author: PER CURIAM. OTT, Judge,

text:
    In re ESTATE of Helen I. RUSSELL, Deceased.
    No. 79-177.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 1980.

      Jack G. Williams of Wilson & Williams, Clearwater, for appellant.
    C. Richard Nail, Clearwater, for appellee.
   PER CURIAM.

Helen Russell died on May 7, 1976, leaving a will which bequeathed one half of her estate to her son, Kenneth Smith, and the other half to her stepchildren Robert Russell, Ronald Russell and Patricia Russell. The estate consisted entirely of personal property. The court appointed Mr. Smith personal representative of the estate.

Mr. Smith was unable to locate the stepchildren of Mrs. Russell, and so the court appointed a guardian ad litem to protect the interests of the unlocated beneficiaries. The guardian was also unable to locate the three Russell children. Mr. Smith then petitioned the court for an order determining beneficiaries and for instructions as to the distribution of the estate. Following a hearing, the court made the following findings of fact:

1. Robert Russell, Ronald Russell and Patricia Russell are entitled under the will to one half of the estate.

2. The whereabouts of these beneficiaries are unknown.

3. Kenneth Smith is the sole heir at law of the decedent and would under intestate succession be entitled to the entire estate.

4. The vast majority of assets of the estate consists of a bequest to Mrs. Russell from her father’s estate, Mr. Smith’s grandfather.

On these findings, the court ordered that one half of the residue of the estate after payment of all reasonable costs and expenses be paid to Mr. Smith and that the remaining one half of the estate be paid to the clerk of the circuit court and disposed of pursuant to the terms of Section 733.816, Florida Statutes (1977). From this order, Mr. Smith filed a timely notice of appeal. The guardian ad litem is the appellee.

Mr. Smith contends that he is entitled to receive the entire estate. He points to Section 732.101, Florida Statutes (1977), which provides that “any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in the following sections of this code,” and argues that because no one can locate the people to whom one half of the estate should go, the will does not effectively dispose of that portion of the estate. Hence, as the sole heir at law he is entitled to receive those funds under Section 732.-103(1), Florida Statutes (1977).

We cannot accept this argument. An ineffective disposition under Section 732.101 is one which is legally ineffective rather than one where a specified beneficiary under the will cannot be found. Moreover, Section 733.816 clearly contemplates the inability to locate the beneficiary. The applicable funds are safeguarded for a ten-year period to give the beneficiary the opportunity to make his whereabouts known and to collect the bequest. In the meantime if it is shown that he predeceased the testator, the person entitled to the bequest under the antilapse statute can claim the funds. If on the other hand he outlives the testator but dies thereafter, his heirs can obtain the funds within the ten-year period.

Absent a showing that the beneficiary has predeceased the testator, an unclaimed bequest has not lapsed; it has simply failed because the lawful recipient is unavailable to receive it. See In re Kuhn’s Estate, 248 Wis. 475, 22 N.W.2d 508 (1946). Where funds remain unclaimed because a beneficiary under the will cannot be located, we question the wisdom of escheating the bequest when there are other beneficiaries or heirs available to take. However, the statute is clear and it is up to the legislature to provide for an alternative disposition of the funds.

AFFIRMED.

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

OTT, J., concurs specially with opinion.

OTT, Judge,

Specially concurring.

I am forced to concede that the literal thrust of Section 733.816, Florida Statutes, gives the state the right to confiscate that portion of a decedent’s estate left to a beneficiary who cannot be located. However, I cannot believe that the Legislature ever intended a result so contrary to the deeply ingrained rule that escheat is fundamentally abhorrent and should occur only when a decedent leaves no heirs. § 732.107, Fla. Stat.; Johnson v. Wilson, 48 Fla. 76, 37 So. 179 (1904). My remarks here are motivated by the hope that they may engender an ameliorating response in the Legislature, not only as to this particular section, but also in not enacting additions or changes to substantive rights while undertaking to codify and consolidate existing law. Changes in the law which affect substantive rights should be deliberately undertaken, individually considered, openly publicized and clearly expressed.

The theory behind Section 733.816 seems to be that in the absence of contrary proof it must be presumed that legatees named in a will survived the decedent; that consequently the bequest vested and, if neither the legatees nor their heirs come forward within ten years, escheat of their estates can properly be ordered. The problem with that rationale is that no matter how you slice it the end result is unchanged — part of the decedent’s estate passes directly into the state coffers. I cannot accept or condone escheat when, as here, an heir survived the decedent and was obviously the main object of her bounty.

Granted, difficulties arise when legatees cannot be located — but the problems are not insurmountable. I believe that with slight modification the statute could fulfill the obvious legislative purpose of (1) giving missing heirs a reasonable opportunity to appear and claim their legacies, while (2) permitting the probate of estates to be closed without undue delay, and yet at the same time avoid the unpalatable prospect of government seizure of private property.

When the beneficiary named in a will fails to survive the testator, we generally call such failure of the testamentary gift a “lapse.” In a broader sense, however, it can be said that a lapse occurs whenever consummation of a testamentary scheme is frustrated by some deficiency or failure on the part of the donee. In re Lane’s Estate, 186 So.2d 257 (Fla. 2d DCA 1966); 80 Am.Jur.2d 716; 18 Fla.Jur.2d 295. I can think of no valid reason why the failure of a legatee to appear and claim his inheritance, after all reasonable means of notifying him have been utilized, should not result in a lapse, a “falling back of the gift into the estate” of the donor. Proceedings in rem quite commonly adjudicate rights of absent parties, who are bound so long as due process has been observed. Ch. 49, Fla.Stat. I see no constitutional barrier to a determination that an unclaimed testamentary gift has lapsed, particularly where title has never passed to the missing legatee. 31 Am.Jur.2d 128.

The legislature could create a “statutory lapse” of gifts to beneficiaries who cannot be located, so that at the end of the ten year period a “lapse” would occur nunc pro tunc to the date of decedent’s death. Where such “statutory lapse” would result in escheat, then the statute would postpone it for ten years, within which time any lawful owner may establish entitlement to the property. Where such “statutory lapse” would result in the lapsed gift going to other beneficiaries, then the distribution to such other beneficiaries would be postponed for ten years unless there is earlier proof of an actual lapse. For example, the heirs at law were held entitled to a gift to a legatee who hadn’t been “heard of” for 35 years. In re Wilson’s Estate, 186 So.2d 283 (Fla. 1st DCA 1966).

I have to agree that under the statute as it presently reads the court below had no alternative but to order the deposit of the funds. But appellant should be entitled to have the legacies distributed to him at the end of the ten year waiting period, or at an earlier date should he be able to establish the factors which would support a finding that the gifts lapsed and are subject to his sole claim. To me that would be highly preferable to an escheat of the property to the state.

Quite frankly I would have “legislated” a new form of “lapse” in this case had I been able to persuade a majority of the court.

I recognize that careful will drafting can prevent such consequences, but that, in my opinion, does not justify enhancing and facilitating the confiscatory right of government.

      . 733.816 Disposition of unclaimed funds held by personal representatives.—
      (1) In all cases in which there are unclaimed funds in the hands of a personal representative that cannot be distributed or paid to the lawful owner because of inability to find him or because no lawful owner is known, the court shall order the personal representative to deposit the funds with the clerk and receive a receipt, and the clerk shall deposit the funds in the registry of the court to be disposed of as follows:
      (a) If the value of the funds is $50 or less, the clerk shall post a notice for 30 days at the courthouse door giving the amount involved, the name of the personal representative, and the other pertinent information that will put interested persons on notice.
      (b) If the value of the funds is over $50, the clerk shall publish the notice once a month for 2 consecutive months in a newspaper of general circulation in the county.
      After the expiration of 6 months from the posting or first publication, the clerk shall deposit the funds with the State Treasurer after deducting his fees and the costs of publication.
      (2) Upon receipt of the funds, the State Treasurer shall deposit them to the credit of the State School Fund, to become a part of the school fund. All interest and all income that may accrue from the money while so deposited shall belong to the fund. The funds so deposited shall constitute and be a permanent appropriation for payments by the State Treasurer in obedience to court orders entered as provided by subsection (3).
      (3) Within 10 years from the date of deposit with the State Treasurer, on written petition to the court that directed the deposit of the funds and informal notice to the Department of Legal Affairs, and after proof of his right to them, any person entitled to the funds before or after payment to the State Treasurer and deposit as provided by subsection (1) may obtain an order of court directing the payment of the funds to him. AU funds deposited with the State Treasurer and not claimed within 10 years from the date of deposit shall escheat to the state for the benefit of the State School Fund.

      . § 732.603, Fla.Stat. (1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Terrance James DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. OO-209.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1980.

      Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Having considered the briefs and the record, we find no reversible error with regard to appellant’s conviction for robbery with a firearm. However, we vacate that portion of the sentence mandating a three-year minimum term and remand the cause for its deletion. The uncontroverted evidence was that appellant did not have actual possession of the gun used in the robbery. Vicarious possession of a firearm is not punishable under Section 775.087(2), Florida Statutes (1979). Earnest v. State, 351 So.2d 957 (Fla.1977), Brown v. State, 358 So.2d 93 (Fla. 4th DCA 1978). Appellant need not be present for the correction of his sentence.

ERVIN and SHAW, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge, concur.


text:
    STANLEY FURNITURE FINE DECORATORS and Lumbermen’s Mutual Insurance, Appellants, v. Steven CORLISS, Appellee.
    No. RR-24.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1980.
    Frank E. Maloney, Jr., and Anthony J. Beisler, Fort Lauderdale, for appellants.
    Emil Jaczynski, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

The judge’s order is affirmed except as to the payment of Dr. Stuart’s bill and the finding that the employer/carrier controverted the claim.

Appellee admits that no request was made for payment of Dr. Stuart’s bill and that the employer/carrier never controverted the claim. Pursuant to this confession of error, we reverse the order as to these points.

ERVIN and SHAW, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge, concur.


text:
    CALDER RACE COURSE, INC., a Florida Corporation, Appellant, v. Dr. Leon G. VAN WERT, Chairman of the Florida Pari-Mutuel Commission; James Lewis, Steve Abramson, Cope Newbern and Billy Vessels, Members of the Florida Pari-Mutuel Commission, Department of Business Regulation of the State of Florida (herein “the Commission”); the Division of Pari-Mutuel Wagering of the Department of Business Regulation (herein “the Division”); and West Flagler Associates, Ltd., Biscayne Kennel Club, Inc., Investment Corporation of South Florida, Inc., and World Jai Alai, Inc., d/b/a Summer Jai Alai (herein “Miami”), Appellees.
    No. WW-443.
    District Court of Appeal of Florida, First District.
    Aug. 27, 1980.
    Wilbur E. Brewton of Taylor, Brion, Buker & Greene, Tallahassee, for appellant.
    Sam Spector of Spector & Tunnicliff, Tallahassee, William P. Cagney, III, Richard B. Burroughs, Secretary of the Dept, of Business Regulation for the State of Florida, and Gary Rutledge, Miami, for appellees.
   PER CURIAM.

Time being of the essence, we granted accelerated review of Calder Race Course, Inc.’s appeal from an order of the Florida Pari-Mutuel Commission approving a schedule of operating dates for summer jai alai, including afternoon or matinee performances, for appellees-purchasers of an existing pari-mutuel permit (Miami Beach Kennel Club, Inc.), upon its conversion to a jai alai permit under Chapter 80-88, Laws of Florida (1980).

Appellant contends (1) that the Commission’s order of July 29,1980 awarding matinee performance dates was barred by res judicata because at a prior hearing, on June 27, 1980, a motion for approval of matinee performance dates died for lack of a second, and the application was pronounced “denied” by the Commission’s chairman, although no vote of the Commission was taken; (2) that the permit (Miami Beach Kennel Club, Inc.) had not conducted afternoon or matinee performances “prior to the conversion” to summer jai alai, as required by Chapter 80-88, although it had run matinee performances in 1978; and (3) that the Commission lacked authority to authorize matinees for the summer of 1980 because of its failure to adopt a rule as required by duly enacted Section 550.011(2), Florida Statutes (Chapter 80-57, Laws of Florida (1980)).

After consideration of these and other contentions presented by the parties in their briefs and oral arguments before this court, we conclude that reversible error does not appear, and the order appealed from is affirmed.

ROBERT P. SMITH, Jr., LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    Donald E. RICHMOND, Appellant, v. STATE of Florida, Appellee.
    No. 79-368/T4-408.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 1980.
    J. Cheney Mason, Orlando, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a robbery conviction. Although we affirm the conviction of the appellant, we deem it necessary to comment upon the conduct of trial counsel and certain statements made by the prosecutor in regard to a state’s witness. The assistant state attorney said

Now as to Kevin Phillip Ellis, he was a State’s witness. That means the State vouches for his honesty and his truthfulness in this particular case. And as a representative of the State of Florida, I do that; after interviewing Mr. Ellis intensively, and after talking to him intensively, I do vouch for him, and I do say that he is, and he is represented to be, by the State of Florida, a witness who came forward and told the truth in this matter. And that’s exactly what he did in this matter.
* * * * * *
But I’m stating to you, and I contend that Mr. Ellis, in this particular situation, with this particular case, and all the events surrounding the case, has told you the truth, the honest truth, as he knows it to be, as it happened that night . . .

Because there was no objection to these comments, there is no error for this court to correct. Clark v. State, 363 So.2d 331 (Fla. 1978). The comments were not invited by defense counsel, and this type of comment can hardly by invited. The speaker was in violation of disciplinary rule 7-106(c)(4), Florida Bar Code of Professional Responsibility, when he made those comments but that does not mean we should reverse the conviction of the appellant where no objection and no motion for mistrial was made. Clark v. State. See Sequin v. Houser Motor Co., 350 So.2d 1089 (Fla.4th DCA1977).

Finding no error, we affirm the conviction and sentence.

AFFIRMED.

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


author: DAUKSCH, Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Gerhard S. BERGMAN et al., Appellees.
    No. 79-1702/T4-694.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 1980.
    James 0. Driscoll of Driscoll, Langston, Layton & Kane, P.A., Orlando, for appellant.
    Anne C. Conway of Wells, Gattis & Hal-lowes, P.A., Orlando, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in an insurance case. There are two questions on appeal. First is whether the appellant insurance carrier was entitled to set off personal injury protection (PIP) benefits and medical payment benefits which that carrier had paid. The set-off would be against uninsured motorist insurance benefits paid to appellee by appellant. This case is quite similar to Carter v. Government Emp. Ins. Co., 377 So.2d 242 (Fla. 1st DCA 1979).

Section 627.727(1), Florida Statutes (1977), is the applicable statute and it has been interpreted to allow a set-off. Carter v. Government Emp. Ins. Co.; Masters v. Lester, 366 So.2d 471 (Fla. 1st DCA 1979); Evans v. Florida Farm Bureau Cas. Ins. Co., 355 So.2d 149 (Fla. 1st DCA 1978). See also Gaines v. Industrial Fire & Cas. Ins. Co., 378 So.2d 100 (Fla. 3d DCA 1979); Florida Farm Bureau Cas. Co. v. Andrews, 369 So.2d 346 (Fla. 4th DCA 1978), cert. denied, 381 So.2d 764 and 766 (Fla.1980); Aetna Cas. & Sur. Co. v. Ilmonen, 360 So.2d 1271 (Fla. 3d DCA 1978).

In Carter, the court held Chapter 79-241, Laws of Florida, effective October 1, 1979, cannot be applied “retroactively” because that would result in an unconstitutional impairment of contract. We disagree with Carter for the reasons Judge Ervin stated in his dissent and because we interpret section 627.727(1), Florida Statutes (1977), not to allow a set-off for PIP and medical benefits. When the Legislature in Chapter 79-241 enacted its clarifying statute, it did so in order to make it clear PIP and medical payments are not to be set-off. We agree with the Legislature that the 1977 statute could have been clearer, and the statute might have been ambiguous but the most logical and the fairest interpretation is to disallow a set-off for PIP and medical payment benefits. After all, the insured paid for all three coverages: PIP, medical payments and uninsured motor vehicle coverage. Why should he not receive the benefits? Further, it is quite reasonable and proper for this court to interpret the statute as it existed before the clarifying legislation in Chapter 79-241 in a way to harmonize that prior statute with the current statute. This gives the credence to the Legislature which it is due, as well as preventing a wrong which would occur if we failed to interpret the statute in a just fashion. See Williams v. Hartford Cas. & Indem. Co., 382 So.2d 1216 (Fla.1980).. That portion of the judgment for declaratory relief which allows the set-off is reversed.

The second question is whether an insured who has once rejected full coverage under the uninsured motorist portion of the policy must again reject that full coverage when he buys a replacement vehicle. The evidence in this case is quite clear the replacement vehicle was no more than that, and there is no evidence of any additional premium being paid for full uninsured motorist coverage. Nor is there any evidence or law to support the insured’s assertion that whenever an insured replaces a vehicle on his policy that the carrier must go through the full rejection routine regarding full PIP coverage, full uninsured motorist coverage or any other requirements which the statutes compel when the policy is first written. We reverse that portion of the judgment of the trial court which requires an uninsured motorist claim payment in any amount in excess of the initially agreed upon amount, which amount is reflected in the rejection when the policy was initially written.

The final summary judgment is reversed and this cause is remanded for further proceedings in accordance with this opinion and for the assessment of appropriate attorney’s fees.

This decision conflicts with the Carter decision in the first point discussed above.

REVERSED AND REMANDED.

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

      . This enactment is entitled clarifying legislation and essentially adds the sentence: “Only the underinsured motorist’s automobile liability insurance shall be set-off against underinsured motorist coverage.”


author: COBB, Judge.

text:
    STATE of Florida, Appellant, v. Robert A. PRESTON, Appellee.
    No. 79-385.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 1980.

      Douglas Cheshire, Jr., State’s Atty., Ti-tusville, and Alan B. Robinson, Asst. State’s Atty., Sanford, for appellant.
    David M. Porter, Public Defender, and Bennett Ford, Chief Asst. Public Defender, Titusville, Joan H. Bickerstaff, Asst. Public Defender, Cocoa Beach, and Andrew A. Graham, Cocoa, for appellee.
   COBB, Judge.

The state appeals from the trial court’s granting of defendant’s pre-trial motion to suppress evidence on the grounds that a search of defendant’s room in his mother’s house was conducted without warrant and without consent. Defendant was charged with first degree murder, robbery, kidnapping, and sexual battery.

Concerning whether the defendant consented to a search of his room, we find substantial evidence to support the trial court’s conclusion that consent was not freely and voluntarily given. One officer admitted that an interrogation was conducted with officers standing by with blackjacks in their hands, but not in a threatening manner. In addition, defendant testified that during the interrogation one detective grabbed him by the shirt and had a heavy five-cell flashlight in his hand, while another detective had a blackjack and three or four other officers had blackjacks or heavy flashlights. The trial court properly found that defendant’s signing a form consent to search the room he occupied in his mother’s home was not voluntary the day after the interrogation even though the record does not indicate the defendant was physically abused. We disapprove the use of blackjacks and five-cell flashlights as a means of encouraging suspects to cooperate with the police.

Concerning the consent of the defendant’s mother to a search of defendant’s room in her house, defendant’s mother testified that she was interviewed at a time when she was aware that a homicide had been committed and that her son was a suspect; and admitted that she gave her consent to search defendant’s room in her house. A jacket was found across a chair and food stamps were taken from a wastebasket. Defendant’s mother testified that defendant paid her no room and board money the month the evidence was seized; that she had access , to his room to do the laundry, change his sheets, and clean his room. She stated there were no keys to lock the bedroom doors; that they were seldom locked; that the money that defendant gave her bought groceries; that she entered his room to do laundry and cleaning weekly; that in a prior sworn statement she had stated her son paid no rent and was unemployed. The mother also stated she occasionally ran the sweeper through his room when cleaning the whole house, but that defendant did any other cleaning.

Defendant testified that he had his own bedroom and that when he was employed he paid his mother some money for rent; that his brothers were not allowed to enter his room without his permission; that his mother had access to the room to do the laundry, clothes and linen, and to clean. Defendant admitted he was unemployed at the time the evidence was seized; that he had no key to secure his room when he was gone; that he paid his mother little or nothing for the use of the room; that he had earned between $1,000 and $2,000 the previous year; and that his mother paid the mortgage, electric, water, and phone bills on the premises. Defendant also stated he cleaned his room and his mother had not done so in almost four years.

Defendant’s brother testified that defendant had his own bedroom; that his mother cleaned the entire house weekly, including defendant’s room; that she also emptied all the trash cans in the house. The defendant, his mother and brother testified that defendant had sole and exclusive occupancy of one of the bedrooms in his mother’s home; that defendant’s brothers were not permitted to enter his room without knocking first and receiving express permission to enter; that defendant’s mother had his permission to enter his room for the limited purpose of bringing him clean clothing and bed linen. Defendant and his mother also testified that though he had paid little or no money in January due to unemployment, he had paid rent in exchange for the use of his bedroom in the past. Defendant’s brother, his mother and defendant stated defendant sometimes locked the door to his room.

The trial court granted defendant’s motion to suppress on the grounds that the mother did not have the authority to consent to a search of defendant’s room.

The state argues that the warrantless search of defendant’s room was proper, since the mother could validly give consent. See Owens v. State, 300 So.2d 70 (Fla. 1st DCA 1974), appeal dismissed, 305 So.2d 203 (Fla. 1975); Addison v. State, 243 So.2d 238 (Fla. 4th DCA 1971). According to United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the prosecution may justify a warrantless search by proof that

permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

94 S.Ct. at 993.

The authority which justifies the third-party consent does not rest upon the law of property, . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

94 S.Ct. at 993 n. 7.

Defendant relies upon People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81 (1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 108 (1974), where the Illinois Supreme Court invalidated a search of a son’s room, even though the mother had access for housecleaning purposes and had consented to the search, since the son had locked his door and told his mother to let no one enter when he left the premises before the search. In the present case, there was no locked door and no instructions that no one was to enter when defendant left the premises.

We hold that a mother who owns the house, pays the bills and has access to a room for cleaning purposes has sufficient joint occupancy and control for purposes of giving consent to search areas over which she has access. Accord, United States v. Wright, 564 F.2d 785 (8th Cir. 1977); Wolfel v. Sanborn, 555 F.2d 583 (6th Cir. 1977); United States v. DiPrima, 472 F.2d 550 (1st Cir. 1973). The mother here had access for purposes of doing laundry. The jacket, an article of clothing, was left out in the open. The food stamps were found in a wastebasket, another area over which the mother had access. In addition, there is no reasonable expectation of privacy in regard to articles thrown into the garbage or abandoned. See Jones v. State, 332 So.2d 615 (Fla. 1976). This was not a closet or a bureau drawer, and we respectfully disagree with the trial court. We hold, based on all of the facts and circumstances in the record before us, that the mother did have equal access to the areas where these particular articles were found. Compare Malloy v. State, 382 So.2d 1190 (Fla. 1979) and Silva v. State, 344 So.2d 559 (Fla. 1977).

Accordingly, the order of the trial court granting the motion to suppress is

REVERSED.

FRANK D. UPCHURCH and SHARP, JJ., concur.


author: ORFINGER, Judge.

text:
    Don Alton ADAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 80-638.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 1980.
    Don Alton Adams, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   ORFINGER, Judge.

Adams alleges in his petition for writ of habeas corpus that he was placed on probation for five years conditioned on his serving one year in the Brevard County Jail. He asserts that he is entitled to statutory gain time as a county prisoner.

The flaw in this argument is that the imposition of a short term of imprisonment as a special condition of probation is not a “sentence.” State v. Williams, 237 So.2d 69 (Fla. 2d DCA 1970); Bracey v. State, 356 So.2d 72 (Fla. 1st DCA 1978).

. Thus there is a clear distinction between a sentence on the one hand, which must be preceded by an adjudication of guilt, and conditions of probation on the other hand, which can be imposed independently of an adjudication of guilt and imposition or pronouncement of sentence. (Emphasis in original.) Williams, supra, at 70.

Rule 3.790, Florida Rules of Criminal Procedure, prohibits pronouncement and imposition of sentence of imprisonment upon a defendant who is to be placed on probation regardless of whether the defendant has or has not been adjudicated guilty. Trial courts have general authority to require incarceration as a condition of probation for felony offenses pursuant to the general condition provisions of section 948.03, Florida Statutes (1979). State v. Jones, 327 So.2d 18, 24 (Fla.1976).

In this case the order of probation does not constitute the imposition of sentence necessitating the application of section 951.-21(1).

Petition DENIED.

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

      . Section 951.22(1), Fla.Stat. (1979).


text:
    TESHER & TESHER, P.A., a Florida Professional Association, Appellant, v. Ira ROTHFIELD and Ira Rothfield, D.D.S., P.A., Appellee.
    No. 79-2188.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1980.
    Sheldon Evans of Freeman & Evans, P.A., Miami, for appellant.
    Jonathan J. Davis of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellee.
   PER CURIAM.

After two mistrials the trial court directed a verdict for appellee, defendant below. This appeal is predicated upon alleged error in entering the directed verdict.

The crux of appellant’s argument is that the directed verdict was inappropriate. Appellant cites a number of cases for the proposition that it is reversible error for the trial court to direct a verdict where there is “some, slight or any minimal evidence” tending to prove the plaintiff’s case. Appellant correctly points out that a directed verdict should not be entered unless no proper view of the evidence could sustain a verdict for the party moved against. Sun Life Ins. Co. of America v. Evans, 340 So.2d 957 (Fla.3d DCA 1976).

In order for this court to determine whether the directed verdict was proper, we are required to look to the evidence presented to the jury in order to apply the tests to which we have previously made reference. The record before us in this case is bereft of testimony or other evidence, consisting solely of the pleadings, a transcript of one hearing, and orders of the court. The burden to make a record and to see that it is transmitted to the appellate court is on appellant. On the present record, no abuse of discretion could be demonstrated.

Rule 9.200(f)(2) of the Florida Rules of Appellate Procedure provides that “No proceeding shall be determined because the record is incomplete until an opportunity to supplement the record has been given.”

Appellant is therefore given forty-five days within which to supplement the record.

MOORE, HERSEY and GLICKSTEIN, JJ., concur.


author: GRIMES, Judge.

text:
    William R. NICOLAY, Appellant, v. Jacquelyn Ann NICOLAY, Appellee.
    No. 79-656.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1980.
    Douglas H. Smith, Lake Alfred, for appellant.
    Robin Gibson, of Gibson & Connor, Lake Wales, for appellee.
   GRIMES, Judge.

This is an appeal from an order which modified alimony award so as to provide Mrs. Nicolay with funds to send her children to college.

In November, 1973, Dr. Nicolay filed a petition for dissolution of marriage. The following April, the court entered a final judgment of dissolution in which it awarded custody of the parties’ two minor daughters to Mrs. Nicolay. The judgment provided $500 a month support for the children until the youngest reached age eighteen and awarded Mrs. Nicolay $500 a month permanent alimony. The court noted that the alimony would be subject to modification, and it reserved jurisdiction to modify child support, particularly with reference to the children’s needs for higher education.

Following the dissolution proceedings, Dr. Nicolay remarried and moved to Missouri. He later moved to North Carolina to become chief of nuclear medicine at a Veteran’s Administration hospital. Mrs. Nicolay has not remarried and is presently working as a nurse in Winter Haven. In the spring of 1977, the oldest child graduated from high school with an excellent scholastic record and prepared to enter college. Mrs. Nicolay requested assistance with college expenses from Dr. Nicolay, but he refused. She then filed a petition for modification of child support seeking help with those expenses, in which she alleged that all applications for grants and scholarships had been denied because of Dr. Nicolay’s income. Dr. Nicolay thereafter agreed to pay $3,500 toward the girl’s college education for the 1977-1978 school year, and Mrs. Nicolay voluntarily dismissed the modification petition.

In February, 1978, Dr. Nicolay filed a petition for modification of child support and alimony, alleging that his income had fallen since the entry of the final judgment. Mrs. Nicolay answered and counterpeti-tioned for modification of support, seeking assistance to meet college expenses for both girls since the younger one, like her sister, had now completed high school with an excellent record and wished to further pursue her education. After a hearing, the court entered an order in which it terminated child support because both daughters had reached age eighteen, denied Dr. Nico-lay’s petition for modification of alimony, and denied Mrs. Nicolay’s counterpetition without prejudice for her petition for increase in alimony. In so doing, the court stated that it felt Dr. Nicolay should assist his daughters with their college expenses but that it doubted its power to force him to do so through the medium of child support because the girls were no longer minors.

In response to the court’s invitation, Mrs. Nicolay filed a petition for modification of alimony, alleging a change in circumstances owing to her need to fund her daughters’ college education. After a hearing, the court entered an order on March 16,1979, in which it increased the periodic alimony by $585 a month retroactive to September 1, 1978, for two years from that date or until further order of the court. It is from that order that Dr. Nicolay now appeals.

Dr. Nicolay does not challenge the court’s finding that he has the ability to pay the increased alimony award. Therefore, we have before us only the question of whether the court had the power to order an increase in Mrs. Nicolay’s alimony award solely for the purpose of allowing her to furnish her daughters who had turned eighteen and thus were no longer minors with a college education.

Dr. Nicolay argues that the court did indirectly what it could not do directly, namely force a divorced parent to provide a college education to a child who has reached the age of eighteen. There are cases, including some from our court, which have laid down such a rule. E.g., Kowalski v. Kowalski, 315 So.2d 497 (Fla. 2d DCA 1975). Yet this rule has not been universally accepted and, in fact, appears to rest on a tenuous foundation.

Prior to July 1, 1973, the question of whether a court could order a parent who had the ability to do so to provide his child with a college education was seldom if ever raised. Section 61.13, Florida Statutes (1979), then provided, as it does now, that in a dissolution proceeding a court could require a parent who owed a duty of support to a child to pay such support as was necessary and equitable. Parents owed a duty of support to their minor children, and children did not reach their majority until age twenty-one. Heckes v. Heckes, 129 Fla. 653, 176 So. 541 (1937); Beekman v. Beekman, 53 Fla. 858, 43 So. 923 (1907). Thus, since a child following a normal educational pattern would usually have almost finished the requirements for a college degree by the time he reached age twenty-one, the courts could clearly order his parents to support him through college. Of course, today a parent’s duty of support to the minor child remains unchanged. However, the age of majority has changed. On July 1, 1973, Chapter 73-21, Laws of Florida, went into effect. It lowered the age of majority from twenty-one to eighteen. § 1.01(14), Fla.Stat. (1979). It also created Section 743.07, Florida Statutes (1979), which reads as follows:

(1) The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges, and obligations of all persons 21 years of age or older except as otherwise excluded by the state constitution immediately preceding the effective date of this section.
(2) This act shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years; and any crippled child as defined in chapter 391 shall receive benefits under the provisions of said chapter until age 21, the provisions of this section to the contrary notwithstanding.
(3) This section shall operate prospectively and not retrospectively, and shall not affect the rights and obligations existing prior to July 1, 1973.

What Chapter 73-21 has done to a divorce court’s power to order support for a child between the ages of eighteen and twenty-one in order to allow him to go to college has been the subject of much discussion in the appellate courts of this state. One of the first cases to deal with the issue after the lowering of the age of majority was White v. White, 296 So.2d 619 (Fla. 1st DCA 1974). In that case, the trial court entered a final judgment of divorce on April 28, 1969, which required payment of child support to the wife but contained no provision for termination of that support. On January 5, 1970, the court entered an order reducing child support payments to $100 a month which provided for the payments to continue until further order of the court. On August 31, 1971, the court entered another order raising the support to $115 a month. That order was silent as to a termination date. Following the effective date of Chapter 73-21, the father discontinued making payments for the support of the son who by that time had become eighteen years old and was a sophomore attending Florida Junior College. The mother thereafter asked the court to require the father to continue making payments and the trial judge entered an order finding that since the son was attending junior college and was not employed he was entitled to the support of $115 per month from his father. The judge observed that he believed the boy to be entitled to a college education at the expense of his parents.

On these facts, the appellate court reversed and held that the provisions of Section 743.07(1) which emancipated eighteen year olds prevented a court from ordering a parent to provide support for the college education of his eighteen year old children. The court also ruled that Section 743.07(2) which allowed a court to order support for dependent adult children referred only to adult children who were mentally or physically handicapped and not to those who simply were without independent means of support. Finally, the court held that Section 743.07(3) which provided that the other provisions of Section 743.07 would not affect rights and obligations existing prior to July 1,1973, was not applicable because the orders of the trial court had set no termination date and thus had not obligated the father to pay support until age twenty-one.

Judge McCord dissented from the majority opinion in White. He expressed the view that Section 743.07(3) was applicable to the case and that in any event, Section 743.07 did not automatically cut off the responsibility of a parent to provide a college education for a child eighteen years of age. He said:

It is my view that since the operation of the new statute is prospective rather than retroactive, and under the previous order at the time it was entered the father was obligated to make support payments until his son reached age 21, and since the new statute further authorizes the court to require support for a dependent person beyond the age of 18 years, the statute did not nullify the court’s previous support order upon the son reaching age 18. If appellant desired at that time to have the support modified or terminated on the ground that the former minor was self-supporting, he should have filed a petition seeking such relief. Upon the filing of such petition, it then would become the duty of the trial judge under the evidence presented at a hearing thereon to determine the question of dependency in the exercise of his sound discretion considering the circumstances of the parents and the needs of their offspring. The question of whether or not the offspring is satisfactorily pursuing an education to become better equipped for life and the reasonableness of such pursuit would be relevant to the question of his dependency. The legislature in the above quotation from Section 2 of the statute used the words “dependent person.” It did not limit dependent persons to disabled persons or to disabled dependent persons, although it could have done so if it had intended such limited interpretation. It is my view that the legislature did not intend an abrupt and radical change in the law of support previously existing prior to the effective date of the new act.

296 So.2d at 624-25.

Less than a year after the White decision, the supreme court issued its opinion in the case of Finn v. Finn, 312 So.2d 726 (Fla. 1975). There, the trial court entered a final judgment of dissolution on December 14, 1971, and, among other things, ordered the father to pay the mother child support of $100 a week for their twin sons. On November 29, 1973, the court entered an order on the mother’s motion for enforcement of the child support provisions of the final judgment. The order recited that the parties had agreed that the boys attained age eighteen on September 29, 1973, and that the father stopped paying child support as of that date. Also, the order stated that the parties stipulated that the boys were attending college and that neither was physically or mentally handicapped. The court granted the mother’s motion and ordered the father to pay all arrearages and to pay the $100 a week child support until the children attained the age of twenty-one.

The supreme court affirmed, holding that Section 743.07(3) prevented Section 743.07(1) from applying to the facts of the case since the final judgment had been rendered prior to its effective date and had impliedly extended the duration of legal dependency until the boys reached age twenty-one.

Because of this holding, it would not have been necessary for the supreme court to go further as had the court in White to determine whether Section 743.07 cut off a parent’s obligation of support at age eighteen in all cases. However, in dictum the court observed that, “The conclusion in White v. White, supra, that ‘a dependent person’ is limited to one who is dependent because of physical or mental incompétence or inability is much too narrow.” The court then went on to quote with approval the portion of Judge McCord’s dissent in the White case which we have set out above. Finally, the court said:

In this age of sophisticated technology and economic complexity with the necessity of development of special skills to qualify for pursuit of a trade, profession or to obtain employment, a person over 18 and less than 21 may indeed be dependent on the help of others to obtain what education and training is needed to be competitive in the economic system in which he must make his way. He and society have a right to expect his parents to meet that need to the reasonable extent of their ability to do so, and nothing in Chapter 73-21 says otherwise.

312 So.2d at 731.

Although the supreme court has not again spoken on this issue, the district courts of appeal have continued the debate begun in White and Finn. In the case of Dwyer v. Dwyer, 327 So.2d 74 (Fla. 1st DCA 1976), the court again reversed an order of the trial court continuing the support for a child between the age of eighteen and twenty-one years who was planning to enter college. Yet the court seemed to acknowledge the dictum contained in Finn when it noted that the trial judge had made no finding of dependency of the eighteen year old child and stated, “The mere fact that a person is attending a university or college does not render him or her dependent.” 327 So.2d at 75. In a later case, Watterson v. Watterson, 353 So.2d 1185 (Fla. 1st DCA 1977), the court moved further toward the position of the supreme court when in reversing a support award to a child beyond the age of twenty-one, it said:

The decision of Finn v. Finn, 312 So.2d 726 (Fla.1975) which adopted the dissenting opinion in White v. White, 296 So.2d 619 (Fla. 1st DCA 1974) simply holds that the law which changed the age of majority from 21 to 18 did not change the previous law which enabled a trial judge to order support for a dependent child until he reaches 21, providing the child pursues in good faith the furtherance of his education and has a need for help beyond his own reasonable capacity to provide for himself.

353 So.2d at 1188.

The Third District Court of Appeal has apparently aligned itself with the reasoning found in the White opinion. In Krogen v. Krogen, 320 So.2d 483 (Fla. 3d DCA 1975), the court reversed a support award for an eighteen year old girl and ordered that the support for two minor children should cease when they reached age eighteen. In so doing, the court quoted at length from that part of the majority decision in White wherein that court had stated that a parent could not be required to assist a mentally and physically able eighteen year old child with his college education. The court did note that the Finn case could be read as being contrary to this ruling but suggested that the conflicting language in Finn was dictum and that Finn was supportable solely on the proposition that the statutes changing the age of majority were not to be applied retroactively.

Decisions from the Fourth District Court of Appeal on this subject have been mixed. Shortly after the Finn decision, the court issued Briggs v. Briggs, 312 So.2d 762 (Fla. 4th DCA 1975). There, in holding that a parent could not be obliged to support a twenty-three year old son in college, the court said, “The recent case of Finn v. Finn . seems to hold that dependency as a result of the bona fide pursuit of education may exist as to one between 18 and 21 years of age.” 312 So.2d at 762. In Ulbrich v. Ulbrich, 317 So.2d 460 (Fla. 4th DCA 1975), the court continued along the same line of reasoning when it said:

We find no error in the requirement that child support continue until the child reaches 18 years of age or finishes high school, whichever is later. However, on remand, we think the provision should be amended to provide that said obligation does not extend beyond the child’s 21st birthday (absent of course mental or physical deficiencies rendering him unable to support himself) in accordance with Finn v. Finn .

317 So.2d at 461.

However, in later decisions, the court has appeared to reject its and other courts’ earlier lines of reasoning. The case of Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978), is an example. There, the court reversed an order modifying child support so as to require the father to pay $600 a month during the time in which the couple’s adult child was attending college. The court framed the issue as being one of whether a parent in a dissolution proceeding, absent an agreement, could be required to provide a college education for an adult child of the marriage under the terms of a child support decree. The court held that a parent owes no duty of support to an adult child except in extraordinary circumstances, such as when the child suffers severe physical or mental incapacitation. Moreover, it ruled that even if such a duty of support were to exist, a dissolution proceeding would not be the proper forum in which to determine that duty and that thus a divorce court has no jurisdiction to consider whether a parent should provide an adult child with a college education. The court reiterated its position in Genoe v. Genoe, 373 So.2d 940 (Fla. 4th DCA 1979), when it said, “A parent is not responsible for support after a child reaches his eighteenth birthday, absent legal dependence, and since attendance at college does not render a child a legal dependent, courts have no authority to require parents to furnish their offspring such advanced education.” 373 So.2d at 942.

As in the case of other courts, this court has not spoken with one mind. In Kowalski v. Kowalski, 315 So.2d 497 (Fla. 2d DCA 1975), we considered an order which awarded support of $60 a week to a seventeen year old child until he reached the age of twenty-one or completed or discontinued his college education, whichever occurred first. We said:

While some of us may wonder why a father would expend the time, money and effort to complain to us because of an order compelling support of his son while the son attempts to secure a college education, we are nevertheless unaware of any authority in this state to enter such an order absent an agreement to that effect on the part of the father.

315 So.2d at 498. Accord, Coalla v. Coalla, 330 So.2d 802 (Fla. 2d DCA 1976).

On the other hand, later opinions of this court, while not explicitly so holding, have moved toward a notion that a court could order a parent involved in a dissolution proceeding to support an adult child in college. Cyr v. Cyr, 354 So.2d 140 (Fla. 2d DCA 1978), considered a situation where a husband was ordered to pay $25 a week support for each of his three young children. The trial court further stated that the order would be extended to any child at the time he attained age eighteen if at that time or shortly thereafter he became enrolled in an institution of higher learning and that in such case the support would continue until age twenty-one unless the child completed or terminated his education, married or died. This court found the extension provision to be improper and removed it. However, we noted that the trial court retained continuing jurisdiction to modify the terms of support so that when the child reached age eighteen it could determine whether it was a dependent child and thus eligible for further support. In other words, contrary to the holding of Kern v. Kern, a dissolution proceeding would be a proper forum in which to determine dependency.

The most recent case in which we faced this issue was Rollings v. Rollings, 362 So.2d 700 (Fla. 2d DCA 1978). There the court dealt with an award of $200 a month support to an eighteen year old child. Although it reversed this award the court did say, “There is authority in this state to require continuance of support of dependent progeny past the age of majority, and, in certain instances, when they attend college.” 362 So.2d at 701.

Upon reflection, we believe that in lowering the age of majority, the legislature did not intend to deprive worthy children of the funds needed to attend college. If this case came to us as an appeal from an order raising child support, we would be inclined to hold that in a dissolution proceeding a court could find a child under the age of twenty-one dependent by reason of attendance at college and order one or both of his parents to provide support. However, because of the posture of this appeal, it is unnecessary for us to take such a step now which would require us to overrule prior decisions. Suffice it to say that we are satisfied that we can decide this case under ordinary principles relating to increased alimony awards, confident that there is no fixed rule forbidding an order of increased child support to finance a child’s college education up to the age of twenty-one.

As has often been noted, a court must base an award of alimony to a wife upon the ability of her husband to pay that award and her financial needs in light of the standard of living which she enjoyed during the marriage. E.g., Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Gensemer v. Gensemer, 383 So.2d 913 (Fla. 2d DCA 1980). Moreover, when subsequent to the original alimony award there has been a substantial change in her circumstances or financial needs which threatens her standard of living, she is entitled to an upward modification of the alimony which, of course, must be consistent with the hus band’s continued ability to pay. Canakaris v. Canakaris; § 61.14, Fla.Stat. (1979). Applying these rules to the facts of the present case, is becomes clear that the court was well within its authority when it increased Mrs. Nicolay’s alimony. The record discloses that her standard of living during her marriage was such that she could rightfully expect to be able to provide her children with a college education, particularly since they were exceptionally bright and hence were outstanding candidates for college. It was not only logical but commendable that when Dr. Nicolay refused to provide further funds, she dipped into her modest resources for this purpose. Thus, because she suffered the extra financial burden of college expenses, it was indeed proper for the court to make an adjustment in her alimony to help her to maintain the standard to which she was accustomed.

AFFIRMED.

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

      . The retroactive aspect of the order was included pursuant to stipulation of the parties.

      . The case came to the supreme court from the Third District Court of Appeal which also had affirmed the trial court’s order. Finn v. Finn, 294 So.2d 57 (Fla. 3d DCA 1974).

      . It might be said that Krogen conflicts with the Third District’s Finn decision. However, the latter opinion like the supreme court’s Finn opinion mentioned the dependency question only in dictum.

      . Accord, Fagan v. Fagan, 381 So.2d 278 (Fla. 5th DCA 1980).

      . One might reasonably ask why a court could not order support for college for a child beyond the age of twenty-one since that age no longer has any statutory significance. The answer, we submit, is that while the legislature in lowering the age of majority to eighteen did not intend to eliminate any requirement for parents to pay their children’s way through college, there is nothing to indicate that the legislature wished to enlarge parental obligations.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Raymond John WERNER, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-1512, 79-1577.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1980.
    Richard L. Jorandby, Public Defender, James Eisenberg, Asst. Public Defender, and James K. Green of Brown & Green, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

MOORE and HURLEY, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

The trial court refused to adjudicate the appellant a mentally disordered sex offender because the appellant was already under sentence for two unrelated offenses. In the usual case once a defendant is adjudicated to be a mentally disordered sex offender he must be committed for treatment. Durbin v. State, 385 So.2d 172 (Fla. 4th DCA 1980). However, here the appellant was already serving a life sentence and a consecutive fifteen year sentence for two prior non-sex related offenses. I do not believe the statute was intended to require adjudication and commitment of the appellant as a sex offender under such circumstances. Le Duc v. State, 365 So.2d 149 (Fla.1978); Huckaby v. State, 343 So.2d 29 (Fla.1977).


text:
    BELL RENTALS AND SALES, Gulf American Fire & Casualty and Travelers Insurance Company, Appellants, v. John HARVEY, Appellee.
    No. PP-319.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1980.
    Robert G. Brightman, Bernard J. Zimmerman and Jose R. Rodriguez of Aker-man, Senterfitt & Eidson, Orlando, for appellants.
    Gary J. Boynton of Meyers, Mooney & Adler, Orlando, for appellee.
   PER CURIAM.

Gulf American and Travelers appeal the Judge of Industrial Claim’s order that each pay one-half the cost of additional remedial care, treatment and an evaluation at Shands Teaching Hospital in Gainesville for the appellee, employee Harvey. Harvey injured his back twice in his job; the first time, in March, 1976, Gulf American was the employer’s insurer and paid temporary total benefits until August, 1976 at stipulated rates; the second time, appellant Travelers was the employer’s insurer when Harvey injured his back in January, 1979. Harvey filed a worker’s compensation claim on February 1, 1979, listing both accidents, stating he had a low back injury and claiming temporary and permanent benefits and remedial care. The pretrial stipulation shows that Gulf American defended that Harvey reached maximum medical improvement on October 31, 1978, from the 1976 injury, sustaining no permanent injuries. Travelers defended that Harvey was not injured in January, 1979 and that his symptoms were only a continuation of the 1976 accident. The judge did not find maximum medical improvement dates, or whether Harvey had sustained permanent disability from either injury. He ordered the treatment and testing at Shands apparently in an attempt to resolve those problems.

We agree with Gulf American that the issue of maximum medical improvement from the 1976 accident was ripe for adjudication. Moreover, until Harvey has reached maximum medical improvement from the second accident, no apportionment of disability benefits is proper. Finally, the judge erred in dividing the medical costs, which are never apportiona-ble. Section 440.02(18), Florida Statutes (1977); Russell House Movers, Inc. v. Nolin, 210 So.2d 859, 862-63 (Fla. 1968): “[C]om-pensation for temporary disability and medical benefits are not apportionable . .” Accord, Jackson v. Nat Harrison Associates, 283 So.2d 27, 30 (Fla. 1973). In Russell House, the JIC apportioned temporary benefits and medical benefits, finding 50% of the claimant’s condition due to prior back injuries and 50% due to the back injury at issue. The Supreme Court stated:

When . . . there is competent, substantial evidence to support the Deputy’s finding that a claimant has suffered a compensable injury which is the producing cause of his temporary disability and need for medical care, such finding is determinative of claimant’s right to full compensation. After a claimant reaches maximum medical improvement it may then be appropriate to apportion the award for his residual permanent disability. 210 So.2d at 863.

On remand, we caution that Section 8, Chapter 78-300, 1978 Laws of Florida, is applicable to Harvey’s claim in the 1979 accident. That amendment, now in Section 440.25(3)(b), Florida Statutes (Supp. 1978), states that deputy commissioners may not “Make a finding of ... a disability for physical impairment that is greater than the greatest disability given . by any examining or treating physician, except upon stipulation of the parties.” We note that the only medical evidence before the judge regarding both claims was that of Doctor Mumby, who found no permanent disability from either accident, much less any basis for apportionment.

Reversed and remanded for proceedings consistent with this opinion.

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


author:
MILLS, Chief Judge.
      WENTWORTH, Judge,

text:
    CORNELIUS & SONS, INC., and Florida Farm Bureau Insurance Companies, Appellants, v. Willie McGREW, Appellee.
    No. QQ-455.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1980.

      Wentworth, J., concurred in part, dissented in part, and filed opinion.
    Ramon Malea of Pyszka, Kessler & Adams, Miami, for appellants.
    Gene Flinn of Flinn & Jennings, Miami, for appellee.
   MILLS, Chief Judge.

Three issues are raised by the employer/carrier in this workers’ compensation appeal:

I. Did the Judge of Industrial Claims err in ordering payment of a bill to Dr. Harris?
II. Was there sufficient evidence to support the Judge’s award of temporary total disability for the entire period from the date of the accident until the date of maximum medical improvement?
III. Did the Judge err in failing to make findings of fact to support the amount of the attorney’s fee?

We reverse on all three points.

Willie McGrew, the claimant, suffered a compensable accident on 1 April 1977 and was hospitalized with a knee injury. The date of maximum medical improvement was 10 April 1978, and that date is not challenged on appeal. McGrew was provided the services of Dr. Green, an orthopedic surgeon, who treated him for his knee injury. Both McGrew and Dr. Green stated that McGrew never complained to Dr. Green of problems with his back.

In June of 1977, McGrew began seeing Dr. Harris, a chiropractor, upon the recommendation of a friend after he mentioned back problems to the friend. He did not tell Dr. Green that he was seeing Dr. Harris, but Dr. Harris knew that McGrew was under the treatment of Dr. Green. The record does not reveal any request for authorization of Dr. Harris. Dr. Harris had difficulty ascertaining who McGrew’s employer was and did not recall whether he was ever authorized. He was not deauthor-ized.

Between the time of the injury and the time of the hearings, McGrew made no effort to return to work because he had not been released by Dr. Harris. „ An employment counselor hired by the employer/carrier talked with Cornelius & Sons, Inc., and they stated that McGrew’s position was being saved for him, but the employment counselor was unable to find McGrew to communicate this to him. Between 17 October 1977, and 10 January 1978, McGrew was not seen by a physician and received no medical care. He was incarcerated for traffic violations during one month of this time.

The only statement made in the order concerning attorney’s fees was:

. claimant’s attorneys, Flinn and Jennings, achieved benefits beyond those voluntarily provided, and are entitled to a reasonable attorney’s fee for the performance of this service in the amount of $1,900.

Section 440.13, Florida Statutes (1975), provides that an employee is allowed to be reimbursed for medical expenses only if he has requested the employer to furnish the services and the employer fails, refuses, or neglects to do so. Here, the claimant was provided treatment by Dr. Green and never complained of back problems to him but instead on his own went to Dr. Harris.

Although the order asserts that “all necessary medical treatment was not furnished and Dr. Harris is authorized as reasonable and necessary,” there is no finding that there was any request for authorization by the claimant, any waiver by the employer/carrier, or even an opportunity for the employer/carrier to provide the necessary medical treatment.

Dr. Green stated that McGrew was capable of returning to work on 4 October 1977, but McGrew made no effort to do this. Between 17 October 1977, and 10 January 1978, McGrew received no medical treatment and made no effort to seek employment. No doctor said he needed treatment during this time. McGrew’s contention that it would be unreasonable to deprive him of a rating of temporary total disability during this period because his incarceration made it impossible for him to seek work or medical treatment misses the mark. Temporary total disability is defined as the healing period or time during which the claimant is,by reason of injury, totally disabled and unable to work and recovery is reasonably expected. Kirkland v. Benedict & Jordan, 120 So.2d 169 (Fla.1960).

Finally, as to the award of attorney’s fees, we find that the order is so devoid of findings as to frustrate review. It fails to give any information by which we can determine what criteria in Lee Engineering & Construction Company v. Fellows, 209 So.2d 454 (Fla.1968), were considered and how they were applied. See Lamar West Florida, Inc. v. Corbett, IRC Order 2-3367 (March 6, 1978).

REVERSED AND REMANDED for proceedings consistent with this opinion.

McCORD, J., concurs.

WENTWORTH, J., concurs in part and dissents in part with opinion.

WENTWORTH, Judge,

concurring and dissenting in part.

I concur in the majority opinion except as to the reversal of the award for the expense of Dr. Harris’ treatment. The absence of a specific request for authorization is not solely determinative of the employer/carrier’s obligation. Lance v. Witters Construction, 270 So.2d 4 (Fla.1972). Although the order appealed contains no explicit finding as to the employer/carrier’s opportunity to provide the necessary treatment or waiver of control, the record shows that the physician originally authorized to treat claimant’s leg injury had discharged him for return to work, that reports indicating necessary back treatment were submitted by Harris to the Bureau and to employer/carrier, and that the employer/carrier was therefore clearly aware of Dr. Harris’ treatment and neither objected nor offered alternative appropriate care. In these circumstances I would conclude there was no error in awarding the cost of such treatment. Divito v. Fuller Brush Co., 217 So.2d 313 (Fla.1969); Depree Construction Corp. v. Robertson, 9 FCR 110 (1974), cert. denied, 312 So.2d 739 (Fla.1975); see also Lance v. Witters, supra.


text:
    FRIENDS OF the EVERGLADES, Tropical Audubon, Inc., and Sierra Club, Appellants, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION and City of Miami, Florida, Appellees.
    No. SS-146.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1980.
    James R. Brindell, Tallahassee, for appellants.
    Randall E. Denker, Tallahassee, for ap-pellee Dept, of Environmental Regulation.
    G. Miriam Maer, Miami, and Hugh M. Taylor of Bryant, Miller & Olive, Tallahassee, for appellee City of Miami.
    Mark J. Proctor, Jr., Tallahassee, for ami-cus curiae Bd. of Trustees of the Internal Improvement Trust Fund.
   ON MOTION FOR CLARIFICATION OF JURISDICTION

PER CURIAM.

This is an appeal from an order of the Department of Environmental Regulation concerning issues arising under Section 258.165, Florida Statutes. The Court has determined that the appeal is premature because review by the Board of Trustees of the Internal Improvement Trust Fund has not been exhausted. See, Peterson v. State Department of Environmental Regulation, 350 So.2d 544 (Fla. 1st DCA 1977); Section 5, Chapter 80-66, Laws of Florida; Chapter 17-1.70(2), Florida Administrative Code. Accordingly, this appeal is hereby dismissed without prejudice to any party’s right to appeal from an adverse decision by the Board of Trustees.

ROBERT P. SMITH, Jr., ERVIN and WENTWORTH, JJ., concur.


text:
    Irvin M. YOUNG and Richard M. Campbell, Appellants, v. STATE of Florida, Appellee.
    No. TT-163.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1980.
    Marlin Feagle, Lake City, for appellants.
    Jim Smith, Atty. Gen., Miguel Olivella, Asst. Atty. Gen., Jerry Blair, State Atty., for appellee.
   PER CURIAM.

Appellants seek review of their convictions and sentences, after a joint trial, for unlawful possession of cannabis. We find no merit in appellants’ contention that consent to search was involuntary, and affirm the denial of their motion to suppress the evidence so obtained. We conclude, however, that error is shown in the admission of certain evidence and reverse on that ground.

Appellant Campbell submitted to a polygraph examination and the parties stipulated that the results of the examination could be admitted into evidence. The parties also stipulated that the examiner could testify regarding his opinion as to the results of the examination. At trial the examiner testified that in his opinion the appellant had answered truthfully during the examination. The state then presented, over appellants’ objection, the contrary opinions of two other polygraph experts.

Unless stipulated by the parties, polygraph evidence is inadmissible in Florida. Cumbie v. State, 327 So.2d 67 (Fla. 1st DCA 1976); Moore v. State, 299 So.2d 119 (Fla. 3rd DCA 1974). The scope of the stipulation in the present case embraced only the examination itself and the testimony of the examining expert; it was error to admit into evidence over appellants' objection, the testimony of the state’s additional experts. Cf., Cumbie. These additional experts rendered contrary opinions based on the same material facts as those considered by the examining expert; such testimony was not impeachment evidence, as the state contends, but rather was independent substantive proof and not properly admissible.

The judgment and sentences are reversed and the cause remanded for further proceedings.

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


text:
    RELIANCE FORWARDING CO., a Pennsylvania Corporation, Appellant, v. NILSON VAN & STORAGE, a corporation, Appellee.
    No. 79-267.
    District Court of Appeal of Florida, Fifth District.
    Sept. 3, 1980.
    Richard R. Cook, Ormond Beach, for appellant.
    No appearance, for appellee.
   COBB, Judge.

Based upon admissions that a stated account was unpaid, the trial court entered a final summary judgment for the plaintiff, Nilson Van & Storage, against the defendant, Reliance Forwarding Co. In doing so, the trial court ignored the pending counterclaim of Reliance. This was error. The trial court should have entered a partial summary judgment for the plaintiff, appel-lee here, and then taken evidence on the counterclaim. Davar Corp. v. Tropic Land Improvement Corp., 330 So.2d 482 (Fla. 4th DCA 1976); Netterville v. Osborn, 139 So.2d 921 (Fla. 1st DCA 1962); Annot., 8 A.L.R.3d 1361 (1966). Alternatively, the trial court could have entered a final summary judgment on the complaint and stayed its execution pending resolution of the counterclaim. Zanathy v. Beach Harbor Club Ass’n., Inc., 343 So.2d 625 (Fla. 2d DCA 1977).

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


text:
    LAKE COUNTY, Florida, et al., Appellants, v. Thomas S. FRIEDEL et al., Appellees. LAKE COUNTY, Florida, et al., Appellants, v. Curtis A. MacNUTT, Appellee.
    Nos. 79-1296/T2-42, 79-1359/T2-45.
    District Court of Appeal of Florida, Fifth District.
    Sept. 3, 1980.
    Wilson Sanders of Sanders, McEwan, Mims & McDonald, Orlando, for appellants.
    Gary Doane of Whitaker & Koepke, Orlando, for appellee Friedel.
    Fred M. Peed of Peed & King, P. A., Orlando, for appellee MacNutt.
    No appearance for appellees Thomas K. Armitage and State Farm Mut. Auto. Ins. Co.
   COBB, Judge.

These companion cases pose the problem of the right of a county to assert its venue privilege when it is joined as a co-defendant with the county wherein the action is filed. In both cases, Lake County was named as a co-defendant with Sumter County, wherein the actions were filed, based on allegations of negligent maintenance of a roadway located on the boundary of the two counties. Defensive motions by Lake County and its carrier seeking dismissal for improper venue in the Friedel case and for severance and transfer in the MacNutt case were denied by the trial court. Timely interlocutory appeals pursuant to Rule 9.130(a)(3)(A), Florida Rules of Appellate Procedure, were filed.

The appellant, Lake County, contends that it has a common law privilege, as a political subdivision of the state, to be prosecuted in a tort action only in Lake County. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1978); Williams v. City of Lake City, 62 So.2d 732 (Fla. 1953); State of Florida, Dept. of Transportation v. Bromante, 365 So.2d 388 (Fla. 4th DCA 1979). The circumstances of the county being a third-party defendant makes no difference. See, e. g., Metropolitan Dade County v. Kelly, 348 So.2d 49 (Fla. 1st DCA 1977).

Appellee Friedel argues that there should be an exception to the venue rule where two counties are joined as defendants in order to expedite adjudication, a fundamental goal of modern procedure. Shingleton v. Bussey, 223 So.2d 713 (Fla.1969). The appellee relies on cases involving the join-der of two corporate or individual defendants situate (for venue purposes) in different counties, but they are readily distinguishable from the instant issue involving political subdivisions of the state. As pointed out in Carlile, there has been no legislative waiver of the venue privilege in civil negligence actions, nor does the so-called “sword-wielder” doctrine apply as an exception in the absence of an alleged unlawful invasion of the constitutional rights of the plaintiff within the county where the suit is instituted. Carlile, at 365.

In view of the clear precedent, and despite the logically persuasive reasons based upon convenience and efficiency for eliminating the venue privilege of a political subdivision under the circumstances of this case, we find that such an innovation is one which is the province of the Legislature, not the courts.

Accordingly, the orders of the trial court denying the motions of Lake County asserting its venue privilege are quashed, and this cause is remanded to the trial court for entry of orders granting said motions.

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

      . See L. B. McLeod Const. Co. v. State, 106 Fla. 805, 143 So. 594 (1932) and Doonan v. Poole, 114 So.2d 504 (Fla.2d DCA 1959).


text:
    Robert R. JOHNSON, husband, Appellant/Petitioner, v. Sharon JOHNSON, wife, Appellee/Respondent.
    Nos. 78-1396, 78-1439 and 78-1592.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    James R. Rich of Christiansen, Jacknin & Myers, Palm Beach, for appellant/petitioner.
    Fred H. Gelston of Tucker & Slawson, P. A., West Palm Beach, for appellee/respon-dent.
   PER CURIAM.

This is an appeal from a judgment and sentence for criminal contempt. Upon review of the record we are of the view that the appellant was entitled to the procedural due process rights provided in Fla.R.Crim.P. 3.840 and that the trial court erred in entering judgment and sentence without first following the procedures set out therein. See Pugliese v. Pugliese, 347 So.2d 422 (Fla. 197); Buzkar v. Buzkar, 368 So.2d 430 (Fla. 2d DCA 1979); Vines v. Vines, 357 So.2d 243 (Fla. 2d DCA 1978). Accordingly, this cause is hereby reversed and remanded for further proceedings in accord herewith.

ANSTEAD, MOORE and BERANEK, JJ., concur.


author: ANSTEAD, Judge.

text:
    Joseph E. HEFFERNAN, Jr., Appellant, v. CONSOLIDATED ALUMINUM, INC., etc., et al., Appellees.
    No. 79-105.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.

      Jeff Tomberg of Law Offices of Tomberg & Tomberg, P.A., Boynton Beach, for appellant.
    Don Beverly of Beverly & Freeman, West Palm Beach, for appellee Consolidated Aluminum, Inc.
   ANSTEAD, Judge.

This is an appeal from a final summary judgment.

The appellant was injured when a ladder slipped out from beneath him. He sued the owner and manufacturer of the ladder, alleging negligence on the part of the owner and strict liability on the part of the manufacturer. At the time of the hearing on the motion for summary judgment the only evidence in the record consisted of the depositions of the appellant and the ladder owner who both witnessed the accident. In our view these depositions did conclusively establish the lack of any actionable negligence on the part of the ladder owner.

However, the depositions were inconclusive as to the existence of a defect in the ladder attributable to the manufacturer. Both the appellant and the owner testified in essence that neither had done anything to cause the accident and to the best of their knowledge the accident was caused by the failure of the “feet” of the ladder to properly grip the asphalt surface upon which the ladder was placed. The manufacturer submitted no proof, other than pri- or accident-free use of the ladder, to establish the lack of a defect. Under these circumstances we believe it was error to enter summary judgment for the manufacturer.

The burden is not on the claimant to prove his cause of action when a motion for summary judgment is filed. Rather, the burden is upon the moving party, in this case the manufacturer, to establish the absence of any material issue of fact as to his responsibility. Edwards v. Kings Housing Corp., 351 So.2d 1073 (Fla. 4th DCA 1977). In this case the manufacturer submitted no proof as to the condition of the ladder other than the testimony of the appellant and the ladder owner, and that proof, as discussed above, is simply inconclusive as to the existence of a defect.

Accordingly, the final summary judgment is affirmed as to the appellees, Mervin Gleasner and his insurer, Reserve Insurance Company, and reversed as to the appellee, Consolidated Aluminum, Inc.

LETTS, C. J., and MOORE, J., concur.


author: HERSEY, Judge.

text:
    Ronald Lehman BAIR, Appellant, v. PALM BEACH NEWSPAPERS, INC., etc., et al., Appellees.
    No. 79-849.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    Eugene M. Underberg, Lake Worth, for appellant.
    Richard W. Glenn of Albury, Webb, Park & Glenn, West Palm Beach, for appellees.
   HERSEY, Judge.

Plaintiff appeals from an order dismissing his complaint with prejudice for failure to prosecute. We point out preliminarily that such a dismissal, under Rule 1.420(e), Florida Rules of Civil Procedure, is to be without prejudice. Spolter Electrical Supplies, Inc. v. Kalb, 275 So.2d 594 (Fla. 4th DCA 1973).

The record discloses the following record activity. The complaint was filed on December 13, 1976. Defendant filed a motion to dismiss for failure to state a cause of action on December 22, 1976. On January 4, 1978 a notice of dismissal was entered by the Clerk of the Circuit Court. The case was then dismissed for lack of prosecution. However, by court order of February 14, 1978, that dismissal was set aside. The parties filed a stipulation on June 28, 1978 to permit the filing of an amended complaint. Defendants’ motion to dismiss for lack of prosecution was then filed on January 12, 1979. The order granting that motion is the basis of this appeal and contains the following language:

This matter was heard upon the defendants Palm Beach Newspapers, Inc.’s motion to dismiss for failure to prosecute. The one bit of record activity within one year prior to the pending motion to dismiss for failure to prosecute was the June 25,1978 stipulation permitting an amended complaint. The court is of the view that that stipulation is not the sort of active measure necessary to hasten the suit to judgment. Even if that ruling be in error, the court is of the view that under the authority of Shalabey vs. Memorial Hospital, 253 So.2d [7]12 (Fla. 4th DCA 1971), the exercise of sound discretion requires the dismissal because of the totality of circumstances concerning the plaintiff’s failure to prosecute the case.

First, the inherent power of a trial court to dismiss an action for failure to prosecute, as referred to in Shalabey, supra, has been abrogated by the following amendment to Rule 1.420(e), Florida Rules of Civil Procedure: “Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.” As stated by the court in American Salvage and Jobbing Company, Inc. v. Salomon, 367 So.2d 716, 717 (Fla. 3d DCA 1979); “It is obvious that the effect of the amendment is to preclude a trial court from exercising its supposed inherent, discretionary power to dismiss a case for failure to prosecute, when, as in this case, there is activity of record within one year prior to the dismissal.”

Nevertheless, Rule 1.420(e), as interpreted by Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706, 707 (Fla.1951), and its progeny, requires “some active measure . intended and calculated to hasten the suit to judgment” to preclude dismissal for failure to prosecute. In fact, it is an abuse of discretion for a trial court to deny a motion to dismiss for lack of prosecution under Rule 1.420(e) where there has been no affirmative activity for a period of one year preceding the filing of the motion to dismiss. Industrial Trucks of Florida, Inc. v. Gonzalez, 351 So.2d 744 (Fla. 3d DCA 1977). Therefore, to avoid a dismissal under Rule 1.420(e), activity of record must be an affirmative act directed toward disposition of the case. Harris v. Winn-Dixie Stores, Inc., 378 So.2d 90 (Fla. 1st DCA 1979).

In the instant case, during the one year prior to the filing of the motion to dismiss, the trial court entered an order vacating the original dismissal and the parties filed a stipulation to permit filing of an amended complaint. The order, if not the stipulation, is activity of record as contemplated by Rule 1.420 and the cases interpreting it. Accordingly, the order of dismissal is reversed and the case remanded.

REVERSED and REMANDED.

DOWNEY and HURLEY, JJ., concur.


text:
    Norman D. PERRY and Randy D. Trout, Appellants, v. The CITY OF FORT LAUDERDALE, a Municipal Corporation, Appellee.
    No. 79-1061.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.

      See also, Fla.App., 352 So.2d 1194.
    Robert L. Beals of DiGiulian, Spellacy & Meyer, Fort Lauderdale, and William C. Owen, Jr., of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellant-Norman D. Perry.
    Marilyn Pardo Liroff of Weaver & Weaver, P. A., Fort Lauderdale, for appellant-Randy D. Trout.
    Donald H. Norman of Ross, Norman & Cory, P. A., and Philip Shailer, City Atty., Fort Lauderdale, for appellee.
   HERSEY, Judge.

This is a class action brought by members of the Fort Lauderdale Police Department against the city for overtime pay. The complaint sought declaratory and supplemental relief. At issue was the proper interpretation to be placed upon a city ordinance establishing wage categories, definitions and related matters. Collateral issues include laches, statute of limitations, waiver, estoppel, and failure to exhaust administrative remedies.

The trial court granted summary final judgment in favor of the city on the basis that: (1) claims for overtime wages for periods more than one year prior to commencement of the action were barred by the statute of limitations. § 95.11(5), Fla. Stat. (1979); (2) claims were barred as to all pertinent time periods (including the one year period) by laches, City of St. Petersburg v. Norris, 335 So.2d 333 (Fla. 2d DCA 1976); (3) the action was precluded by appellants’ failure to exhaust their administrative remedies; and (4) in any event, under the ordinance, appellants were not entitled to compensation for overtime work.

We agree that the one — year statute of limitations applies. We disagree with the remaining determinations of the final judgment and therefore reverse.

Even if laches barred appellants from collecting arrearages in overtime pay, it would be no bar to a declaration, operating prospectively only, that police officers are to be compensated for overtime work. Certainly no prejudice to the city could be shown to be occasioned by delay under those circumstances. But more to the point, we reject both grounds advanced for the application of laches here. First, reliance on City of St. Petersburg v. Norris, supra, is inappropriate. That case involved compensation for overtime accrued during a period of time which terminated almost a year and a half before the action was filed. While the time frame involved in the present case originally included a similar period, we eliminated that period by application of the statute of limitations, leaving at issue only the year in which suit was filed and subsequent years. Thus, we do not have here, at least in the same degree, the question which was before the court in the Norris case, requiring a balance to be drawn between “the severe impact and financial dilemma that would result to the city treasury and, as a consequence, to the taxpayers of the city,” and the great economic importance of this issue to “a group of highly dedicated public servants.”

As an additional basis for application of the affirmative defense of laches much emphasis was placed on the fact that no funds have been budgeted by the city for payment of overtime wages to employees in the category here under consideration. The brunt of that argument has been met by narrowing the time periods as a result of application of the statute of limitations. Furthermore, we are reluctant to accept the argument that a municipality may enact an ordinance or enter into a contract calling for the payment of money and then may avoid such obligations by failing to budget an appropriate amount.

Next, the city maintains and the trial court held that appellants cannot prevail because of their failure to exhaust administrative remedies. However, there is no affirmative administrative action involved here. There is no “grievance” as that term is used to define a problem which must wend its way through the administrative mill. The city has taken one view of its ordinance; appellants take the opposite view. What is at stake is the proper interpretation to be placed on the ordinance, a matter of statutory construction and therefore, a matter for the courts. There can be no question that an action for declaratory relief is the appropriate method for questioning the interpretation of a municipal ordinance. § 86.021, Fla.Stat. (1979); R-C-B-S Corporation v. City of Atlantic Beach, 178 So.2d 906 (Fla. 1st DCA 1965). The judgment appealed from is erroneous in this regard.

We come, then, to the paramount issue: whether appellants are entitled to compensation for overtime work under the city ordinance.

This issue has been before us previously, in a slightly different context. In Perry v. City of Fort Lauderdale, 352 So.2d 1194 (Fla. 4th DCA 1977), we reversed a summary final judgment in favor of the city and construed the ordinance in question as mandatory rather than permissive.

For clarity we set out here that part of the ordinance which is pertinent to this appeal:

Employees required to work overtime may be granted compensatory time off or may be compensated for such overtime provided that:
(a) The class of work is not excepted from entitlement to overtime compensation in Section 2-25, Schedule IV; or, overtime compensation is specifically authorized by the City Manager because of unforeseen, unusual or emergency conditions requiring considerable overtime services.

In the previous case, Perry v. City of Fort Lauderdale, supra at 1195, we stated:

We hold that the following language of the above quoted Ordinance, to-wit: “Employees required to work overtime may be granted compensatory time off or may be compensated for such overtime .” is not merely permissive but directory and requires that all employees, who otherwise qualify, who work “overtime” as defined shall receive one or the other. Such interpretation is consistent with the language of Subsection (b) of said section which uses the word “shall.” See also Subsections (d) and (e).
A pay plan for a city which is only permissive and subject to the whims of the governing bureaucracy would be meaningless. We find that this section defines for the employees of that City their rights to compensation for “overtime” and the only meaningful interpretation is that it is mandatory.

It is the city’s position that appellants fall within that class of employees excepted from entitlement to overtime compensation by Section 2-25, Schedule IV, of the ordinance. The schedule contemplates three classes of employees (plus a few employees on strictly an hourly basis). In one class, the employees are considered to be entitled to be fully compensated for overtime. Employees of another class are considered excepted from the entitlement to additional compensation for overtime. Between these two extremes are appellants, in a class to which the following legend is applicable:

Employees in these classes will receive no official compensatory time off for overtime hours worked. Time off as compensation for overtime hours worked may be granted informally but not necessarily on an hour for hour basis.

We count forty-seven types of employees or jobs on the schedule. Twenty of these are in the same category as appellants. The ordinance could fairly be interpreted as providing that these employees are not entitled to monetary compensation for overtime but that they may receive compensation in the form of time off, but not necessarily on an hour for hour basis. As stated above, we have previously held that such a scheme, being only permissive and therefore subject to the whims of the governing bureaucracy, is meaningless and therefore invalid. Perry v. City of Fort Lauderdale, supra. It would indeed be an anomaly if, by creating a class of employees comprising almost one-half of all job types listed on the schedule (20 out of 47), the city could accomplish as to some what we have already determined may not legitimately be accomplished at all. To so construe the ordinance would require that we declare it invalid. On the other hand, if there is a reasonable interpretation that may be placed on a statute which would render it valid we are bound to adopt that construction. City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla.1950); State ex rel. Register v. Safer, 368 So.2d 620 (Fla. 1st DCA 1979). We believe that such a possibility exists in this case. There are some types or classes of municipal employees who hold sensitive jobs or for whose specialty no ready backup exists. Or it may simply not always be expedient either to replace or to do without some employees in order to permit compensatory time off. The ordinance is hereby construed as permitting, as to employees in this particular class, such combination of wages or compensatory time off as may be appropriate. Any other interpretation would invite attack on various constitutional grounds.

We have not been insensitive to the overtones in this case of burdening the taxpayers of the city by requiring payments for overtime wages for the period one year prior to commencement of this action to the present. At the same time, however, we could not fail to note that the proper interpretation of the language of the ordinance has been in question, at least in the minds of some, for a period in excess of ten years. During that period neither employer nor employee could say with any degree of certainty whether overtime was compensable and if so in what manner. Rather than clarify the issue by the simple expedient of amending the ordinance, the city chose to await the outcome of this litigation. We do not here condemn that decision; we simply point to it as the proximate cause for several years’ arrearages in overtime wages which, under an appropriately amended ordinance, either would have been paid as earned after being budgeted for, or would not be in issue here because properly excluded. In either event, an applicant for a position as a police officer initially, and those already employed in that capacity, and others similarly situated would have known whether or not they were to be compensated for overtime work. Fundamental fairness would seem to require as a minimum at least that degree of certainty. The equities, then, are not all with the taxpayers.

For the reasons stated we reverse the final judgment and remand with instructions that judgment be entered for appellants and for such other proceedings as may be necessary and appropriate to provide declaratory and complete supplemental relief to appellants. Such relief shall include an order directing the city to pay appellants the overtime wages to which they are entitled, beginning one year prior to commencement of this suit.

REVERSED and REMANDED.

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


text:
    Scott STARLING, Appellant, v. STATE of Florida, Appellee.
    No. 79-1883.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals from an order revoking his probation. The trial court in its written order found defendant to have violated his probation by leaving his residence without his supervisor’s knowledge and consent and by failing to file monthly reports and failing to pay his costs of monthly supervision. The State concedes that the latter finding regarding costs of supervision is erroneous because at the revocation hearing the court orally found defendant guilty of the first two violations only. The revocation of probation based upon a change of residence without the supervisor’s knowledge or consent and upon failing to file monthly reports is affirmed. The revocation based upon the alleged failure to pay costs of supervision is reversed, and that portion of the order only is vacated.

AFFIRMED IN PART; REVERSED IN PART.

LETTS, C. J., and BERANEK and GLICKSTEIN, JJ., concur.


author: MOORE, Judge.

text:
    CENTURY VILLAGE, INC., Appellant, v. CHATHAM CONDOMINIUM ASSOCIATIONS, etc., et al., Appellees.
    No. 79-2141.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant.
    David St. John of Powell, Tennyson & St. John, P.A., West Palm Beach, for appellees.
   MOORE, Judge.

This is an appeal from the trial court’s dismissal, with prejudice, of a claim for attorneys fees. Appellant is the lessor under a condominium recreation lease and the appellees are condominium associations which are the lessees. In 1975, the lessees sued the lessor in United States District Court for alleged violations of federal antitrust laws in connection with the lease contracts. That suit was dismissed and the lessor filed suit in state court to recover attorneys fees incurred in the federal court litigation. The claim was based upon an indemnification clause contained in the lease as follows:

INDEMNIFICATION
Lessee covenants and agrees with Lessor that during the entire term of this Lease, the Lessee will indemnify and save harmless the Lessor against any and all claims, debts, demands, or obligations which may be made against Lessor, or against Lessor’s title of the premises, arising by reason of or in connection with the making of this Lease and the ownership by Lessee of the interest created in the Lessee hereby, and if it becomes necessary for the Lessor to defend any action seeking to impose such liability, the Lessee will pay the Lessor all costs of Court and attorney’s fees incurred by the Lessor in effecting such defense, in addition to any other sums which the Lessor may be called upon to pay by reason of the entry of a judgment against the Lessor in the litigation in which such claim is asserted.

Notwithstanding the decision in the federal appeals court reversing the dismissal by the district court, the lessor nevertheless contends that it is entitled to indemnification. The trial court disagreed as do we. We affirm.

It is quite obvious that the indemnification clause was not intended to apply to actions between the lessor and lessees, but rather to claims of third parties against the lessor. Accepting the lessor’s contention would amount to accepting the incongruous theory that although the appellees may be successful in their litigation, they would nevertheless have to satisfy their own judgment in addition to paying the lessor’s costs. The law will not sanction such an anomaly.

affirmed!

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