text:
    Lewis BLINN d/b/a Guild Construction Company (Not Incorporated), Appellant, v. Thomas R. DUMAS and Jane T. Dumas, his wife, Appellees.
    No. YY-415.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1982.
    Rehearing Denied Feb. 5, 1982.

      William Nussbaum of Goldman, Presser & Nussbaum, Jacksonville, for appellant.
    Joseph M. Glickstein, Jr., Jacksonville, for appellees.
   PER CURIAM.

This is an appeal from an order dismissing with prejudice Count I of a complaint which sought to foreclose a claim of lien on the ground that the total omission of the details of labor, services, or material furnished in the claim of lien was, per se prejudicial. We reverse.

Section 713.08(4)(a), Florida Statutes (1980), specifically provides that the omission of details or errors in a claim of lien, in the discretion of the trial court, shall not prevent the enforcement of a lien unless there is an adverse effect from such omission or error. While it is within the discretion of the trial court upon review of supporting evidence or the circumstances to find such adverse effect, here, there is nothing in the record to show any adverse effect from the omission of the details, and the stated ground that “such total omission is, per se, prejudicial and imposes an adverse effect” is not supported.

On appeal, appellees Dumas argue that there was adverse effect and that the order should be affirmed on this alternative ground. It is true that an order may be affirmed on alternative grounds. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980) and Jones v. Weaver, 374 So.2d 1175 (Fla. 1st DCA 1979). However, we are not permitted to sit as a trial court in making such a factual determination on an issue not presented below or supported in the record, particularly where, as here, there appears to be little likelihood that the omission caused any adverse effect on the homeowners Dumas. We note, for example, that the amended complaint indicates that the parties are in direct privity, that there was a written contract, orally expanded, for the improvement of the Dumas’ property, that the payment in issue is a final payment representing less than Vs of the alleged total payments and, thus, the Dumas are presumably aware of the nature and scope of the labor, services, or materials allegedly furnished, and, finally, that appellant contractor alleges delivery of the affidavit required by Section 713.06(3)(d), Florida Statutes (1980), which affidavit serves to protect the Dumas from any unknown lien claims from sub-contractors or material-men. This opinion does not foreclose the possibility that the Dumas might show at an appropriate hearing that the omission has caused an adverse effect. However, absent such showing, it appears that appellant contractor has substantially complied with the statutory pre-requisites for claiming a mechanics lien, has stated a cause of action, and should be given an opportunity to prove his claim on the merits.

REVERSED and REMANDED for proceedings consistent with this opinion.

SHAW and JOANOS, JJ., concur.

ROBERT P. SMITH, Jr., C. J., dissents without written opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sherman C. THOMAS, Appellant, v. SUNLAND TRAINING CENTER and Division of Risk Management, Appellees.
    No. AB-67.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1982.
    Rehearing Denied Jan. 27, 1982.
    Thomas W. Davis of the Law Offices of Barton, Cox & Davis, Gainesville, for appellant.
    John P. Brooks of Jones & Langdon, P. A., Gainesville, for appellees.
   PER CURIAM.

Claimant appeals an order of the Deputy Commissioner finding that “the employer and carrier reasonably relied upon information provided to them by the Social Security Administration which indicated that the claimant started receiving Social Security payments in June 1977.... ” That information was not included in the record on appeal, nor was it evidenced elsewhere in the record. Therefore, the finding is not supported by competent substantial evidence.

The Deputy Commissioner further found that the Social Security Administration’s records were not available at the time of the hearing but that those records would be more reliable than claimant’s testimony in determining whether he had been receiving Social Security benefits. We agree that the records of the Social Security Administration would be reliable for determining whether claimant was receiving benefits prior to the hearing, but find that it was an error to permit the set off in the absence of evidence that it was warranted. See Borden, Inc. v. Butler, 377 So.2d 795 (Fla. 1st DCA 1979). The case is therefore REMANDED for determining whether claimant was receiving Social Security benefits prior to the hearing, and for making appropriate adjustments.

ROBERT P. SMITH, Jr., C. J. and MILLS and SHIVERS, JJ., concur.


author: THOMPSON, Judge.

text:
    Cleveland PLUMMER, Appellant, v. Cindy COPELAND and the State of Florida, Department of Health and Rehabilitative Services, Appellees. Eddie Lee RANDOLPH, Jr., Appellant, v. Lenora Daisey ANDERSON and the State of Florida, Department of Health and Rehabilitative Services, Appellees.
    Nos. AC-294, AC-348.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1982.
    Daniel H. Thompson, Legal Services of North Florida, Inc., Tallahassee, for appellants.
    Joseph R. Boyd and W. Crit Smith of Boyd & Smith, Tallahassee, for appellees.
   THOMPSON, Judge.

This ease presents the issue of whether the contempt power may be used to enforce the payment of child support assigned to the state under Section 409.2561(3), Florida Statutes (1979). We conclude that the contempt power may be used to enforce this payment.

This same issue has been addressed, with differing results, by two other Florida District Courts of Appeal. In Andrews v. Walton, 400 So.2d 790 (Fla.2d DCA 1981), the court reasoned that the assignment of child support payments to the state under Section 409.2561(3), Florida Statutes (1979) does not change the nature of the obligation. Accordingly, Andrews held that imprisonment for failure to pay child support payments assigned under Section 409.-2561(3), Florida Statutes (1979) is legal. A contrary result was reached by the third district in Chapman v. Lamm, 388 So.2d 1048 (Fla.3d DCA 1980), prob. juris, noted, No. 59,922 (Fla., oral argument heard September 4, 1981).

We adopt with approval the rationale of Andrews. Accordingly, the orders of contempt in the instant cases are affirmed.

ERVIN and BOOTH, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Howard D. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 81-56.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 1982.

      B. Robert Ohle, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The sole issue on this appeal is whether the trial court erred in summarily denying the appellant’s motion to withdraw his guilty plea without conducting an eviden-tiary hearing to determine if he was competent at the time he entered the plea. We agree with the appellant’s contention that he should have been allowed a hearing to determine if good cause for withdrawal of the plea existed under Florida Rule of Criminal Procedure 3.170(f).

A defendant who deliberately pleads guilty to a criminal charge should not be allowed to withdraw his plea merely because he changes his mind. However, he should be permitted to do so if he files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting his rights. Pope v. State, 56 Fla. 81, 47 So. 487 (1908).

The withdrawal of a guilty plea should not be denied in any case where it is evident thát the ends of justice will best be served by permitting it. Jordan v. State, 107 So.2d 56 (Fla. 2d DCA 1958).

On July 30, 1980, the appellant pled guilty to attempted sexual battery, and a presentence investigation was ordered.

On September 29, 1980, the appellant filed a motion to withdraw his plea. The motion alleged that evidence obtained subsequent to the entry of the plea, together with his physical condition prior to, during, and after the plea, indicated that he was not competent at the time the plea was entered. The motion also alleged that appellant did not realize he had tendered a plea of guilty until after he had done so, and he believed that he was innocent and desired to stand trial. He was subsequently examined and on October 29, 1980, filed medical reports based upon that examination. One of the reports indicated that the appellant was psychotic, demented, and not competent. The report did not state if the condition existed at the time of the plea.

The motion was summarily denied, and he was sentenced to five years imprisonment on December 18, 1980.

The appellee contends that the motion in this case was not sufficient because it did not set forth reasons to show that good cause existed to believe the guilty plea was not properly entered. However, there were sufficient indications of incompetency presented to the court in the motion and medical reports that an evidentiary hearing should have been held to determine if the plea was voluntarily entered into by one competent to know the consequences of his plea. Alleluio v. State, 338 So.2d 1137 (Fla. 1st DCA 1976).

We reverse and remand for further proceedings consistent herewith.

SCHEB, C. J., and HOBSON, J., concur.


text:
    Bruce E. BRANE and William A. Schmitt, Appellants, v. EQUITABLE LEASING CORPORATION, a North Carolina corporation authorized to do business in the State of Florida, Appellee.
    No. 81-980.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 1982.
    Richard T. Bennison of Law Offices of Baskin & Bennison, Clearwater, for appellants.
    Dennis J. Watson of Law Offices of Robinson, MacPherson, Harper, Kynes & Batt, Clearwater, for appellee.
   PER CURIAM.

We affirm the judgment in favor of ap-pellee, it being implicit in that judgment that the court concluded that title to the golf carts and inventory of parts and accessories purchased by appellants had passed to them under the agreement for sale between the parties. We grant appellee’s motion for attorney’s fees and remand to the trial court for determination of a reasonable fee.

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


author: RYDER, Judge.

text:
    William Harry DAVIS, Appellant, v. John M. HATHAWAY, Appellee.
    No. 81-989.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 1982.
    Law Offices of Peter M. de Manió, P. A., Sarasota, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   RYDER, Judge.

William Davis appeals from the final summary judgment adverse to his claim for legal malpractice, alleging the lower court erred in finding no material issues of disputed fact. We agree and reverse.

Appellant Davis sued appellee Hathaway, alleging legal malpractice arising out of representation for the sale of appellant’s business. Testimony indicated that appellant retained appellee to be his attorney to represent his interest in the sale of two sole proprietorships, Harry Davis Sprinklers and Charlotte Pipe and Irrigation, to prospective buyers Steinberg and Zitti. Steinberg and Zitti formed two Florida corporations, Charlotte Pipe and Irrigation, Inc. and Harry Davis Sprinklers, Inc., and proposed that Harry Davis Sprinklers, Inc. purchase the two sole proprietorships of Davis.

Appellant testified he had asked appellee to protect him. Appellee prepared a contract for purchase and sale of the business which was rejected by the purchasers, who submitted a contract of their own. Appel-lee prepared the promissory note. The note was executed by Harry Davis Sprinklers, Inc. as a corporate entity only. No security agreement or financing statement was executed, although at that time the two corporations had no assets. Appellee did add an addendum which provided that the balance of the promissory note became due and payable if the inventory of Harry Davis Sprinklers, Inc. fell below 80% of its value the date of sale, or if the net worth of the two businesses fell below $15,000.00 in excess of the balance due on the note. Harry Davis Sprinklers, Inc. defaulted on the note and appellant obtained a judgment for $105,000.00. The judgment was uncollecta-ble as the corporate assets had been depleted.

Appellant testified that appellee made no objection to the lack of personal guarantees on the note. Appellant stated that he did not understand the legal significance of a corporate purchaser, and said Hathaway told him he was protected regarding security. Hathaway made no provision for signatures in an individual capacity on the promissory note. Steinberg, the purchaser, testified that Hathaway advised Davis at the closing and it appeared that Davis was following the attorney’s advice.

Appellee testified that appellant approached him only after he had already decided on the terms of the sale. Appellee testified that he told appellant he needed more protection, and did not recommend closing because of the low down payment and lack of security. Appellee testified that appellant did not follow his advice, because he was anxious to leave the pressures of the business. Appellee discussed the need for personal liability, and testified that the buyers under no circumstances would have signed in their individual capacities. The purchasers, Steinberg and Zitti, testified that appellee never requested them to personally sign the note.

The court granted summary judgment on appellee Hathaway’s motion, which alleged that appellant did not request him to protect his interest, that appellant knew the purchaser would not personally sign guarantees for notes, that appellee did not draft the contract, and that appellant failed to protect his security interest.

Summary judgment may be granted when there is no material issue of disputed fact. Florida Rule of Civil Procedure 1.510(c). However, the court may not weigh the evidence to reach a summary judgment when there are facts in dispute. See, e.g., Morgan v. Growers Marketing Service, Inc., 370 So.2d 74 (Fla. 2d DCA 1979); Ritchey v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 361 So.2d 438 (Fla. 2d DCA 1978). Below, a dispute was evident between the testimony of the parties as to what services appellant requested and what advice appellee rendered. Appellee testified that he disapproved of the contract and told appellant that he needed more protection, but appellant did not follow his advice. Appellant testified that he asked appellee Hathaway to protect him, and appellee made no objection to the lack of personal guarantees. Appellant testified that appel-lee told him he was protected regarding security. These direct conflicts in material fact could not be resolved by the court on summary judgment.

The judgment below is REVERSED and the ease REMANDED for further proceedings.

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


author: GRIMES, Judge. CAMPBELL, Judge,

text:
    Tyrone JONES, Appellant, v. STATE of Florida, Appellee.
    No. 80-2232.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 1982.
    Jerry Hill, Public Defender, and Geoffrey A. Foster, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant seeks reversal of his conviction for grand theft on the ground that the court erred in admitting certain testimony concerning the value of the stolen items.

Appellant was convicted of grand theft for stealing a television set and two bedspreads from the Sheraton Motor Inn in Fort Myers. There was no evidence of the value of the bedspreads. The only testimony concerning the value of the television set came from Mark McClung who was on duty at the motel on the night the property was stolen. The state originally called Mr. McClung to testify concerning the details of the theft. He explained his job as follows:

Q Would you just relate to us what the duties are of the night auditor?
A My duties as night auditor is to balance the books for the day, the daily— all transactions going on through the day. I balance those. If there’s an error I correct it. I bring everything into balance and add it up for the next day. And while doing this, I take care of the front desk, checking in guests and answering the phone and doing what is necessary.
Q Do you cheek in people and check them out and so forth?
A Yes.
Q You’re more or less in charge at the time of the—
A Yes, sir.

On redirect examination, the following occurred with respect to the value of the television set:

Q Mr. McClung, being the night auditor and so forth, in control of the property of the Sheraton, do you have any idea as to the value of the television that was taken?
MS. MONTGOMERY: Your Honor, I object to that. I don’t believe he’s been qualified to give an opinion as to the value.
THE COURT: Objection overruled. He’s testified as custodian.
THE WITNESS: $250 minimum.
BY MR. NEEL: (Cont’g.)
Q Is that what your opinion is?
A That’s my opinion, personal opinion.

On recross, McClung testified as follows:

Q Do you have anything to base your opinion on?
A Base your opinion — ?
Q Do you have anything to base your opinion on?
A No, ma’am. It’s just my personal opinion to it being a TV.
Q Have you ever tried to buy a used television set?
A Used television? No, ma’am.
Q Have you ever tried to sell a used television?
A No, ma’am.
Q So you don’t really know anything about used televisions, as far as their fair market value, do you?
A No, ma’am.

The court should not have admitted Mr. McClung’s testimony concerning the value of the television set.

Ordinarily an owner may give his opinion as to the market value of personal property. Dickens v. State, 350 So.2d 110 (Fla. 1st DCA 1977); Wright v. State, 251 So.2d 890 (Fla. 1st DCA 1971). Of course, Mr. MeClung was not the owner of the television set but rather an employee of the owner. In Salvage & Surplus, Inc. v. Weintraub, 131 So.2d 515, 516 (Fla. 3d DCA 1961), the court said, “[Ojwnership of property by a corporation does not automatically qualify an officer of the corporation to testify as to its value. The officer must be shown to have knowledge regarding the property and its value sufficient to qualify him.”

While we must always give substantial deference to a trial judge’s decision to allow a witness to testify as an expert, it must be supported by at least some factual predicate. Here, there is nothing in the record to demonstrate that Mr. McClung possessed the requisite knowledge to testify concerning the market value of the television set. With respect to the court’s observation that McClung was a “custodian,” a careful analysis demonstrates that he was really only the custodian of the card files which indicated the serial numbers of the television sets in each room of the motel. There is no indication that there was any information on the card pertaining to the stolen television set which would assist in determining its value. The fact that McClung may have been in charge of the premises the night of the theft did not endow him with knowledge of the value of all the equipment in the motel. In fairness to Mr. McClung, it is obvious that he did not consider himself an expert.

A careful reading of the two early Oklahoma cases cited by Judge Campbell in his dissenting opinion indicates that it was the competency of the owners’ testimony which was in issue in those cases. Further, Mr. McClung’s testimony would not have been admissible under section 90.701, Florida Statutes (1979), because it did not meet the requirements of subsection (1) thereof.

One of the elements of grand theft is that the stolen property was worth at least $100. § 812.014(2)(b)l., Fla.Stat. (1979). Therefore, admitting Mr. MeClung’s testimony harmed appellant’s case because without it there was a lack of proof that the stolen property was worth $100 at the time of the theft. We do not know when or for what price the television set was purchased, and we know nothing about its condition when appellant took it. The fact that the jury saw it when the state introduced it into evidence does not dispense with the necessity of the prosecution presenting some legally admissible proof of market value.

Appellant suggests that we should reduce his conviction to petit theft because this is usually done when the state fails to prove the requisite value in a grand theft case. E.g., Beasley v. State, 394 So.2d 201 (Fla. 4th DCA 1981). Here, however, the court’s error was not in failing to grant appellant’s motion for acquittal because if we assume, as the court did, that Mr. McClung’s testimony was admissible, the court properly denied the motion. The error occurred when the judge overruled appellant’s objection to Mr. McClung’s testimony. Had he sustained the objection, the state might still have been able to prove the value in some other way, and so it should not be precluded from retrying appellant for grand theft. Therefore, we reverse the conviction for grand theft with directions to enter a judgment of guilt for petit theft unless the state within thirty days of our mandate signifies its intention to retry appellant for grand theft, in which, event the court should entirely set aside the prior conviction.

SCHEB, C. J., concurs.

CAMPBELL, J., dissents with opinion.

CAMPBELL, Judge,

dissenting.

I respectfully dissent. The television set alleged to have been stolen was a Zenith Chromacolor II color television in working condition at the time it was stolen from the room rented to appellant at the Sheraton Motor Inn in Fort Myers. As stated by the majority, the television set was introduced into evidence for the jury to see. Also as noted by the majority, Mr. McClung, in charge of the motel on the night the television was allegedly stolen, stated his opinion as to its value was, “It’s just my personal opinion to it being a TV.”

The majority cites Salvage & Surplus, Inc. v. Weintraub, 131 So.2d 515, 516 (Fla. 3d DCA 1961), for the proposition that ownership of property by a corporation does not automatically qualify an officer of the corporation to testify as to its value. The court there, however, recognized, as does the majority, that an individual owner of property may testify as to value though not qualified as an expert. In that case the court explained that the rule is based upon the individual owner’s “familiarity with the characteristics of the property, knowledge or acquaintance with its uses or purposes, and experience in dealing with it.” The court concluded that an officer of a corporation may likewise testify as to value when in the position of having the “knowledge of the character and uses of property as in the case of an individual owner.”

It is my opinion that the trial judge here made such a determination in regard to the testimony of Mr. McClung.

Rogers v. O.K. Bus & Baggage Co., 46 Okl. 289, 148 P. 837, 839 (1915), states what is in this writer’s opinion the preferred rule:

This ruling of the court seems to be upon the theory that it required expert testimony to establish the value of the trunk and the contents thereof, and that the witnesses have not shown themselves qualified by reason of special knowledge or information as to the value of goods of that class and character to place a value thereon. In this the court committed error. It is well established in this state that expert witnesses are not needed to prove the market value of chattels in common use, where such value is within the knowledge of persons of ordinary intelligence and experience, and that, where a witness testifies generally as to the value of articles in common use, it will be assumed that the market value is meant, unless it appears from the testimony of the witness that he bases the value given upon some other consideration. Such has been the holding of this court practically since its organization.

Later, in O.K. Transfer & Storage Co. v. Neill, 59 Okl. 291, 159 P. 272, 275 (1916), the court quoted Rogers with approval saying:

Complaint is also made as to the competency of the witnesses who testified. It is not necessary to have experts to testify to the value of household goods and wearing apparel, if the witnesses are reasonably familiar with the goods concerning which they are testifying.

That rule is in harmony with section 90.701, Florida Statutes (1979), providing that non-expert witnesses may offer opinion evidence when “[T]he opinions and inferences do not require a special knowledge, skill, experience, or training.”

Finally, as this court held in Harbond, Ine. v. Anderson, 134 So.2d 816 (Fla. 2d DCA 1961), the qualification of a witness to testify as to value must be left in large part to the discretion of the trial court. Judge Downey writing in Division of Administration v. Saemann, 399 So.2d 359, 361 (Fla. 4th DCA 1981), quotes Harbond with approval and adds further, “[PJrofessor Wig-more describes the trial court’s discretion in this area as an almost unqualified discretion.”

I would affirm the judgment and sentence of the trial court.

      . 90.701 Opinion testimony of lay witnesses. —If a witness is not testifying as an expert, his testimony about what he perceived may be in the form of inference and opinion when:
      (1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
      (2) The opinions and inferences do not require a special knowledge, skill, experience, or training.


text:
    Kathleen May GROBLESKI, Appellant, v. James R. GROBLESKI, Appellee.
    No. 81-921.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 1982.

      Arthur D. Ginsburg of Ginsburg, Byrd, Jones & Pflaum, P.A., Sarasota, for appellant.
    Jerrel E. Towery of Barber & Towery, P.A., Venice, for appellee.
   SCHOONOVER, Judge.

This is an appeal from an order denying appellant’s motion to require the appellee to pay certain extraordinary dental expenses. We reverse.

The final judgment dissolving the parties’ marriage was entered in 1972. The judgment incorporated an agreement entered into between the parties. In addition to child support for their two children, the agreement provided that the husband was to be responsible for all of their extraordinary medical and dental bills.

When the husband refused to make arrangements to have orthodontic treatment provided to the parties’ son James, the appellant filed a motion seeking an order compelling him to do so.

At the hearing on the motion, the appellant introduced the deposition of Dr. James R. Paulk, an orthodontist who had examined James. In Dr. Paulk’s opinion, James has an orthodontic problem which is not just cosmetic. The doctor testified that any delay in treatment might increase the complexity of his problem.

The appellee contended that the treatment was not necessary but presented no competent medical evidence in opposition to Dr. Paulk’s opinion.

The trial court found that the problem was cosmetic and denied the motion.

Under the facts of this case, we are compelled to conclude that the trial court erred in denying the appellant’s motion. The only competent medical testimony presented at the hearing revealed that James has an orthodontic problem which if not treated may affect his dental health. Even though the treatment is incidentally cosmetic, it is necessary to correct a dangerous condition and therefore a proper expense. Bertram v. Bertram, 334 So.2d 70 (Fla.3d DCA 1976).

We reverse and remand for proceedings consistent herewith.

OTT, A. C. J., and CAMPBELL, J., concur.


text:
    Steven H. CABE, Appellant, v. STATE of Florida, Appellee.
    No. YY-364.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.
    Rehearing Denied Jan. 27, 1982.

      Michael E. Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant seeks review of a judgment of conviction and sentence based upon a jury verdict finding him guilty of the crime of false imprisonment. See Section 787.02, Fla.Stat. (1977). Five points are presented. We affirm as to all points raised but one, which we reverse, and therefore remand the case for new trial.

The defendant first urges that his motion to dismiss the information should have been granted because it was improperly signed and filed by an assistant state attorney rather than by the state attorney. The information was filed after the repeal of Section 27.324, Florida Statutes, by Ch. 77-104, § 14, Laws of Florida, which had permitted assistant state attorneys to sign and file informations, but before the effective date of the amendment to Section 27-181(3), Florida Statutes (Supp.1980), which now prohibits them from so doing. Before the filing of the information in the instant case, however, the Supreme Court of Florida amended Rule 3.140(g), Florida Rules of Criminal Procedure, to provide that a designated assistant state attorney may sign a felony information. Appellant’s position that the subject matter of the rule is a matter of substance rather than of procedure, and it is therefore ineffective, has been rejected by the court of appeal for the Third District in State v. Rivero, 400 So.2d 34 (Fla. 3d DCA 1981). We fully concur in the decision and the reasoning of the court in Rivero, and therefore conclude that no error has been shown. See also State v. Miller, 313 So.2d 656 (Fla.1975).

Next, appellant argues that because he was charged by information only with kidnapping pursuant to Section 787.01(l)(a), Florida Statutes, he could not be convicted of false imprisonment because it is not a lesser-included offense of kidnapping. We reject this contention. The seminal case of Brown v. State, 206 So.2d 377 (Fla.1968) listed the four possible types of lesser included offenses:

1. Crimes divisible into degrees;
2. Attempts to commit offenses;
3. Offenses necessarily included in the offense charged;
4. Offenses which may or may not be included in the offenses charged, depending on the accusatory pleading and the evidence.

On April 16, 1981, the Florida Supreme Court by order adopted the recommendation of its Committee on Standard Jury Instructions in Criminal Cases to treat lesser degree offenses (category 1) as category (3) or (4) offenses, depending on the offense, and to treat attempts as a category (4) offense which eliminated the first two Brown categories and left the following regrouping:

(1) Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses;
(2) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.

See, In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Instructions in Misdemeanor Cases, no. 57,734 (Fla., April 16, 1981), as modified by In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases, no. 58,799 (Fla., June 5,1981). Those orders also adopted a schedule of lesser included offenses in which false imprisonment was listed as a category (1) lesser included offense of kidnapping. See Florida Standard Jury Instructions in Criminal Cases, at 260. Although that schedule was not effective until October 1, 1981, and not directly applicable to the instant case, we can only conclude from the approved schedule that the Florida Supreme Court, before its adoption, considered false imprisonment either a category (1) or a category (3) lesser included offense under Brown. This conclusion is inescapable as the new categorization of lesser included offenses neither subtracts from nor adds to the Brown categories; it merely reorganized the existing categories in Brown.

The third point raised asserts that error resulted from the court’s instruction on the evidence of flight. We conclude, however, that the evidence was sufficient to support the instruction. See Batey v. State, 355 So.2d 1271 (Fla. 1st DCA 1978).

Appellant’s next point alleges the trial court committed error in denying defendant’s motion for a psychiatric evaluation before imposing an enhanced sentence. The motion was apparently made pursuant to either Rule 3.720(a)(1) or 3.740, Florida Rules of Criminal Procedure, because the defendant made no attempt to present any evidence that the defendant was insane. In fact, defendant’s counsel stated on the record that it was not defendant’s position that there was any evidence of insanity. On this record, we conclude that the court’s refusal to direct such an evaluation was not error because no evidence was offered to suggest insanity at the time of sentencing. See Gray v. State, 310 So.2d 320, 321 (Fla. 3d DCA 1975).

Appellant’s final point requires reversal of the conviction and a remand of the case for new trial. He asserts that it was reversible error for the court to refuse his requested instruction that attempted false imprisonment is a lesser offense to that of kidnapping. The state responds, relying upon Robinson v. State, 338 So.2d 1309 (Fla. 4th DCA 1976), that the trial court was required to instruct only on an attempt to commit the crime charged and not on attempts of lesser included offenses to the crime charged. The state’s response, however, overlooks the opinions of the Florida Supreme Court in State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), holding that only the failure to instruct on a lesser included offense one step removed from the offense charged is reversible error, and its later filed opinion in State v. Thomas, 362 So.2d 1348, 1349, n. 5 (Fla.1978), interpreting Abreau as meaning the refusal of the trial court to instruct on an attempted, lesser included offense “may be harmless if the ‘attempt’ offense is ‘two steps removed’ from the crime of which the defendant is convicted . . . . ” (emphasis supplied) Following the above comment, three district courts of appeal have held that the refusal of a trial court to instruct on an offense one step removed from the crime for which the defendant was convicted is reversible error per se. See Butler v. State, 379 So.2d 715 (Fla. 5th DCA 1980); Hunter v. State, 389 So.2d 661 (Fla. 4th DCA 1980); Gallo v. State, no. 79-2356 (Fla. 3d DCA, September 3,1981) [6 FLW 2011],

Since attempted false imprisonment is one step removed from the offense which appellant was convicted, i.e., false imprisonment, we have no choice other than to conclude that the refusal of the trial court to instruct on attempted false imprisonment as an appropriate lesser included offense was harmful error.

Affirmed in part, reversed in part, and remanded for new trial.

McCORD and ERVIN, JJ., and PEARSON, Tillman (Retired), Associate Judge, concur.


author: SHIVERS, Judge. SHAW, Judge,

text:
    D. L. G., a child, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-351.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.
    David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

We affirm the trial court’s denial of appellant’s motion to suppress. Under the totality of the circumstances Officer Burt had probable cause to search appellant.

AFFIRMED.

THOMPSON, J., concurs.

SHAW, J., dissents with opinion.

SHAW, Judge,

dissenting.

D. L. G. appeals from an adjudication of delinquency following a plea of nolo conten-dere to the offense of possession of cannabis, specifically reserving the right to appeal the court’s denial of his motion to suppress.

The State, at the motion hearing produced witness Nancy Lea, a parole and probation officer, who testified that she was working as a part-time ticket seller at the Jacksonville Coliseum when she observed the appellant approach a patron and hold out what she took to be three marijuana cigarettes. Over objection, Ms. Lea was allowed to testify that when she asked the patron whether the appellant attempted to sell him marijuana, she received an affirmative answer. When appellant refused to move from the area, Ms. Lea contacted Officer J. L. Burt of the Jacksonville Sheriff’s Office. Officer Burt asked the appellant what he was doing and was told, “Nothing, just leaning against the pillar.” The officer grabbed appellant, reached into his shirt pocket, removed three marijuana cigarettes, and placed him under arrest.

Officer Burt candidly admits that he observed nothing out of the ordinary and that the seizure was based upon information supplied by Ms. Lea. The hard information received by the officer from Ms. Lea was limited to her observation of the appellant’s possession of three cigarettes rolled at the ends and a customer’s statement to her that the appellant attempted to sell the customer what he “assumed” was marijuana. The record fails to disclose any basis for the assumption. The Second District Court of Appeal in Carr v. State, 353 So.2d 958 (Fla.2d DCA 1978), soundly rejected the notion that mere possession of unevenly hand-rolled cigarettes, twisted at the ends, affords probable cause for arrest. This court in Shumaker v. State, 360 So.2d 810 (Fla. 1st DCA 1978), adopted the Carr rationale and I find no reason to depart from that holding. In my opinion it affirmatively appears that the officer had neither personal knowledge nor trustworthy information upon which to base a search of the appellant’s person.

I would reverse the judgment and remand the cause to the trial judge with directions that the defendant be discharged.


text:
    CITY OF WEST PALM BEACH and Nationwide Insurance Company, Appellants, v. Walter STEVENS, Appellee.
    No. ZZ-419.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.
    Rehearing Denied Feb. 8, 1982.
    Kent S. Pratt of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellants.
    Don Donaldson, West Palm Beach, Charles W. Musgrove, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a deputy commissioner’s order finding, among other things, that the limitations period of Section 440.19, Florida Statutes, had been tolled by the employer’s continued payment of regular wages under the circumstances, citing as authority St. Joe Ice Co. v. Frazier, 103 So.2d 228 (Fla. 1st DCA 1958), and that as a result of the industrial accident claimant had a physical impairment of 37x/2% of the foot. Two of appellants’ arguments require discussion.

Claimant incurred a compensable injury to his heel on March 20,1971, while on duty as a policeman with the City. The last payment by the employer specifically attributable to that accident was for medical treatment and the payment was made on February 3,1976. Eventually, in May 1978, claimant retired from his position with the City. The claim for compensation involved on appeal was filed on May 22, 1978, more than two years after February 3, 1976. Contrary to appellants’ argument, there is competent substantial evidence in the record to support the deputy’s findings, which included the following:

[D]ue to a combination of the 1971 accident and a second industrial accident, the claimant was transferred to light duty “inside paperwork” in the Detective Bureau ....
... [T]he employer was fully aware of the claimant’s disabilities at all times from the date of the industrial accident.
Further, the City of West Palm Beach permitted the claimant to continue working in a light duty capacity at his regular wage. [Claimant’s supervisor] also testified that the claimant had “less strenuous duties in the administrative section.” The employer knew, or should have known, that the claimant was continuing to receive medical care.
.. . [T]he claimant’s immediate supervisor at the West Palm Beach Police Department testified that he knew the claimant had medical problems involving his feet.
. . . [T]he light duty work which the claimant performed for the City of West Palm Beach was assigned to him to accommodate the claimant’s continued physical disabilities.

Therefore, with regard to the limitations period we think the deputy assessed the situation correctly in light of St. Joe Ice Co. v. Frazier, supra. In St. Joe Ice Co. v. Frazier, following a line of cases starting with Townsley v. Miami Roof & Sheet Metal Co., 79 So.2d 785 (Fla.1955), this court held that when a claim was filed within two years after claimant left the employer’s service the limitations period was tolled despite nonpayment of worker’s compensation benefits as such following the industrial accident because the employer was fully aware of claimant’s disability at all times from the date of injury, permitted claimant to perform light work at a regular wage with no deductions for time spent with the doctor, furnished some medical services, and was aware of and acquiesced in several operations undergone by claimant. Claimant left the employer’s service in order to have further surgery necessitated by the accident. This policy toward claimant by the employer was deemed to constitute sufficient payment of compensation to toll the statute of limitations.

Recently, however, the focus of inquiry in cases interpreting Section 440.19 has been modified. Under the decision of this court in City of St. Augustine v. Allen, 404 So.2d 1115 (Fla. 1st DCA 1981), the primary question to be decided by the trier of fact in such a case is whether “the employer intended, or the employee reasonably believed the employer intended, to pay wages in lieu of Chapter 440 disability benefits — not as sick pay, not as a gratuity, not as the act of enlightened labor management, but specifically in lieu of Chapter 440 benefits considered to be due.” City of St. Augustine v. Allen, supra.

The record in Allen clearly indicated that the employer did not intend to make payments in lieu of compensation; the employer had specifically told claimant more than two years before the claim was filed that worker’s compensation benefits were no longer available. For the same reason the record supported a conclusion that the employee could not reasonably have believed he was receiving salary in lieu of compensation. The intent of the employer and the reasonable belief of the employee are not so definitely ascertainable from the record on appeal in the instant case, however. Although intent may be inferred from the surrounding circumstances such as the conduct of the parties, cf. Smart v. Brownlee, 195 So.2d 4 (Fla. 4th DCA 1967), it is a question for the trier of fact. As to this issue, we remand the order to the deputy commissioner for additional findings with regard to the intent of the employer or the employee’s reasonable belief as to the intent of the employer consistent with the decision in City of St. Augustine v. Allen, supra. In order to make such findings it may be necessary to receive additional evidence on this issue.

As to the second argument warranting discussion, the correctness of the impairment rating, we find the 37V2% rating to be unsupported by competent substantial evidence in the record. The treating physician, Dr. Green, did say in a 1978 deposition that claimant had a 35-40% impairment of the foot. As of February 1980, however, Dr. Green reported that claimant had a 15% impairment of the foot. The deputy commissioner gave no reason for relying on the doctor’s early rating instead of the more up-to-date rating which resulted from a reevaluation at the doctor’s office. Therefore, should the deputy rule in claimant’s favor on reconsidering the limitations issue, compensation will be for a 15% impairment of the foot.

REVERSED and REMANDED for entry of an order consistent with this opinion.

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


author: JOANOS, Judge.

text:
    CUMBERLAND FARM FOOD STORES and National Union Insurance Company c/o American Home Group, Appellants, v. Florence B. MEIER, Appellee.
    No. ZZ-452.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.
    Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellants.

      Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellee.
   JOANOS, Judge.

This worker’s compensation appeal involves a claim for wage loss benefits under § 440.15(3)(b), Florida Statutes (1979). Due to the temporary nature of the claimant’s psychiatric condition as well as the lack of evidence of a permanent impairment under the American Medical Association Guide, we find that wage loss benefits were improperly awarded and reverse.

The claimant suffered a work-related back injury in December of 1979. Since that time, she has made several attempts to return to work for her employer, Cumberland Farm Food Stores. She did light work shortly after her accident, but when she tried to resume her regular duties she began to have problems related to the back injury. Although her physician later gave his approval for claimant to return to work and claimant frequently expressed her desire to resume her job duties, Cumberland Farm continued to keep claimant on medical leave of absence status. According to the testimony of one of claimant’s supervisors, Cumberland Farm would not allow claimant to return to her old position without a specific medical release stating that claimant could work 50 hours a week, stand for a long period of time, and lift cases of milk off of a stacked dolly. Claimant’s physician, however, stated that claimant should avoid lifting heavy cases and that prolonged standing would bother her. The doctor also testified that he was aware of claimant’s job duties and that claimant was able to obtain help with heavy lifting. With this knowledge, he felt claimant was capable of returning to work.

Cumberland Farm never received the specific medical release it requested although claimant did bring a note from her doctor stating that she could return to work with no restrictions. Cumberland Farm deemed this release to be insufficient. Despite several offers by Cumberland Farm to give claimant back her old job, claimant was later told on each occasion that she could not return to work. After the third such rejection, claimant became extremely depressed and locked herself in her room. Her family and friends finally succeeded in having her see a psychiatrist.

Claimant’s treating psychiatrist testified that claimant had suffered a depressive reaction which was caused by the accident, the pain from the injury, and claimant’s inability to return to work. Although a second psychiatrist testified that in his opinion part of claimant’s emotional problem was due to a voluntary component, both doctors agreed that claimant was temporarily disabled due to the condition and unable to work.

Before claimant’s psychiatric condition became evident, claimant had filed for temporary total disability benefits resulting from her physical condition. This earlier claim was denied by the deputy based upon the doctor’s testimony that claimant was physically capable of returning to work as of February 22, 1980 and that she reached maximum medical improvement on June 12, 1980. This Court affirmed the deputy’s denial of TTD on July 16, 1981.

While the appeal on the first claim was pending, claimant filed for wage loss benefits from the date of MMI to September 17, 1980 (the date of claimant’s first visit to a psychiatrist). At the hearing, claimant sought temporary disability as an alternative to wage loss benefits, but the deputy stated that proper notice of a claim for temporary disability had not been given. Thus, the issue at the hearing was limited to the claim for wage loss between June 12th and September 17th. Relying upon testimony of claimant’s drastic personality change and severe depression after the employer’s revocation of its offer of employment as well as the evidence of the employer’s stringent medical release requirement, the deputy awarded 100% wage loss benefits from June 12th to September 17th.

It is clear from the record and from the limited time frame of the award itself that the deputy awarded “wage loss benefits” for a psychiatric disability which was temporary in nature. Section 440.15(3) was not intended to apply to a wage loss resulting from a temporary disability. Subsection (3) is entitled “Permanent Impairment and Wage Loss Benefits” (emphasis supplied), while subsections (2) and (4) deal with temporary total and partial disabilities. Wage loss benefits are not awardable unless the injured employee has suffered a permanent impairment, § 440.15(3)(b)l, and the benefits are calculated by determining the employee’s ability to earn after MMI has been reached, § 440.15(3)(b)2. In this case, the claimant had reached MMI for her physical condition but had not reached MMI for the psychiatric problem upon which the wage loss award was based. In addition, the expert testimony was that the psychiatric condition would probably not result in a permanent impairment.

When the disability which results in a wage loss is temporary, the proper procedure is to file a claim under either § 440.-15(2) or (4). Although claimant attempted to assert a claim for temporary disability benefits at the hearing, the deputy found that the claim was not properly noticed and the issue of temporary disability was never determined. Our reversal of the award of wage loss benefits is, therefore, without prejudice to the filing of a claim for temporary disability for the period in question.

REVERSED and REMANDED for further proceedings consistent with this opinion.

SHAW, J., and VICTOR M. CAWTHON, Associate Judge, concur. '

      . Even assuming that wage loss benefits had been awarded due to claimant’s physical disability (as opposed to her psychiatric disability), the claimant did not make a proper showing that she had suffered any permanent physical impairment. Section 440.15(3)(b)l requires that the existence of a permanent impairment be determined pursuant to the schedule adopted in accordance with § 440.15(3)(a)3. This latter subsection requires the use of the American Medical Association’s Guides to Evaluation of Permanent Impairment pending the adoption by the Division of other acceptable standards. Since the Division has not adopted other standards, the AMA Guide should have been used to assess the permanency of claimant’s physical injury, which was the type of an injury that the Guide was intended to cover. In the only medical testimony concerning permanency of the claimant’s physical condition, the doctor admitted that his evaluation was not based upon AMA Guides.


text:
    S. E. R., a child, Appellant, v. STATE of Florida, Appellee.
    No. AC-47.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.
    Rehearing Denied Feb. 5, 1982.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See R. M. P. v. Jones, 392 So.2d 301 (Fla. 1st DCA 1980), docketed, Case No. 60,223 (Fla., orally argued August 31, 1981). Our affirmance in this case is based upon the same questions addressed in R. M. P. v. Jones, supra. Pursuant to the opinion of Florida Supreme Court in Jollie v. State, 405 So.2d 418 (Fla.1981), mandate in this case will be withheld during the period provided for invoking Supreme Court review and thereafter, if review is sought, pending final disposition of any petition for review herein.

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


text:
    ALLIS-CHALMERS CREDIT CORPORATION, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellees.
    No. AC-232.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.
    Kenneth R. Hart of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and G. P. Wald-bart, Asst. Atty. Gen., Tallahassee, for ap-pellees.
   PER CURIAM.

This controversy concerns the apportionment of Allis-Chalmers Credit Corporation’s adjusted federal income for taxation under Florida’s Income Tax Code, Chapter 220, Florida Statutes. Apportionment is accomplished using a fraction. In the numerator of the fraction are three factors: Florida property, Florida payroll, and Florida sales. The denominator consists of nationwide property, payroll, and sales. The dispute is over whether certain interest income derived from the sale of Allis-Chalmers equipment, financed through Allis-Chalmers Credit Corporation (“ACCC”), is to be included in the apportionment formula as Florida sales. ACCC appeals a final order of the Department of Revenue rejecting the recommended order of the hearing officer and assessing a deficiency against ACCC based on its conclusion that the interest income is includable in the numerator of the fraction as Florida sales. Because we believe the Department improperly rejected the recommended order, we reverse.

The facts were summarized in the recommended order and the final order for the most part as follows:

Allis-Chalmers Credit Corporation is a Wisconsin corporation doing business in Florida. It is a wholly owned subsidiary of Allis-Chalmers Corporation, a Delaware Corporation who manufactures and sells, among other things, farm tractors and other heavy equipment through various dealers.
Taxpayer’s principal business is financing the sale or lease of equipment to farmers and others by Allis-Chalmers dealers. All of the income here in dispute was earned in this manner.
This assessment originated following the audit of Taxpayer’s records in Wisconsin by an agent of the Department. In reviewing the Taxpayer’s records he noted that income received from installment sales in Florida had been included by Taxpayer in computing the Florida Income Tax for 1973 but was not included for the years subsequent thereto.
Prior to 1974 Taxpayer maintained an office in Florida. This office was closed in December 1973 and thereafter all work previously done out of that office was transferred to Atlanta.
During the audit period (1974-1976) Taxpayer was represented in Florida by one employee whose duties were to call on Allis-Chalmers Florida dealers to persuade these dealers to use Taxpayer for financing sales they made, to keep these dealers supplied with necessary forms and to give advice to these dealers if complicated or difficult financing situations arose. This representative worked out of the Atlanta office but lived in Florida, the state for which this representative was responsible.
Buyers of Allis-Chalmers equipment with good credit ratings can generally obtain bank financing at better rates than are offered by Taxpayer. The dealer is not required to assign conditional sales contracts to Taxpayer (via Allis-Chalmers) but is encouraged to do so. Buyers qualifying for financing from Taxpayer were the source of the income upon which the tax here involved was based.
When a dealer sells a piece of equipment on which the buyer wants financing by Taxpayer, the dealer has the retail customer fill out the purchaser’s statement and execute three additional forms that are provided by the Taxpayer. Under his franchise agreement with the parent corporation, the dealer is required to use appropriate precautions in conducting financing transactions, to warranty the truth and completeness of statements in the documents and their enforceability, and to repurchase the paper on demand in the event of default. The dealer forwards the executed documents to the Taxpayer’s Atlanta branch office for review and approval before any extension of credit to the customer. In Atlanta the Taxpayer’s branch manager, acting under a power of attorney from the parent corporation, accepts the documents on behalf of the parent corporation and tenders them to himself as agent for the Taxpayer. If the paper meets the Taxpayer’s requirements as to form, terms, execution and credit-worthiness, as defined in the Master Credit Agreement between the parent corporation and Taxpayer, he then accepts the documents on behalf of the Taxpayer. In some instances he conducts a supplemental credit inquiry by mail or telephone to assure the Taxpayer’s requirements are met. His acceptance of the documents for Taxpayer constitutes in effect the purchase and receipt of the obligation. The customer receives his financing, and the appropriate credits are transferred from the Taxpayer to the parent corporation to the dealer’s inventory account. The dealer receives an additional credit as an incentive to recommend the Taxpayer’s financing services to his customers.
The Taxpayer files the signed financing statement with the Florida Secretary of State to protect its security interest under U.C.C. Article 9, and pays the appropriate filing fee. The Taxpayer also files continuation statements in the event the account is extended or refinanced beyond five years.
The customer makes his installment payments reflecting the base price plus a time-price differential or finance charge by mailing the payments to the Taxpayer’s Atlanta lock box. The Taxpayer furnishes him coupon books or reminder notices by mail. In the event a customer account becomes overdue, the Taxpayer takes limited enforcement action by issuing dunning letters. The Taxpayer, through its Florida Finance Representative, contacts the delinquent customer by telephone or in person, and arranges in appropriate cases for extensions or refinancing of the initial obligation, using printed forms with the Taxpayer’s name prominently displayed thereon.
In the event the customer defaults, the Taxpayer has authority to repossess and resell the security, to sue on the note, or to amend, extend, renew or release the customer’s obligation. In practice the Taxpayer rarely, if ever, exercises these powers, but simply resells the paper, to the parent corporation, which takes the actions described above.
The agreement between Allis-Chalmers and its dealers is that of buyer and seller and this agreement specifically provides the dealer is not an agent of Allis-Chal-mers and is without authority to bind the company.

Section 220.15, Florida Statutes, provides that the adjusted federal income is to be apportioned in accordance with part IV of Chapter 214. Section 214.71 provides that sales of a financial institution such as ACCC are in this state if derived from:

1. Fees, commissions, or other compensation for financial services rendered within this state;
2. Gross profits from trading in stocks, bonds, or other securities managed within this state;
3. Interest and dividends received within this state;
4. Interest charged to customers at places of business maintained within this state for carrying debit balances of margin accounts, without deduction of any costs incurred in carrying such accounts; and
5. Any other gross income resulting from the operation as a financial organization within this state.

Rule 12C-1.15(3)(c) Fla.Admin.Code provides regulations for determining the Florida sales factor for a financial organization. This sales factor is calculated differently than the sales factor for a corporation selling real or tangible property.

(c) Subsection 3 of section 214.71(3)(b), states that “interest and dividends received within the State” are included in the numerator. However, any such income must, in accordance with subsection 5, be earned (not simply received) in this state. Consequently, interest and dividends generated from the following activities will be considered Florida sales and will be included in the numerator of the sales factor:
(i)Interest received on loans secured by real property located in this state, irrespective of place of receipt;
(ii) Interest received on unsecured loans or loans secured by personal property which are made from offices located in this state, irrespective of place of receipt;
(iii) Other interest and dividends received by offices located in this state.

Whether the interest income involved here is includable in the numerator of the apportionment fraction as sales of the financial institution in Florida depends on the applicability of Section 214.71(3)(b)3 or 5. The hearing officer concluded that neither subsection 3 nor subsection 5 applied to ACCC. More specifically, Section 214.-71(3)(b)3 authorizing the inclusion of “interest and dividends” did not apply since the interest income involved was not “received within this state.” Section 214.71(3)(b)5 authorizing the inclusion of “other gross income” did not apply by virtue of two rules of statutory construction: one, that “since dividends and interest are included in Sub-paragraph 3 [and interest is also included in Subparagraph 4], the ‘other income’ referred to in Subparagraph 5 must relate to other types of income than that already expressed in Subparagraph 3,” the rule known as expressio unius est exclusio alteri-us; two, that tax laws are to be construed strongly in favor of the taxpayer and against the government. See Department of Revenue v. Brookwood Associates, 324 So.2d 184 (Fla. 1st DCA 1975) cert. denied 336 So.2d 600 (Fla.1976). As to Rule 12C-1.15(3)(c), the hearing officer concluded that through the rule “the department expressed its conclusion that the legislature in enacting Section 214.71 .. . intended to tax those dividends and interest both earned and received in this state, which fit into the categories noted in Subsections (i), (ii) and (iii). This taxpayer fits into none of those categories." The hearing officer elaborated upon this conclusion as follows:

Since the interest received by Taxpayer was not on loans secured by real property, made from offices located in this state, or received by offices located within this state they are not revenues constituting Florida sales for purposes of the sales factor numerator used to compute the income tax of financial organizations.

Finally, the hearing officer considered the Department’s argument that the dealer’s places of business constituted de facto offices of ACCC bringing Rules 12C-1.-15(3)(c)(ii) and (iii) into play, and disposed of the argument as:

unsupported by the factual relationship between the dealer and the Taxpayer. The dealer, pursuant to the Sales and Service Agreement, is not even an agent for Allis-Chalmers, let alone the Taxpayer. He has no relationship with Taxpayer other than that of assignor-assignee once removed. No contract is accepted (executed) by Taxpayer in Florida and no payments are received by Taxpayer in Florida.

The hearing officer recommended dismissal of the assessment.

In the final order the Department of Revenue rejected the hearing officer’s conclusions of law. Instead the Department concluded that Rule 12C-1.15(3) implemented only subparagraph 3 of Section 214.-71(3)(b) and not subparagraph 5, therefore the interest income was includable under subparagraph 5 as “other gross income” even absent a specific rule indicating that interest income is includable under that section. Further, the Department concluded that a dealer does act as a de facto office for arranging the income-producing transactions, so even if Rule 12C-1.15(3) did implement subparagraph 5 of Section 214.-71(3)(b) as well as subparagraph 3, the interest income would be includable pursuant to that rule.

The Department’s conclusions of law cannot be sustained. While the statute may not absolutely preclude this type of interest from being included as sales, the Department failed to adequately explain the departure from its own rule which as it stands seems to circumscribe the instances in which interest will be included as Florida sales under Section 214.71(3)(b). Since the agency’s deviation from its own rule is not adequately explained by the agency, we must remand the case for action consistent with the rule. Section 120.68(12)(b), Fla. Stat. Therefore, the final order of the Department is REVERSED and REMANDED with instructions to enter the recommended order of the hearing officer as the final order in this case.

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


author: THOMPSON, Judge. ERVIN, Judge,

text:
    The SCHOOL BOARD OF NASSAU COUNTY, Florida, Appellant, v. Gene H. ARLINE, Appellee.
    No. AC-489.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.
    Rehearing Denied Feb. 5, 1982.

      Brian T. Hayes, Monticello, for appellant.
    Philip J. Padovano, Tallahassee, for ap-pellee.
   THOMPSON, Judge.

The State Board of Education reversed the order of the appellant School Board dismissing appellee teacher and reinstated her with back pay. The School Board appealed on the ground that it had good and sufficient reasons for the dismissal pursuant to § 231.36(4), Fla.Stat. (Supp.1980). We agree and reverse.

Appellee was hired by the School Board in 1966. In 1969 she obtained a continuing contract and currently teaches in an elementary school housing kindergarten through third grade. She had a history of tuberculosis beginning in 1957. She was given chemotherapy treatment from 1957 to 1960. No positive tuberculosis cultures were found during the six years before she was hired nor during the eleven years thereafter. However, in 1977 she again had a positive tuberculosis culture and has continuously received chemotherapy treatment. Despite appellee’s cooperation in a vigorous anti-tuberculosis program since 1977, she had positive tuberculosis cultures both in 1978 and in 1979.

Shortly after the third positive culture in 1979, the superintendent suspended the ap-pellee. After a second hearing, the School Board found that good and sufficient reasons existed for her dismissal and adopted a final judgment of dismissal. The State Board of Education reversed the School Board’s dismissal order and adopted the findings of the hearing officer that there was no substantial competent evidence in the record to support the School Board’s finding.

The evidence reveals that appellee was teaching young children who are highly susceptible to infectious tuberculosis. Additionally, she was in close and prolonged contact with these highly susceptible young children in a closed indoor environment. Dr. McEuen, Assistant Director of the State Community Tuberculosis Control Service, was the only medical expert to testify at the hearing. She was of the opinion it would be inadvisable for appellee to teach under these conditions and that it was a risk they did not want to take. Accordingly, Dr. McEuen recommended that appellee not teach. There is competent substantial evidence to support the School Board’s finding that good and sufficient reasons existed for appellee’s dismissal. Section 230.23(6), Fla.Stat. (Supp.1980) requires that the School Board provide for the welfare of the children attending school, including their health and safety. A teacher with infectious tuberculosis is a totally unacceptable health risk to the highly susceptible children she teaches.

It is contended that there was evidence the appellee could teach older classes where the students are not as susceptible and the contact is not as prolonged or continuous as in elementary school. However, appellee was certified only to teach in elementary schools, and there was no evidence that she attempted to obtain or could obtain a certification to teach higher grades. Accordingly, this contention is without merit.

It is further contended that paragraph nine of appellee’s continuing contract would prevent her dismissal as it provides that the failure of a teacher to perform the contract “unless prevented from doing so by reason of personal illness” shall constitute sufficient grounds for termination of the contract. While infectious tuberculosis is a personal illness, the only logical interpretation of this contract provision is that it applies only to a sickness or illness of some reasonable type and duration. It cannot apply to prolonged illnesses such as incapacitating arthritis or cancer nor to long-term infectious tuberculosis which only recently has become curable in most cases. This opinion is buttressed by other language in the continuing contract. The contract permits the School Board to require a teacher to furnish a negative tuberculosis report. Additionally, the contract allows the School Board to require a teacher to agree to submit to a physical examination at anytime during the term of the contract. There would be absolutely no point in requiring a teacher under a continuing contract to submit to a future physical examination if the School Board was unable to take any action after obtaining the results of that physical examination.

The School Board has responsibilities both to its teachers and to its students. The Board weighed these responsibilities and concluded that to permit a teacher with infectious tuberculosis to come in close prolonged contact with highly susceptible young children was an unacceptable risk and violative of its responsibility for the welfare, health and safety of its students. Although we may not have reached the same conclusion had we been sitting as the School Board, we may not substitute our judgment for that of the Board as long as there is substantial competent evidence to support its decision. See Smith Terminal Warehouse Company v. Bevis, 312 So.2d 721 (Fla.1975); Manatee County v. Florida Public Employees Relations Commission, 387 So.2d 446 (Fla. 1st DCA 1980); Wilson v. Pest Control Commission of Florida, 199 So.2d 777 (Fla. 4th DCA 1967). The Board’s finding that there were good and sufficient reasons for appellee’s dismissal is supported by substantial competent evidence. Accordingly, the case is reversed for the reinstatement of the judgment of dismissal entered by the School Board.

REVERSED.

BOOTH, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

I would not extricate the board from its obligations under the clear and unambiguous provisions of the contract. Paragraph 9 of appellee’s continuing contract of employment states: “Failure of the Teacher to fulfill this contract, and to carry out the lawful provisions hereof, unless prevented from so doing by reason of personal illness or as otherwise provided by law, shall constitute sufficient grounds for the termination of the contract by the County Board.” There are no words in this paragraph, or indeed in any other paragraph of the contract, authorizing the board to terminate appellee’s contract should she become physically incapable of carrying out her responsibilities as a teacher in the Nassau County School District; consequently the majority’s interpretation of the words “unless from doing so by reason of personal illness ...” as meaning that they logically apply “only to a sickness or illness of some reasonable type and duration ...” is, in my judgment, unwarranted. Such a construction is contrary to the well recognized rule that if a contract is clear and unambiguous, a court cannot give it a meaning other than that expressed in it, nor can it rewrite the contract for the parties. See Hamilton Construction Co. v. Board of Public Instruction, 65 So.2d 729 (Fla.1953); Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313 (Fla.2d DCA 1963); All-Dixie Insurance Agency, Inc. v. Moffatt, 212 So.2d 347 (Fla. 3d DCA 1968).

Clearly, then, the contract calls for no interpretation; however, even if one could validly argue that the contractual language employed was doubtful, it should be observed that the contract was on a form prepared by the State Superintendent of Public Instruction pursuant to the rules of the State Board of Education of Florida then in existence. Given such facts, another common rule of construction applies: doubtful language in a contract should be interpreted most strongly against the party who has selected that language, especially where he seeks to use it to defeat the contract or its operation. Capital City Bank v. Hilson, 59 Fla. 215, 51 So. 853 (1910); Prudential Ins. Co. of America v. Prescott, 130 Fla. 11, 176 So. 875 (1937); Board of Public Instruction v. Fred Howland, Inc., 243 So.2d 221 (Fla. 3d DCA 1970).

Finally, the board’s argument that appel-lee’s physical condition caused the contract to be impossible to perform lacks substantial legal support. It has long been recognized that impossibility of performance cannot be invoked as a defense to non-performance where knowledge of the facts making performance impossible was available to the promisor when the contract was executed. See Shore Investment Co. v. Hotel Trinidad, Inc., 158 Fla. 682, 29 So.2d 696 (1947). The board was at such time aware that appellee had previously suffered from tuberculosis— although it was then in a dormant state— yet it made no provision for termination should appellee’s condition once again become active. Indeed, paragraph 12 of the contract required only that appellee submit to an examination by two qualified physicians upon request of the board.

It appears that the parties contemplated that if appellee’s physical condition were such as to prevent her from performing her duties, she should at most be given a leave of absence. In fact, paragraph 13 of the contract states: “The Teacher may be granted a leave of absence as provided by law, State Board of Education regulations, and the policies of the County Board.”

To conclude, the contract of employment gives no authorization to the board to discharge appellee for physical incapacity caused by personal illness. I would therefore affirm the final order of the State Board of Education.


text:
    ALACHUA COUNTY, FLORIDA, Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    Nos. AD-41, AD-226.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.

      Dennis R. Long, Asst. County Atty. and Peter Skoro, Acting County Atty., Gaines-ville, for appellant.
    Philip S. Bennett, Trial Atty. and Margaret-Ray Kemper, Appellate Atty., Tallahassee, for appellee.
   THOMPSON, Judge.

Alachua County (County) appeals a final order of the Florida Department of Transportation (DOT) holding that Chapters 77-165 and 77 — 416, Laws of Florida, do not prohibit the use of the proceeds of State of Florida, Alachua County Road Bonds, payable from the 80% surplus gasoline tax, for primary road rights of way after July 1, 1977. We affirm.

In 1973 the Division of Bond Finance of the Department of General Services (Division of Bond Finance) issued $3,800,000 of Alachua County Road Bonds. In 1976 the Division of Bond Finance issued $4,000,000 of Alachua County Road Bonds, Series of 1975. Each of these bond issues was secured by a lease-purchase agreement entered into between the Division of Bond Finance and the DOT, pledging as rentals for the payment of the bonds the 80% surplus gasoline taxes accruing to the DOT for use in the County. In addition to certain described construction projects, each of the bond issues provided for rights of way acquisition for primary and secondary roads throughout Alachua County. The County approved the bond project and the use of the 80% surplus gasoline tax to pay the principal and interest on the bonds. In 1977 the legislature enacted Chapters 77-165 and 77 — 416, Laws of Florida, substantially reorganizing the Florida road system and the responsibility for its construction. The law purported to transfer administrative control over the 80% surplus gasoline taxes from the DOT to the counties. This was in addition to the control the counties already had over the 20% surplus gasoline tax. It also placed the responsibility for the acquisition of rights of way for state roads, formerly called primary roads, with the DOT.

When each bond issue was sold, after deducting the cost of issuance by the Division of Bond Finance and the deposit with the State Board of Administration of the accrued interest and reserve required by the Bond Resolution, the balance of the bond proceeds was deposited in a project construction trust fund account of the DOT. These proceeds could be used by the DOT only for the projects described in the Bond Resolution.

A change in the law prohibiting the use of the 80% surplus gasoline tax for the acquisition of rights of way for state roads, or changing the responsibility for the management of the “Second Gas Tax” from the DOT to the county has absolutely no effect on the pledge of the “Second Gas Tax” or any portion thereof, as rentals for projects already authorized or on the expenditure of the project construction trust fund for projects described in the resolution authorizing the issuance of the bonds. If the legislature had provided that the 80% surplus gas taxes accruing to a county could not be used for a construction project in that county but must be used for the acquisition of rights of way only, this would not prohibit the use of the construction trust funds for the construction of projects described in the bond issues. On the contrary, the bond proceeds in the construction trust fund can only be used for projects described in the bond issues. Legislation affecting the use or administration of the 80% surplus gas tax has no effect on the prior pledge of this tax as rentals or on the use of the construction trust funds of bond issues pledging the 80% surplus gas tax.

By its own terms, the lease purchase agreement is not subject to revocation or termination. The court in its final judgment of validation in each of the bond issues found that this was a valid covenant and that the parties to the lease purchase agreement had the authority to agree that it would not be subject to revocation or termination during the term thereof. The county cannot effectively revoke or terminate any of the agreements or approvals that it made in connection with this agreement.

The county contends that the bond proceeds cannot be used for acquisition of primary roads as there are no more primary roads since the 1977 amendment which renamed them state roads. This argument is without merit. A mere change in the name of a street or a highway number in a described project has no effect whatsoever on the right to construct that project. Additionally, the mere change in terminology from “primary roads” to “state roads” also has no effect.

The DOT had a right to spend bond proceeds in the construction trust funds of these two bond issues for primary road rights of way after July 1, 1977, without further approval or consent of the county. Furthermore, the DOT is under no obligation to reimburse the county for any construction trust funds spent for the acquisition of primary road rights of way after July 1, 1977.

AFFIRMED.

ERVIN and BOOTH, JJ., concur.