows:
      NORMAN S. CANNELLA, Assistant State Attorney of the Thirteenth Judicial Circuit in and for the County of Hillsborough, CHARGES that NORMAN S. CANNELLA [sic] on the 13th day of February, 1980 in the County of Hillsborough, and State of Florida, did forcibly, secretly or by threat, abduct or imprison VANESSA AUSTIN against her will and without lawful authority, with intent to commit a felony, to-wit: Sexual Battery, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

      . See Note 1, supra.

      . We are aware that in Pinder v. State, 396 So.2d 272 (Fla.3d DCA 1981), the third district has held that insufficiency of the evidence to support the three-year minimum sentence must first be brought to the trial court’s attention. However, in the instant case, unlike Pinder v. State, the trial court in essence found that the crimes were not committed with a “firearm.” Under these circumstances, the error could only be cured by elimination of the three-year minimum sentence.


text:
    Leonard COOPERMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1568.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Steel, Hector & Davis and Sheila A. Hal-pern and Talbot D’Alemberte, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Paul Morris, William A. Clay, Robert Ro-senblatt, Miami, for Florida Criminal Defense Attorneys’ Association as amicus curiae.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Cooperman’s adjudication of indirect contempt of court for spoken words published in The Miami Herald is reversed. The remarks concerned what Cooperman perceived as an excessive sentence which was imposed upon his former client. The comments were made at a point in time when all judicial labor had been concluded. The state failed to prove that the intemperate remarks constituted an imminent and serious threat to the administration of justice. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962).

Reversed.


author: DANIEL S. PEARSON, Judge.

text:
    JENNINGS CONSTRUCTION CORPORATION and Ann Spinella, Petitioners, v. Rhea Pincus GROSSMAN, Judge of Circuit Court, Eleventh Judicial Circuit, Dade County, Respondent.
    No. 81-1289.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.

      Bartel, Shuford & Dubitsky and Bill Shu-ford, Jr., Miami, for petitioners.
    Robert A. Ginsburg, County Atty. and Roy Wood, Asst. County Atty., for respondent.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

This petition for writ of prohibition calls for more than a one-word denial.

Petitioners’ counsel have attempted to bootstrap our disqualification of the respondent in Management Corporation of America, Inc. v. Grossman, 396 So.2d 1169 (Fla. 3d DCA 1981), into a disqualification in the present case. Their petition states that we granted prohibition in Management Corporation of America “upon a finding that Judge Grossman ‘ was prejudiced against counsel’ in the law firm.” That is plainly not so. The words — “was prejudiced against” — appear in our opinion in this context:

“Our ruling is predicated on the singular fact so obviously reflected in the respondent’s ten-page order denying the motion (attached to which are twenty-two exhibits consisting of hundreds of pages), that the respondent went to great lengths to refute the charge that she was prejudiced against counsel for the petitioners. This effort by the respondent, as understandable as it may have been, makes her disqualified to further preside in the case below.” 396 So.2d 1169 (emphasis supplied).

As should be clear to any reader of that opinion, our holding in Management Corporation of America was not based on a finding that Judge Grossman was prejudiced, but rather on the impropriety of her efforts to show that she was not. Moreover, we did not there hold that the petitioners’ suggestion of disqualification was legally sufficient.

In the present case, the respondent simply entered an order denying, as insufficient, the suggestion of disqualification and made no effort to refute the charges of prejudice. Therefore, the discrete holdings of Management Corporation of America and Bundy v. Rudd, 366 So.2d 440 (Fla. 1978), upon which we solely relied in Management, are totally inapposite.

The petition for writ of prohibition is denied.


author: BARKDULL, Judge.

text:
    Regina DIFALCO, Appellant, v. INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Appellee.
    No. 80-2295.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.

      Fernandez & Olivera, Miami, for appellant.
    Jeanne Heyward, Goodhart & Rosner, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   BARKDULL, Judge.

The appellant seeks review of a final summary judgment for the appellee, Industrial Fire & Casualty Insurance Company, holding the appellee had effectively can-celled the appellant’s automobile insurance policy pursuant to Section 627.728, Florida Statutes (1977).

Industrial issued an automobile insurance policy on the appellant’s vehicle, covering it for collision damage among other things. The effective date of the policy was from September 20, 1979 to September 20, 1980. The appellant failed to pay the premium thereon and, in accordance with Section 627.728, Florida Statutes (1977), Industrial sent notices on November 14, 1979 to the appellant and to the bank cancelling coverage effective November 26, 1979. On December 21, the appellant was involved in an automobile accident, damaging her automobile. Thereafter, she defaulted on the installment contract with the bank, which filed suit for the unpaid balance of the contract. The appellant answered that suit and filed a third party action against Industrial. Industrial answered, alleging the policy was cancelled for nonpayment of premium prior to the accident and it moved for a summary judgment. The appellant, in opposition to the motion for summary judgment, alleged she never received notice of the cancellation. After hearing, the trial court entered the summary judgment appealed.

The appellant contends the trial court erred in holding there was a proper cancellation of the policy when there was no proof that she actually received notice of cancellation, relying on Allstate Insurance Company v. Crawford, 365 So.2d 408 (Fla.3d DCA 1978).

We affirm on the authority of Service Fire Insurance Co. of New York v. Markey, 83 So.2d 855 (Fla.1955); Allstate Insurance Company v. Dougherty, 197 So.2d 563 (Fla.3d DCA 1967); Burgos v. Independent Fire Insurance Company, 371 So.2d 539 (Fla.3d DCA 1979); Vega v. Lumbermans Mutual Casualty Company, 372 So.2d 542 (Fla.3d DCA 1979).

It is true that Allstate Insurance Company v. Crawford, supra, holds there must be proof of receipt of the notice of cancellation by the insured to effect cancellation, but this court has not followed that case since its inception. See: Burgos v. Independent Fire Insurance Company, supra; Vega v. Lumbermans Mutual Casualty Company, supra. Therefore, by implication, the court has receded therefrom and we hereby formally recede from that holding. It is in conflict with the Supreme Court in Service Fire Insurance Co. of New York v. Markey, supra, and in violation of the pronouncements of Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

Affirmed.


author: HENDRY, Judge. DANIEL S. PEARSON, Judge,

text:
    R. A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-516.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

A petition seeking an adjudication of delinquency was filed against appellant, charging him with intent to commit theft in violation of Section 810.02, Florida Statutes (1979). Appellant was found guilty as charged, adjudicated delinquent and committed to the Department of Health and Rehabilitative Services. We affirm.

The delinquency petition charged appellant with unlawfully entering a structure located in the vicinity of 15355 Northwest 19th Avenue, Dade County, Florida, property of the School Board of Dade County, with intent to commit theft. At trial, the head custodian of Rainbow Park Elementary, where appellant was apprehended, testified that the school was part of the Dade County School System.

Appellants’s first point on appeal is that the state failed to prove ownership of the building, citing Covington v. State, 359 So.2d 563 (Fla. 4th DCA 1978). In Covington, the Fourth District held that testimony that a burglarized school was run by the Board of Public Instruction was insufficient to sustain a conviction where the information alleged that the school was owned by Indian River County. In the instant case, we find no variance between the petition, which alleged that the school was the property of the School Board as owner and custodian, and the testimony at trial that the school was part of the Dade County School System. We conclude that the testimony that Rainbow Park was part of the school system was sufficient to allow the trier of fact to determine that the School Board’s interest in the structure was superi- or to that of the appellant. See in re M. E., 370 So.2d 795 (Fla.1979); Addison v. State, 95 Fla. 737, 116 So. 629 (1928).

Appellant’s second point, alleging that the state failed to show that the school was the property described in the petition, is also without merit. The delinquency petition specified a structure located in the vicinity of 15355 Northwest 19th Avenue and owned by the School Board of Dade County. At trial, the police officer who arrested appellant testified that he was dispatched to Rainbow Elementary School at 153rd Street and 19th Avenue. Appellant argues that the two descriptions do not necessarily correspond since 153rd Street and 19th Avenue could be in the southwest quadrant of Dade County. We conclude that the evidence taken as a whole sufficiently establishes the location of the burglarized building as alleged in the petition without material variance. Without dispute, the de minimus discrepancy in the proofs at trial wherein “N.W.” was omitted from the address of the burglarized building in no way prejudiced the appellant in the preparation of his defense. Hunter v. State, 292 So.2d 73 (Fla. 3d DCA 1974).

Finally, appellant argues that there was insufficient proof that he intended to commit theft within the structure. We disagree. Since intent may be shown by circumstantial evidence, Rebjebian v. State, 44 So.2d 81 (Fla.1949); Edwards v. State, 213 So.2d 274 (Fla. 3d DCA), cert. denied, 221 So.2d 746 (Fla.1968); Jones v. State, 192 So.2d 285 (Fla. 3d DCA 1966), the fact that appellant was found inside the principal’s office of the school going through a desk was more than sufficient to sustain the conclusion that appellant intended to commit theft within the structure.

Accordingly, the adjudication of delinquency is affirmed.

DANIEL S. PEARSON, Judge,

concurring specially.

I, too, would affirm the adjudication of delinquency. I specially concur in order to address, and reject, the State’s argument that its failure to prove that Rainbow Park Elementary was located at the exact address described in the petition (a failure which, I agree, was totally immaterial) was remedied because the trial court could have taken judicial notice of that fact or can be remedied by our taking judicial notice of that fact.

Even if, arguendo, this unproved fact was “capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned,” see § 90.202(12), Fla. Stat. (1979), and was, therefore, susceptible of being judicially noticed, a matter cannot be judicially noticed unless and until the procedures of Sections 90.203 or 90.204, Florida Statutes (1979), are observed. In the present case, the juvenile was not, as required by these sections of the evidence code, given an opportunity to dispute the judicially noticed matter. Indeed, judicial notice as a possible cure for the missing proof was urged for the first time on appeal. See Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). This afterthought hardly gives the party opposing the taking of judicial notice — here, the juvenile — an opportunity to dispute this matter of evidence. Garner v. Louisiana, supra. See Ohio Bell Telephone Company v. Public Utilities Commission of Ohio, 301 U.S. 292, 57 S.Ct. 725, 81 L.Ed. 1093 (1937); United States v. Grady, 225 F.2d 410 (7th Cir. 1955). See also Panama Canal Company v. Wagner, 234 F.2d 163 (5th Cir. 1956) (Rives, J., concurring).

Therefore, I reject the State’s suggestion that where a fact is capable of being judicially noticed by the trial court, that an appellate court may assume it has been noticed; and, for the same reason, reject the State’s alternate suggestion that even if we will not make that assumption, that we, as an appellate court, take judicial notice of this unproved fact. See United States v. Jones, 580 F.2d 219 (6th Cir. 1978); United States v. Sorenson, 504 F.2d 406 (7th Cir. 1974).

      . § 90.203, Fla.Stat. (1979), provides:
      “Compulsory judicial notice upon request. —A court shall take judicial notice of any matter in s. 90.202 when a party requests it and:
      “(1) Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request.
      “(2) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.”
      § 90.204, Fla.Stat. (1979), provides:
      “Determination of propriety of judicial notice and nature of matter noticed.—

        “(1) When a court determines upon its own motion that judicial notice of a matter should be taken or when a party requests such notice and shows good cause for not complying with s. 90.203(1), the court shall afford each party reasonable opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed.
      “(2) In determining the propriety of taking judicial notice of a matter or the nature thereof, a court may use any source of pertinent and reliable information, whether or not furnished by a party, without regard to any exclusionary rule except a valid claim of privilege and except for the exclusions provided in s. 90.403.
      “(3) If a court resorts to any documentary source of information not received in open court, the court shall make the information and its source a part of the record in the action and shall afford each party reasonable opportunity to challenge such information, before judicial notice of the matter is taken.”
      To the extent that Freimuth v. State, 272 So.2d 473 (Fla.1973), suggests that it is discretionary, not mandatory, that a trial court give the parties an opportunity to be heard on the propriety of taking judicial notice and the nature of the matter noticed, we note that Freimuth antedates the passage of the Florida Evidence Code, Section 90.101, et seq., Florida Statutes (1979).

      . As the Court noted in Gamer:
      “There is nothing in the records to indicate that the trial judge did in fact take notice of anything. To extend the doctrine of judicial notice to the length pressed by the [State] would require us to allow the prosecution to do through argument to this Court what it is required by due process to do at the trial.” 368 U.S. at 173, 82 S.Ct. at 256.


text:
    Sheila TOHN, Appellant, v. MONTGOMERY ELEVATOR COMPANY, a Foreign Corporation, Appellee.
    No. 80-2210.
    District of Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied July 28, 1981.

      Schwartz, Klein & Steinhardt and Jay S. Weiss, Miami, for appellant.
    Pyszka & Kessler and James G. Salerno, Fort Lauderdale, for appellee.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   BARKDULL, Judge.

On September 11,1977, plaintiff suffered injuries while employed by Memorial Hospital when an elevator, which she entered on the fourth floor, failed to operate properly when it plummeted from the fourth to the ground floor. She received workmen’s compensation benefits from her employer in the total amount of $35,007.00. She commenced a third party tort action against Montgomery Elevator Company. During the pendency of this action, the employer filed a notice of lien. Thereafter, the plaintiff settled with the elevator company for $105,000.00, which then brought forth a motion for equitable distribution pursuant to Section 440.39(3)(a), Florida Statutes (1977) then in existence. In part, the statute read as follows:

“Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover from the judgment, after attorney’s fees and costs incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collecti-bility. The burden of proof will be upon the employee....”

At the time of the hearing on the motion, the trial court found that the plaintiff had failed to establish any conditions which would occasion a diminution in the amount to be reimbursed to the compensation carrier. Whereupon, after deducting attorney’s fees and costs, the trial court directed that the amount expended in workmen’s compensation benefits to be returned to the carrier and the balance to be delivered to the plaintiff. This ruling was in accordance with the statute as it then existed and should be affirmed. Ramar-Dooley Construction Co. v. Norris, 341 So.2d 546 (Fla. 2d DCA 1977); Pubiix Super Markets, Inc. v. Gomis, 367 So.2d 722 (Fla.3d DCA 1979); Maryland Casualty Company v. Whitley, 375 So.2d 18 (Fla. 1st DCA 1979). This is as it should be. The injured party has received full compensation; her award has not been reduced by any comparative negligence; it was within the maximum the tortfeasor cold pay, and was collectible. Therefore, not to repay to the employer or its insurance carrier the workmen’s compensation benefits would permit a double recovery by the plaintiff at the expense of her employer, who was not at fault.

Affirmed.

      . Compare the pre-1977 statute, § 440.39(3)(a), Fla. Stat. 1975; compare the post-1977 statue, § 440.39(3)(a), Fla.Stat.1979.

      . No question of comparative negligence, no question of the amount of coverage, and no question of collectibility.