text:
    June RICE and Stephen Dudley Stitt, Appellants, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. NN-104.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1980.

      June Rice and Stephen D. Stitt, Gaines-ville, for themselves.
    Chester G. Senf, Asst. Gen. Counsel, HRS, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Appellants June Rice and Stephen Stitt are married and are the parents of an infant son whom they wish to register from birth in the State’s vital statistics as Austin John Rice or Austin John Rice-Stitt. By this appeal they complain that the Department of Health and Rehabilitative Services, acting through a subsidiary unit and officials who were unnecessarily named parties appellee, has refused to register the child’s surname as Rice or Rice-Stitt. By letter written January 16, 1979, the HRS “Supervisor, Amendment Unit, Vital Statistics” advised appellants that Section 382.16(5)(a), Florida Statutes (1979), requires the child to be sumamed Stitt, after his father. Appellants urge on this appeal that the statute’s direction that “the surname of the child shall be entered on the certificate as that of the husband” does not exclude the use as well of the wife and mother’s surname, and that the restricted construction placed on the statute by HRS violates appellants’ constitutional right to equal protection of the law, due process of law, and freedom of speech.

We take note preliminarily of the doubtful “agency action” on which these questions of statutory construction and constitutional validity are predicated. We have only the letter of a unit supervisor to evidence HRS’s official action in this matter. There is no agency order recognizable under Section 120.59, Florida Statutes (1979), and there have been no formal or informal proceedings under Section 120.57. Appellants have not been denied, nor have they requested, such proceedings. In a sense, HRS has taken free-form action only. Capeletti Brothers, Inc. v. Dept. of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), cert. den., 368 So.2d 1374 (Fla.1979). While it therefore may be debated whether the unit supervisor’s letter of January 16, 1979, was “equivalent” to an agency order underlying the appeal, no party has contested the matter. We treat such questions pragmatically, dismissing an appeal from free-form action if appellant neglected a clear point of entry to Section 120.57 proceedings, or if agency proceedings have been undertaken since the appeal, Krestview Nursing Home v. Dept. of Health and Rehab. Services, 381 So.2d 240 (Fla. 1st DCA 1979); and deciding the appeal to secure a party remedies wrongfully denied by an agency, or if the free-form action is authentic beyond doubt and nothing can be gained through further agency proceedings. Harris v. Florida Real Estate Comm’n, 358 So.2d 1123, 1125 (Fla. 1st DCA 1978), cert. den., 365 So.2d 711 (Fla.1978); General Development Corp. v. Division of State Planning, 353 So.2d 1199, 1207 (Fla. 1st DCA 1977).

In this ease we proceed with the appeal in order to prescribe proceedings to be had on remand, leading to a final order construing Section 382.16(5) in light of a fully-developed record and preserving the pendant constitutional question for our later review, if necessary.

Our requirement of an agency order construing the governing statute in this case is no empty formality. The principal objective of many APA processes is to expose policy errors which have become habitual in an agency’s free-form routine and to subject agency heads “to the sobering realization [that] their policies lack convincing wisdom . . . .” McDonald v. Dept. of Banking & Finance, 346 So.2d 569, 583 (Fla. 1st DCA 1977). Should this court intrude prematurely, before the agency head has had an opportunity to examine the de facto policy which underlies a free-form decision, an important APA goal will be lost and we shall have diminished the quality of agency performance, as Alexander Bickel said so descriptively, “by denuding them of the dignity and burden of their own responsibility.”

We therefore will remand the case to HRS and to the Division of Administrative Hearings, Department of Administration, for proceedings under Section 120.-57(1), and for entry of the order required by Section 120.59. Appellants represent that HRS construes Section 382.16(5)(a) to require that the father’s surname, and that name alone, be registered as the surname of a child born to the father’s marriage. Whether HRS so construes the statute is for HRS to say by order; in proceedings to determine a party’s substantial interests, the agency's duty to speak by an order is invariable, even when the statute may seem to the agency to admit of only one possible construction. Appellants urge that the statute is susceptible to a construction allowing registration of both parents’ surnames as the child’s hyphenated surname. Whether that is so is for HRS to say in the first instance, by an order. Appellants’ construction of the statute is not necessarily foreclosed by a contrary HRS order entered earlier in proceedings to which appellants were not parties; there has been no rule-making to construe the statute, and as to these appellants that earlier order has no res judicata effect. See McDonald, supra; State Dept. of Health and Rehab. Serv. v. Barr, 359 So.2d 503, 505 (Fla. 1st DCA 1978):

. Agency orders rendered in Section 120.57 proceedings may indirectly determine controversies and affect persons yet unborn. But the rule is stare decisis, not res judicata. If such a person’s substantial interests are to be determined in the light of a prior agency order or declaratory statement, Section 120.57 proceedings will afford him the opportunity to attack the agency’s position by appropriate means, and Section 120.68 will provide judicial review in due course.

Our action in this case necessarily implies, and we here confirm, that we consider it entirely proper for a district court of appeal to pass on the constitutionality of a statute or rule when that is necessary in reviewing agency action, though there has been no agency decision on the constitutional question nor could there have been. At least twice, in Cross Key Waterways and Estuary Properties, this court decided important constitutional questions inhering in agency proceedings notwithstanding the agency’s inability to decide such a question, and without regard for whether the question was formally and futilely raised before the agency. A district court’s resolution of a constitutional or other legal question may occasionally be stymied by the absence of a complete record necessary for the decision, as the case now before us illustrates. But that may be remedied, as this case also illustrates, by remand to the agency or to the agency and DOAH. Sections 120.57, 120.68(6), (11), (13).

We recognize that sister courts have recently expressed a contrary view, which we understand to be that an agency decision on a question of law is a necessary predicate for the district court’s power to decide that same question, and consequently that legal questions not cognizable by an agency must be diverted to circuit court. We respectfully disagree. Considering as we do that the extent of a district court’s decision on review of agency action is ultimately a question of policy rather than power, we think there is precious little sound policy to justify dividing an administrative controversy into nonconstitutional issues and two kinds of constitutional issues and parceling them out to separate agency and circuit court litigations which may eventually merge again in the same district court of appeal or, worse, in different district courts. See, e.g., Coulter v. Davin, supra fn. 6, 373 So.2d at 428; Laborers’ International Union of North America, Local 517 v. The Greater Orlando Aviation Authority, 385 So.2d 716 (Fla. 5th DCA 1980). Neither does it seem to us desirable to bifurcate the proceedings and stay agency proceedings on nonconstitutional issues until a circuit court renders judgment on constitutional issues. E.g., E. T. Legg and Co. v. Franza, supra fn. 6. Such a process engages judicial labor when the contender may yet be satisfied administratively, so undermining the twin policies of primary jurisdiction and exhaustion of remedies, and it rushes constitutional questions to judgment while potentially dispositive non-constitutional questions are still open, so undermining “the well-settled rule that such a [constitutional] question ordinarily will be decided only when necessary to a disposition of the cause.” In re Estate of Sale, 227 So.2d 199, 201 (Fla.1969). The final alternative of leaving the case intact and the constitutional and nonconstitutional issues unified, but bootstrapping the whole controversy into circuit court, is obviously an abandonment of Chapter 120.

By asserting the power of district courts of appeal to decide constitutional questions on administrative appeals, we do not derogate the power of circuit courts to render declaratory judgments on the constitutionality of statutes. Sections 86.011, 120.73, Florida Statutes (1979). See Gulf Pines, supra fn. 7. But the circuit court’s power to judge a statute’s constitutionality in a case taken out of the administrative process does not displace a district court’s power to render the same kind of judgment in a case not removed from the administrative process. The question of whether a circuit court should intervene to decide a constitutional issue, as the Supreme Court stated in Gulf Pines, is “ultimately [a question] of policy rather than power,” supra fn. 7. So a circuit judge, importuned to intervene in agency proceedings in order to decide a constitutional issue, would appropriately consider, as did the Supreme Court in Gulf Pines, whether “. . . under the circumstances presented . . . the claim [is] suitable for circuit court consideration.” 361 So.2d at 699-700. One of those circumstances to be considered is whether, as in Gulf Pines, resolving the constitutional question is necessary to assure a predicate for the administrative proceedings, so avoiding the “pointless” expenditure of time and expense in a futile administrative effort. 361 So.2d at 699. When it is necessary to take evidence and find facts on a constitutional issue, it would seem appropriate for the circuit court to weigh the value of an immediate circuit court evidentiary hearing against the value of allowing the administrative process to continue unabated and undivided until the constitutional question can be presented, in context of an agency order deciding all other questions, to a district court of appeal. If at that point factfinding on the constitutional issue still seems necessary, the district court has full power to frame the issues and remand for the necessary hearing. Section 120.68(6), (13).

In other words, we again acknowledge that circumstances may make circuit court preemption of constitutional issues necessary and desirable at an early stage, even at the expense of delaying the administrative process, bifurcating the otherwise unified cause, or deciding a constitutional question when other dispositive issues await administrative determination. Compare State ex rel. Dept. of General Serv. v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977). But the circumstances justifying circuit court intervention do not include the supposed incapacity of a district court of appeal to reach and decide a constitutional issue which has been carried unresolved to that part of the judicial system through the regular processes of Chapter 120. See Department of Revenue v. Amrep Corp., 358 So.2d 1343, 1349 fn. 5 (Fla.1978).

In this decision we are not troubled by the principle that an appellate court ordinarily will not take up questions not passed on or presented to the trial court. That discipline is respected by appellate courts in recognition of and in deference to the distinct role of trial courts in the unitary judicial system. See Hartford Fire Ins. Co. v. Hollis, 58 Fla. 268, 50 So. 985 (1909); South Dade Farms, Inc. v. Peters, 107 So.2d 30 (Fla.1958); Paul v. Ranter, 155 So.2d 402 (Fla. 3d DCA 1963). That practice need not deter us from considering freshly raised questions of constitutional law, or any question of law which inheres in the case and may fairly be decided on the record, in appeals from agency action. For in reviewing agency action we are not reviewing the judgment of another court of law, and the deference due the agency is of another kind, less for its judgment on questions of law than for its greater familiarity with the statutory scheme and its expertise in the field regulated. Moreover, when an appeal is taken from agency action to a district court, that is the first court to receive the case and is the first tribunal to which a claim of statutory unconstitutionality can effectively be made. The district court’s ultimate task under Section 120.68 is to review agency “action,” not agency judgments, and the district court is empowered to review that “action” completely, though all dispositive legal issues were not or could not have been decided by the agency. The district court’s decision

. may be mandatory, prohibitory, or declaratory in form, and it shall provide whatever relief is appropriate irrespective of the original form of the petition. The court may: [¶] 1. Order agency action required by law, order agency exercise of discretion when required by law, set aside agency action, remand the case for further agency proceedings, or decide the rights, privileges, obligations, requirements, or procedures at issue between the parties . . . . Section 120.68(13)(a)l, Florida Statutes (1979) (emphasis added).

We do not intimate how Section 382.-16(5)(a) should be construed by HRS, nor need we decide by what test the constitutionality of the statute is to be judged, if that becomes necessary. Yet, we add the following comments and directions concerning the scope of agency proceedings to be had on remand in order to better inform HRS’s construction of the statute and our own judgment when the case returns.

It is appropriate that HRS, in construing the statute, and this court, in later reviewing that action and deciding the pendent constitutional question, examine factually the nature and extent of the State’s interest in organizing and preserving information concerning births and family relationships under the father’s surname, as distinguished from the mother’s surname or the hyphenated surnames of both parents. In other words, to the extent Section 382.-16(5)(a) should be interpreted as requiring use of the father’s surname exclusively, effectively surnaming each child bom to a marriage according to how his father, and his father’s father, was surnamed, we assume the State has some kind of fairly substantial interest, whether as parens pat-riae or merely to keep account of people, justifying that regulation. If the statute merely enacts custom, see Davis v. Roos, 326 So.2d 226 (Fla. 1st DCA 1976), that too should be factually determinable.

These appellants contest that the statute requires their son to be named from birth as Austin John Stitt, rather than as Austin John Rice or Rice-Stitt. If the statute does so require, they contest its constitutionality. Accordingly, HRS on remand will build a record on which it can enter an order expounding the factual premises on which the regulation rests; the reasonableness of the classifications made by the statute; the extent and weight of the State’s interest in the end sought to be achieved; and the availability of less restrictive alternative means of achieving the goals of the statute. That kind of agency process is precisely what is prescribed by Chapter 120 when a mixed question of fact and policy, underlying one of statutory construction, is presented in proceedings to determine a party’s substantial interests. Florida Cities Water Co. v. Florida Pub. Serv. Comm’n, 384 So.2d 1280, (Fla.1980); McDonald, supra. Moreover, that kind of process will produce the record this court may require for meaningful consideration of the constitutional question. Compare Laird v. State, 342 So.2d 962, 965 (Fla.1977).

Jurisdiction is relinquished to the Department of Health and Rehabilitative Services for Section 120.57(1) proceedings and for entry of a final order adequately founded upon a record as required by Section 120.59. See Florida Cities Water Co., supra, 384 So.2d at 1281.

REMANDED.

ERVIN, J., concurs.

BOOTH, J., dissents, with opinion.

BOOTH, Judge,

dissenting:

The majority, though now willing to allow further consideration below of appellants’ claim, holds that the agency action is not final and that the record here is insufficient for “meaningful consideration” of the constitutional question. Not so. The agency denied registration of birth under the child’s chosen name on September 13, 1978, and refused to allow amendment of the registration thereafter, on January 16,1979, to show the correct name. The letter of January 16, 1979, set forth in Footnote 3, infra, is final agency action. Further, the record here includes an HRS declaratory statement issued in another case on similar facts denying use of a hyphenated surname containing the names of both parents. Infra at Footnote 3. The agency has spoken.

As to the “form” of the final agency action here, it is indistinguishable from the letter considered by this court as sufficient in Harris v. Florida Real Estate Commission, 358 So.2d 1123 (Fla. 1st DCA 1978), cert. den. 365 So.2d 711 (Fla.1978), wherein the Florida Real Estate Commission refused to accept and register the name of the appellant’s real estate agency. Here, as in Harris, there was no question raised as to the authority of the registrar in speaking for the agency. Here, as in Harris, the agency’s policies and the legal and factual basis thereof have been argued and briefed before this court. We may assume, for the purposes of this appeal, the truth of the factual contentions and policy statements made by the agency and pass on to the question of law presented.

The basis for the action of HRS in denying appellants’ right to have the birth of their child registered in the child’s chosen surname, a hyphenated name of both parents, is Florida Statutes § 382.16(5)(a). This statute suffers the same constitutional infirmities as the statute held unconstitutional in Jech v. Burch, 466 F.Supp. 714 (D.C.Hawaii 1979). In Florida and at common law, prior to the enactment of § 382.16, effective July 1, 1977, parents could give their children hyphenated names. Attorney General Opinion 76-235 (December 21, 1976).

Petitioners, June Rice and Stephen Stitt, are husband and wife, and parents of a son born September 9, 1978, in Alachua County, Florida. Petitioners were legally married at the time of conception and birth of said son, with the wife retaining her maiden surname of Rice and using it for all purposes. On September 13, 1978, petitioners attempted to register the child with the Bureau of Vital Statistics under the name of Austin John Rice. The local registrar refused such registration on the grounds that it did not comply with § 382.16(5)(a). Thereafter Petitioner Stitt registered the child under the name Austin John Stitt, as required by the registrar, against the wishes of both natural parents. Subsequently, petitioners obtained an amendment form from the Bureau of Vital Statistics and sought to amend the birth certificate to show the child’s surname as Rice-Stitt, the hyphenated name containing surnames of both natural parents. On January 16, 1979, this request for amendment was denied by Ms. Myma Wisham, Supervisor, Amendment Unit, Bureau of Vital Statistics.

Petitioners have appealed the denial of the requested amendment, asserting deprivation of rights of privacy, and denial of due process and equal protection under the Constitutions of Florida and of the United States.

Respondents contend that the statute applies equally to deny all persons, whether married or unmarried, the right to choose the surname of their child, stating in their brief:

The statute does not give anyone the ‘right’ to choose the surname of their child. This statute determines the surname of the child based on the marital status of the parents and denies the right of choice equally to married and unmarried parents, (emphasis theirs)

As justification for this abridgment of personal choice in a matter generally conceded to be of great importance to the individual, respondents assert nothing more than administrative convenience. Perhaps more convenient, and as anticipated by George Orwell in 1984, is the substitution of numbers for names. The Florida Statute here in question could well be the first step in that direction.

In Jech v. Burch, supra, Chief Judge Samuel P. King rejected arguments similar to those advanced here based on administrative convenience in the operation of the Registrar of Births in the Department of Health, stating, in part (466 F.Supp. at 718):

For reasons which have still not been explained satisfactorily to me, the department is completely defeated by the problem of indexing a child’s surname such as ‘Jebef’, which does not belong to either of the parents . . . Assuming that administrative convenience dictates a continuation of a male-oriented indexing system, the registrar did not make clear to me why there could not be a cross-reference [to the father’s name].

Respondents further point out that the computer could encounter difficulties where two persons with hyphenated names meet, marry and have a child of their own. In the bureaucratic quagmire, the idiosyncrasies of a computer are more important than the rights of individuals who must be named, tagged and indexed as prescribed.

Respondents contend that § 382.16(5)(a) is “indicative of the common law.” That argument, however, was rejected by this court in Davis v. Roos, 326 So.2d 226 (Fla. 1st DCA 1976), wherein the Department of Highway Safety and Motor Vehicles argued, based on an early New York decision, that “by the common law” a woman upon her marriage takes her husband’s surname, and her maiden name is “absolutely lost.” This court disagreed and held that a woman was entitled to have her driver’s license issued in her maiden name, stating (326 So.2d at 228, 229):

The common law regarded the Christian name, with the sanction of baptism behind it, as all important. No requirement demanded that a woman adopt the surname of her husband when she married, and earlier records showed that husband and wife often were known by different names. . . . [A]fter reviewing the extensive authorities on the subject, we conclude that the common law of England on July 4, 1776, did not by operation of law engraft the husband’s surname upon the wife. In Florida there is no statute or judicial decision requiring a woman to take her husband’s surname upon marriage. Although it is the general custom for a woman to change her name upon marriage to that of the husband, the law does not compel her to do so.

In Doe v. Dunning, 549 P.2d 1, 3 (Wash. 1976), the court considered the history of the individual right to choose a name, and stated:

As more women exercise their right to retain their own surname after marriage, the likelihood that children will be given a surname other than the paternal surname increases . . . Property and inheritance are also factors which may lead to the use of the mother’s surname. Historically, it was not uncommon for children to take the mother’s surname where she owned the most property or had the largest estate. Reany, Origins of English Surnames 84, 85 (1967). Cultural heritage may also be a relevant consideration, for example, persons of Spanish ancestry often use both parents’ surnames as the surname of the child .

In Secretary of The Commonwealth v. City Clerk of Lowell, 373 Mass. 178, 366 N.E.2d 717, 723, 725 (1977), the court held:

We have been authoritatively advised that freedom of personal choice in matters of family life is one of the liberties protected by the due process clause of the Fourteenth Amendment, and that there is a private realm of family life which the State cannot enter. Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), and cases cited.
All these recent developments seem to us to indicate strongly that the common law principle of freedom of choice in the matter of names is not out of harmony with modern conditions.
******
We think the common law principle of freedom of choice in the matter of names extends to the name chosen by a married couple for their child. They may change their own names at will, and need not have the same surname. It seems to us to follow that they need not give their child the father’s surname, though of course they may.

Neither Doe v. Dunning, supra, nor Secretary of The Commonwealth v. City Clerk of Lowell, supra, involved statutes such as Florida’s which purports to require that the name of a legitimate child be the surname of the father. Florida and Hawaii may well be the only states having adopted such statutes.

The Federal District Court, in striking the Hawaii statute, held (466 F.Supp. at 719, 720):

[A] proper interpretation of Anglo-American political and legal history and precedent leads to the conclusion that parents have a common law right to give their child any name they wish, and that the Fourteenth Amendment protects this right from arbitrary state action.
******
What is the state interest in refusing to allow parents to give their child at birth a name which they may immediately confer by way of change of name? I fail to see any such interest.
We are not dealing with the statutory requirement that the birth of a child in Hawaii be reported to the State Department Health . . The public interest in the fact of a birth clearly overrides anyone’s desire not to report this information.
We are also not dealing with the indexing system of the registrar of births. If the registrar wants to register the birth certificate of ‘Adrian Jebef’ under ‘Adrian Befurt,’ or any other name or symbol, that is a matter for regulation as an internal administrative decision of the State Department of Health.
* * * * * *
The statutory provision for change of name is not a substitute for the right to insist that one’s child at birth was given the original name designated. This merely restates the first proposition that the naming of a child is protected against arbitrary or unreasonable state action, (emphasis theirs)

Respondents here have failed to put forth any overriding State interest sufficient to allow this interference with the personal right of petitioners to name their child. The value of the right abridged far exceeds the inconvenience of the State in accommodating that right.

The majority opinion expresses great concern for the procedural posture of the case now before us but little concern for the toils and tribulations of these individuals who have sought, since September of 1978, to have the birth of their child correctly registered and certificate issued. Nothing is lacking from the record here which can be supplied by further proceedings below. The agency has stated its policy, and that policy is facially supported, at least, by the language of the statute. The agency will not change its collective “mind” short of ruling by this court.

Nor is there need for further ruling on this court’s authority to address, ab initio, constitutional issues which arise in administrative proceedings. The authority of the court to remand for further factual findings, where needed, is also clear. Florida Statutes § 120.68. Not clear is what can be gained in this case by further proceedings below. What is to be lost is obvious: time, money and peace-of-mind for individuals relegated by the majority to the administrative morass.

I dissent.

      . The Department of Health and Rehabilitative Services has charge of registering vital statistics. Section 382.01, Florida Statutes (1979). Unless some subagency of the Department is by rule or statute responsible for final agency action, the Department is the proper party ap-pellee on this appeal. Section 120.52(2); Fla. App.R. 9.020(f), 9.110. The notice of appeal in this matter superfluously lists David H. Pin-gree, then Secretary of the Department; Everett Williams, of “Bureau of Vital Statistics”; and Myma Wisham, “Supervisor, Amendment Unit, Bureau of Vital Statistics,” as parties ap-pellee. We have dropped those misdesignated names from the caption. No statute or organizational rule of the Department, Fla.Admin. Code Ch. 10-3, suggests the existence of a Bureau of Vital Statistics within the Department, so we assume it does not exist. Such misdesignations in the notice of appeal cause minor inconveniences and inconsistencies on our docket and in West Publishing Company’s alphabetical listings of cases, and potential difficulties in identifying the agency and agency head within a Department who is responsible for final agency action. That may become critical in determining who, other than a DOAH hearing officer, may conduct formal Section 120.57(1) proceedings. Every Department’s organizational rules, in “stating the general course and method of its operations,” Section 120.53(l)(a), should reliably identify any agency within the Department, and any agency head other than the Department head, who is responsible for final agency action of a certain character.

      . Section 382.16(5)(a) provides:
      If the mother was married at the time of conception, the name of her husband at such time shall be entered on the certificate as the father of the child, and the surname of the child shall be entered on the certificate as that of the husband, unless paternity has been determined otherwise by a court of competent jurisdiction.

      . “Agency action” which is reviewable by a district court of appeal, Section 120.68, includes “a rule or order, or the equivalent . .” Section 120.52(2).

      . A. Bickel, The Least Dangerous Branch, p. 24 (1962).

      . E.g., Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977), affirmed, 372 So.2d 913 (Fla.1978); Estuary Properties, Inc. v. Askew, 381 So.2d 1126 (Fla. 1st DCA 1979).

      . Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979); E. T. Legg and Co. v. Franza, 383 So.2d 963 (Fla. 4th DCA 1980); Fraternal Order of Police, etc. v. City of Miami, 384 So.2d 726 (Fla. 3d DCA 1980). While we disagree with Coulter’s reasoning that a district court of appeal may not determine constitutional questions of statutory or rule validity inhering in review of agency action, Coulter’s holding on its own facts — that res judicata does not bar circuit court determination of such questions after a party has foregone his 120.68 appeal — may well be justified. If there was no appeal from the agency action, the policy behind res judica-ta is not served by foreclosing circuit court litigation on questions that could not have been effectively raised for decision by the agency. See Continental Cas. Co. v. Hartford Accid. & Indem. Co., 151 Fla. 742, 10 So.2d 440 (1942).

      . This now-familiar phrase is of course borrowed from another context, Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978), where Justice England wrote for the Court that
      The determination of whether the circumstances of a particular controversy warrant judicial intervention [by a circuit court], then, is ultimately one of policy rather than power, and it is to that policy question that the First District Court of Appeal has addressed itself in Willis [infra fn. 9] and [School Board of Leon County v.] Mitchell. [346 So.2d 562 (Fla. 1st DCA 1977)].

      . State ex rel. Dept. of General Services v. Willis, 344 So.2d 580, 589-90 (Fla. 1st DCA 1977).

      . Willis, 344 So.2d at 590:
      [S]ome agency errors may be so egregious or devastating that the promised administrative remedy is too little or too late. In that case equitable power of a circuit court must intervene.
      Perhaps the same may be said of the necessity for circuit court intervention when resolution of the constitutional question cannot await a Section 120.68 appeal.

      . Amrep, 358 So.2d at 1349, fn. 5:
      The conclusion that this action is cognizable as a matter of original jurisdiction in the circuit court does not affect the jurisdiction of the district courts of appeal and this Court to review agency action pursuant to § 120.68, Fla.Stat. (1975). (Emphasis by the Court.)

      . Laird, 342 So.2d at 965:
      The record before us is simply inadequate to support a determination of whether the health hazards of smoking marijuana justify its proscription to the general public. None of the parties really argued whether the legislature lacks a “rational basis” for its decision to ban private possession of cannabis. (Since we have determined that there is no fundamental right to smoke marijuana, the test becomes whether there is a “rational basis” for outlawing such an activity as opposed to a “compelling state interest” in the subject matter of the legislation.) Thus in affirming the trial court, we do not foreclose the possibility of making such a determination on a properly-developed record wherein both sides have had an opportunity to present evidence of competing expert authorities before an impartial tribunal. [Footnotes omitted.]

      . Florida Statutes, § 382.16(5)(a):
      If the mother was married at the time of conception, the name of her husband at such time shall be entered on the certificate as the father of the child, and the surname of the child shall be entered on the certificate as that of the husband, unless paternity has been determined otherwise by a court of competent jurisdiction.

      . Laws of Florida, 77-319.

      . Letter of January 16, 1979, Bureau of Vital Statistics:
      According to Florida Statute 382.16(5)(a), we are unable to amend Austin’s birth record to show his surname as Rice-Stitt. If you wish his birth record to show a hyphenated surname, we suggest you seek legal assistance in regard to having his name legally changed. Upon receipt of a certified copy of the court order changing his name, a statement will be attached to his birth record. We do not file a new birth record when a change of name is granted as this does not affect parentage.
      The record includes a Declaratory Statement issued by HRS In Re Petition of Ruth Lee Harvey, Case No. 78-6DS (January 8, 1979), ruling that, on similar facts, § 382.16(5)(a) does not permit use of a hyphenated surname containing the names of both parents. Nevertheless, HRS subsequently recorded the hyphenated name as originally requested by Mrs. Harvey and rendered moot any judicial proceedings on the validity of the statute.

      . Chapman v. Phoenix National Bank, 85 N.Y. 437 (1881).

      . Doe v. Dunning, 549 P.2d 1, 3 (Wash.1976); Lamber, “A Married Woman’s Surname: Is Custom Law?”, 1973 Wash.Univ.L.Q., 779.

      . See, e. g., Escambia County Sheriff’s Department v. Police Benevolent Association, Inc., 376 So.2d 435, 436 (Fla. 1st DCA 1979):
      Appellee argues that the appellant could not properly bring its constitutional challenge before us because the issue was not raised below. Appellee’s argument is without merit because the ‘administrative process cannot resolve a constitutional attack upon a statute, rule or regulation.’ Carrollwood State Bank v. Lewis, 362 So.2d 110, 113-14 (Fla. 1st DCA 1978).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gary Marcellis FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. OO-387.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1980.
    Rehearing Denied Sept. 4, 1980.

      Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Flowers’s appeal from his convictions of sexual battery and burglary attacks the lower court’s denial of his motion in limine seeking to prohibit the state from introducing certain collateral evidence for the purpose of establishing identity. We agree that such evidence should not have been admitted and reverse.

Here, as in Davis v. State, 376 So.2d 1198 (Fla. 2d DCA 1979) there are not enough similarities between the two crimes to justify admission of the collateral evidence even though both crimes involve burglary and sexual battery. The only similarity between the two cases is that the apartments which were entered were located on the second floor of the apartment building, both had balconies next to the livingrooms into which entry could be accomplished through a sliding glass door. There the similarities end. In one case the victim was sexually assaulted, in the other she was not. Moreover, the incidents occurred approximately six weeks apart, in locations four-five miles apart. During one assault the attacker used profanity, but not during the other. One assailant took money from the victim, the other did not. In order for evidence of one offense to be admissible on the issue of identity in a prosecution for another offense, the circumstances surrounding the commission of the two offenses must be more than just similar. Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974).

Reversed and remanded for new trial.

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


author: SCHEB, Chief Judge.

text:
    STATE of Florida, Appellant, v. William D. HOLDEFER, Appellee.
    No. 79-1341.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Richard W. Carr of Carr & Schnell, St. Petersburg, for appellee.
   SCHEB, Chief Judge.

The state appeals from an order denying its petition for reconsideration of an order transferring appellee for adjudicatory proceedings as a juvenile. We dismiss the appeal.

Pursuant to Section 39.04(2)(e)4, Florida Statutes (1979), the state filed a direct information against William D. Holdefer, who was seventeen years of age at the time of the alleged offenses. Holdefer moved to transfer his case to the juvenile division of the circuit court. Following a hearing the court entered an order transferring the cause to the juvenile division on May 2, 1979.

On June 19 the state petitioned for reconsideration of the transfer order on the ground that Holdefer’s juvenile record, which had not been brought to the court’s attention at the transfer hearing, showed that Holdefer did not meet the requirements for a transfer to the juvenile division. The court denied the petition on July 13, and the state filed this appeal.

Neither the Florida Rules of Criminal Procedure nor the Rules of Juvenile Procedure provide for a motion for reconsideration of an order transferring a cause from the circuit court to the juvenile division. In addition, Rule of Criminal Procedure 3.590 requires postjudgment motions to be made within fifteen days of entry of judgment. Thus, the state’s petition for reconsideration of the transfer order, filed thirty-nine days after entry of that order was neither authorized by the rules nor timely filed.

Accordingly, this court has no jurisdiction over the appeal from the order denying the petition, and we dismiss it sua sponte. See Fla.R.App.P. 9.140(b)(2), 9.020(g); Guzman v. State, 364 So.2d 523 (Fla. 2d DCA 1978).

GRIMES and CAMPBELL, JJ., concur.


author: DANAHY, Judge.

text:
    Elizabeth FULMER, as Personal Representative of the Estate of Clyde L. Fulmer, Deceased, Appellant, v. NORTHERN CENTRAL BANK et al., Appellees.
    No. 79-1534.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 1980.
    Rehearing Denied Sept. 9, 1980.

      Helen S. Hansel, St. Petersburg, for appellant.
    Brian C. Harrington, Fisher & Sauls, St. Petersburg, for appellee Northern Central Bank.
   DANAHY, Judge.

Appellant challenges an order of the trial judge dismissing with prejudice appellant’s petition to set aside her decedent’s inter vivos transfers of his assets. The largest such transfer was to appellee, a Pennsylvania bank, as trustee of an irrevocable trust situate in Pennsylvania which by its terms terminated at the decedent’s death and became entirely distributable to two charitable organizations in Pennsylvania. Two other transfers were to charitable organizations in Florida, and a fourth transfer was to three minors who are residents of Tennessee.

Relying on the holding of the United States Supreme Court in Hanson v. Denckla, appellee moved to dismiss the petition on the ground that the trial court had no jurisdiction to adjudicate the validity of an inter vivos disposition in trust when the trustee, the trust assets, and the trust beneficiaries are all situate in another state. Notwithstanding that appellee’s objection pertained to only one of the four transfers attacked in appellant’s petition, the trial judge dismissed the entire petition. In doing so, he added the words “with prejudice.” We hold that the trial judge correctly dismissed the petition insofar as the inter vivos trust is concerned, though not for the reason asserted by appellee. We further hold, however, that the dismissal should not have been with prejudice and should not have extended to any claims in the petition except the claim against appellee.

Since appellee entered a general appearance in this case before raising the issue of jurisdiction, its argument that the Florida court could not acquire personal jurisdiction of appellee under the holding in Hanson v. Denckla, though valid, is of no avail. Personal jurisdiction of appellee, however, is not enough in this case; Florida has long followed the rule that the beneficiaries of a trust are indispensable parties to a suit having the termination of the beneficiaries’ interest as its ultimate goal. E. g., Byers v. Beddow, 106 Fla. 166, 142 So. 894 (1932). Since the beneficiaries of the inter vivos trust in this case are organizations in Pennsylvania who are not before the court and cannot be brought before the court, appellant’s petition with respect to the trust was subject to dismissal for failure to join indispensable parties. Martinez v. Balbin, 76 So.2d 488 (Fla. 1954). That defense may be asserted in a motion to dismiss. Fla.R. Civ.P. 1.140(b). A dismissal on this basis, however, does not operate as an adjudication on the merits. Fla.R.Civ.P. 1.420(b). It is improper, therefore, to designate such a dismissal as being “with prejudice.”

With respect to the inter vivos transfers attacked in the petition other than the trust, the trial judge had before him no grounds for dismissal and none had been asserted by the respondents to whom those portions of the petition were directed. Therefore, the trial judge erred in dismissing those claims.

We reverse with directions that the trial judge enter an order dismissing without prejudice that part of appellant’s petition directed to the inter vivos trust established by her decedent, and reinstating all other claims asserted in the petition.

REVERSED AND REMANDED WITH DIRECTIONS.

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

      . 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Cases on the subject of jurisdiction in suits involving trusts with multistate connections are collected in an annotation at 15 A.L. R.2d 610 (1951).

      . Appellee’s counsel filed a document in the trial court entitled “Notice of Appearance” which recited that counsel “hereby enters his appearance on behalf of Northern Central Bank as Trustee in the above referenced cause.” Ap-pellee’s explanation of the intent of this document cannot overcome the effect of its wording; it was a general appearance which subjected appellee to the jurisdiction of the trial court. In this respect we agree with the holding in Royal Industries, Inc. v. Birdsong, 340 So.2d 526 (Fla. 1st DCA 1976), cert. denied, 351 So.2d 408 (Fla. 1977). But see Marine Distributors of Virginia v. Kelly, 374 So.2d 592 (Fla. 5th DCA 1979) (Smith, J., specially concurring).

      . A general appearance entered after asserting lack of personal jurisdiction does not waive the alleged jurisdictional defect. White v. Nicholson, No. 80-446, 386 So.2d 74 (Fla. 2d DCA July 30, 1980).


author: CAMPBELL, Judge.

text:
    Selma E. STOTTLEMYER, Appellant, v. Bickford E. STOTTLEMYER, Appellee.
    No. 79-1890.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 1980.

      J. Harris Rhyne and Mark Lipinski of Law Offices of Jerome Pratt, Palmetto, for appellant.
    Bickford E. Stottlemyer, pro se.
   CAMPBELL, Judge.

The wife appeals an order of the trial court which, on authority of Jameson v. Jameson, 369 So.2d 436 (Fla.3d DCA 1979), found that a deed whereby the husband conveyed his solely owned homestead property to himself and his wife as tenants by the entirety was a nullity because the wife had not joined in the execution of the deed. We reverse and remand on authority of Jameson v. Jameson, 387 So.2d 351 (Fla.1980).

The trial court’s ruling in the instant case was not incorrect in light of the Third District Court’s interpretation of Article X, Section 4(c) in Jameson, the only case which had interpreted that provision as changed in the 1968 constitutional revision. Our sister court was of the view that while the grantee would not have to join in an inter-spousal conveyance of homestead property held as a tenancy by the entirety, Williams v. Foerster, 335 So.2d 810 (Fla.1976); Denham v. Sexton, 48 So.2d 416 (Fla.1950), the grantee would have to join, under the “.implied rationale” of Williams, if there was an interspousal conveyance of the grantor’s solely owned homestead property. Thus, the provision of Section 689.11(1), Florida Statutes (1977), to the contrary was declared unconstitutional.

The Florida Supreme Court reversed on appeal, holding that the grantee’s joinder is not required in either case under the current version of the homestead provision. The court pointed out that its decision in Williams construed the 1885 constitutional provision. Therefore, we must reverse the trial court’s ruling in the instant case.

However, the husband’s petition to dissolve a marriage which had only survived four and one-half months generally alleged that he had a special equity in the homestead and other property, and there was apparently some evidence presented which would support that allegation. Since the trial judge’s disposition of the case did not require consideration of those facts, and because it does not appear whether or not he did consider them, we remand in order to allow the trial judge to determine whether there are sufficient facts to support the same result on a different theory.

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

      . The record does not contain a transcript of the hearing which was held to determine the parties’ respective property rights. The only facts which are even remotely relevant were recited in the husband’s pro se brief on appeal.


text:
    James G. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1422.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 1980.
   SCHEB, Chief Judge.

James G. Thomas pled guilty on March 6, 1979, to two counts of robbery, one count of aggravated assault, one count of fleeing a police officer and one count of obstructing or opposing an officer with violence. On July 24, 1980, Thomas moved for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. He alleged in his motion that he did not understand that the offenses with which he was charged carried a three-year mandatory minimum sentence, and that he was denied effective assistance of counsel.

Florida Rule of Criminal Procedure 3.172(c), Acceptance of Guilty or Nolo Con-tendere Plea, requires that, “the trial judge . shall address the defendant personally and shall determine that he understands the following: (i) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any . . . .”

The record shows that the trial court conducted a colloquy to determine the vol-untariness of the plea. It does not indicate, however, that the court determined that Thomas understood that the charges to which he pled required it to impose a three-year minimum sentence. Therefore, the trial court erred in summarily denying Thomas’ Rule 3.850 motion. See Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979); Norris v. State, 343 So.2d 964 (Fla. 1st DCA 1977). We have also examined Thomas’ contention that he was denied effective assistance of counsel. We find this allegation affords no basis for relief.

We remand for the trial court to hold an evidentiary hearing to determine whether Thomas understood that these offenses required the court to impose a minimum three-year sentence. If not, the court must give him an opportunity to withdraw his plea. Norris, 343 So.2d at 964-65.

HOBSON and CAMPBELL, JJ., concur.

      . Otherwise, the colloquy established the vol-untariness of Thomas’ plea.


text:
    EGLIN FEDERAL CREDIT UNION, a federal credit union, Appellant, v. Joseph E. CURFMAN, Appellee.
    No. NN-200.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.

      Michael Jones of Selby, Chesser, Wingard & Barr, Fort Walton Beach, for appellant.
    Michael W. Mead of Middleton & Mead, Fort Walton Beach, for appellee.
   PER CURIAM.

Eglin Federal Credit Union appeals from a final judgment for punitive damages awarded to appellee, Joseph E. Curfman, after a jury trial. The evidence was sufficient to present a jury issue as to appellant’s liability for wrongful conversion of Curfman’s automobile, and its liability for punitive damages.

The conversion occurred when appellant, which had financed Curfman’s purchase of an automobile, obtained possession of Curfman’s automobile without his knowledge and sold it, even though appellant’s agent not only knew that Curfman’s automobile had not been stolen, as Curfman had erroneously assumed and previously reported, but knew that Curfman was not in default in his payments on the car. See Buie v. Barnett First National Bank of Jacksonville, 266 So.2d 657 (Fla. 1972). Appellant’s contentions that its repossession was authorized by virtue of contractual provisions in the financing agreement relating to loss or theft of the collateral, insecurity of the creditor, or insurance coverage on the vehicle, were matters for resolution by the jury on conflicting evidence, as was the issue of good faith on the part of appellant throughout the transaction. Uniform Commercial Code, Sections 671.203, 671.208, Florida Statutes.

Appellant contends that the failure of the jury to assess any monetary sum for compensatory damages precludes the award of punitive damages. We disagree. The special verdict form returned by the jury contained its express finding that “Eglin Federal Credit Union committed conversion of Joseph E. Curfman’s property.” We are of the opinion that this finding satisfies the requirements of Lassiter v. International Union of Operating Engineers, 349 So.2d 622 (Fla. 1977), which held that “the establishment of liability for a breach of duty will support an otherwise valid punitive damage award even in the absence of financial loss for which compensatory damages would be appropriate.” (Id. at 626)

The judgment is AFFIRMED.

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

      . A mix-up involving the whereabouts of the car occurred somewhat as follows: Curfman purchased the car and drove with Clarence Hoffman to Tampa on a business trip. In Tampa, Hoffman was permitted to use the car while Curfman visited around. On the last day of the visit, through an apparent misunderstanding, Hoffman failed to meet Curfman at the designated place to commence the return trip to Fort Walton Beach. Being unable to locate Hoffman or the car, Curfman reported it to the Sheriffs office as stolen, and upon his return to Fort Walton Beach by taxi immediately informed the Credit Union of this circumstance. However, five days later, Hoffman contacted the Credit Union informing it that he had the car, which the Credit Union then arranged for him to return to Fort Walton Beach, at the expense of the Credit Union. The Credit Union did not inform Curfman of this occurrence. Two weeks later, Curfman discovered his car on the premises of the Credit Union, and according to Curfman, upon inquiry was informed by the Credit Union- that it had already been repossessed and sold. Evidence was presented that the sale was for less than the NADA retail value in order to prevent any excess funds from going to Curfman. Sale was for the exact amount owed the Credit Union. Extensive testimony, much of it conflicting, was presented on these and other issues including alleged actions by the Credit Union tending to affect Curfman’s credit standing.

      . Compare Sonson v. Nelson, 357 So.2d 747 (Fla. 3rd DCA 1978); Flood v. Ware, 363 So.2d 1101 (Fla. 2nd DCA 1978); Raffa v. Dania Bank, 372 So.2d 1173 (Fla. 4th DCA 1979); and American Motorcycle Institute, Inc. v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980).


author: MILLS, Chief Judge.

text:
    John Edward SOULE, Appellant, v. Adelia ROSASCO-SOULE, Appellee.
    No. PP-342.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.

      Thomas E. Wheeler of Fisher, Bell, Hahn, Winn & Ptomey, P. A., Pensacola, for appellant.
    W. H. F. Wiltshire and Richard L. Pearse, Jr., of Harrell, Wiltshire, Stone & Swearin-gen, Pensacola, for appellee.
   MILLS, Chief Judge.

John Edward Soule appeals from the denial of his motion to dismiss for lack of personal jurisdiction. We reverse.

Soule and his wife, Adelia Rosasco-Soule, lived in Florida during their marriage from 1934 to 1938 while he was on military duty. When the parties separated in 1971, they were residents of Virginia. Rosasco-Soule returned to Escambia County, Florida, and has lived there since.

She filed a petition for determination of rights of parties unconnected with dissolution, asking the court to determine the rights, duties, and obligations of the parties, including an award of alimony, an equitable distribution of the property between the parties, payment of attorney’s fees and costs, and other relief.

Soule, a resident of Virginia, was served by the Sheriff of Fairfax County, Virginia. He filed a motion to dismiss on the ground that the trial court lacked jurisdiction over his person. The trial court denied the motion.

Section 48.193(l)(e), Florida Statutes (1977), the long arm statute, provides for personal jurisdiction when:

[w]ith respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, [the defendant] maintains a matrimonial domicile in this state at the time of commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not.

Also relevant to the determination of personal jurisdiction in this case is Section 48.-193(3), Florida Statutes (1977), which provides in pertinent part: “[o]nly causes of action arising from acts or omissions enumerated in this section may be asserted against the defendant in an action in which jurisdiction over him is based upon this section . .

Soule urges that a reading of the above subsections in pari materia establishes that only causes of action which arise from the acts or omissions occurring in Florida may be asserted under Chapter 48. We agree. Rosasco-Soule’s reading of subsection (l)(e) to require only that the defendant has resided in Florida at some time prior to the commencement of this action fails to note the requirement of subsection (3) that that residency is sufficient to give this state personal jurisdiction only if the cause of action arises from that residency. There is nothing in the allegations of the complaint in this case that indicates that there were any acts or omissions arising out of the Florida residency on which the action of Rosasco-Soule is based. For instance, if Soule had ceased to provide support for his wife while he was residing in the state, an action for separate maintenance could arise out of his acts or omissions while a resident and the courts of this state would have personal jurisdiction.

REVERSED and REMANDED for proceedings consistent with this opinion.

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


author: WENTWORTH, Judge.

text:
    Vera Louise JOHNSON, Appellant, v. J. BYRON ENTERPRISES and Western Employers Insurance Co., formerly Leatherby Insurance Co., Appellees.
    No. RR-50.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.
    Arthur Newman, Miami, for appellant.
    Edward Almeyda, Miami, for appellees.
   WENTWORTH, Judge.

The claimant in this case appeals a workers’ compensation order which found that she incurred only a scheduled hand injury, and that all permanent and temporary disability compensation due had been paid. The order denied reclassification of permanent disability compensation to temporary disability benefits for a period when recommended surgery had been rejected and claimant had been released for employment. We find no error on those issues and no merit in the further argument on alleged need for several weeks’ nursing and for psychiatric services after notification that such treatment was not authorized.

The order rejects the claim for psychiatric treatment, (which was not recommended by claimant’s authorized treating physician) and also necessarily rejects the opinion of Dr. Gilbert that claimant suffered psychiatric temporary partial disability on the date of her last examination by him in February 1978. His testimony at the hearing on March 15, 1979, was that he could not assess a permanent disability without further evaluation since he had not seen claimant for more than a year. Our examination of the record indicates no reversible error in the determination against both temporary and permanent psychiatric disability, and limitation of the award to permanent benefits for a scheduled disability of the hand. Cf., Berta Eques v. Best Knit Textile Corp. and Hartford Insurance Group, 382 So.2d 736 (Fla. 1st DCA 1980). Although the date of maximum medical improvement was found to be December 21, 1978, after the final surgery, the order finds claimant refused that treatment on June 16, 1977, and temporary benefits were then properly denied because “there was no medical reason for the claimant not to work thereafter until June 4,1978” when surgery was performed. Farrer v. DeFonce Construction Company, 1 FCR 269 (1956), and Watson v. Merrill-Stevens Dry Dock & Repair Co. and Liberty Mutual Insurance Co., 1 FCR 355 (1956).

The order is accordingly affirmed.

McCORD, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    JEFFERSON STORES, INC., Appellant, v. Irving ROSENFELD, Appellee.
    No. RR-84.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.
    Mark A. Seff, of Fuller & Feingold, Miami Beach, for appellant.
    Harold R. Cohen and Israel Abrams, P. A., North Miami Beach, of Abrams & Sus-kin, North Miami Beach, for appellee.
   WENTWORTH, Judge.

The employer appeals a worker’s compensation order, which we affirm, and by which the claimant was found to be permanently partially disabled and awarded appropriate benefits. At the hearing on the claim, several doctors testified: claimant’s treating physician opined a five to ten percent permanent partial impairment; an examining physician opined a seven and one-half percent permanent partial impairment; and an examining chiropractor opined a ten to fifteen percent permanent partial impairment. The order appealed recites these opinions and finds that the claimant sustained a fifteen percent permanent partial impairment, noting that the chiropractor’s testimony was “thorough and convincing opinion . . and evaluation . . . .” Appellant asserts that the order does not adequately explain the reasons for accepting the chiropractor’s testimony rather than that of the other doctors.

It is the deputy’s function to determine credibility and resolve conflicts in the evidence, Grillo v. Big “B” Ranch, 828 So.2d 429 (Fla.1976), and he may accept the testimony of one physician over that of several others, Crowell v. Messana, 180 So.2d 329 (Fla.1965). The deputy “need make only such findings of ultimate material facts upon which he relies, as are sufficient justification to show the basis of an award . . . .” Pierce v. Piper Aircraft Corp., 279 So.2d 281 (Fla.1973); see also, Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1976). He need not explain precisely why he accepts the testimony of one witness and rejects that of another as long as it does not appear that he ignored or overlooked contrary testimony. Buro v. Dino’s Southland Meats, 354 So.2d 874 (Fla.1978).

In the present case, it is clear that the deputy did not overlook the contrary medical opinions. Although he accepted the opinion of an examining physician who had' seen the claimant only once, rather than that of the treating physician, Buro clarifies Pierce and Vargas and indicates that the circumstances of this given case do not require any greater explanation than that which was given.

The order appealed is AFFIRMED.

MILLS, C. J., and McCORD, J., concur.


text:
    John Eaton CUTTER, Appellant, v. STATE of Florida, Appellee.
    No. SS-103.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.
    John Eaton Cutter, in pro. per., for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from an order denying appellant’s motion for post-conviction relief. The trial court denied the motion without an evidentiary hearing. Although appellant based his motion on several grounds, the only ground which might entitle him to the relief sought would be his claim of ineffective assistance of counsel. The trial court’s order denying the ineffective assistance of counsel claim asserted that the record refuted appellant’s allegations, but no portion of the record or file was attached to the order.

We reverse and remand with instructions for the trial court to either attach that portion of the record which was found to refute appellant’s allegation or to conduct an evidentiary hearing. Calhoun v. State, 362 So.2d 726 (Fla. 1st DCA 1978).

MILLS, C. J., and McCORD and WENT-WORTH, JJ., concur.


text:
    DUBOSE OIL PRODUCTS COMPANY, Appellant, v. EXECUTIVE INDUSTRIES, INC., Appellee.
    No. SS-150.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.
    James A. Johnston, Pensacola, for appellant.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for appellee.
   PER CURIAM.

Our examination of the record shows that the nonexistence of genuine issues of material fact has not been established, and the entry of summary judgment for appellee was in error. See Rehurek v. Chrysler Credit Corporation, 262 So.2d 452 (Fla. 2nd DCA 1972), cert. denied 267 So.2d 833.

Reversed and remanded.

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


text:
    W. Taylor MOORE, Appellant, v. FLORIDA STATE BANK OF TALLAHASSEE and Betty Lou Moore, Appellees.
    No. SS-229.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.
    Fred F. Harris, Jr., Tallahassee, for appellant.
    No appearance for appellees.
   LILES, WOODIE A., Associate Judge (Retired).

Appellant, W. Taylor Moore, a third-party defendant in the trial court, appeals an order of the trial court granting a summary judgment in his favor but failing to award Appellant/Third Party Defendant’s attorney attorney fees pursuant to Section 57.-105, Florida Statutes, 1978.

Betty Lou Moore, now Betty Lou Curtis, and W. Taylor Moore were husband and wife. In their property settlement, she was awarded an encumbered 1974 Lincoln Continental. She filed petition for modification of the property settlement, and the indebtedness of the automobile was one of the main issues of that modification hearing. The court there ordered Appellant to assume all of the indebtedness over and above $4,500.00. The parties then obtained from the original plaintiff in this cause, Florida State Bank of Tallahassee, loans, and she pledged for her loan the Lincoln automobile. She failed to pay the note, and the bank brought suit. She, through her attorney, joined her former husband, this Appellant, as a third party defendant alleging that the third party defendant “is or may be liable to the original plaintiff for all or part of the monies sought in this matter.” He employed an attorney and defended the suit by way of a motion for summary judgment based on affidavits. His attorney also asked for reasonable attorney fees pursuant to the above-mentioned Florida statute. The court granted the summary judgment, and in its order said “the uncontroverted evidence shows no genuine issue of material fact and therefore, viewed in the light most favorable to the third party plaintiff, Betty Lou Moore, now Betty Lou Curtis, there is no evidence which would support a judgment in her favor.” He did not in his judgment rule on attorney fees. It therefore appears that this appeal is untimely and that Appellant’s position that the trial court failed to award attorney fees is premature in that the trial court has not ruled on the issue of attorney fees. If he did so, it is not reflected in the record. There must be a ruling by the trial judge before this court can review that ruling.

This case is therefore affirmed insofar as the correctness of the summary judgment and remanded for the trial judge to decide the issue of attorney fees pursuant to this statute.

Affirmed in part and remanded in part.

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


text:
    David Henry DYAL, Appellant, v. STATE of Florida, Appellee.
    No. SS-252.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.
    Michael J. Minerva, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Doris E. Jenkins, Asst. Atty. Gen., for appellee.
   MILLS, Chief Judge.

Dyal appeals from his conviction for escape on the ground that he was not a state, county, or municipal prisoner as defined by Section 944.40, Florida Statutes (1977), at the time of his escape. We affirm.

Dyal was serving a sentence in Lake Correctional Institution under the custody of the State of Florida when federal authorities filed a writ of habeas corpus ad testifi-candum commanding his appearance as a witness in a trial in Jacksonville. Pursuant to that writ the United States Marshal took Dyal from Lake County and, based on an agreement, placed him in the Nassau County Detention Facility. The federal government had no detention facilities in the Jacksonville area and had arranged with Nassau County to hold its prisoners, for a per diem consideration. While in the Nassau County Detention Facility, Dyal escaped and was subsequently recaptured in Las Vegas.

It was charged by information that while in the County of Nassau and State of Florida in lawful custody and having been confined in a penal institution of Nassau County, Florida, to wit, the Nassau County Detention Facility, he did escape from such confinement, contrary to the provisions of § 944.40. He filed a motion to dismiss under Rule 3.190(c)(4), Fla.R.Crim.P., alleging that there were no material disputed facts and the undisputed facts did not establish a prima facie case of guilt. He urged in the motion that he was not in state custody because he was in the Nassau County facility pursuant to the federal writ and was under the custody of the United States Marshal. After the motion was denied, Dyal entered a nolo plea expressly reserving the right to appeal the denial of the motion to dismiss and was sentenced, upon prior agreement, to one year and one day consecutive to the sentence he was then under.

Section 944.40 provides:

944.40 Escapes; penalty. — Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.

We do not agree with Dyal’s contention that this statute bases the offense on the question of which governmental entity has authorized the particular confinement. In our opinion, it bases it on which governmental entity controls the institution of confinement. In other words, it does not matter whether the defendant is a state prisoner in a state institution, a state prisoner in a county institution, a federal prisoner in a state institution, or any of the other foreseeable combinations. What matters is that the confinement is in a state, county, or municipal institution. Dyal was admittedly confined in the Nassau County Jail and was therefore confined in a county institution.

In Pons v. State, 278 So.2d 336 (Fla. 1st DCA 1973), the defendant was charged with escaping from the “lawful custody of the Sheriff of Alachua County,” but the proof showed that he escaped from the municipal jail of Gainesville. He urged on appeal that his conviction should be reversed because of the variance between the allegation and the proof. The court rejected the claim and found that the transfer from the county jail to the municipal jail was pursuant to an intergovernmental compact and that the defendant was under the constructive custody of the sheriff. Relying on this ease, Dyal contends that he was in the constructive custody of the United States Marshal, just as Pons was under the constructive custody of the sheriff and he did not,- therefore, escape the custody of the state, county, or municipal authorities.

Dyal’s point is not well taken because the court in Pons made it clear that a prisoner may be in joint custody. Pons was lawfully detained under the authority of the county and confined in an institution maintained by the municipality; thus, the county had constructive custody and the municipality had actual custody.

In this case, the circumstances are a little more confusing because Dyal was at all relevant times under lawful judgment and sentence of the State of Florida. He was under actual custody of the State of Florida, then actual custody of the United States Marshal, and then placed in confinement in the Nassau County Jail. Whether the federal authorities maintained constructive custody and could prosecute Dyal is not a question we need to address. Dyal’s own statement of the facts makes it clear that he was confined in a county detention facility, as required by Section 944.40, and none of the facts as stated by him denies the fact that the custody was lawful. The confinement in the county jail under the authority of the United States Marshal is authorized by Section 950.03, Florida Statutes (1977), which specifically authorizes county jailers to receive United States prisoners. Since the custody was lawful and since the escape was from a county detention facility, the undisputed facts establish the offense of escape as defined by Section 944.40.

AFFIRMED.

McCORD and WENTWORTH, JJ., concur.


text:
    John Owen WILLARD, Appellant, v. STATE of Florida, Appellee.
    No. SS-280.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.

      Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellee.
   MILLS, Chief Judge.

John Owen Willard appeals from judgments finding him guilty of aggravated assault and improper exhibition of a dangerous weapon and the sentences imposed. We affirm in part and reverse in part.

Willard was charged by amended information with one count of aggravated assault contrary to Section 784.021(l)(a), Florida Statutes (1979), and one count of possession of a concealed weapon by a convicted felon, contrary to Section 790.23, Florida Statutes (1979). He waived trial by jury.

At the close of the State’s case, the trial judge ruled that the State had failed to establish a prima facie case of possession of a concealed weapon by a convicted felon and he reduced that count to improper exhibition of a dangerous weapon which he believed was a lesser included offense.

The relevant evidence presented to the Judge was that Willard went into a convenience store sometime after 2:00 A.M. and conversed with the clerk. After the clerk returned to sweeping the floor, he looked up and saw Willard walking out of the store with two six-packs of beer under his arm. The clerk went to the door and told Willard to stop, that he could not get beer at that time of the morning. Willard turned and faced him and had what appeared to be the blade of a knife in his right hand. Willard did not say anything and did not step toward the clerk or brandish the knife, but the clerk was afraid that Willard was going to stab him and he returned to the store. The two men had been about four to six feet apart. Willard then drove off.

Another person in the store had gotten the car tag number and the police were able to trace the tag to Willard’s residence where the police found Willard and returned him and a companion to the store. The clerk identified Willard and stated that a knife that was found on Willard’s companion looked similar to the one pulled on him. He was not able to see the handle at the time Willard was standing outside the store. Willard’s companion testified that when he got in the car there was a knife on the seat, he put it in his pocket, and it was removed from his pocket by a person accompanying the police.

The first issue raised in this appeal is the sufficiency of the evidence to support the charge of aggravated assault,, a point which was properly preserved below.

An assault is defined in Section 784.-011(1), Florida Statutes (1979), as:

an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

Willard contends that the evidence failed to establish that he had the apparent ability to do violence or that he committed any act which created a well-founded fear of imminent violence. He was standing four to six feet away and made no move toward the clerk. The simple fact of holding a knife in his hand is, he urges, comparable to the situation in Battles v. State, 288 So.2d 573 (Fla. 2d DCA 1974), where the Court held that the act of pointing a gun at a police officer while emerging from a grocery store robbery was insufficient evidence of assault as a matter of law.

Although we realize that this is a close ease, we disagree that the evidence of aggravated assault is insufficient. The ability to do violence was established by the presence of the knife because a knife may be thrown or used anytime it is in a person’s possession. As for the commission of an act creating a well-founded fear of imminent violence, we believe that it is not necessary that the knife be brandished or that the perpetrator move toward the victim. Here, the evidence supports the finding that Willard pulled the knife and turned toward the clerk when he was confronted with the accusation of the theft of the beer or the procuring of the beer at an illegal hour. This was, in our opinion, an act which created a well-founded fear of imminent violence on the part of the clerk. Thus, we find the evidence was sufficient to support the conviction for aggravated assault.

Willard’s second point on appeal is that it was fundamental error to adjudicate him guilty under Count II of an offense not charged which is not a lesser included offense of the offense charged. We agree.

Brown v. State, 206 So.2d 377 (Fla.1968), sets forth the categories of lesser included offenses as:

(1) Crime divisible into degrees.
(2) Attempts to commit offenses.
(3) Offenses necessarily included in the offense charged.
(4) Offenses which may or may not be included in the offense charged depending on the accusatory pleading and the evidence. (206 So.2d at 381)

Willard was charged with carrying a concealed weapon by a convicted felon and convicted of improper exhibition of a dangerous weapon. The only possible category which might apply here is Category IV, but it can readily be seen that the allegation that a weapon was concealed does not include the element of exhibition of that weapon.

The State contends that Willard waived the right to raise this issue on appeal because of his failure to object in the trial court. Clark v. State, 363 So.2d 331 (Fla.1978). Willard admits that he failed to object, but urges that fundamental error occurred. We agree.

The facts here are similar to those in Grange v. State, 371 So.2d 723 (Fla. 1st DCA 1979), where this Court, subsequent to Clark, reversed a conviction for sexual battery without consent by use of physical force and violence not likely to cause serious personal injury where the defendant had been charged with committing sexual battery without consent by threatening to use physical force and violence likely to cause serious personal injury. The State’s reliance on McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971), is misplaced because there counsel for defendant induced the very error complained of on appeal. Such is not the case here. Nor is this a situation such as that in Odom v. State, 375 So.2d 1079 (Fla. 1st DCA 1979), where defense counsel participated and acquiesced in the decision to give an erroneous charge to the jury-

The record in this case does establish that counsel acquiesced in the court’s ruling, but the record also establishes that the determination that improper exhibition of a dangerous weapon was a lesser included offense and the decision to adjudicate Willard guilty of that offense was arrived at independently by the trial judge and announced to counsel. There was no participation in that decision by counsel, let alone an inducement to so decide.

Accordingly, we AFFIRM the judgment and sentence for aggravated assault, and we REVERSE the judgment for improper exhibition of a dangerous weapon and direct that the sentence be VACATED. In light of our disposition of the second point on appeal, we need not rule on the remaining issue.

McCORD and WENTWORTH, JJ., concur.


text:
    Ernest BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. TT-486.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.
    Ernest Brooks, pro se.
    Jim Smith, Atty. Gen., for appellee.
   PER CURIAM.

Appellant, pro se, appeals from an order of the trial court denying his motion to vacate his judgment and sentence pursuant to Rule 3.850, Florida Rules of Criminal Procedure. Appellant’s motion is defective on its face as it does not specify whether defendant had filed any previous post-eon-viction motions, and if so, how many. Neither did it state whether an appeal was taken.

Accordingly, the lower court’s order is affirmed. However, such affirmance is without prejudice to appellant to refile in compliance with Rule 3.850(b) and (c), Florida Rules of Criminal Procedure. Catlett v. State, 367 So.2d 735 (Fla. 4th DCA 1979); Saxon v. State, 384 So.2d 35 (Fla. 5th DCA 1980).

McCORD, BOOTH and SHAW, JJ., concur.


author: BOOTH, Judge. ERVIN, Judge,

text:
    Jerry BLOW, Appellant, v. STATE of Florida, Appellee.
    No. MM-60.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1980.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a judgment of conviction for escape, kidnapping and aggravated assault with a deadly weapon. Appellant contends that the 15-year sentence for aggravated assault exceeds the legal maximum of five years and that the trial court committed fundamental error in imposing judgment and sentence for aggravated assault because it was not a lesser included offense of the charge of armed robbery. We affirm the conviction of aggravated assault and remand for a correction of the sentence as to that offense.

The information charging armed robbery states, in pertinent part, that appellant “did then and there unlawfully by force and by putting [the victim] in fear, rob, steal and take away . . . certain personal property . . ., and in the course of committing said robbery the said Jerry Blow carried a firearm.” [emphasis supplied] This charge is in the language of the robbery statute, Florida Statutes § 812.13.

The evidence showed that the defendant pointed a pistol at the victim and forced him to drive his vehicle into ,a wooded area. At charge conference, the court announced it would be giving the standard instruction on aggravated assault as a lesser included offense of the robbery charge. The trial court asked defense counsel if there were any exceptions or objections to the instructions as discussed, and defense counsel stated he had no objections. There was no objection raised when the court instructed the jury; and, when the court again asked if there were any exceptions or objections to the instructions as given, defense counsel stated there were none. There were no objections to the verdict form which listed aggravated assault as one of the crimes for which Blow might be convicted.

Appellant argues that aggravated assault was neither a crime charged nor a lesser included offense, because the information did not allege that appellant used the firearm or deadly weapon to commit an assault in the course of committing the robbery. Thus, he contends, relying upon Vitko v. State, 363 So.2d 42 (Fla. 2d DCA 1978), the aggravated assault was not a “category four” lesser included offense, because the essential elements of the aggravated assault were not specified in the charge. We find reliance on Vitko misplaced. Vitko does not discuss whether or not the appellant objected to the aggravated assault instruction or what the evidence showed as to Vitko's use of the knife.

A person called on to respond to criminal charges has the fundamental right to be notified by the accusatory pleading of all offenses for which he may be convicted. Payne v. State, 275 So.2d 261 (Fla. 4th DCA 1973); Griffin v. State, 322 So.2d 587 (Fla. 4th DCA 1975). The Supreme Court, in Brown v. State, 206 So.2d 383 (Fla.1968), states: “[W]e are confronted by the organic requirement that the accusatory pleading apprise the defendant of all offenses of which he may be convicted.” It follows that a defendant may be convicted only of a crime expressly charged, or which is included, necessarily or by pleading and proof, within the crime charged. Brown v. State, supra; Rule 3.510, Fla.R.Crim.P. Here, we find that the allegations of the information satisfied defendant’s fundamental right. The allegation that he carried a firearm in the commission of the offense was sufficient to apprise him of the lesser included charge; and, in the absence of objection by the defendant, the trial court properly charged on aggravated assault.

Determination as to whether a particular crime is a “category four” lesser included offense, requiring a jury instruction, is often difficult. Difficult as the question is, however, the trial court must act to either give or not give the charge, knowing that, whichever the decision, error may be claimed under the existing case law. Compare, Hammer v. State, 343 So.2d 856 (Fla. 1st DCA 1976), cert. den. 352 So.2d 175 (Fla.1977), relying upon State v. Terry, 336 So.2d 65 (Fla.1976), with State v. Wilson, 276 So.2d 45 (Fla.1973). The defendant should not be permitted to stand mute and have the benefit of the lesser charge and grounds to attack his conviction of the lesser offense, as well. See, Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980).

Here, the trial court determined that aggravated assault was a lesser included offense of first degree robbery as charged. For all that appears at trial, defendant knew full well that he was charged with armed robbery, and could be convicted of aggravated assault as a lesser offense. Proof at trial supported the conviction, and there was ample opportunity for objection to the charge. Under these circumstances, we think the appellant had the duty to raise objection, if any, at the time the court announced it would instruct as to aggravated assault and to inform the court that he had no notice he could be convicted of that offense.

Accordingly, the. judgment is affirmed and remanded for correction of sentence.

LARRY G. SMITH, J., concurs.

ERVIN, J., specially concurs with opinion.

ERVIN, Judge,

specially concurring.

I concur because the result is required by the latest expression from this court in Odom v. State, 375 So.2d 1079 (Fla. 1st DCA 1979). Odom, however, appears to conflict with Hornsby v. State, 352 So.2d 954 (Fla. 1st DCA 1977), although it did not expressly overrule Hornsby. Hornsby was charged with entering without breaking with intept to commit a misdemeanor. His attorney requested the erroneous charge on the lesser offense of trespass which included an element of intent not alleged in the information, then appealed the conviction of the lesser offense on the grounds urged in this case. This court reversed, stating it was fundamental error to convict Hornsby of a crime he was not charged with, despite his attorney’s failure to object, citing Haley v. State, 315 So.2d 525 (Fla. 2d DCA 1975). Haley has been implicitly overruled in Ray v. State, 374 So.2d 1002 (Fla. 2d DCA 1979). Other districts have followed the rule in Ray and Odom : Carter v. State, 380 So.2d 541 (Fla. 5th DCA 1980) and Lumia v. State, 372 So.2d 525 (Fla. 4th DCA 1979).

      . Appellant was sentenced to 15 years for escape; life imprisonment for kidnapping; and 15 years for aggravated assault, the sentences to run consecutively. On appeal, no issue is raised as to the convictions or sentences for escape and kidnapping.

      . Brown v. State, 206 So.2d 377 (Fla.1968), at Page 381:
      The quoted statutes suggest four categories or situations which have distinguishing characteristics and should not be confused. They are:
      (1) Crimes divisible into degrees.
      (2) Attempts to commit offenses.
      (3) Offenses necessarily included in the offense charged.
      (4) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence,
      (emphasis theirs)

      . Fountain v. State, 353 So.2d 608, 609 (Fla. 4th DCA 1973) (trial court’s refusal to give a requested instruction on aggravated assault as lesser included offense of robbery and “carrying a firearm in the commission of the robbery,” held reversible error, the court holding: “There is no question that the offense of aggravated assault ... [is a] lesser included offense of the main charge”); Rayner v. State, 273 So.2d 759 (Fla.1973) (court’s failure to charge on lesser offense, even though at request of defendant, held error but, on remand, 286 So.2d 604 (Fla. 2d DCA 1973), held waived by lack of proper objection).


text:
    James Alfred RAWLS, Appellant, v. STATE of Florida, Appellee.
    No. MM-425.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1980.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, and James Alfred Rawls, in pro. per., for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. Odom v. State, 375 So.2d 1079 (Fla.1st DCA 1979); Blow v. State, 386 So.2d 872, no. MM-60 (Fla.1st DCA, August 15, 1980). But see Hornsby v. State, 352 So.2d 954 (Fla.1st DCA 1977).

ERVIN, BOOTH, LARRY G. SMITH, JJ., concur.


text:
    Robert CORTE, Appellant, v. DEPARTMENT OF ADMINISTRATION, CAREER SERVICE COMMISSION and State of Florida, Department of Environmental Regulation, Appellees.
    No. NN-468.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1980.

      Robert L. Corte, pro se.
    Augustus D. Aikens, Jr., and Ray Allen and Sheri Smallwood, Tallahassee, for ap-pellees.
   LILES, WOODIE A., Associate Judge (Retired).

Robert Corte was employed as an administrative assistant for the Department of Environmental Regulation in their Pensacola district office. He had been so employed for a sufficient period of time to come within the career service protections. On December 28, 1978, he was discharged by the district manager, and he appealed pursuant to the proper procedures to the Career Service Commission. A hearing was held, and the Commission ordered that Mr. Corte be reinstated effective January 26, 1979; to his former class or position or to a comparable class for which he is qualified. The Commission, however, specifically ordered that back pay should not be awarded for the period from September 28, 1978, to January 26,1979. It also granted him costs in this matter in the amount of $322.62 and said that this sum represents costs incurred in the pursuit of this appeal, meaning the appeal he took to the Commission. Mr. Corte appealed and asked this court to reverse the Commission regarding back pay from September 28, 1978, to January 26, 1979, and to award him all costs incurred as a result of his appeal. He also assigned as error the fact that the Commission allowed agency notes but disallowed his summary of notes, charts, documents, and so forth, wherein he attempted to show poor working conditions, insufficient staffing, and continued harassment by his superior.

We affirm the Commission’s action for the reason that Section 110.309(3), Florida Statutes, specifically states:

“Upon a finding just cause did not exist for the suspension or dismissal, the commission may order the reinstatement of the employee with or without back pay.” (Emphasis supplied)

See also, Section 22A-10.07, Florida Administrative Code. Accordingly, it rests within the sound discretion of the Commission, when reinstating an employee, to do so “with or without back pay,” and this court shall not reverse or substitute its judgment for that of the Commission unless the court finds that the agency has abused it discretion. Section 120.68(12), Florida Statutes; Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 S.2d 412 (Fla. 4th DCA 1974). Appellant has not demonstrated an abuse of discretion by the Commission. It heard all the testimony, made findings of fact in an order, and acted within the scope of its authority in disallowing back pay. While this court might have decided the case differently, we are constrained from substituting our judgment for that of the Commission on a matter of discretion.

Therefore, for the reasons expressed above, the Commission’s order is

AFFIRMED.

ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.


text:
    Jimmy W. CORBIN, Appellant, v. STATE of Florida, Appellee.
    No. PP-173.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1980.
    Jimmy W. Corbin, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s denial of his Fla.R.Crim.P. 3.850 motion for post-conviction relief. Rule 3.850(e) requires that the trial court attach a copy of that portion of the files and record showing that the appellant is entitled to no relief; in the present case the trial court did not comply with the rule, and the cause must be remanded for the trial court to attach the required documents or hold an evidentiary hearing. Collins v. State, 382 So.2d 418 (Fla. 5th DCA 1980).

It also appears that the trial court may have relied on an affidavit made by appellant’s trial counsel in response to appellant’s motion to vacate. To the extent that the court did rely on this document, the appellant should be afforded the opportunity to rebut or reply to such evidence.

Accordingly, the cause is remanded to the trial court for further proceedings consistent with this opinion.

McCORD and WENTWORTH, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    Leroy WHITMAN, Appellant, v. HILLSBOROUGH COUNTY SCHOOL BOARD and Insurance Company of North America, Appellees.
    No. PP-415.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1980.

      William M. Holt, of John A. Chilldon, P.A., Tampa, for appellant.
    Hamilton H. Whaley, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appel-lees.
   LILES, WOODIE A., Associate Judge (Retired).

The only issue on this appeal is whether Appellant, injured in a compensable accident while employed by the Appellee School Board, will get the benefit of the amendment to Florida’s Social Security Offset Statute, Section 440.15(10), in Section 6, Chapter 75-209, Laws of Florida. The Deputy Commissioner held that because Appellant was injured prior to the effective date of the amendment, it was not applicable to his case. We disagree and reverse.

When Appellant was injured in July, 1974, and February, 1975, the Florida off-set statute provided that an individual’s benefits under Chapter 440 could be reduced by the employer/carrier to the extent the sum of the individual’s Chapter 440 benefit and his social security disability benefit exceeded his “average weekly wage.” Section 440.15(10) was enacted in response to 42 U.S.C. § 424a(d), providing that, where a state reduces benefits to injured workers based on the worker’s receiving state benefits and federal social security disability benefits, the federal off-set provision, 42 U.S.C. § 424a, will not apply. The federal off-set provision reduces an injured worker’s social security disability benefit to the extent that the sum of that benefit and the worker’s state disability benefit exceeds 80 percent of the worker’s “average current earnings.” The 1975 amendment added that Section 440.15(10)(a) “shall not operate to reduce an injured worker’s benefits under this chapter to a greater extent than they would have . . . been reduced under 42 U.S.C. § 424a.” Because of the different wage bases on which the federal and the state benefits are computed, no off-set would be applied to Whitman’s benefits under the Federal statute; whereas, under Section 440.15(10), the off-set reduces his Chapter 440 benefit from $90.72 per week to approximately $53.00 per week.

We agree with Appellant that the Deputy Commissioner erred in failing to apply the 1975 amendment. As is pointed out in Appellant’s brief, the Deputy was unaware of several decisions of the Industrial Relations Commission. See, Patrick Fruit Co. v. Boykins, IRC Order 2-3904, Husky Industries v. Mixon, IRC Order 2-3905, A. C. Scott Construction and Paving Co., Inc. v. Miller, IRC Order 2-3906, and Joe Patti Seafood, Inc. v. Neuman, IRC Order 2-3908, wherein the Industrial Relations Commission held the 1975 amendment applicable to compensation payments made after its effective date, irrespective of the date or dates of the accidents which caused compensable disability. Therefore, the 1975 amendment applies to this claimant.

No rights with regard to the social security set-off could arguably have vested until June, 1979, when the employer/carrier first applied for it. This was the holding in Pensacola Buggy Co. v. Jernigan, 377 So.2d 245 (Fla. 1st DCA 1979).

The Deputy Commissioner relied on Sullivan v. Mayo, 121 So.2d 424 (Fla.1960) in holding that the 1975 amendment did not apply. However, this case is not applicable in this situation. That case involved retroactive application of a statute which altered the employer/carrier’s liability under Chapter 440. The instant case does not involve retroactive application of a statute. For these reasons, the Deputy Commissioner’s order is REVERSED and REMANDED for the entry of an order not inconsistent with this opinion.

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

      . Whitman’s “average weekly wage,” the basis for his Chapter 440 benefit, was the average of his wages over the past thirteen weeks before his injuries, or $151.20. Section 440.14(1), Florida Statutes (1977). His “average current earnings,” the basis for his social security benefit, was his average weekly wage from the year among the past five years before his injury in which he earned the most, or $218.27 per week. 42 U.S.C. § 424a(a)(8).

      . His federal benefit amounted to $68.01 per week, and his Chapter 440 benefit was $90.72 per week. Their total, $158.73, is less than 80 percent of $218.27, his “average current earnings,” but more than 80 percent of $151.20, his “average weekly wage,” by $52.95, the off-set Appellee has taken here.