author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. John HUTCHINSON, Appellee.
    No. 80-1022.
    District Court of Appeal of Florida, Second District.
    June 5, 1981.
    Rehearing Denied Oct. 14, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellee.
   OTT, Judge.

This is an interlocutory appeal by the state from an order suppressing certain evidence taken by police officers from a satchel lying under a bench on which appellee’s codefendant was sitting. Appellee was subsequently charged with possession of the contents of the satchel. The sole contention by the state is that appellee did not sustain his burden of showing that the search and seizure violated his own constitutional rights. We agree, and reverse the suppression order.

The exclusion of illegally obtained evidence was the rule in Florida long before the United States Supreme Court, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), required state courts to follow the prohibition it imposed on the federal courts by its decision in Weeks v. United States, 323 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Mapp thus had no real effect on Florida. Sing v. Wainwright, 148 So.2d 19, 20 (Fla.1962). The exclusionary rule is now engrafted even more firmly into Florida law. Art. I, § 12, Fla.Const. (1968).

The problems which have arisen in applying the exclusionary rule have mainly centered about the question of who may raise or claim its protection. General rules have been easy to come by, but not so satisfying in practical application. Rule 41(e) of the Federal Rules of Criminal Procedure provides that any defendant “aggrieved” by an unlawful search may move to exclude any evidence thus obtained. In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 679 (1960), the Supreme Court construed that language to mean that a defendant who would challenge the legality of a search must show that he was personally the victim of an invasion of privacy. This burden, declared the court, could be discharged by showing that the movant either owned or possessed the seized property or had a protected interest in the premises searched.

More recently, the Supreme Court has redefined the test for determining whether a defendant was the victim of an invasion of privacy. Ownership or possession of the seized property is no longer pertinent. The present rule tacitly defines an aggrieved defendant as one who had a legitimate expectation of privacy — i. e., a reasonable expectation of freedom from governmental intrusion — in the area searched. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

So much for the history of the federal rule. State courts are not affected when the Supreme Court narrows the ambit of protection guaranteed by the Federal Constitution if, as here, state law independently guarantees protection at least equal to that required by the federal rule. Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978). It is only when a state court unnecessarily hampers law enforcement because of erroneous belief that federal rules alone require it that the Supreme Court will review and reverse a judgment favorable to the accused. Oregon v. Hass, 420 U.S. 714, 718-722, 95 S.Ct. 1215, 1219-1220, 43 L.Ed.2d 570 (1975). Since Florida has its own exclusionary rule, we must determine whether it meets the minimum federal standards.

Prior to Jones, Florida subscribed to the general principle that one who would attack the propriety of a search must establish that he himself was the victim of an invasion of privacy. State v. Dycus, 238 So.2d 493, 494 (Fla.2d DCA 1970). But the longstanding rule here had been that only the owner, occupant or lessee of the premises searched had a right to privacy therein, and therefore only they could complain of the search. Mixon v. State, 54 So.2d 190, 192[5] (Fla.1951). A few cases decided by intermediate appellate courts, notably State v. Dycus, supra, and Alexander v. State, 107 So.2d 261 (Fla.2d DCA 1958), contain language suggesting that ownership or a pos-sessory interest in the property seized also bestowed “standing” to challenge the search, but we can find no such statement emanating from the Florida Supreme Court. We also note that Dycus, for example, merely echoed Jones, as we were obliged to do while that opinion represented the latest views of the Supreme Court on Fourth Amendment guaranties.

We conclude that the rule in Florida, independent of any overriding federal minimums, is the statement by our supreme court in Mixon v. State, supra, which accords to only the owner, lessee or occupant the right to complain of the search of an area. We use the present tense, notwithstanding the fact that in 1972 the Florida Supreme Court adopted a set of rules governing the courts of this state, and that rule 3.190(h) of the Rules of Criminal Procedure is practically identical to federal rule 41(e), permitting exclusion motions by any “aggrieved” defendant. We are not prepared to say, and indeed it is hardly our place to say, that in adopting that rule the supreme court intended to broaden the Mixon rule. In short, Mixon and rule 3.190(h) are not necessarily in conflict. If they are, it is for our supreme court to say so.

We thus compare Mixon with Salvucci. The federal rule, while representing a substantial narrowing of the Jones concept, obviously extends Fourth Amendment protection to many defendants who would be unable to meet the rigid owner/lessee/occupant test. There might be a few isolated instances in which the reverse would be true, but in most cases owners, lessees and occupants will experience little difficulty in establishing a reasonable expectation of privacy in their premises.

Having concluded that Salvucci affords protection denied by Mixon, it necessarily follows that the Salvucci rule now controls in this state, and we so hold.

Appellee argues that his motion was made, argued and ruled upon more than a month before the Salvucci opinion was handed down, and therefore he had “automatic standing” under Jones. It is true that the exact status of Jones was unsettled until Salvucci as the court conceded there. We have already noted that the most significant change effected by Salvucci was its unheralded repudiation of the Jones theory that ownership or possession of the property seized in an illegal search bestowed standing to complain. Salvucci offhandedly labels that an “unexamined assumption” (100 S.Ct. at 2552) and concentrates the fire of express disapproval on the “automatic standing” aspect of the Jones opinion.

It would be a mistake, however, to conclude that “automatic standing” was a viable concept until the point-blank rejection by Salvucci. That was merely the coup de grace, which also provided a cover for the quiet elimination of what the Salvucci majority evidently viewed as Jones’ greater defect — that “unexamined assumption.” The new test devised by Salvucci, focusing on invasion of privacy in the area searched, allows no room for complaint that property belonging to the accused was discovered and seized as a result of a search which illegally invaded someone else’s privacy.

The “automatic standing rule” was merely the Jones solution to the dilemma facing a defendant accused of the possession of contraband seized by an illegal search of premises in which he had no special interest. In order to qualify to attack the search, he had to prove his ownership or possession of the contraband. If his suppression motion failed, he stood convicted out of his own mouth. Jones solved that by declaring that when the prosecution charges possession as the basis of its complaint, it should not be heard to deny its own allegation for purposes of the suppression motion. A charge of possession would automatically entitle the accused to challenge the search, thus avoiding any necessity for him to testify or otherwise prove his ownership or possession of the contraband.

There was, however, an obvious alternative, and the Court found it in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Thereafter, testimony or other evidence presented by an accused in attacking a search or seizure could not be used by the prosecutor to prove guilt, whether the charge was possessory or non-possessory. Although the “automatic standing rule” was not expressly discarded, nor even questioned, the effect of the new solution to the “self-incrimination dilemma, so central to Jones,” was obvious. Brown v. United States, 411 U.S. 223, 228-229, 93 S.Ct. 1565, 1568-1569, 36 L.Ed.2d 208 (1973).

We think that Simmons, not Salvucci, freed trial courts of all obligation to accord “automatic standing” to defendants wishing to challenge the legality of a search or seizure. That rule was devised to avoid what the Supreme Court deemed an impermissible requirement of election between constitutional guaranties. Simmons completely eliminated that problem. When the reason for the rule vanished, so did the rule itself, or at least the necessity for complying with it. The fact that the rule was not formally interred until twelve years later, in Salvucci, has no bearing on whether a grant of “automatic standing” was necessary in order to protect a defendant’s constitutional rights in the interim.

Appellee asserts that his standing to attack the search was never challenged in the trial court, and therefore cannot be questioned here. That argument necessarily assumes that the state had the burden of establishing lack of standing when the motion to exclude was heard below. Appellee in fact makes an explicit contention that the state indeed did have that burden because it was uncontroverted that the search was made without a warrant, thus imposing upon the prosecutor an obligation to overcome the prima facie presumption of illegality. Appellee’s predicate is correct, but his ultimate conclusion is completely extraneous to the question before us. A determination that a search was illegal can no longer exist in a vacuum — it must be shown to be illegal as to the complainant. No matter how egregious a violation of privacy may have been, the court will not even listen to a complaint unless it comes from one whose privacy was violated.

The burden of making that showing is upon the one challenging the search. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 423—424, n.1, 58 L.Ed.2d 387 (1978). If he fails to sustain that burden, an order suppressing the seized evidence is error because the illegality of the search has not been established.

Finally, appellee suggests that the Florida exclusionary rule, as embodied in our constitution, explicitly bars the use of illegally obtained evidence for any purpose, and thus the question of preliminarily establishing standing cannot arise in this state. We disagree. Although the literal import of the constitutional prohibition might sanction that result, the language has never been given such an interpretation. What appellee is urging us to do is adopt the California rule, sometimes referred to as a “vicarious” exclusionary rule, which simply declares that illegally obtained evidence is not admissible, at least as evidence of guilt, in any court against any defendant. People v. Martin (1955), 45 Cal.2d 755, 290 P.2d 855; People v. Solari (1977), 19 Cal.3d 760, 139 Cal.Rptr. 725, 566 P.2d 627. That construction of the federal exclusionary rule was expressly rejected by the Supreme Court in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). The rule in Florida, that property seized in violation of the constitutional rights of the person against whom it is offered in evidence is not admissible as to him, appears to be the rule in most jurisdictions. 50 A.L.R.2d 531 [§ 10].

There remains the question of just what to do with the order at bench. Notwithstanding our conclusions with respect to the burden facing appellee when he made his motion below, we are hesitant to declare flatly that at that time the law clearly precluded him from relying upon “automatic standing.” The prosecutor tacitly conceded “automatic standing” to ap-pellee by never raising the issue. Even on this appeal the state’s argument is not predicated upon the effect of Simmons, but upon an assumption that Salvucci should be given retroactive effect. Moreover, as we have noted, Salvucci itself is somewhat ambiguous in explaining the exact status of Jones after Simmons and Rakas.

In view of that uncertainty, and the fact that suppression was in fact ordered, we are not prepared to hold that because appellee initially failed to show any right of privacy in the area of the search he is forever foreclosed from doing so. We think that fairness to the parties and the court below requires that the issue be fully addressed and properly determined under the new standard.

The suppression order is vacated and the case is remanded for determination of whether appellee’s rights were violated by the search. Under the current test, the answer to that question will not depend upon a charge or the fact that he had a possessory or ownership interest in the seized property, nor upon his status as owner, occupant or lessee of the area searched, but upon whether his property was unlawfully seized from a place which he reasonably believed to be safe from governmental intrusion.

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

      . Article I, section 12:
      The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures . . . shall not be violated.... Articles or information obtained in violation of this right shall not be admissible in evidence.

      . Salvucci implies that the Jones rule was effectively repudiated in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). But we have difficulty with that analysis. Ra-kas discarded the concept of “standing” in favor of forthright recognition that, as a matter of substantive law, proof that a search or seizure was illegal necessarily entails a showing that rights of the accused were violated. 439 U.S. at 139, 99 S.Ct. at 428. If they weren’t, there would be no illegality as to him, and that is, after all, the sole issue.
      Rakas did abandon the Jones concept that the rights of any person “legitimately on the premises” were necessarily violated by an illegal search thereof (439 U.S. at 146, 99 S.Ct. at 432), but we fail to find any disapproval of Jones’ key underpinning, the then-widely-recognized principle that proof of ownership of the property seized in an illegal search was sufficient to establish a violation of Fourth Amendment rights.
      In fact, Rakas explicitly recognized the continued validity of that proposition by noting that “[tjhis is not to say that such [casual] visitors could not contest the lawfulness of the seizure of evidence OR THE SEARCH if their own property were seized during the search.” 439 U.S. at 142, n.11, 99 S.Ct. at 430, n.11 (emphasis added). Even in summation, Justice Rehnquist’s acceptance of that concept is unmistakable: “.. . petitioners’ claims must fail. They asserted neither a property nor a posses-sory interest in the automobile, nor an interest in the property seized.” 439 U.S. at 148[57], 99 S.Ct. at 433[8],
      It is clear that not until Salvucci did the Court quietly eliminate the basic predicate for the rules devised by Jones. The significance of that timing will be shown in a moment.

      . We are aware of the familiar rule that in construing a statute copied from another jurisdiction we may “properly” take note of the construction placed upon such language by the highest court of that jurisdiction at the time we adopted such law. State v. Aiuppa, 298 So.2d 391, 394 (Fla.1974). Since to do so in this case would saddle Florida with the 1972 federal version of the “standing” rule enunciated by Jones, modified only by elimination of the “automatic” feature (infra), and since we infer that we may also “properly” decline a construction so delegated, we will not graft an already-discredited rule into Florida law.

      . The Salvucci majority opinion approves the . Court of Appeals’ analysis of the Jones’ rule as “challenged in recent years, but .. . [not] overruled ... [since] that is an issue which the Supreme Court must resolve.” 100 S.Ct. at 2550. Yet in Rakas the court recognized that Jones’ automatic standing rule may not have survived Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) and, more importantly, conceded that such a rule permitted vicarious assertion of Fourth Amendment rights. 99 S.Ct. at 426, n.4.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    James Michael SOMMERS, Appellant, v. STATE of Florida, Appellee.
    No. 80-2113.
    District Court of Appeal of Florida, Second District.
    June 26, 1981.

      L. Scott Rawnsley of law offices of George J. Schriefer, P.A., Pinellas Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   ON MOTION TO DISMISS

GRIMES, Judge.

On this motion to dismiss, we must consider some troubling details left in the wake of Brown v. State, 376 So.2d 382 (Fla.1979).

The state charged appellant with the sale and possession of marijuana. He then filed a motion to suppress the marijuana which law enforcement officers had seized in his home. After the court denied his motion, he tendered a plea of nolo contendere reserving the right to appeal its denial. At this point the state attorney stated that the ruling on the motion to suppress was not dispositive of the case. The court nevertheless accepted the plea and entered a judgment of guilt.

Appellant then filed an appeal contending that the court erred in denying the motion to suppress. The state responded by filing a motion to dismiss, again arguing that the issue raised in the appeal is not dispositive of the case. The significance of an issue being dispositive results from Brown v. State in which the supreme court held that a defendant could take an appeal from a judgment entered upon a conditional plea of nolo contendere only where the reserved issue was legally dispositive of the case. In the course of its opinion, the court said:

We must now ascertain what constitutes a dispositive legal issue. In most cases the determination will be a simple one. Motions testing the sufficiency of the charging document, the constitutionality of a controlling statute, or the suppression of contraband for which a defendant is charged with possession are illustrative. This case, however, presents us with one of the truly inscrutable areas —confessions. In order to determine accurately whether a confession is disposi-tive of a case, the prosecution would have to present to the trial judge all of the evidence it intended to introduce at trial. The judge would then have to decide on the basis of hearsay and summarized information, whether there was sufficient evidence apart from the confession to support a conviction. Such a procedure would be unwieldy and time-consuming. Therefore, in order to avoid a mini-trial on the sufficiency of the evidence in each case involving a confession, we hold that as a matter of law a confession may not be considered dispositive of the case for purposes of an [State v.] Ashby [Fla., 245 So.2d 225] nolo plea.
Under this rule, the trial judge will have wide discretion to accept or reject an Ashby nolo plea based upon his perception of the dispositive nature vel non of the legal issue reserved for appeal. His decision will be overturned only upon a showing of a clear abuse of discretion.

376 So.2d at 385 (footnotes omitted).

Because the trial court had not made a specific finding that the issue was disposi-tive, we remanded for the purpose of permitting the court to pass on this question. Thereupon, the court entered an order which read in pertinent part as follows:

' In the record received, the State felt it could have proceeded without the physical contraband present (page 62). The record is silent as to the State’s actual evidence and witnesses available at trial. The record does indicate, however, that there was an accomplice, on Defendant Carrow. Carrow transacted with and was arrested by Officer Montgomery. Thereafter, Carrow agreed to cooperate with Sgt. Coats and the arrest of the instant Defendant Sommers was “set up” (pages 32-34). Carrow took the contraband to Sommers at Sommers’ residence where the arrest of the Defendant Som-mers and re-seizure of the contraband occurred.
The record is not clear whether any or all of the witnesses, Carrow, Coats or Montgomery were available to testify or could qualify to testify to the fact that the substance was marijuana. If they could testify, then could the Defendant be convicted without the contraband being introduced into evidence?
While there are cases of contraband being exhausted during testing and of contraband being mislaid, this Court is of the opinion that the general rule of law is that a sample of the contraband substance is necessary evidence to support a conviction and cannot be proved circumstantially.
There is no evidence before this Court that there are two separate caches of contraband as in Tiller v. State, 330 So.2d 792 (Fla. 1st DCA 1976).
The Court therefore finds in the instant matter the issue of the suppression of contraband is dispositive of the case.

Obviously the trial court was convinced that without the marijuana being introduced at trial, appellant could not have been convicted of either possession or sale. We are not so sure. See United States v. Jones, 480 F.2d 954 (5th Cir.), cert. denied, 414 U.S. 1071, 94 S.Ct. 582, 38 L.Ed.2d 476 (1973) (possession conviction affirmed where the government circumstantially proved the existence of marijuana without the benefit of any physical evidence); Ewing v. United States, 386 F.2d 10 (9th Cir.1967), cert. denied, 390 U.S. 991, 88 S.Ct. 1192, 19 L.Ed.2d 1299 (1968) (experienced marijuana smoker was permitted to testify as an expert that the substance the defendant had given her to smoke was marijuana). The point is that without the “mini-trial” deplored in Brown, together with a comprehensive analysis of the law, it is difficult to say for certain that appellant could not be convicted even if we were to reverse the order which denied the appellant’s motion to suppress.

This point concerns us because, superficially, if we entertain an appeal from a judgment based on a nolo plea as dispositive and reverse, it would seem to follow that we ought to order the defendant’s discharge from further prosecution. Yet, oftentimes the issue of dispositiveness for purposes of appeal is lightly considered. Even when it is seriously considered, as here, it must be done in a vacuum without the actual presentation of evidence. We have determined to resolve the dilemma by making a distinction between whether an issue is dispositive for purposes of an appeal and whether it is dispositive so as to require that a defendant be discharged if we find in his favor.

Accordingly, we perceive that in the ordinary case when a defendant seeks to plead nolo contendere with the reservation of the right to appeal an issue, his attorney will have some burden to show that the issue is actually dispositive, though a mere reference to the nature of the case, such as possession of contraband, may sometimes suffice for this purpose. If the state attorney believes that the issue is not dispositive, he should then explain to the court the additional available evidence upon which the defendant might be convicted. At this point, the court should make a determination of whether the issue is dispositive and decide whether to accept the plea. In deciding whether to entertain the appeal, we will give substantial deference to the trial court’s determination of the dispositive nature of the issue. However, the fact that this court chooses to decide the appeal will not control the determination of whether the defendant should be discharged in the event his appeal is successful. The latter determination will depend upon the nature of the case.

This procedure does not do violence to the concept of appellate jurisdiction. Since there is always a judgment of guilt in an appeal involving a conditional nolo contendere plea, there is no doubt of the appellate court’s jurisdiction. The question is simply whether to waste valuable appellate time in deciding issues which may not be totally dispositive of a case. On the other hand, to require the trial court to make an exhaustive inquiry into dispositiveness could waste just as much judicial labor. Thus, the trial judge’s finding of disposi-tiveness will in essence, constitute a prima facie determination sufficient for this court, absent unusual circumstances, to entertain an appeal. On the other hand, the trial court’s determination of dispositiveness will not have the effect of totally precluding the state from proving guilt in the proper case even if it has lost the appeal.

Applying these principles to the case at hand, we accept the trial court’s finding of dispositiveness for purposes of this appeal. However, this ruling will not bind us in ordering the appropriate disposition of the case should appellant prevail on the merits of his appeal.

We deny the motion to dismiss.

SCHEB, C. J., and RYDER, J., concur.

      . In Brown, the supreme court tacitly recognized that the determination of whether an issue is dispositive for purposes of appeal may not be applicable in other circumstances. 376 So.2d at 385 n.5.

      . According to Brown, orders denying the suppression of contraband in cases charging only possession will be presumptively dispositive for purposes of appeal, whereas orders refusing to suppress confessions will not be deemed dis-positive. Yet, a stipulation that a confession is dispositive will make it so. Oesterle v. State, 382 So.2d 1293 (Fla.2d DCA 1980). Perhaps too there will be instances in which the refusal to suppress contraband in possession cases might be considered not dispositive.


author: DAUKSCH, Chief Judge.

text:
    Freddie Lee JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-818.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.
    Rehearing Denied Oct. 7, 1981.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in a burglary and assault case.

The issue on appeal is whether a conviction for burglary under section 810.02(2)(a), Florida Statutes (1979), precludes the conviction for the necessarily included assault. That statute defines burglary of the highest degree as being a burglary which includes an assault upon a person; it subjects the perpetrator to a term of years not exceeding life imprisonment.

The facts of the case are that the appellant entered a college women’s dormitory, and various occupied rooms and assaulted various female residents including grabbing one and attempting to sexually assault another.

The state charged him in four counts. One, burglary of a dwelling with intent to commit assault, battery or sexual battery on K. G. Two, burglary of a dwelling with intent to commit an assault, battery or sexual battery “and did make an assault upon P. B.” Three, attempted sexual battery upon P. B. (the same person as count two). Four, battery on D. D.

We are primarily concerned with counts two and three because the same facts which proved count three also helped prove count two. The assault mentioned in count three is the assault mentioned in count two — the facts at trial established that.

It was error for the trial court to convict the appellant of the crime of attempted sexual battery because that crime was the same assault used to prove the highest form of burglary. Without the proof of the lesser attempted sexual battery the appellant could not have been convicted of anything greater than burglary of a dwelling (or burglary of an occupied structure) which is a fifteen year felony. McRea v. State, 383 So.2d 289 (Fla. 2d DCA 1980). See also State v. Pinder, 375 So.2d 836 (Fla. 1979).

We do note, however, that had the state merely pleaded the case properly both convictions would have stood. "The state could have pleaded one count as the burglary with assault on D. D. because after he entered the structure of the dormitory he encountered D. D. in the hallway and grabbed her. Then the state could have charged the attempted sexual battery upon P. B.

The conviction of attempted sexual battery is

REVERSED.

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


author: DANAHY, Judge.

text:
    Evelyn G. NEESE, Appellant, v. SIZZLER FAMILY STEAK HOUSE and Unemployment Appeals Commission, Appellees.
    No. 80-184.
    District Court of Appeal of Florida, Second District.
    July 22, 1981.
    Rehearing Denied Oct. 7, 1981.
    Evelyn G. Neese, pro se.
    James R. Parks and Hardin King, Jr., Tallahassee, for appellees.
   DANAHY, Judge.

The question we must answer in this case is whether an individual who is receiving partial unemployment compensation may be totally disqualified from receiving benefits because she voluntarily left part-time employment.

Appellant was employed on a full-time basis as an office manager. At the same time, she worked part time as a waitress in a family restaurant. She was separated from her full-time employment under a nondisqualifying condition and was awarded partial unemployment compensation. Appellant’s benefit was determined by subtracting from her weekly benefit amount her part-time earnings. Appellant was unsuccessful in procuring full-time employment and was unable to support herself on the part-time salary and partial unemployment compensation. Therefore, she quit her part-time job, sold her house, and moved to a friend’s house in another city. Because she voluntarily left her job as a waitress, her partial unemployment compensation was terminated.

Section 443.06, Florida Statutes (1979), provides that an individual shall be disqualified from receiving unemployment compensation if “he has voluntarily left his employment without good cause attributable to his employer.” The appellant contends that this section should be applied on a job by job basis. That is, where an individual has two or more jobs, he or she may be disqualified from receiving benefits for one job and qualified as to the other. The appellees maintain that an individual who has two or more jobs is disqualified from receiving any compensation if the employee voluntarily leaves any one of those jobs without good cause attributable to the employer. Although the Unemployment Compensation Law (UCL) does not address the question presented in this case, we believe the appellant’s position expresses the better view for a number of reasons.

Initially, absent a clear legislative expression to the contrary, we do not believe that the UCL should be interpreted in such a manner that it discourages part-time employment. In an economic system where prices have risen faster than salaries for many years, a large segment of our society has found it necessary to accept a second job to provide for themselves and their families. Unfortunately, in many instances, these are the same people whose full-time employment is the least secure. To terminate compensation benefits solely because a person is forced, without cause attributable to his or her employer, to leave a part-time job would be a deterrent to part-time employment.

Another reason the UCL should not be interpreted so as to discourage part-time employment is that a claimant’s weekly benefit amount is reduced by his part-time income. § 443.04, Fla.Stat. (1979). Therefore, a claimant who is receiving total unemployment benefits reduces the compensation fund’s liability when he accepts part-time employment. Of course, claimants are less likely to accept part-time employment if they must risk having to quit that job and thereby lose all unemployment compensation benefits.

The public policy underlying the UCL also militates against the appellee’s interpretation of section 443.06. The legislature has clearly stated that the purpose of the UCL is to lighten the economic burden on the unemployed worker and his family. § 443.02, Fla.Stat. (1979). The elimination of benefits solely because a claimant voluntarily accepts a part-time job which he later quits does not further this purpose. Rather, the appellees’ approach attempts to punish a worker who is otherwise eligible for benefits because for some reason not attributable to his employer he is unable to continue a part-time job. Moreover, the public policy underlying the UCL demands that section 443.06 be liberally construed in favor of claimants, Fredericks v. Florida Department of Commerce Industrial Relations Commission, 323 So.2d 286 (Fla. 2d DCA 1975). The appellees are requesting that section 443.06 be interpreted against claimants.

A third reason for rejecting the appellees’ interpretation is that it would result in an unwarranted benefit to a claimant's former full-time employer. An employer’s contribution to the compensation fund has two components. The first is a percentage of the wages paid to his employees. § 443.08, Fla.Stat. (1979). The second is based on the employer’s history, whereby his contribution increases as the benefits paid to his employees increase. § 443.08, Fla.Stat. (1979). Thus, where a claimant is disqualified from receiving benefits because he left a part-time job, the former full-time employer receives a windfall in the form of a reduced contribution rate.

Finally, we find persuasive Unemployment Compensation Board of Review v. Fabric, 24 Pa.Cmwlth. 238, 354 A.2d 905 (1976). In that case, Fabric was separated from full-time employment under a nondis-qualifying condition and was awarded unemployment compensation. He then accepted a part-time job as a cashier in a pipe shop. After one night he quit the part-time job. The Unemployment Compensation Board terminated Fabric's unemployment compensation because he had voluntarily left the part-time job without good cause. The court reversed, holding that when a claimant voluntarily leaves part-time employment he is rendered ineligible for further benefits only to the extent that his benefits were decreased by virtue of the part-time earnings.

For the foregoing reasons, we hold that the appellant did not forfeit her right to partial unemployment compensation benefits when she left her part-time job without good cause attributable to her employer. Therefore, we grant the petition and set aside the order of the commission. The cause is remanded with directions to enter an order allowing benefits in accordance with this opinion.

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


author: GRIMES, Acting Chief Judge.

text:
    George Ronald CHUKE, Appellant, v. STATE of Florida, Appellee.
    No. 81-344.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1981.
    Rehearing Denied Oct. 7, 1981.
    Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

In this appeal from a conviction for possession of a controlled substance, appellant contends that the court should have quashed the inventory search of a motor vehicle because it was the result of an illegal impoundment.

An FBI agent and Polk County deputies sought to arrest appellant pursuant to a warrant for unlawful flight to avoid prosecution. When they arrived at appellant’s rented house trailer, they saw him looking into the trunk of an automobile parked behind the trailer. When he closed the trunk, they announced their presence, placed him under arrest, and after questioning him briefly at the trailer site, took him to jail. Immediately thereafter, the car, which was registered in the name of Thomas McConnell Cadillac of Cincinnati, Ohio, was driven to the front of the trailer and impounded. The inventory search which followed disclosed the two vials containing a residue of cocaine that later formed the basis for appellant’s conviction.

In Miller v. State, 403 So.2d 1307 (Fla.1981), the Supreme Court held that police may impound a vehicle only when there is a need for the impoundment and the police are not using the impoundment to justify an inventory search as a subterfuge for the warrantless search for incriminating evidence. Thus, necessary impoundments include those where there is

(1) an unattended car illegally parked or otherwise illegally obstructing traffic, ... (2) an unattended car at the scene of an accident where the driver is physically or mentally incapable of deciding what steps to take to deal with his vehicle such as might occur when the driver is seriously injured, mentally incapacitated, or severely intoxicated; (3) an abandoned vehicle; (4) a mechanically defective vehicle which, if driven, could menace others on the public highway; (5) a vehicle identified as stolen.

At 1313.

Obviously, examples (2), (3) and (4) are inapplicable to the present case. Also, example (1) does not apply here because appellant had parked the car next to the trailer with the permission of his lessor. The state seeks to justify the impoundment under example (5) on the premise that the car had probably been stolen. As one officer put it, no one at the scene would claim ownership of the vehicle. Yet, the officers never asked appellant or his girlfriend, who was in the trailer at the time of the arrest, anything about the ownership of the car. Without discussing their intentions with anyone, they simply proceeded to impound the car and conduct the search. The mere fact that a fugitive from justice had in his possession a car titled in another name, without more, did not provide a sufficient basis to conclude that the car was stolen. With the sophisticated data retrieval systems at the disposal of law enforcement officials today, it would have been a simple matter to determine whether the automobile had been reported stolen.

Since there was no legal ground upon which the officers could impound the automobile, the inventory search was illegal. Miller v. State.

REVERSED.

OTT and RYDER, JJ., concur.


author: HERSEY, Judge.

text:
    Gary Robin EATON, Appellant, v. STATE of Florida, Appellee.
    No. 80-154.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Rehearing Denied Oct. 28, 1981.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Gary Robin Eaton was convicted by a jury of the crime of armed robbery. He appeals the conviction and sentence.

The evidence of guilt was overwhelming and with the one exception that we treat here the points raised by Eaton on appeal are without merit.

The trial court denied appellant’s request that an instruction on the maximum and minimum penalties be read to the jury. This was error. Tascano v. State, 393 So.2d 540 (Fla.1981). Further the harmless error doctrine cannot be applied. Murray v. State, 408 So.2d 417 (Fla.1981).

Accordingly, we reverse the conviction and remand the cause for a new trial in accordance with Tascano, supra.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    C. Lorraine COLLINS, Helen Blackwell and James C. Windham, Appellants, v. Thomas E. HUNT, individually and d/b/a Thomas E. Hunt, P. A., and Thomas E. Hunt, P. A., Appellees.
    No. 80-229.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Rehearing Denied Oct. 26, 1981.
    Robert J. Dickman and L. Kenneth Barnett of Dickman & Barnett, P. A., Coral Gables, for appellants.
    Thomas E. Hunt of Thomas E. Hunt, P. A., Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from a summary judgment removing one count of appellants’ three count complaint against the appel-lees/defendants below.

The question presented is whether the dismissed count for fraud and deceit represents a claim distinct and independent of the remaining counts. Piecemeal appeals should not be permitted where claims are legally interrelated and in substance involve the same transaction. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

In the instant case, the legal and factual issues that are pertinent to the dismissed count, as well as the remaining two counts, are so interrelated and intertwined that they are virtually indistinguishable. These claims clearly meet the Mendez criteria and thus a dismissal of one count is not a final judgment dispositive of an independent cause of action.

Accordingly, the appeal is dismissed.

DOWNEY and HURLEY, JJ., and UP-CHURCH, JOHN J., Associate Judge, concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Greig Allen EADLER, Withlacoochee River Electric Cooperative, Inc. and Nationwide Insurance Company, Appellants, v. Anne REHN, Appellee.
    No. 81-656.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.
    Rehearing Denied Oct. 8, 1981.
    S. Edward Groot of Druck & Groot, Oca-la, for appellants.
    Louis W. High of Merritt, High, Underwood & Eppley, P. A., Brooksville, for ap-pellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a final judgment recorded in the Official Records on February IT, 1981. A motion for new trial was filed March 2,1981, and was untimely. Fla. R.Civ.P. 1.530(b). Time for filing notice of appeal on the judgment was therefore not tolled by the motion for new trial. See Castro v. Castro, 404 So.2d 1046 (Fla.1981).

The appeal is dismissed sua sponte.

ORFINGER and COBB, JJ., concur.


text:
    SNEAD CONSTRUCTION CORPORATION, Appellant, v. George ROTHMAN, et al., Appellees.
    No. 79-2257.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Rehearing Denied Oct. 28, 1981.
    Welbaum, Zook, Jones & Williams, and Mark Hicks of Daniels & Hicks, Miami, for appellant.
    Linwood Cabot of Cabot, Wenkstern & Casteel, P. A., and Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appellee Rothman.
    Thomas B. DeWolf and Robert J. Schaf-fer of Helliwell, Melrose & DeWolf, Miami, for appellees First Federal Savings & Loan of Broward County and Harry and Phyllis Shrimpton.
   PER CURIAM.

This is an appeal from a final judgment finding against appellant on its action to foreclose a mechanic’s lien. The. trial court denied the claim based upon the provisions of Section 713.31(2), Florida Statutes (1973) which bar the enforcement of fraudulent or willfully exaggerated claims of lien. We have reviewed the record and the evidence which was before the trial court and have concluded that the judgment is supported by substantial competent evidence.

Accordingly, the judgment of the trial court is affirmed.

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


text:
    Sharon B. WHITEHEAD, as the Personal Representative of the Estate of Jimmy Ray Whitehead, Appellant, v. Clayton E. LINKOUS, M.D., and Sacred Heart Hospital of Pensacola, Inc., Appellees.
    No. WW-299.
    District Court of Appeal of Florida, First District.
    Sept. 24, 1981.
    Rehearing Denied Oct. 28, 1981.

      Antony E. Florentino, Pensacola, for appellant.
    Danny L. Kepner of Shell, Fleming, Davis & Menge, Pensacola, and Charles C. Sherrill of Sherrill, Moore & Hill, Pensacola, for appellees.
   LILES, WOODIE A. (Retired), Associate Judge.

At approximately 7:45 P. M. on May 26, 1975, Jimmy Ray Whitehead was brought by ambulance to the Sacred Heart Hospital’s emergency room in Pensacola, Florida. Upon his arrival, he was examined by the defendant, Dr. Clayton E. Linkous, who determined that the deceased was suffering from an overdose of Valium and Darvocet taken in conjunction with a large amount of beer in an apparent suicide attempt. Dr. Linkous directed that Whitehead be orally given an ounce and one-half of Ipecac, a medicine to induce vomiting. The Ipecac was administered at approximately 8:00 P. M. by a registered nurse, Sandra Morgan, an employee of the Sacred Heart Hospital. When she gave the Ipecac to Whitehead, she advised him and his wife, who was present in the cubicle, that she wanted Whitehead to drink water. She further instructed the wife to make Whitehead drink the water. Both his wife and a friend, Jack Hurry, were unable to induce Whitehead to drink any water. Hurry eventually left the emergency room, but before doing so advised Nurse Morgan that the deceased was not drinking water. He also noted that, when he left the emergency room, Whitehead appeared to be unconscious.

Approximately thirty-eight minutes later, Morgan walked by Whitehead’s cubicle in the emergency room and noted that his color had changed. She immediately reported to the nurse’s station that someone needed to check Whitehead, for his color “didn’t look right.” When Morgan advised the nursing station that Whitehead needed to be checked, Dr. Linkous, Anita Wilson, a second registered nurse, and Sandra Hart-ley, a unit secretary, were in the station. Sandra Hartley then left the station on an errand. Upon returning, she passed by Whitehead’s cubicle and noted that his color was much darker than when he first came in. She, too, advised Dr. Linkous of the color change. He in turn told her to request Nurse Wilson to do the gastric lavage. She noted that he was less responsive and variously described his color as being “dusky or grey” and“very dusky, very dark.” Upon placing her hand on his chest and stomach, she found that there was no movement. She lowered his bed, established an airway, and immediately went back to the nurse’s station to ask Hartley to call a Code 3, meaning a cardiac and pulmonary arrest. The deceased was resuscitated and moved to the Intensive Care Unit of the hospital. However, he never regained consciousness and died twenty-seven days later on June 22, 1975.

Sharon B. Whitehead, the deceased’s wife and personal representative of his estate, brought a malpractice suit against Dr. Lin-kous and the Sacred Heart Hospital. In the presentation of its case, the Estate called as an expert witness Dr. Henry Harden, an emergency room doctor practicing in Pensacola, Florida. Dr. Harden testified that, based upon the emergency room records, the hospital records, and the autopsy protocol, he believed that Mr. Whitehead’s death was due to brain damage caused by lack of oxygen. He also testified that in his opinion the care received by Whitehead deviated from the standard practice in the community, because a qualified nurse saw a color change (“cyanosis”) in a patient that had taken an overdose and did not immediately check to see if he required supportive care. Harden further opined that, had the deceased been checked immediately and supportive care been given immediately upon the cyanosis being observed, the deceased would be alive today. The defense called no witnesses.

In charging the jury, the trial judge gave the following instructions, which were timely objected to by the Estate:

On the first defense the issues for your determination are whether Jimmy Ray Whitehead intentionally acted in such a way that his actions were a contributing, legal cause of his death.
On the second defense the issues for your determination are whether Jimmy Ray Whitehead was himself negligent and, if so, whether such negligence was a contributing, legal cause of the injury or damage complained of.
If the greater weight of the evidence does not support the defenses of the Defendant and the greater weight of the evidence does support the claim of the Plaintiff, then your verdict should be for Plaintiff. If, however, the greater weight of the evidence shows that the decedent, Jimmy Ray Whitehead, and one or both of the Defendants were negligent and that the negligence of each contributed as a legal cause of the decedent’s death, you should determine what percentage of the total negligence of all parties to this action is chargeable to each.

After weighing the evidence, the jury returned a verdict of $215,000 to Sharon Whitehead, the deceased’s wife, and his two children. It also found that Dr. Linkous was 10% negligent, that Sacred Heart Hospital was 23% negligent, and that the decedent himself was 67% negligent. Pursuant to these findings, the trial court entered a final judgment in the amount of $70,950.

A remote condition or conduct which furnishes only the occasion for someone else’s supervening negligence is not a proximate cause of the result of the subsequent negligence. See e. g., McClain v. McDermott, 232 So.2d 161 (Fla.1970). Both Dr. Linkous and the hospital assert that the decedent’s acts in attempting to commit suicide were a contributing legal cause of his death and thus subject to the preceding instruction regarding the comparative negligence to the decedent. We think this argument confuses the difference between a contributing cause in fact and a contributing legal or proximate cause. While the latter is subject to an instruction on comparative negligence, the former certainly is not. The Second District Court of Appeal has succinctly stated the applicable standard:

In short, conduct prior to an injury or death is not legally significant in an action for damages like this, unless it is a legal or proximate cause of the injury or death — as opposed to a cause of the remote conditions or occasion for the later negligence. So it is with conduct of a patient which may have contributed to his illness or medical condition, which furnishes the occasion for medical treatment. That conduct simply is not available as a defense to malpractice which causes a distinct subsequent injury — here the ultimate injury, wrongful death.

Matthews v. Williford, 318 So.2d 480, 483 (Fla. 2d DCA 1975). Applying this analysis to this case, it is clear that Whitehead’s actions in consuming the Valium, Darvocet, and beer furnished the occasion for Dr. Linkous’ and the hospital’s later negligence in failing to properly treat him. This conclusion is predicated upon the uncontrovert-ed testimony of Dr. Harden who testified that but for the hospital’s and the doctor’s negligent treatment of the deceased, he would be alive today. Since Whitehead’s death would not have occurred “but for” the negligent acts or omissions of the hospital and the doctor, those acts and omissions must be deemed the cause of the injury. See Fellows v. Citizens Savings & Loan Association of St. Lucie County, 383 So.2d 1140 (Fla. 4th DCA 1980); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977). Stated differently, any conduct on Whitehead’s part before he entered the hospital which contributed to his cardiac and pulmonary arrest and subsequent death was not a proximate, legal cause of the damages sought in this case. Accordingly, we find that the trial court erred in submitting the instruction on comparative negligence to the jury over the prior and timely objection of counsel. See Borenstein v. Raskin, 401 So.2d 884, (Fla. 3d DCA 1981). Counsel for the appellees also argues that the instruction on comparative negligence was still proper because Whitehead supposedly was uncooperative and hostile during his medical treatment and, in fact, refused to drink water per the doctor’s instructions, thus proximately contributing to his own demise. The record, however, does not support such a theory. Dr. Linkous did testify that Whitehead initially refused to take the Ipecac. However, upon being informed that the Ipecac would be administered by tube, Whitehead agreed to take it and in fact did do so. Dr. Linkous also testified that a few minutes later he told Whitehead to drink water and that Whitehead did, in fact, drink water. His wife subsequently informed one of the nurses that she was unable to get her husband to drink water, that she poured some water into his mouth but he did not swallow it because he was unconscious. Further, as noted previously, witness Hurry also informed the nurse, pri- or to his departure, that Whitehead appeared to be unconscious. Therefore, the record does not even support the appellee’s contention that Whitehead contributed to his own death after being admitted to the hospital. Accordingly, the finding of comparative negligence against Jimmy Ray Whitehead is reversed, and the original full amount of damages, $215,000, is reinstated. Since the comparative negligence of Dr. Linkous and the hospital is yet to be considered pursuant to proper instructions, we remand this cause for a limited trial on the issue of Dr. Linkous’ and the hospital’s relative negligence.

We have considered the Estate’s other points on appeal and find them to be without merit.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

SHAW and JOANOS, JJ., concur.


text:
    Gary V. KNAPP, Appellant, v. NATIONAL CONVENIENCE STORE and Unemployment Appeals Commission, Appellees.
    No. VV-168.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1981.
    Gary V. Knapp, in pro. per.

      James R. Parks, Tallahassee, for appel-lees.
   PER CURIAM.

This cause is before us on appeal from the order of the Unemployment Appeals Commission which affirmed the decision of the appeals referee denying unemployment compensation benefits to claimant, appellant herein.

The claimant was employed from July 30, 1979, through November 16,1979, as a clerk for an employer that operates a chain of convenience food stores. Claimant normally worked 56 hours per week. On November 10, 1979, the store manager told claimant that, effective January 1, 1980, his hours would be reduced from 56 to 16 hours per week. Claimant could have continued working his normal and customary work week until January 1, 1980, but, instead, chose to leave his employment on November 16, 1979, to seek other work.

The appeals referee, in ruling against the claimant, held that, while claimant may have established “good cause attributable to his employer” under Florida Statutes, Section 443.06(1), and entitlement to benefits if he had worked until his hours were cut, his leaving his employment six weeks prior to the date his hours were to be cut was voluntary and not attributable to his employer.

In Johnson v. Florida Department of Commerce, 340 So.2d 1229 (Fla. 4th DCA 1976), the court held that the employee was entitled to benefits where she left her job on the same day she was given two-weeks notice, holding (340 So.2d at 1230):

In reference to the facts of this case we interpret Section 443.06(1), Florida Statutes, to mean that where an employer notifies its employee that his or her employment is'being definitely terminated as of a given date, the employee has not “voluntarily left his employment without good cause attributable to his employer” if he or she chooses not to work during all or part of the period between notification and the date given by the employer as the date of termination. In such a situation the employer has fired the employee; the employee has not discharged himself, but rather, being faced with the inevitable, has decided to leave before what might be called the notice period is up. In a case of that kind, the period of voluntary unemployment is that portion of the notice period (the notice period being the time, if any, between notice of discharge and actual discharge) during which the employee chooses not to work. The employee is ineligible to receive unemployment benefits during the notice period, for he could continue on the job if he wished. The period of involuntary unemployment begins with the date which the employer designated as the termination date when it gave the employee notice. If the employee is otherwise eligible for unemployment compensation benefits, his leaving work after he was given definite notice will not deprive him of those benefits during the period of involuntary unemployment.

We agree with the foregoing holding of the court in the Johnson case. Accordingly, the order below is reversed and the cause remanded for determination of what benefits, if any, claimant is entitled to beginning in January of 1980.

ERVIN, BOOTH and JOANOS, JJ., concur.


text:
    UNIVERSITY OF WEST FLORIDA and Division of Risk Management of the State of Florida, Appellants, v. Ollie E. NALL, Appellee.
    No. ZZ-173.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1981.
    Rehearing Denied Oct. 28, 1981.

      J. Nixon Daniel, III, of Beggs & Lane, Pensacola, for appellants.
    Roderic G. Magie of Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellee.
   PER CURIAM.

The employer/carrier contend on this appeal that the deputy commissioner’s award of 60% permanent partial disability based on loss of wage earning capacity was in error in that the claimant made no work search, and they further contend that the deputy commissioner’s disallowance of credit for temporary total disability payments was erroneous. We agree that the failure to establish a work search precludes the disability award based upon loss of wage earning capacity, and we further find that based upon recent decisions of this court not available to the deputy commissioner at the time of his order the case should be remanded for further consideration of whether the employer/carrier are entitled to the credits sought.

Claimant, a 35-year old laborer with an eighth grade education, was injured in a July 11, 1977 accident while operating a riding lawn mower. His injuries subsequently required surgery to his cervical spine and upon recovery his physician, Dr. Eyster, an orthopedic surgeon, found a 15% permanent partial impairment to the whole body, and restricted him to lifting weights in excess of ten pounds, repetitively, working with his arms overhead, or working in a position where it was necessary to extend his head and look up repeatedly. Claimant has worked intermittently with the University since the accident, continuing in his same employment, although his work is of a lighter nature than prior to the accident. He is unable to use the riding lawn mower, hedge clippers, shovel, or to do any strenuous work. His present employment consists primarily of driving a light truck doing mostly errands, and other work which he described as in the nature of supervisory work.

In his order the deputy commissioner, after reviewing the claimant’s education, work history, and the evaluation made by the employer’s vocational expert, considered in the light of his injuries and present physical condition found: “Considering these factors, his ability to compete in the open labor market has been severely reduced by his industrial injury and if required to look for work outside his present employment, he would experience much difficulty.” He further found that as a practical matter, the claimant would be “limited to such work as a self-service filling station attendant and a parking lot attendant.” He then made a comparison between the minimum wage applicable to such employment, as compared with claimant’s earnings at the time of the injury, and concluded that claimant had sustained a wage earning capacity loss.

We fully agree with the deputy’s finding that the claimant has limited employment capabilities. However, the rule is very clear that in order to be entitled to permanent disability in excess of his physical impairment, the claimant must not only establish that his loss of wage earning capacity exceeds his anatomical disability, but must test such wage earning capacity in the open labor market by a good faith work search, after MMI has been reached. Exxon Company v. Alexis, 370 So.2d 1128 (Fla.1978); Pasco County v. Green, 382 So.2d 798 (Fla. 1st DCA 1980); and Suave Shoe Corporation v. Suarez, 396 So.2d 777 (Fla. 1st DCA 1981). Here there was no work search, and we fail to find in the record any evidence that claimant is unable to seek other employment, or that he is unable to work at other employment which is no more physically demanding than his present job with the University, but which would be equally remunerative. There is no record ' evidence concerning what specific jobs he can or cannot do (except as indicated above), and claimant’s own testimony discloses that he has made no effort to find other employment, and indeed, was unaware that seeking other employment was an alternative available to him.

We have examined National Airlines Inc. v. Highsmith, IRC Order 2-2623 (1974), and Aero Corporation v. Smith, IRC Order 2 — 2684 (1974), in connection with appellee’s contention that the wage earning capacity award was justified by virtue of the fact that claimant’s present employment with the University is “sheltered employment.” Even if we agreed that claimant’s present job fits within the definition of “sheltered employment” as defined in the cases, we find nothing in these decisions or other authorities which would indicate that one employed in “sheltered employment” is necessarily excused from a job search as a predicate to proof of entitlement to wage earning capacity loss. In National Airlines the Industrial Commission reversed a permanent total disability award based upon loss of wage earning capacity, finding that the evidence fell short of proving “sheltered employment,” so that the claimant was entitled only to permanent partial disability due to loss of wage earning capacity. Similarly, in Aero Corporation, an award of permanent total disability based on wage earning capacity loss was reversed, the Industrial Commission pointing out that the claimant had not carried his burden of establishing his “inability to acquire even light work in the open labor market . . .,” citing South Atlantic Ship Builders, Inc. v. Taylor, 234 So.2d 97, at 98 (Fla.1970), and quoting the following:

The employer-carrier has the burden of showing that suitable employment is available for a claimant only after the claimant has proven by competent, substantial evidence that he is not able to acquire and uninterruptedly perform even light work in the open labor market. Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960).

While these cases recognize that a claimant may be found totally disabled or partially disabled even though working in sheltered employment, neither advances the proposition that a job search is unnecessary.

As for the second issue, the deputy commissioner’s disallowance of credit for temporary total compensation paid by the E/C after MMI, we note that this order was made prior to this court’s decision in Belam Florida Corporation v. Dardy, 397 So.2d 756 (Fla. 1st DCA 1981), which adopted a view departing substantially from established case law on this subject. In Belam, the court rejected the notion, derived from earlier decisions, that under no circumstance can overpayment of compensation in one class be applied as credit against compensation found to be due in another class. Instead, the court adopted a “more moderate approach,” ruling that it will be presumed that any overpayment of compensation is a gratuity “in the absence of a finding that a reasonable basis exists for the overpayment.” Id. at 758. Accordingly, we remand on this point for further consideration by the deputy commissioner as to whether in this case there was any reasonable basis for the overpayment that would overcome the presumption that such payments were a gratuity.

REVERSED and REMANDED.

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


text:
    Edward R. KING, Appellant, v. STATE of Florida, Appellee.
    No. 80-773.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.
    Rehearing Denied Oct. 28, 1981.
    John L. Sutton, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).

BERANEK and HERSEY, JJ., and OWEN, WILLIAM C., Jr., Retired, Associate Judge, concur.


text:
    The ESTATE OF David MALTIE; and Gilbert Surety Services and Bankers Insurance Company, and bonding agent, Appellants, v. STATE of Florida, Appellee.
    No. 80-1842.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.
    Rehearing Denied Oct. 28, 1981.

      James K. Pedley, Fort Lauderdale, for appellants.
    Jim Smith, Atty. Gen., Tallahassee and Robert L. Bogen, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a final order denying a motion for remission of forfeiture filed pursuant to Section 903.28, Florida Statutes (1979).

David Robert Maltie was arrested March 2, 1979, and charged with a crime. On Mareh 3, 1979, Gilbert Surety Services and Bankers Insurance Company posted a $100,-000 surety bond, assuring the defendant’s appearance. David Damore, Esquire, filed his appearance as counsel for Maltie on March 16, 1979.

In July, 1979, Damore filed a motion to withdraw as counsel for Maltie because he was unable to locate his client and expressed doubt that Maltie would appear as required. The State thereupon moved the court to increase Maltie’s bond. A hearing was scheduled for September 25, 1979, on the pending motions, but neither Maltie nor Damore appeared. Accordingly, the trial court instructed the clerk to notify the bonding company of a new hearing which he scheduled for October 1, 1979. Neither Maltie, Damore, nor the bonding company appeared on October 1st and the trial court ordered estreature and forfeiture of the bond and issuance of a capias for Maltie’s arrest. On October 31, 1979, the bonding company paid the $100,000 principal amount of the bond.

This aspect of the proceeding was commenced on July 25, 1980, when appellants filed a motion for remission of the forfeiture, essentially on the ground that there was no breach of the bond in that the State had not complied with the provisions of Section 903.26(l)(b), Florida Statutes (1979). The thrust of appellants’ motion was that the bonding company was not given the 72 hour notice required by the aforesaid section, nor was the notice adequate to apprise the company that the bond would be forfeited if the defendant was not present.

In pertinent part, Section 903.26 provides that:

(1) A bail bond shall not be forfeited unless:
* * * * * *
(b) The clerk of court gave the surety at least 72 hours’ notice, exclusive of Saturdays, Sundays, and holidays, before the time of the required appearance of the defendant.

Failure to furnish this notice as required by statute invalidates an order of estreature and forfeiture. Caivano v. State, 331 So.2d 331 (Fla.2d DCA 1976).

The evidence adduced at the September 25,1979, hearing most strongly indicates that the clerk mailed the written notice to the bonding company on the afternoon of Thursday, September 26, 1979, for the hearing to be held at 8:45 Monday, October 1st. Eliminating the intervening Saturday and Sunday, the notice does not comply with the time requirements of the statute.

Next, we agree with the appellants that the form of the notice is sufficiently ambiguous to confuse the company into believing that the defendant’s presence at the hearing was not required. The notice was a printed form utilized for notification of defendants to be present at arraignment. Thus, it instructs the defendant to be in court at a specified time and date “to determine if counsel has been retained. Failure to appear or appearance of counsel filed will result in a Bond Estreature, and a Capias being Ordered.” In another part of the printed form the clerk had typed the words, “STATE’S MOTION TO INCREASE BOND & DEF. COUNSEL MOTION TO WITHDRAW.” The bonding agency witness testified he received the notice but did not realize forfeiture would result from failure to produce the defendant. This seems entirely reasonable because the notice said essentially the defendant must be present unless counsel has filed an appearance. As indicated above, counsel for defendant, Mr. Damore, had long since appeared for the defendant.

It is settled law that forfeiture statutes are not favored and such statutes will be strictly construed. City of Miami v. Miller, 148 Fla. 349, 4 So.2d 369 (1941); Boyle v. State, 47 So.2d 693 (Fla.1950); Ramsey v. State, 225 So.2d 182 (Fla.2d DCA 1969); Resolute Insurance Company v. State, 269 So.2d 770 (Fla.3d DCA 1972); Caivano v. State, 331 So.2d 331 (Fla.2d DCA 1976). Construing Section 903.26(l)(b) strictly, as we are constrained to do, we hold the notice is both untimely and inadequate. Thus, the estreature and forfeiture of the bond were invalid.

The trial judge entered a very detailed order containing a resumé of the proceedings which we found very helpful in understanding what transpired below. While we are unable to agree with several of his findings, we commend his efforts which have assisted us in this appellate review.

We note that, although the Estate of David Maltie joined in this appeal, it was never a party to the proceedings below. For this reason it cannot be a party to this appeal, and it is hereby dismissed.

The order appealed from is reversed and the cause is remanded for further appropriate proceedings.

REVERSED AND REMANDED with directions.

DOWNEY and GLICKSTEIN, JJ., and PEARSON, DANIEL S., Associate Judge, concur.


author: SHARP, Judge.

text:
    A. Z., a child, Appellant, v. STATE of Florida, et al., Appellees.
    Nos. 00-215/T1-114, 80-1351.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.

      C. James Dulfer, Central Florida Legal Services, Daytona Beach, for appellant.
    Leo J. Stellwagen, Jacksonville, for ap-pellee, State of Florida Department of Health & Rehabilitative Services.
    Richard S. Graham, of Landis, Graham, French, Husfield, Sherman & Ford, P. A., Daytona Beach, for appellee, Mildred Wask-iewicz.
   SHARP, Judge.

Appellant, the mother of A. Z., a juvenile, argues the juvenile court erred in denying her motion to tax costs against the Department of Health and Rehabilitative Services, pursuant to Florida Rule of Appellate Procedure 9.400(a). In a prior appeal appellant had been the prevailing party obtaining the reversal of the lower court’s adjudication of dependency. The appellant sought to recover the following “costs”:

(a) Clerk, Circuit Court — filing fee
(b) Clerk, Court of Appeal — filing fee
(c) Appearance fees and mileage fees, for subpoenas for four witnesses
(d) Transcript
(e) Fee in Circuit Court for indexing record
(f) Additional Circuit Court fee for indexing record

She contends all were necessary to perfect this appeal because the lower court failed to have the hearing transcribed.

The order of the trial judge states that the appellant’s motion was denied because section 39.414, Florida Statutes (1979) bars recovery of court fees or witness fees in all juvenile proceedings pursuant to Chapter 39, Florida Statutes (1979):

In all proceedings under this chapter, no court fees shall be charged against, and no witness fees shall be allowed to, any party to a petition or any parent or legal custodian or child named in a summons. . . .

This section appears to preempt and control the question of court fees and witness fees at trial, and on appeal. However, other costs on appeal allowable under Rule 9.400(a), such as the cost of the transcript, are not covered, and therefore they would be awardable to the prevailing party, in the discretion of the lower court.

We reverse the lower court’s denial of the appellant’s motion to tax costs and remand this matter to the lower court for further consideration.

REVERSED AND REMANDED.

COBB and COWART, JJ., concur.

      . Both parties agree appellant is not seeking to impose costs on Ms. Waskiewicz, the “petitioner” who signed the delinquency petition for the Department of Health and Rehabilitative Services as its employee.

      . A. Z. v. State, 383 So.2d 934 (Fla. 5th DCA 1980).

      . Appellant filed an appeal from the denial of her motion for costs. However, the proper method for review of orders granting or denying appellate parties’ costs pursuant to Florida Rule of Appellate Procedure 9.400(a), is to file a motion for review in the appellate court. Fla.R.App.P. 9.400(c). We therefore treated the notice of appeal as a proper motion in accordance with Florida Rule of Appellate Procedure 9.040(c), and ordered the proceeding consolidated with the prior appeal.


author: COWART, Judge. COBB, Judge,

text:
    Archie B. GRAY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-480.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.

      James B. Gibson, Public Defender, Mary Sue Donsky and T. R. Mott, Asst. Public Defenders, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Phillip D. Havens and James Dickson Crock, Asst. Attys. Gen., Daytona Beach, for ap-pellee.
   COWART, Judge.

This case involves the sufficiency of the allegations in an information charging appellant with violation of section 918.-14(3)(a)(l), Florida Statutes (1979), prohibiting “tampering with witnesses.” The relevant portion of that statute provides:

(3)(a) It is unlawful for any person:
1. To cause a witness to be placed in fear by force or threats of force.
The information alleges that:
ARCHIE BEAUREGARD GRAY, JR. on the 1st day of May, 1979 in said County and State, did, in violation of Florida Statutes 918.14(3)(a), unlawfully cause HILDA RICE, a witness for the State of Florida to be placed in fear by force or threats of force.

The first question relates to the sufficiency of these allegations to allege a crime.

The word “witness,” when used as a noun as in this statute, has two meanings that are sufficiently different that the use of one meaning results in the statute applying so broadly that the word witness would have no moment, while the use of the other meaning assumes and requires the existence of certain other ultimate facts not expressly required by the statute. The first meaning of “witness” merely refers to one who has personal knowledge of something. Since every person has personal knowledge of something, to so construe the word “witness” in this statute would equate it with the word “person” and would apply it so broadly as to deprive it of any significant meaning. The second meaning of the word “witness” is more narrow and refers to a person who (a) has given, is giving, is expected, or has been asked or directed, to give (b) testimony (c) in some cause or proceeding (d) before some forum or tribunal. If this second meaning of the word “witness” was intended, then the existence of some investigation, cause, trial or proceeding and of some forum or tribunal is essential as being a part of the meaning of the word witness. Additionally, the forum or tribunal should be limited to official governmental authorities. A list of such forums or tribunals is made a part of a closely related subsection section 918.14(1), Florida Statutes (1979), but a similar list is not contained in subsection 918.14(3)(a)l, Florida Statutes (1979). State v. Murray, 349 So.2d 707 (Fla. 4th DCA 1977). Murray holds that under this statute “it must be alleged that the defendant knew the alleged victim was a witness. Some connection between the actions of the defendant and the fact the alleged victim was witness must also be alleged in order to allege a violation of this statute which is in effect an enhanced penalty statute.” Id. at 708 (emphasis added).

In order for a statute proscribing conduct to be constitutional, the legislature must have a legitimate interest in regulating such conduct and the statute enacted must reasonably and rationally relate only to the conduct the legislature intends to prohibit. In the instant case, in order for such statutory prohibition to pass constitutional standards of definiteness and breadth of application so as to avoid encompassing conduct which is essentially innocent, the statute should be more narrowly worded to provide that it is unlawful for any person (1) knowing (2) that a witness may give testimony (3) in some trial, proceeding or investigation, (4) pending or to be instituted in some [specifically described official governmental] forum or tribunal, (5) to cause such witness to be placed in fear (6) by the use of, or threat to use, force, (7) with the intent to cause such witness to withhold testimony or to testify falsely. The statute actually only expressly provides the fifth and sixth elements. Perhaps, by a long reach, elements two, three and four could be inferred from the use of the one word “witness” but the necessity for an element of knowledge (scienter) (being element one above) and intent (being element seven above) was pointed out in Murray in 1977 and the legislature has not acted to supply those omissions. The legislature could not, constitutionally, have intended to punish as a felony all conduct that would literally fall within the expressed statutory definition (elements five and six above).

An information alleging in proper form material and relevant ultimate facts which, if proven, would establish all of the constituent elements set forth in a constitutionally sufficient statutory criminal offense ought to be sufficient to charge that offense. In this case the information does allege facts relating to all of the elements expressly required by this statute, but it does not allege all elements essential to constitute the crime. When , a court construes a statute defining a crime, elements cannot be properly supplied by inference or taken by intendment. Neither should courts by judicial fiat or decision supply elements essential to a criminal offense but which are omitted by the legislature from the statutory definition. Such a practice constitutes a judicial intrusion into the legislative branch of government and disregards the court’s duty to measure statutes against constitutional standards. Without discussing the elements of this offense or mentioning Murray, the Florida Supreme Court in the recent case of Lee v. State, 397 So.2d 684 (Fla. 1981), has held this statute constitutional on the basis that it is sufficiently definite to convey a definite warning as to the conduct proscribed, measured by common understanding and practice. We are, of course, bound by that decision.

Article I, Sec. 16, of the Florida Constitution, as well as comparable federal constitutional provisions, requires that in all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation against him, and shall be furnished a copy of the charges. This provision, as well as Florida Rule of Criminal Procedure 3.140(d), essentially requires that the charging document in a criminal case must allege the essential facts constituting the offense charged. The facts which are essential are those necessary to show the jurisdiction of the court, to identify the accused (Fla.R.Crim.P. 3.140(d)(2)), to show the time and place of the commission of the offense (Fla.R. Crim.P. 3.140(d)(3)) and facts which, if proved, would establish all of the elements of the offense charged.

The defendant did not move to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(c) for its failure to allege all essential elements of this offense. That rule provides in part that “except for objections based upon fundamental grounds every ground for motion to dismiss which is not presented by a motion to dismiss within the time hereinabove provided for shall be taken to have been waived.” Thus the next question is whether the failure of an information to allege all essential elements of an offense is “fundamental” within the meaning of this rule and the usual rule that only “fundamental error” can be addressed on appeal without first having been presented to, and ruled upon by, the trial court.

We believe that it is constitutionally essential, and therefore fundamentally necessary, for the charging document in a criminal case to allege all of the essential elements of a criminal offense. The “notice” theory of pleading relates only to civil cases. More than merely warning of prohibited conduct, or notifying the defendant that he has been accused, the charging document in a criminal case constitutes a serious assertion by the State that the allegations contained therein are all that is necessary for the State to prove at trial in order to secure a conviction. Further, the allegations of the elements of the offense in the charging document are part of the constitutionally required notice and serve to advise the accused as to the ultimate facts that are to be litigated at his trial. The defense is entitled to rely on the sufficiency of this notice in preparation for trial, calling affirmative and rebuttal witnesses as necessary to put in issue those factual allegations to be actively contested, with assurance that, at trial, the State can present only incriminating evidence probative of the ultimate facts alleged in the charging document. “Essential element” means an ultimate fact essential to the allegation of a criminal offense and when a charging document fails to allege an essential element it fails to charge a criminal offense.

We quote with approval from State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980):

Our analysis begins with the proposition that there is a significant distinction between an indictment or information which completely omits an essential element of an offense and one which imprecisely or incompletely alleges an essential element of a crime. In the former situation, the total omission is fatal. State v. Dye, 346 So.2d 538, 541 (Fla. 1977). In the latter category, however, an imperfect allegation, unless timely challenged by a motion to dismiss, shall be deemed to have been waived. Rule 3.190(c), Fla.R. Crim.P.
Id. at 130.

Since failure of the charging document to charge a crime goes to the foundation of the case and the merits of the cause, the error would appear to be “fundamental” and not subject to the contemporaneous objection rule. Additionally, the exception for jurisdictional defects allows appellate review where a charging instrument fails to charge an offense. Bridges v. State, 376 So.2d 233 (Fla. 1979). Thus, even though a defendant may have entered a plea of guilty, where the information wholly fails to charge a crime against the defendant, it is void and must be set aside. Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971).

Although courts have gone so far as to hold a defendant to a waiver of objection to a charging document which fails to charge a criminal offense, as in West v. State, 149 Fla. 436, 6 So.2d 7 (1942), relief from a conviction based on a charging document which fails to charge a criminal offense is generally granted in habeas corpus proceedings. See Gibbs v. Mayo, 81 So.2d 739 (Fla.1955); State ex rel Kelly v. Whisnant, 80 So.2d 611 (Fla.1955). A state judgment of conviction of a nonexistent offense would appear to deny state and federal constitutional due process and therefore warrant relief by habeas corpus. See Adams v. Murphy, 598 F.2d 982 (5th Cir. 1979) (involved in Adams v. Murphy, 394 So.2d 411 (Fla.1981)). It makes no sense to hold on appeal that the failure to attack a charging document for failure to allege a crime by pretrial motion under Florida Rule of Criminal Procedure 3.190(c) constitutes a waiver and then to remedy the result of that defect and that holding by later granting habeas corpus. Accordingly, we hold that an objection that a charging document fails to allege all essential elements and wholly fails to allege a crime is an objection “based on fundamental grounds” within the exception in Florida Rule of Criminal Procedure 3.190(c) and can be raised for the first time on appeal. For the reasons given above we further hold that the information in this case failed to allege all essential elements necessary to charge a crime. Therefore, we reverse the conviction, vacate the sentence and remand for further proceedings, if any.

REVERSED AND REMANDED.

FRANK D. UPCHURCH, Jr., J., concurs.

COBB, J., concurs specially with opinion.

COBB, Judge,

concurring specially.

I concur only in the result reached by the majority opinion for the reason that the state failed to prove a nexus between the actions of the defendant and the status of Hilda Rice as a state witness. See State v. Murray, 349 So.2d 707 (Fla. 4th DCA 1977).

      . Literally, the innocent but violent slamming of a door could unintentionally frighten or alarm a witness whose presence and status was unknown, and thereby violate this statute.

      . Gibbs v. Mayo, 81 So.2d 739 (Fla. 1955); Smith v. State, 75 Fla. 468, 78 So. 530 (1918).

      . In recent years, the general trend of pleading in civil matters has developed such that “adequacy of notice” to the other party is the main concern. See, e.g., Fla.R.Civ.P. 1.110.

      . Clark v. State, 363 So.2d 331 (Fla.1978). The fundamental nature of this error has been stated various ways but review has still been granted. See, e. g., Mills v. State, 58 Fla. 74, 51 So. 278, 280 (1910) (“If the indictment be defective in the statement of matter to be charged, if it entirely omits an averment which is an element of the offense, or fails to state circumstances which constitute the definition of the offense charged when necessary to advise the prisoner of the charge against him, such defect or omission will be fatal to the indictment....”); Brown v. State, 42 Fla. 184, 27 So. 869, 870 (1900) (“if an indictment wholly fails to state a criminal charge against the defendant, he may take advantage of that fatal defect primarily in the appellate court.. ..”).

      . The jurisdictional nature of a failure to allege every element of a particular crime is most clearly presented when the state tries to allege a felony in a single count charging document but, because of the omitted element, only alleges a misdemeanor. Unless a felony is adequately charged, the circuit court does not have jurisdiction to proceed and any action it subsequently takes is void. See, e. g., Nelson v. State, 398 So.2d 920 (Fla. 5th DCA 1981) (information charging defendant with willfully or carelessly burning a field only charged a misdemeanor and circuit court therefore did not have jurisdiction); Radford v. State, 360 So.2d 1303 (Fla. 2d DCA 1978) (information that failed to allege defendant “knowingly” battered a law enforcement officer failed to charge a felony and jurisdiction of the battery alleged was in the county court); Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So.2d 99 (Fla.1973) (information that failed to allege that accused was previously convicted of a drug offense or that this offense involved more than five grams failed to allege a felony and jurisdiction of the misdemeanor alleged was in county court). If a felony is not adequately alleged (an essential element is omitted), circuit court jurisdiction is lost, if the elements alleged adequately charge a misdemeanor, jurisdiction rests in the county court; however, if the elements alleged utterly fail to charge a crime of any magnitude (misdemeanor or felony), jurisdiction does not “spring back” to the circuit court, it simply does not exist.


author: COWART, Judge.

text:
    Billie F. WICKER, Appellant, v. The HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellee.
    No. 80-577.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    Gene K. Wells of Wells & Wells, P. A., Daytona Beach, for appellant.
    Frederick J. Daniels, Orlando, for appel-lee.
   COWART, Judge.

This is a suit by an insured against her insurer to collect medical and lost wages benefits under the personal injury protection provision of her automobile insurance policy.

Appellee requested appellant to submit to an orthopedic examination by a physician whose office was in Daytona Beach in Volu-sia County, Florida. Appellant, who resided in Bunnell, in Flagler County, Florida, refused to submit to the examination. There was no qualified physician to conduct such examination in Bunnell but there was in Ormond Beach, Florida. Section 627.-736(7)(a), Florida Statutes (1979), which authorizes an insurer to request an insured to submit to such a physical examination, provides:

Such examination shall be conducted within the city of residence of the insured. If there is no qualified physician to conduct the examination within the city of residence of the insured, then such examination shall be conducted in an area of the closest proximity to the insured’s residence, [emphasis added]

Holding that under these circumstances the City of Daytona Beach was within an area of the closest proximity to Bunnell and that appellant’s refusal was unreasonable the trial court entered summary judgment for appellee.

We affirm. “An area” within the meaning of this statute does not mean the geographically closest city. Ormond Beach, Holly Hill and Daytona Beach are all within the same metropolitan area nearest to Bun-nell having a population sufficient to justify and sustain a choice of orthopedic physicians. The distance from appellant’s residence to the office of the doctor selected by the insurer was not so great as to cause appellant undue inconvenience. She should have gone and her refusal was unreasonable.

AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


text:
    Eleanor S. NATION, Appellant, v. Darwin R. NATION, Appellee.
    No. 80-669.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    Agustín R. Benitez, Tavares, for appellant.
    No appearance for appellee.
    Herbert T. Sussman of Ford & Minkoff, P.A., Tavares, for amicus curiae Lake County-
   COWART, Judge.

This case involves the authority of a trial judge to require a plaintiff who has proceeded in the trial court without payment of costs under a clerk’s certificate of insolvency issued under section 57.081, Florida Statutes (1979), to require the plaintiff to pay the clerk’s filing fee as a condition of the entry of a final judgment.

Appellant obtained a clerk’s certificate of insolvency pursuant to section 57.081, Florida Statutes (1979), and filed and proceeded with her dissolution action without payment of costs. However, after final hearing the trial court ordered appellant to pay the clerk’s filing fee of $35.00 and declined to enter final judgment until such payment was made. Appellant paid and appeals, contending that the trial court’s action was an unconstitutional denial of access to the courts, citing Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 78 L.Ed.2d 113 (1971). Appellant also contends that since the statute only expressly provides for review of the failure or refusal of the clerk to issue a certificate of insolvency, the trial court had no power to review the clerk’s issuance of such certificate, relying in part on language in Coonts v. State, 219 So.2d 460 (Fla.1st DCA 1969).

We do not agree with appellant’s position. Neither the statute nor the trial court’s action denied appellant access to the court. In all matters in which the court clerk acts as such clerk, he acts on behalf of the court and the court has the inherent power and duty to review and oversee its clerk’s administrative and ministerial acts to determine that they are consistent with law and to prevent an abuse of the judicial procedure. Ray v. Williams, 55 Fla. 723, 46 So. 158 (1908). In Coonts, certiorari was dismissed for failure of the insolvent petitioner to post a replevin bond. Therefore, the language in that opinion as to propriety of the trial judge reviewing the basis for the clerk’s issuance of a certificate of insolvency was not a necessary part of that decision and we decline to follow it. Further, in Coonts the trial court dismissed petitioner’s writ of replevin at the outset of the action at which time the trial court had no evidence or factual basis upon which to review the accuracy of the clerk’s initial determination of insolvency. Here, the trial court determined that appellant was financially able to pay the filing fee after an evidentiary proceeding in a cause in which her financial status was an issue. The statute expressly relates only to the “prepayment” of costs and the ultimate construction and definition of the statutory terms “insolvent” and “poverty stricken” are for the court. Cf. Wigginton v. Wigginton, 16 Md.App. 329, 295 A.2d 889 (Ct.Spec.App. 1972).

A reasonable construction of this statute is that, although one is allowed to proceed without prepayment of costs upon the clerk’s initial determination, the clerk’s certificate of insolvency is not conclusive as to the party’s true financial ability and, if the trial court finds that the party is financially able to pay costs, the court can require payment. Our construction is consistent with section 57.081(3), Florida Statutes (1979), which provides that if the plaintiff prevails, costs should be taxed and when collected applied to pay the costs whose prepayment was previously waived for indi-gency reasons.

As amended in 1980, section 57.-081(1), Florida Statutes, allows indigents free access to the appellate process. However as construed in conjunction with Florida Appellate Rule 9.430, an indigent appellant must file a motion with the trial court prior to being allowed to proceed as an indigent on appeal. Chappell v. Florida Department of Health & Rehabilitative Services, 391 So.2d 358 (Fla.5th DCA 1980). If the trial court is to determine a party’s indigency for purposes of appeal it is logical and consistent to recognize that the trial court also has authority to review the determination of indigency for the purposes of proceedings in the trial court.

AFFIRMED.

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


text:
    STATE of Florida, Appellant, v. Eugene JONES, Appellee.
    No. 80-756.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The state appeals an order granting appellee’s motion for discharge under the speedy trial rule, Florida Rule of Criminal Procedure 3.191.

An information was filed on November 1, 1979, charging appellee with burglary of apartment 12 at an Orlando apartment complex. Appellee requested a continuance and thus took the matter out of the operation of the speedy trial rule. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State v. Brown, 394 So.2d 218 (Fla. 5th DCA 1981) .

The case proceeded to trial and on March 4, 1980, the trial court granted a directed verdict of acquittal on the ground that the evidence indicated that apartment 125, not apartment 12, had been burglarized.

On March 10, 1980, a new information was filed charging appellee with burglary of apartment 125. Appellee was arrested on this charge on March 28, 1980, and trial was set for June 19, 1980. On June 10, 1980, however, appellee moved for discharge and the trial court subsequently granted the motion, relying on Haddock v. State, 379 So.2d 194 (Fla. 5th DCA 1980).

We REVERSE under the rationale of Stevens v. State, 383 So.2d 1156 (Fla. 5th DCA 1980). Here either the two charges arose from the same criminal conduct or episode or else they did not. If they did, then appellee’s waiver of speedy trial for the first charge was also a waiver for the second charge. State v. Brown; State v. Stevens. If they did not, then appellee’s arrest pursuant to the second information began the running of speedy trial as to that charge and this time had not expired when the trial court’s order discharging appellee was entered.

Appellee claims that a double jeopardy violation exists because the second charge was really for the same offense as the first charge. However, a defendant who obtains a judgment of acquittal on the grounds that a material variance existed between the allegations in the information and the proof adduced at trial is estopped to suggest that the variance which was material enough for acquittal is nonetheless immaterial for a new charge. State v. Katz, 402 So.2d 1184 (Fla. 1981).

The order discharging appellee is QUASHED and this cause REMANDED to the trial court for further proceedings consistent herewith.

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

      . There are exceptions to the general rule that when a defendant requests and is granted a continuance, the matter is taken out of the operation of the speedy trial rule, but they are not applicable here. See Butterworth at 970; Brown at 219.