author: DELL, Judge.

text:
    Edward Kenneth MULFORD, Appellant, v. STATE of Florida, Appellee.
    No. 81-2095.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.

      James R. Hubbard of Beckham & McAli-ley, P.A., and Mare Cooper of Greene & Cooper, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Edward Kenneth Mulford appeals his conviction and sentence for unlawfully appropriating a check in the amount of $2,600 from an account held by International Precious Metals Corporation (IPMC) as trustee for Thomas F. Wilson.

Appellant worked as a commodities account executive with IPMC, a brokerage firm. He entered into an agreement with Wilson to sell him a one-half interest in an option contract to purchase gold. Subsequently, a dispute arose over the manner in which Wilson paid appellant for his one-half interest in the option contract. Appellant claimed that Wilson paid him with a check in the amount of $2,600 drawn on Wilson’s account with IPMC (Check No. 420). Wilson claimed that he paid appellant in cash received from another check drawn from his account with IPMC in the amount of $3,000 (Check No. 439). Wilson testified that after he discovered that two checks had been disbursed from his account, he wrote a letter to the brokerage firm complaining about the transaction with the appellant. Wilson’s letter stated that he paid appellant with Check No. 420 and also contained a sentence briefly referring to appellant’s prior felony conviction for dealing in commodities. At trial Wilson testified that he paid appellant with cash drawn from Check No. 439 and that he never authorized appellant to draw Check No. 420 in the amount of $2,600. On several occasions appellant offered in evidence for impeachment purposes an edited version of Wilson’s letter deleting the reference to appellant’s prior felony conviction. Each time the court sustained the State’s objection to the admissibility of the letter in its edited form. The letter contained a summary of the transaction with the appellant and a demand for the brokerage firm to assume responsibility for the transaction. Appellant contends that reference to his prior conviction was not necessary to the purpose of the letter and that its omission would not change the letter’s substance.

During closing argument the State’s attorney argued that he had no objection to the introduction of the entire letter but pointed out that defense counsel did not want the jury to see all of the statements which it contained. The State also argued that defense counsel had repeatedly sought to introduce copies of the letter from which portions had been deleted and suggested that the jury could draw their own inferences from that fact.

Appellant raises two points on appeal. First, he contends that the letter should have been admitted for impeachment purposes in its edited form. Second, he contends that the trial court erred in failing to sustain his objections to the prosecutor’s remarks during closing argument and in failing to grant his motion for a mistrial.

Appellant’s first point merits discussion. It is obvious from the record on appeal that the key factual dispute turned on the question of whether or not Wilson paid the appellant by Check No. 420 or with cash as Wilson testified. Wilson’s letter corroborated appellant’s version of the events leading up to the charges for which he was convicted. The reference in Wilson’s letter to appellant’s previous conviction was not necessary to his complaint against appellant and should have been deleted because of its potential prejudicial effect on the jury. See Goodman v. State, 336 So.2d 1264 (Fla. 4th DCA 1976).

The State contends that Section 90.108, Florida Statutes, required the introduction of the entire letter. Section 90.108, Florida Statutes, gave the State only a qualified right to seek the admission of the entire letter:

90.108 Introduction of related writings or recorded statements. — When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.

The reference to appellant’s prior conviction did not furnish any relevant evidence, nor did it explain or rebut that part of the letter which appellant sought to introduce into evidence. We agree with appellant’s contention that there was no bona fide reason why “fairness” would require consideration of the entire letter.

The general rule is that if one party to litigation puts in evidence part of a document, or a correspondence or a conversation, which is detrimental to the opposing party, the latter may introduce the balance of the document, correspondence or conversation in order to explain or rebut the adverse inferences which might arise from the incomplete character of the evidence introduced by his adversary. [Citations Omitted]. But this rule is subject to the qualification that only the other parts of the document which are relevant and throw light upon the parts already admitted become competent upon its introduction.

United States v. Littwin, 338 F.2d 141, 145-46 (6th Cir. 1964).

If this were the only point on appeal the trial court’s refusal to admit the letter would constitute harmless error because the appellant was permitted to read from the letter in opening statement, on cross examination of Wilson and during closing argument. However, for reasons which will be hereinafter discussed, this matter must be remanded for a new trial and upon new trial, the edited version of Wilson’s August 8th letter, if offered, should be admitted.

The trial court erred when it failed to grant appellant’s motion for a mistrial after the prosecutor repeatedly referred to the fact that Wilson’s letter could have been introduced in its entirety with no objection from the State. These comments, together with the State’s invitation to the jurors to draw their own conclusions about those parts of the letter which the appellant wanted to keep from them, constituted reversible error.

The prosecutor has a special position with special responsibilities beyond those of private counsel. As this Court has stated:

His duty is not to obtain convictions but to seek justice, and he must exercise that responsibility with the circumspection and dignity the occasion calls for. His case must rest on evidence, not innuendo. If his case is a sound one, his evidence is enough. If it is not sound, he should not resort to innuendo to give it a false appearance of strength. Cases brought on behalf of the State of Florida should be conducted with a dignity worthy of the client. Kirk v. State, 227 So.2d 40, 45 (Fla. 4th DCA 1969), also see Martin v. State, 411 So.2d 987 at 990 (Fla. 4th DCA 1982).

By going beyond the evidence properly before the jury to innuendo about what may exist outside the evidence, the prosecutor in the present case failed to carry out his special responsibility to seek justice and not just to obtain a conviction.

No attorney shall refer in closing argument to evidence which has been excluded, nor may he or she invite an inference from the exercise of a party’s right to have the evidence excluded.. .. Failure to abide by this standard constitutes ground for reversal.

Commonwealth v. Burke, 373 Mass. 569, 369 N.E.2d 451, 456 (1977).

We find no merit in the State’s contention that the appellant invited its error. The prosecutor erred, but that error was not invited by any improper conduct by the appellant.

Accordingly, we reverse the judgment and sentence and remand this cause for a new trial.

REVERSED and REMANDED.

HERSEY and HURLEY, JJ., concur.

      . Excerpt from the State’s closing argument:
      MR. NEAL: Again, ladies and gentlemen, I am sorry to have to begin over, but in fairness to you, I think that you should have the full benefit of what we are trying to discuss here.
      Mr. Hubbard discussed at length, in his opening statement as well as in his closing argument, concerning Mr. Wilson’s August 8th statement, he promised you that he would introduce that statement to you. He made a promise to you in his opening statement. I have no objection to his introduction of that entire statement, but Mr. Hubbard did not want you to see all of that statement. Repeatedly he sought to introduce copies from which portions had been deleted. I invite you to draw your own inferences from that fact.
      Again, I am not implying that anything improper was done by Mr. Hubbard in doing this. It is his job to defend his client as he sees fit. If he feels that it would not benefit his client to introduce those portions, then he has a right to try to keep those out of the case.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    ALL-BRITE SALES COMPANY, Appellant, v. Charles L. RODERICK, Appellee.
    No. AH-118.
    District Court of Appeal of Florida, First District.
    July 8, 1982.
    Rehearing Denied Aug. 6, 1982.

      S. Gordon Blalock of Blalock, Holbrook & Akel, Jacksonville, for appellant.
    John Paul Howard, Jacksonville, for ap-pellee.
   THOMPSON, Judge.

This is an appeal from a final judgment holding that appellee was not bound by the terms of a covenant not to compete contained in his employment contract with appellant and reserving jurisdiction to award an attorney’s fee to appellee. We affirm in part and reverse in part.

There was competent substantial evidence to support the trial court’s finding that the employment contract had terminated some two years before appellee actually left appellant’s employ, and thus there was no error in the court’s ruling that ap-pellee was not bound by the terms of the contract.

However, the trial court did err in retaining jurisdiction to consider appellee’s prayer for attorney’s fees. The only possible basis for an award of attorney’s fees in this case is § 57.105, Fla.Stat., which provides that the court may award attorney’s fees if it finds that there was a “complete absence of a justiciable issue of either law or fact raised by the losing party.” In order to make an award of attorney’s fees under § 57.105, the court must find that the action is clearly devoid of merit both on the facts and the law, and that the action is so untenable as to be properly labeled “frivolous.” Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA), pet. for review denied, 392 So.2d 1373 (Fla.1980). Appellant’s claim herein, although unsuccessful, was clearly not frivolous. Accordingly, the final judgment is modified to delete the reservation of jurisdiction to award attorney’s fees, and, as modified, is affirmed.

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


author: DANIEL S. PEARSON, Judge.

text:
    Murrell STREETER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1148.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.

      Bennett H. Brummer, Public Defender and Roy T. Gelber, Special Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Streeter, charged in Counts I and II with second-degree murder and attempted second-degree murder, was convicted on Count I of third-degree murder, on Count II of attempted third-degree murder, and on Counts III and IV of unlawfully and feloni-ously possessing a weapon during the commission of the felonies charged in Counts I and II. None of the alternative verdict forms provided to the jury on Counts I and II called for a response as to whether the crimes charged, or any lesser offenses, were committed with a weapon. The jury was, however, instructed that “[t]he punishment provided by law for each individual crime charged in Counts I and II is greater if ... the Defendant, during the commission of the crime . .. attempts to use any weapons ...” and, more significantly, “should you find the Defendant guilty of the applicable crime it would be necessary for you to find on your verdict whether or not it has been proven beyond a reasonable doubt that the Defendant during the commission of the crime ... did . .. attempt to use any weapon . . .. ” The trial court obviously intended that the jury would itself write in the additional finding on the forms provided. The verdicts on Counts I and II did not indicate one way or the other whether during the commission of these felonies the defendant carried, displayed, used, threatened or attempted to use a weapon. Notwithstanding the absence of such a finding in these verdicts, the trial court, pursuant to Section 775.087, Florida Statutes (1979), respectively reclassified the convictions on Counts I and II to felonies of the first and second degrees and sentenced the defendant to concurrent sentences of thirty and fifteen years on these counts.

Streeter’s sole contentions on appeal are that the reclassification provisions of Section 775.087 are inapplicable because the use of a weapon is an essential element of the offenses of third-degree and attempted third-degree murder; and, the constitutional counterpart, that where the use of a weapon is an essential element of the crime, an enhanced sentence arising from its use constitutes constitutionally prohibited double punishment for the same act. We reject both contentions. See Pedrera v. State, 401 So.2d 823 (Fla. 3d DCA 1981) (use of a firearm is not an essential element of third-degree murder as statutorily defined); State v. Hegstrom, 401 So.2d 1343 (Fla.1981) (double jeopardy provision of the Fifth Amendment presents no substantive limitation on legislature’s power to prescribe multiple punishments).

Our rejection of these contentions does not, however, end our labor, since if the sentences imposed on Counts I and II are illegal because in excess of the maximum allowed, there exists fundamental error, Ex parte Bosso, 41 So.2d 322 (Fla.1949); Robbins v. State, 413 So.2d 840 (Fla. 3d DCA 1982); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Williams v. State, 280 So.2d 518 (Fla. 3d DCA 1973), which is subject to our review ex mero motu, Lewis v. State, 154 Fla. 825, 19 So.2d 199 (1944), and which if patent on the record before us can be corrected on this appeal. Robbins v. State, supra; Gonzalez v. State, supra.

Under the pertinent provision of Section 775.087, a determination that during the commission of the felony the defendant carried, displayed, used, threatened or attempted to use any weapon or firearm is a predicate to reclassification. That de-termination, as the trial court recognized in its instruction to the jury, is one, even as the felony itself, which must be made by the jury beyond a reasonable doubt. In the present case the jury made no such determination in respect to Counts I and II. Thus, the question before us is whether the jury’s verdicts on Counts III and IV that Streeter possessed a weapon during the commission of the felonies charged in Counts I and II supplied the trial court with a basis to reclassify Counts I and II. We think not.

It is axiomatic that a verdict which does not find everything that is necessary to enable the court to render judgment cannot support the judgment, Perkins v. Mayo, 92 So.2d 641 (Fla.1957); Harris v. State, 53 Fla. 37, 43 So. 311 (1907); Paulk v. State, 376 So.2d 1213 (Fla. 3d DCA 1979). Because each count or charge in an information or indictment is considered as if it were a separate information or indictment, Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), a verdict on one count is not flawed by being inconsistent with a verdict on another count. Harris v. Rivera,-U.S.-, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981); Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Dunn v. United States, supra; McCloud v. State, 335 So.2d 257 (Fla.1976); Goodwin v. State, 157 Fla. 751, 26 So.2d 898 (1946); Courson v. State, 414 So.2d 207 (Fla. 3d DCA 1982) (1982). See Damon v. State, 397 So.2d 1224 (Fla. 3d DCA 1981). It follows that a verdict on any one count or charge, independent of the verdicts on any other count, must support the judgment and sentence of the court.

If the State seeks to have a defendant’s crime upwardly reclassified and his sentence thus enhanced because a weapon was used, it is incumbent upon it to see that the verdict forms pertaining to any count susceptible to reclassification under Section 775.087 contain the required additional finding that the defendant committed the crime in a manner prohibited by the reclassification statute.

We therefore vacate the concurrent sentences of thirty years and fifteen years imposed on Counts I and II, respectively, and remand for resentencing. The maximum sentences which may be imposed on these counts are, without the unjustified reclassification, fifteen and five years. Since it is obvious that it was the trial court’s sentencing intent that the defendant receive a thirty-year prison term, the trial court may impose the fifteen and five-year terms consecutively. Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982). The defendant’s presence at resentencing is unnecessary.

Reversed and remanded for resentencing.

      . The present case demonstrates that the better practice is for the trial court to give the jury a verdict form containing a written interrogatory as to whether the defendant did or did not carry, display, use, etc. a weapon.

      . Section 775.087(1) provides in pertinent part that in the case of a conviction of a felony in the second degree [here third-degree murder, see § 782.04(4), Fla.Stat. (1979)], the felony can be reclassified to a felony of the first degree, punishable by thirty instead of fifteen years, see § 775.082(3)(b), Fla.Stat. (1979); and in the case of a conviction of a felony in the third degree [here attempted third-degree murder, see § 777.04(4), Fla.Stat. (1979)], the felony can be reclassified to a felony of the second degree, punishable by fifteen instead of five years, see § 775.082(3)(c), Fla.Stat. (1979).

      . The only exception to the proposition that separate counts must be viewed independently is now found in the line of cases represented by Redondo v. State, 403 So.2d 954 (Fla.1981); Mahaun v. State, 377 So.2d 1158 (Fla.1979); and Wooten v. State, 404 So.2d 1072 (Fla. 3d DCA 1981). The exception is, as is apparent from these cases, limited to instances where what the jury fails to find in one count vitiates a guilty verdict on a separate count to the benefit of the defendant, not an instance, as here, where what the jury finds on one count is used to supply a missing element of a separate count to the detriment of a defendant. Moreover, this exception applies only where the verdicts are legally inconsistent. Here, the jury’s failure to find “attempt to use” a firearm during the commission of a felony, as instructed, in Counts I and II is not legally inconsistent with its finding of “possession” of a firearm during the commission of a felony in Counts III and IV. See Pitts v. State, 400 So.2d 549 (Fla. 3d DCA 1981), review granted, (FIa.1982); McCray v. State, 397 So.2d 1229 (Fla. 3d DCA), review granted, (Fla.1981).

      . Had the jury found the defendant guilty of using a weapon in Counts I and II, then we would have been required to vacate the concurrent sentences imposed on Counts III and IV under State v. Monroe, 406 So.2d 1115 (Fla.1981).


author: SHIVERS, Judge.

text:
    Kenneth W. BYRD, Appellant, v. HENDERSON AND BARNES, INC., and Commercial Union Insurance Company, Appellees.
    No. AF-494.
    District Court of Appeal of Florida, First District.
    July 16, 1982.
    Gregory W. Johnson of Weil, Johnson & Benson, Jacksonville, for appellant.
    Martin J. Miekler of Bullock, Sharp, Childs, Miekler & Cohen, Jacksonville, for appellees.
   SHIVERS, Judge.

Appellant appeals the order of the Deputy Commissioner (D/C) denying his claim for permanent total disability (PTD) benefits and, in the alternative, permanent partial disability (PPD) benefits.

Claimant sustained a compensable injury resulting in a disc injury, hematuria (kidney injury), and a psychiatric condition characterized by depression and anxiety. Claimant’s treating physician testified that while surgical intervention might improve claimant’s condition, it would be unnecessarily risky. On this basis, he concluded that claimant had reached maximum medical improvement (MMI) on May 21, 1980. A psychiatrist who had examined claimant testified that claimant’s psychiatric condition would subside when his physical infirmities cleared and he was able to return to work. On the basis of the psychiatrist’s testimony, the D/C concluded that claimant had not reached MMI with regard to his psychiatric condition, and that, therefore, he was not entitled to PTD or PPD benefits.

Appellant contends that the D/C’s order should be reversed because there is no competent and substantial evidence in the record to support his finding claimant had not reached MMI as of May 21, 1980.

We agree. The substance of the evaluation by the psychiatrist was that claimant’s psychiatric condition would subside when his physical infirmities cleared and he was able to return to work or change his vocation to one compatible with his physical infirmities. This prognosis necessarily presupposed that claimant’s condition would improve to the point where he would be employable. This assumption is contrary to all evidence in the record. The treating physician testified that claimant’s condition would not improve without surgical intervention, and that surgical intervention had been ruled out because it posed unnecessary risks to claimant’s health. In addition, the vocational rehabilitation specialist, who was assigned to work with claimant, testified that claimant was unemployable in his present physical condition, and that, despite the fact that he had the ability, intellect and desire to be vocationally retrained, his medical condition foreclosed that possibility. Thus, the record is devoid of any evidence which supports the psychiatrist’s assumption that claimant’s physical condition would eventually improve and enable him to return to work.

We must conclude that the psychiatrist’s testimony concerning claimant’s prognosis for improvement of his physical and psychiatric conditions is erroneous, and, as such, his testimony cannot provide competent and substantial evidence to support the D/C’s finding that claimant had not reached MMI. We REVERSE the judgment of the D/C and REMAND the matter for a determination of benefits.

McCORD and MILLS, JJ., concur.


author: McCORD, Judge.

text:
    KAREN’S HAIRLINES, et al., Appellants, v. Gale S. IVEY, Appellee.
    No. AH-7.
    District Court of Appeal of Florida, First District.
    July 16, 1982.
    Stephen F. Radford, Jr., West Palm Beach, for appellants.
    J. Michael Brennan, Fort Pierce, for ap-pellee.
   McCORD, Judge.

The employer/carrier appeals from a workers’ compensation order awarding to the claimant wage-loss benefits from April 15, 1981, through April 21, 1981. In awarding claimant wage loss benefits for the week in question, the deputy found: “She is excused for her failure to perform a job search because she still was actively pursuing a rehabilitation program as suggested by the employer/carrier.” This finding is wholly unsupported by the record. The claimant admitted that she had not enrolled in anything since her recovery from an unrelated thyroid condition. She further stated that since she had quit her employment rehabilitation program (court reporter’s school) she had not attempted to find any type of employment whatsoever. As the deputy’s finding is not supported by competent substantial evidence, his award of benefits for the week in question is REVERSED.

MILLS and SHIVERS, JJ., concur.


text:
    Nathaniel McCLAIN, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-341.
    District Court of Appeal of Florida, First District.
    July 16, 1982.
    Nathaniel McClain, pro se.
    Catherine L. Dickson, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Comm’n, for appellee.
   SHIVERS, Judge.

Appellant McClain seeks judicial review, pursuant to § 120.68, Fla.Stat. (1981), of the Florida Parole and Probation Commission’s (Commission) refusal to grant a § 947.173, Fla.Stat. (1981), review of Commission biennial action. See § 947.174(1), Fla.Stat. (1981). The Commission’s final order declining to grant a review stated that the issues presented by McClain involved the Commission action that originally established his presumptive parole release date (PPRD), that only Commission action at the biennial review could be considered; and therefore, the issues were untimely raised. Appellant alleges that the Commission erred in declining to grant review. Appellee/Commission has filed a motion to dismiss this appeal, claiming that the Commission’s action denying review is not final agency action that is appealable. Appellee relies on Canter v. Florida Parole and Probation Commission, 409 So.2d 227 (Fla. 1st DCA 1982), and Hall v. Florida Parole and Probation Commission, 408 So.2d 1076 (Fla. 1st DCA 1982). We find that those cases are not applicable to § 947.173(1) review requests of Commission biennial action.

In both Canter and Hall, supra, the inmates had sought and received § 947.173 reviews of the establishment of their PPRDs. Neither appealed the Commission action to this court. Several months after receiving the final order of Commission action, the inmates again petitioned the Commission for subsequent reviews, pursuant to § 947.16(4), Fla.Stat. (1981), alleging that they had new information which required the Commission to grant subsequent reviews. The Commission declined to grant special reviews, because the information was not in fact new or would have no effect on the inmates’ PPRDs. The inmates appealed to this court, alleging both that the Commission erred in refusing to grant the second review requests and arguing the issues raised and considered at their initial § 947.173 reviews. We found that the Commission has no obligation to grant special reviews but that §§ 947.16(4) and 947.-174(2), Fla.Stat. (1981), permit the Commission to conduct special reviews when the circumstances warrant such action. Therefore, the Commission’s denials of the inmates’ review requests were not final agency actions which would be appealable to this court. As a consequence, we further found that the issues raised by the inmates involved the Commission’s final agency actions at their § 947.173 reviews which had occurred over 30 days before the inmates filed notices of appeal in this court. We had no jurisdiction to review the Commission’s final agency action. See Fla.R. App.P. 9.110(b) and (c).

That is not the situation in the case before us. Both the Florida Statutes and the Commission rules grant inmates the right to a review of Commission action establishing a PPRD. See § 947.173, Fla. Stat. (1981), and Fla.Admin.Code Rule 23-21.12. In Canter, we said, “This administrative review or denial of the inmate’s request constitutes final agency action and is appealable in accordance with the dictates of Section 120.68, Administrative Procedures Act, and the Florida Appellate Rules.” (emphasis added) Canter, supra, at 229. While we were referring to agency review of its initial action establishing an inmate’s PPRD, the Commission grants and we review on appeal, § 947.173 reviews of Commission biennial action. We conclude that the Commission’s denial of review in appellant’s case does constitute final agency action which is appealable to this court.

Under the circumstances, appel-lee’s motion is not proper. Motions to dismiss should be used primarily for procedural and jurisdictional issues. Whenever possible, courts should decide cases on their merits, rather than on procedural grounds. See Sebree v. Salcedo, 390 So.2d 801 (Fla. 3rd DCA 1980); Jockey Club, Inc. v. Blake, 297 So.2d 44 (Fla. 3rd DCA 1974). In this regard, a motion to quash as frivolous is appropriate when the court can determine from a cursory examination of the record that the issues on appeal are wholly without merit. See Ex parte Sams, 67 So.2d 657 (Fla.1953); Norfleet Holding Co. v. Price, 132 So. 643 (Fla.1931); Ruff v. Guaranty Title and Trust Co., 99 Fla. 197, 126 So. 383 (1930); Morris v. Rabara, 145 So.2d 265 (Fla. 2nd DCA 1962); § 59.33, Fla.Stat. (1981); and Fla.R.App.P. 9.300 and commentary. In the instant appeal, however, the record has not been filed; appellee has instead attached exhibits to its motions to dismiss.

Therefore, the motion to dismiss is denied. See Crichlow v. Equitable Life Assur. Soc. of United States, 138 So. 481, 103 Fla. 959 (1931). However, we find from examination of appellant’s brief and appel-lee’s exhibits that the issues raised by appellant are res judicata because they are identical to the issues raised by appellant and considered by the Commission at appellant’s first § 947.173 review, over two years ago. We therefore affirm the action of the Commission declining to grant review of the issues again raised by appellant at his biennial review.

MILLS, J., and VICTOR M. CAWTHON, Associate Judge, concur.

      . Section 947.16(4) provides in part, “Subsequent to the establishment of the presumptive parole release date, the Commission may, at its discretion, review the official record or conduct additional interviews with the inmate.

      . Section 947.174(2) provides, “The Commission, for good cause, may at any time request that a hearing examiner conduct a subsequent hearing according to the procedures outlined in this section. Such request shall specify in writing the reasons for such review.”

      . The Commission’s denial of review in appellant’s case was executed on a Commission form styled “Review Request Commission Action”. Additionally, we implied in Canter, supra, at fn. 1, that inmates may seek limited review of their PPRDs at their statutorily mandated biennial reviews.

      . Appellant is appealing Commission action declining to grant review. The issue on appeal is whether the Commission erred in refusing to consider the issues raised by appellant in his § 947.173(1) review request. Appellee should argue, in an answer brief with appropriate support, that its action refusing to grant review is correct. See Fla.R.App.P. 9.210(b) and (c).

      . We note, however, that there may be occasions when issues raised at the first § 947.173 review and again at the § 947.173 review of biennial action may be properly before the court. Specific examples would include, but not be limited to: (1) when there is a clear clerical or mathematical error in the calculation of theinmate’s PPRD; (2) when the inmate raised a constitutional issue which the Commission, as an administrative agency, had no authority to consider; and (3) when the inmate has additional proof, i.e., new information, on an issue that would have an effect on his PPRD, and failed to meet the standards of proof at the first § 947.173 review.


text:
    PAN AM TOBACCO CORPORATION and the Home Insurance Company, Appellants, v. Fernando M. BROWN, Appellee.
    No. AH-441.
    District Court of Appeal of Florida, First District.
    July 16, 1982.

      Barry A. Pemsler of Richard, Tharp & Pemsler, Miami, for appellants.
    Lewis F. Cohen and George P. Telepas, Miami, for appellee.
   SHIVERS, Judge.

Employer/Carrier appeal the order of the Deputy Commissioner (D/C) awarding claimant wage loss benefits.

Claimant sustained a back injury for which the E/C provided initial compensation benefits. Maximum medical improvement (MMI) was reached on February 18, 1981. At that time, claimant’s treating physician advised claimant against engaging in heavy lifting, but concluded that claimant could return to employment involving light duty. Despite the physician’s determination that claimant was able to return to work, he remained unemployed. Claimant then filed a claim for wage loss benefits for the period from April 29, 1981, through June 30, 1981. The D/C awarded wage loss benefits based on a complete loss of earnings for the period beginning on April 29,1981, and continuing for so long as claimant made a good faith rehabilitation effort. This appeal followed.

Appellant contends that there is no competent and substantial evidence in the record to show that claimant conducted a good faith job search or that his unemployment was the result of his disability rather than the unavailability of work.

We reverse because the record is devoid of any evidence which demonstrates that claimant conducted a good faith job search. It is well established that, in the absence of medical evidence indicating that claimant is unable to work, an award of wage loss benefits can be made only if claimant shows that he has made a conscientious effort to test his earning capacity in the employment market and that the asserted wage loss is the result of his disability. Lake County Commissioners, et al. v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982), Tallahassee Coca-Cola Bottling Co., et al. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981). Concerning claimant’s ability to work, the evidence clearly establishes that claimant was able to work. Moreover, with respect to the question of whether claimant conducted a good faith job search, the evidence is equally as clear. By claimant’s own admission he failed to make any attempt to find employment during the period for which he is seeking wage loss benefits. The claimant’s only attempt to conduct a job search occurred prior to the termination of his TTD benefits. This aside, the only other effort claimant made in the direction of seeking employment was to seek the assistance of the Rehabilitation Division of the Bureau of Workers’ Compensation. But, even there, the evidence indicates that claimant failed to follow through on the recommendations of the rehabilitation nurse. On the basis of this evidence, we find that there is no competent and substantial evidence to support a finding that claimant conducted a good faith job search. Because of this finding we do not address the question of whether claimant demonstrated that the asserted wage loss resulted from his disability rather than the unavailability of employment.

The judgment of the D/C awarding claimant wage loss benefits is REVERSED.

McCORD and MILLS, JJ., concur.


text:
    Stephen SIAS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1263.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.

      Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Sias appeals from his conviction and sentence on two counts of sexual battery arising out of alleged homosexual acts perpetrated upon a fourteen-year-old boy named Jeff. He asserts, inter alia, that the trial court erred in admitting over his objection evidence of another crime ostensibly offered to establish Sias’ identity as the perpetrator of the crime charged and testimony that Sias was a homosexual.

The incident out of which the charges arose occurred on November 16, 1979. On that day, Jeff, along with some other young residents of Montani Clinical Center, went on a field trip to Greynolds Park. Jeff climbed onto the roof of a bridge to fish. His line became snagged in a tree and he lost his hook. He went below the bridge to look for another hook. There, a man whom Jeff had earlier noticed sitting on a bench smoking and whom he later identified as Sias, asked Jeff if he would like to smoke some marijuana. Jeff immediately agreed and, told that the marijuana was in the man’s car, followed the man through the woods to get the marijuana. As they were walking along the path, a man later identified as Timothy Bartsch, Sias’ co-defendant, stepped out from the bushes and threw a blue denim jacket over Jeff’s head. Jeff was dragged from the path. Bartsch told Jeff he would break his neck if he screamed. Sias then threatened Bartsch with harm if he hurt the boy. Sias and Bartsch pulled Jeff’s pants down to his ankles and performed sex acts upon him. They then offered Jeff marijuana, smoked some themselves, pulled the jacket from Jeff’s head, and sent him off. Jeff identified his assailants as between eighteen and twenty years old, one taller than the other, one wearing a bulky V-neck sweater, and the other with a large belt buckle and hush-puppy shoes.

The “similar” crime testimony was elicited from an eleven-year-old boy, Shawn, who testified to being sexually abused by two men on November 11, 1979, five days before the events charged in the information. Shawn testified that he was fishing in a place other than Greynolds Park, which he described as the enchanted forest. In Shawn’s case, the incident began with him being grabbed from behind and pulled backwards into the woods. An orange T-shirt was thrown over his head, and it was by looking through the T-shirt that he got his first view of his assailants. Shawn’s pants were pulled down, and the man he identified as Sias rubbed his body while the other man, whom he identified as Bartsch, performed oral copulation on Shawn. After the assault, Shawn ran and Bartsch chased and caught him. The assailants pulled the cloth from Shawn’s head and sent him off. Shawn identified the taller assailant as wearing glasses and having a scratch on his neck and the other assailant as having a Latin accent.

The State contends that Shawn’s testimony about the uncharged crime was relevant to prove that Sias was the person who committed the crime for which he was on trial and thus admissible under Williams v. State, 110 So.2d 654 (Fla.1959). It suggests that relevancy is established because there are more similarities than dissimilarities in the events involving Jeff and Shawn. Were this the test for admissibility, then it is likely that whenever two men acting in concert perpetrate assaultive sexual acts upon a young boy in an out-of-the-way part of a park, they would be subject to the introduction of testimony about another uncharged crime with the same scenario. However, we understand the test to be far more stringent — not merely that there be greater similarity than dissimilarity between the crimes, but rather that there be something so unique or particularly unusual about the perpetrator or his modus operandi that it would tend to establish, independently of an identification of him by the collateral crime victim, that he committed the crime charged. See Beasley v. State, 305 So.2d 285 (Fla. 3d DCA 1974). Accord, Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974); Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974). Thus, in Davis v. State, 376 So.2d 1198 (Fla. 2d DCA 1979), the facts that the charged crime and the collateral crime involved burglary and sexual battery in which a window was used to enter the homes of young women who lived alone, occurred three weeks apart, and took place about the same time of night, and concluded with the taking of money from the victims’ homes, did not establish the requisite uniqueness where the area of the city where the crime occurred, the manner in which the sexual assaults and the taking of money were accomplished, and the attitude of the assailants towards the victims were dissimilar. Likewise, in Helton v. State, 365 So.2d 1101 (Fla. 1st DCA 1979), a showing that in both crimes the female victim was abducted, taken to a wooded area where sexual acts were compelled or attempted, and where ultimately the victim escaped and hailed a passing car, was held insufficient to admit evidence that the defendant committed the collateral crime. See also Franklin v. State, 229 So.2d 892 (Fla. 3d DCA 1969) (evidence that defendant with gun drawn acting alone committed two robberies in Fort Myers not relevant to prove that defendant with hand under his shirt acted together with two other men to commit a robbery in Miami); Davis v. State, 276 So.2d 846 (Fla. 2d DCA 1973) (evidence that food store in Hillsborough County was robbed five days earlier by a man wearing a woman’s bikini pants over his head, blue sock on his right hand, and kitchen towel on his left hand not relevant to prove that unadorned defendant accompanied by another man held up cleaner in same county); Banks v. State, 298 So.2d 543 (Fla. 1st DCA 1974) (sole relation between crime charged and collateral crime was that both involved homosexual acts perpetrated on young boys).

Turning to the facts of the present case, while the crimes have in common young boys as victims, isolated areas in parks, and similar homosexual acts, we think these things would be likely found in a vast number of such crimes and would hardly point to Sias as the perpetrator. However, other characteristics of the crimes persuade us that the collateral crime testimony was entitled to admission. First, on each occasion Sias was accompanied not only by another person, but, according to the identifications, the very same person. Second, although the crime against Jeff began with the enticement of marijuana and that against Shawn with force (explicable in light of the difference in age of the victims), both proceeded thereafter in nearly identical fashion — the piece of clothing thrown over the victim’s head, the clothing kept on the victim's head during the sexual act, and, most significantly, the clothing removed after the completion of the sexual act and the victim directed out of the isolated wooded area. We think these latter facts comprise the type of singular behavior which qualifies the collateral crime evidence for admission. From the fact that the piece of clothing was removed after the sexual acts were complete and before the victims departed, it appears that placing clothing over the victims’ heads was done less to conceal the identity of the assailants than as a ritual connected to the sex acts. Given the absence of marked dissimilarities, and the presence of other, concededly more general similarities, this act, in our view, makes the modus operandi unique and the evidence of the crime involving Shawn admissible.

Having decided that the other crime evidence was properly admitted, we now address the concern of the later Williams case, Williams v. State, 117 So.2d 473 (Fla.1960):

“Inasmuch as evidence of the [other] crime was admissible only because of its relevancy to the identity of the accused and the murder weapon and the similarity of the pattern defined in the two incidents, the question then arises whether or not the state was permitted to go too far in introduction of testimony about the [other] crime so that the inquiry transcended the bounds of relevancy to the charge being tried, and made the [other] offense a feature instead of an incident. This may not be done for the very good reason that in a criminal prosecution such procedure devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant whose character is insulated from attack unless he introduces the subject.” Id. at 475-76 (emphasis in original).

Where the evidence of the other crime is found to be so disproportionate as to become a feature of the case, reversals have followed. See, e.g., Williams v. State, 117 So.2d 473 (Fla.1960); Knox v. State, 361 So.2d 799 (Fla. 1st DCA 1978); Davis v. State, 276 So.2d 846 (Fla. 2d DCA 1973), aff’d, State v. Davis, 290 So.2d 30 (Fla.1974); Reyes v. State, 253 So.2d 907 (Fla. 1st DCA 1971); Green v. State, 228 So.2d 397 (Fla. 2d DCA 1969). Concededly, the record in the present case reflects that more time was spent and evidence presented on the collateral crime. However, this disproportion did not come about because the State went too far in presenting its evidence. Indeed, the testimony which the State elicited from Shawn was confined to that which was needed to establish its relevancy. The excessive focus on the Shawn incident instead occurred because the defense chose to attack the reliability of Shawn’s identification of Sias and Bartsch as the people who sexually attacked him and to present an alibi defense to the Shawn incident. This, of course, Sias was free to do, but we will not hold the State accountable for Sias making the Shawn incident a feature of the case.

One other point merits discussion. The defendant urges that the trial court erred in admitting testimony that Sias was a homosexual. During the State’s case in chief, the prosecutor questioned the police officer who had taken a statement from the defendant, which statement, as far as we can discern, was totally exculpatory. Undoubtedly, the prosecutor believed, as did the court when it overruled the defendant’s objection, that the following portion of the statement was inculpatory:

“Q. Did you ever have any conversation with [Sias] concerning his homosexual preferences?
“A. Yes.
“Q. And what did he tell you?
“A. He told me he was a homosexual.”

While the State suggests that the relevance of this testimony is that only one who is a homosexual would commit a homosexual battery, the suggestion is not well taken. First, the homosexual populace is certainly large enough as to make the relevance of this testimony so tenuous as to be almost non-existent. Second, there is absolutely no showing that homosexuals as a group are disposed to engage in pederasty. See People v. Giani, 145 Cal.App.2d 539, 302 P.2d 813 (1956); Beardslee v. United States, 387 F.2d 280 (8th Cir. 1967). Third, assuming some arguable relevance in this testimony, its probative value is clearly outweighed by its prejudicial effect. Thus, we agree with the holding in Harris v. State, 183 So.2d 291 (Fla. 2d DCA 1966), that a defendant’s admission to a state witness that he was a homosexual and had slept with a number of men was irrelevant and highly prejudicial.

“The evidence admitted by the trial court in this case bore with deadly effect upon the character and propensities of the defendant. This is in violation of well-established precedent. It would be difficult to find a factual setting where the evidence was more clearly inadmissible due to a lack of relevancy and its sole purpose being to show bad character and propensity, thereby creating in the minds of the jurors more heat than reflecting light. “While we are not in sympathy with the alleged conduct of this defendant, he has the constitutional right, like every citizen, to a fair and impartial trial. In consideration of our societal attitudes regarding such alleged conduct it is necessary that all available safeguards be employed to insure such a trial. It is without question that the testimony in this case severely prejudiced the defendant and he was convicted not solely upon the acts set forth in the Information but also for being a homosexual and having committed numerous homosexual acts, for which he was not being tried.” Id. at 294 (emphasis in original).

But while the admission of evidence that a defendant is a homosexual is irrelevant to prove that the defendant committed some particular assaultive homosexual act, that there may be some other justification for the admission of such evidence is demonstrated by the second testimonial episode concerning the defendant’s homosexuality. This testimony came during the State’s cross-examination of Bartsch, whom the defendant chose to call as an alibi witness:

“Q. Mr. Bartsch, are you a homosexual?
“A. Yes, I am.
“Q. Is Stephen Sias a homosexual?
“A. That’s for him to say.
“Q. Do you know if he is or not?
“A. Well, yes, I think so.
“Q. Are you two lovers?
“A. No, sir. We are roommates.
“Q. Have you ever engaged in any homosexual activities with Stephen Sias?
“A. Yes, I have.
“Q. How long have you been roommates?
“A. About four years.”

It is axiomatic that a party may attack the credibility of a witness called by the opposition by showing that the witness is biased. See § 90.608(l)(b), Fla.Stat. (1979).

“It is permissible to show the relations existing between a witness and the party for whom he testifies, or whether he is under personal obligations to such party, or to one as closely identified with the result of the trial as the mother, father or wife of such party. This does not necessarily discredit the testimony of a witness, but the jury may give it such weight as they see fit, in connection with the other evidence and the demeanor of the witness upon the stand, in determining the accuracy, truthfulness and sincerity vel non of such witness, and what credit they will accord to his testimony.” Henderson v. State, 94 Fla. 318, 333-34, 113 So. 689, 695 (1927) (emphasis in original).

If in showing the bias of a defense witness in a criminal case the prosecutor incidentally elicits testimony that would be otherwise inadmissible against the defendant, the testimony is not ipso facto rendered inadmissible. People v. Sweeney, 55 Cal.2d 27, 9 Cal.Rptr. 793, 357 P.2d 1049 (1960) (evidence that defendant’s witness was his paramour admitted to show her bias in favor of the defendant, not inadmissible because it disclosed defendant’s extramarital relationship). And merely because the testimony showing bias includes references to defendant’s homosexuality does not disqualify it from admission. People v. Dukes, 241 Cal.App.2d 488, 50 Cal.Rptr. 609 (1966). In Dukes, the court affirmed the defendant’s conviction over his objection that two defense witnesses were cross-examined concerning their homosexual relationship with the defendant:

“As far as the subject matter of the attempted impeachment is concerned, there was nothing necessarily improper about it. Whether or not homosexual relationships are disapproved or condemned by society, it cannot be denied that they frequently involve strong bonds of affection between the parties thereto.
“On the other hand, although impeachment of a witness by the showing of a homosexual relationship with a party is not automatically prohibited, the subject is so sensitive that a prosecutor should not even be permitted to ask questions referring to it unless he does so in good faith.” Id, 50 Cal.Rptr. at 613.

Cf. Alford v. State, 307 So.2d 433 (Fla.), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1975) (frustrated and unfulfilled homosexual act within an hour preceding heterosexual rape and murder admissible to show motive for later crime); State v. Statewright, 300 So.2d 674 (Fla.1974) (testimony relating to defendant’s involvement in homosexual act and homosexual tendencies admissible to show that motive for murder was defendant’s fear that victim would publicly reveal the defendant’s homosexuality; and police officer’s testimony concerning defendant’s prior homosexual act admissible to impeach defendant who during direct examination testified that he never participated in a homosexual act).

Thus, the questioning of Bartsch concerning his homosexual relationship with Sias was proper to demonstrate Bartsch’s bias in favor of Sias. Sias requested no instruction to the jury that this evidence should be considered by them only as it bore on Bartsch’s credibility, and any error in the trial court’s failure to give such an instruction was waived. Finally, since this evidence was properly admitted, the error in admitting the police officer’s testimony that Sias admitted his homosexuality is harmless.

Affirmed.

      . The trials of Sias and Bartsch were severed when Bartsch agreed to testify on Sias’ behalf in a separate trial.

      . The crime in the present case was committed after the effective date of the Florida Evidence Code. By Section 90.404(2), Florida Statutes (1979), the legislature has codified the Williams Rule, and thus, similar fact evidence of other crimes “is inadmissible when the evidence is relevant solely to prove bad character or propensity.” Despite recent expressions of disenchantment with the ban on propensity evidence in child sexual molestation cases, see, e.g., Espey v. State, 407 So.2d 300 (Fla. 4th DCA 1981); State v. Rush, 399 So.2d 527 (Fla. 2d DCA 1981), we are bound to follow not only Williams, but its codified version. While it is true, as was observed in Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980), that Williams suggests that collateral crime evidence could be relevant to establish “a pattern of criminality,” the court in Williams at the same time rejected the notion that evidence of other crimes could be admitted solely to show propensity. Thus, “pattern of criminality” must mean something other than that the defendant committed a like crime in the past, for if not, admission of evidence under this theory would swallow up the rule barring evidence to show propensity. See Cotita v. State, supra, at 1151 (Smith, R. P., J., dissenting).

      . The State admitted at oral argument of this case that it could not conceive of a prosecutor attempting to elicit testimony that a defendant accused of an assaultive heterosexual crime was an admitted heterosexual.

      . Since Bartsch admitted his homosexual relationship with Sias, there can be no question of the good faith of the prosecutor in asking the questions of Bartsch.


author: PER CURIAM.

text:
    Judson LEWIS and Eduardo Osorio, Appellants, v. Jon COMPTON, et al., Appellee.
    No. 81-249.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    Joel Creel, Coral Gables, for appellants.
    Robert c Lane> ¡ Coral GableS) for appellee.
    Before HENDRY, SCHWARTZ and JOR-GENSON, JJ.
   PER CURIAM.

Defendants, Judson Lewis and Eduardo Osorio, appeal from a judgment awarding compensatory and punitive damages against them following a jury trial. They allege as error that Count HI of the amended complaint failed to state a cause of action. We agree with their contentions and reverse.

Lewis and Osorio, and Jon Compton, plaintiff below, entered into an oral agreement to form a corporation for the production of certain hydraulic equipment. A corporation was, in fact, formed, however, no stock ever issued, nor was a subscription price for the stock ever established. Compton was paid a salary of $500.00 a week for his services. The corporation funded its operations through certain loans made to it by Osorio. Compton was, subsequently, discharged and the corporation was dissolved. A new corporation was formed without participation by Compton.

Compton’s claim to an interest in the corporation cannot lie as there is no cause of action for the issuance of corporate stock based upon an agreement for future services. Section 607.054(6), Florida Statutes (1976); 8 Fla.Jur.2d Business Relationships § 139. Nor will Compton have a cause of action sounding in contract, since the period of employment was of indefinite duration and, thus, terminable at will. Critchlow v. WFC Mortgage Company, Inc., 315 So.2d 483 (Fla. 3d DCA 1975); Hoffman v. Robinson, 213 So.2d 267 (Fla. 3d DCA 1968); see also Harrison v. Jack Eckerd Corporation, 342 F.Supp. 348 (M.D.Fla.1972), aff’d mem., 468 F.2d 951 (5th Cir.1972).

Having concluded that Compton’s status was that of an employee who could be terminated at will, his subsequent discharge, even if wrongful, will not serve as a basis for either compensatory or punitive damages. Catalina v. Eastern Airlines, 381 So.2d 265 (Fla. 3d DCA 1980); DeMarco v. Publix, 360 So.2d 134 (Fla. 3d DCA 1978), aff’d, 384 So.2d 1253 (1980).

Accordingly, the judgment under review is reversed.

Reversed.


text:
    Joseph M. ARMBRUSTER, Appellant, v. AMBER INTERNATIONAL CORPORATION, Nordic International Corporation, Coolaire/Nordic International Corporation, Foreign Holding Corporation, S.A., Patrizia Pera, Intercontinental Oil Company and Ivo D. Pera, Appellees.
    No. 81-722.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    George, Hartz, Burt & Lundeen and Charles K. George, Miami, for appellant.
    Paul E. Gifford, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

By appeal and cross-appeal the parties contend that the trial court erred in the entry of an order awarding fees to a Receiver and her attorney and in taxing these fees as costs, one-half to each party. Neither side, on this record, has made error appear. After a final judgment rendering an accounting and awarding certain costs had been entered, and a motion for fees for a Receiver and her attorney, had been filed, the parties entered into a stipulation altering the terms of the final judgment on the merits and as to the costs awarded therein but without reference to the then pending motion for fees for the Receiver and her attorney.

Thereafter, the Receiver’s motion came on for hearing and the trial court awarded fees thereon and fixed responsibility equally between the parties. This action was particularly appropriate. The stipulation provided that the trial court should settle any omissions or ambiguities in the stipulation.

Certainly, the failure to make mention of the pending motion for fees for the Receiver and her attorney was an omission in the stipulation.

We therefore affirm the order on fees, on this record, without prejudice to either party filing a motion pursuant to Rule 1.540(b) Fla.R.Civ.P., and any ground thereof, within ninety days of the mandate being received in the trial court.

Affirmed.

      . It is the intention of the parties that this Stipulation effectively terminate this litigation and the pending appeal and all issues and disputes between the parties and that if any om-missions [sic] or ambiguities exist they may be brought before the Court by Motion and upon Notice and Hearing be determined so as to effectuate the intentions of the parties and the Court shall reserve jurisdiction over the parties and subject matter of this cause for this purpose.

      . During pendency of this appeal, one of the parties sought a relinquishment of jurisdiction to file a 1.540 Fla.R.Civ.P. motion in the trial court, which was denied. See Glatstein v. City of Miami, 391 So.2d 297 (Fla. 3 DCA 1980).


author: BASKIN, Judge.

text:
    Placido MORENO, Secundino Ramos and Domingo A. Mendez, Appellants, v. UNIVERSAL TRUSSES, INC., and United States Fidelity and Guaranty Company, Appellees.
    Nos. 81-854, 81-920.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    Pelzner, Schwedock, Finkelstein & Klaus-ner and Peter S. Schwedock, Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Fries-ner, Hatfield & Edge, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, Tutal, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Appellants were injured in a forklift accident which occurred while Universal Trusses was engaged in expanding its warehouse on property it owned. They sued to recover damages from Universal for the negligent operation of the forklift by a Universal employee.

The trial court granted summary judgment for Universal, ruling that the claims were barred by the exclusive remedy provisions of the Workers’ Compensation Act. We disagree and reverse.

To benefit from the workers’ compensation bar, Universal must establish that it was an employer and contractor obligated to secure compensation for its employees. Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954). To qualify as a contractor, Universal would be required to prove that it was contractually obligated to perform work for another. Motchkavitz v. L. C. Boggs Industries, Inc., 407 So.2d 910 (Fla.1981); State ex rel. Auchter Co. v. Luckie, 145 So.2d 239 (Fla. 1st DCA), cert. denied, 148 So.2d 278 (Fla.1962); Floyd v. Flash Welding Co., 127 So.2d 129 (Fla. 3d DCA), cert. denied, 133 So.2d 643 (Fla.1961); §§ 440.10, 440.11, Fla.Stat. (1979).

Finding that genuine issues of material fact exist concerning Universal’s status and relationship to appellants and that Jones v. Florida Power Corp. is controlling, we reverse the summary judgments and remand for further proceedings.


text:
    O. W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1873.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Once a trial judge enters an order granting a motion for judgment of acquittal in a juvenile proceeding for failure of the state to establish the proof to support a petition of delinquency it lacks the jurisdiction to entertain a motion to reinstate proceeding. Therefore, the adjudication of delinquency herein under review be and the same is hereby reversed with directions to discharge the appellant.

Reversed and remanded with directions.


text:
    Robert COX, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2061.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John F. Ro-benalt and Penny H. Hershoff, Asst. Attys. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. State v. Jones, 204 So.2d 515 (Fla.1967); White v. State, 348 So.2d 368 (Fla. 3d DCA 1977).


text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Gussie BENNETT, Appellee.
    No. 81-2135.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    Leonard Helfand, Miami, for appellant.
    No appearance for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

Unlike the rule of criminal procedure which permits the use of discovery depositions only “for the purpose of contradicting or impeaching the testimony of the deponent as a witness,” see Fla.R.Crim.P. 3.220(d); State v. James, 402 So.2d 1169 (Fla.1981); State v. Basiliere, 353 So.2d 820 (Fla.1977), the comparable rule of civil procedure permits a witness’s discovery deposition to be used for any purpose if, inter alia, the court finds “that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court,” Fla.R.Civ.P. 1.330(a)(3)(E). The main question before us, one of first impression in this state, is whether when, as here, a trial witness asserts her privilege against self-incrimination and the hearing examiner conducting the civil proceeding exempts her from testifying on account of this privilege, and the party against whom the deposition is offered has had the opportunity and motive to develop the testimony by appropriate examination, an exceptional circumstance exists so as to allow the introduction of the witness’s deposition. The secondary question is whether the predicates to the introduction of a witness’s deposition under the exceptional circumstance rule, that is, “application and notice,” are satisfied when the witness, with no advance warning, asserts her privilege against self-incrimination at trial. We answer both questions affirmatively.

In Union Bank v. Safanie, 5 Ariz.App. 342, 427 P.2d 146 (1967), the Court of Appeals of Arizona addressed the same questions under an identical rule of civil procedure.

“Plaintiffs subpoenaed Parker as a witness but when called to the witness stand, he refused to answer any questions concerning the transactions between the plaintiffs and defendant on the ground that his answers might tend to incriminate him. Plaintiffs’ counsel then requested permission to use Parker’s deposition, claiming that the situation was an ‘exceptional circumstance’ within the purview of A.R.C.P. Rule 26(d)(3)(v) ....
“Defendant’s counsel objected to the admission of the deposition upon the grounds that the application was untimely, there was no time to resist it and the notice was insufficient. Further objection was made that Mr. Parker’s refusal to testify, honored by the court, did not constitute exceptional circumstances.
“It is our conclusion that Parker’s deposition was essential to plaintiffs’ case and Rule 26(d)(3) should be construed ‘to secure the just, speedy, and inexpensive determination of every action.’ . .. “Defendant’s complaint as to lack of timeliness of the application and insufficiency of the notice was but one factor to be weighed in balancing the interests of the parties. There is no time requirement set forth in Rule 26(d)(3) and we cannot see any dereliction on plaintiffs’ part in this regard. Surely it cannot be argued that use of the deposition at trial could have been requested prior to the occurrence of the ‘exceptional circumstance’ of Mr. Parker’s refusal to testify. ... ” Id. 427 P.2d at 153-54.

While we agree with the Arizona court’s resolution of these issues, we go further. Since a witness who “[i]s exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of his statement” is definitively unavailable, see § 90.804(l)(a), Fla.Stat. (1981), and the witness’s former testimony an exception to the rule against hearsay, see § 90.-804(2)(a), Fla.Stat. (1981), we would hold that such a witness is as unavailable as one who is dead, at a greater distance than one hundred miles from the place of trial or hearing, or unable to testify because of age, illness, infirmity, or imprisonment, see State v. Yates, 442 S.W.2d 21 (Mo.1969), and that, therefore, her court-approved refusal is, as a matter of law, an exceptional circumstance mandating the use of her deposition.

We conclude, therefore, that the hearing examiner erred in finding that the witness was available because physically present and in denying the appellant the right to use the witness’s deposition. Since the deposition testimony of the witness was material and relevant to the stolen food stamp charges against Bennett and would have provided sufficient evidence to support Bennett’s dismissal, we reverse the order of the hearing examiner, which reinstated Bennett to the Department of Health and Rehabilitative Services with back pay, and remand the cause for a new hearing before the Career Service Commission to be conducted in accordance with the views expressed in this opinion.

Reversed and remanded.

      . It appears that the witness’s deposition may also have constituted a statement against interest qualifying it for admission under Section 90.804(2)(c), Florida Statutes (1981).


text:
    SOUTH CAROLINA INSURANCE COMPANY, Appellant, v. Terry PERKINS, Appellee.
    No. 81-2207.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellant.
    Virgin, Whittle & Garbis and Gary Gar-bis, Miami, for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Upon consideration of the appeal and the cross-appeal, we affirm the order entered by the trial court.


author: HENDRY, Judge.

text:
    Alamelu AJI and Mandayan Krishnan, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 81-2351.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.

      Philip Freidin, Miami, Robert Rossano, North Miami, and Judith Reich, Brumer, Cohen, Logan & Kandell and Stewart Logan, Miami, for appellants.
    Spencer & Taylor, W. Thomas Spencer and Donald Homer, Miami, for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   HENDRY, Judge.

Alamelu Aji and Mandayan Krishnan appeal from a final declaratory judgment finding that Krishnan’s homeowner’s policy with Allstate did not afford coverage for the bodily injuries of the decedent, Narasi-mha Aji.

The facts are derived from a stipulation of facts and evidence executed by all parties. In December, 1979, Narasimha Aji (Aji) immigrated to the United States from India. His wife, Alamelu, was to follow after obtaining clearance for their newborn child. While in this country, Aji stayed with his sister and her husband, Mandayan Krishnan, in their apartment. After Aji found employment, he continued to reside with the Krishnans, moving with them to their newly purchased home in January, 1980. Aji did not pay rent or contribute to household expenses. On March 6, 1980, Aji’s wife and child arrived and stayed with the Krishnans. Aji had been looking for an apartment for his family, and had plans to show his wife apartments the day after the fatal accident. On March 9, 1980, Aji drowned while swimming with Mr. Krish-nan in a lake behind the home. Mrs. Aji filed a wrongful death action against Mr. Krishnan and Allstate, which was stayed pending a determination of the coverage question in Allstate’s separate declaratory judgment action. The relevant policy provisions concerning coverage state:

“ ‘Insured person’ means you and if a resident of your household, any relative and any dependent person in your care.” ******
“... we do not cover bodily injury to any insured person . ... ”

The trial court entered final declaratory judgment for Allstate, finding that on March 9,1980, the deceased, Narasimha Aji, was a resident relative of the household of the insured, Mandayan Krishnan, and thereby excluded from the bodily injury coverage provided by Allstate’s policy.

We conclude that substantial, competent evidence, and the law, reasonably support the finding of the trial court that the decedent was a resident relative of the insured’s household at the time of his death. See Delgado v. Strong, 360 So.2d 73 (Fla.1978); Jovanovich v. Aero-Tech, Inc., 277 So.2d 555 (Fla. 3d DCA 1973); Becklin v. Travelers Indemnity Co., 263 So.2d 629 (Fla. 1st DCA 1972); General Guaranty Insurance Co. v. Broxsie, 239 So.2d 595 (Fla. 1st DCA 1970); cf. Puente v. Arroyo, 366 So.2d 857 (Fla. 3d DCA), cert. denied, 376 So.2d 75 (Fla.1979) (child visiting with relative for short period during summer vacation was not “resident” of relative’s household within coverage provisions of homeowner’s insurance policy). Accordingly, the final declaratory judgment finding no coverage is affirmed.

Affirmed.


text:
    Larry Dean ZAVAL, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2567.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.

      Norman F. O’Rourke, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Appellant-defendant appeals from an order of the Circuit Court of Monroe County, Florida denying a motion to suppress tangible evidence, i.e., marijuana, which was seized when defendant’s van was stopped by officers of the sheriff’s department of Monroe County.

The stop was based on information received by the deputies via communications with another deputy, who had been informed by the communications center that an individual had called concerning objects being loaded from a boat into a van. Based upon this information and a description of the van, the appellant was stopped by the deputies. Upon being stopped, the appellant allowed the deputies to look into the back of the van; whereupon a deputy saw what he believed to be marijuana. A strong odor of marijuana had been detected immediately upon making the stop and approaching the driver. Subsequently, a search of the van took place and marijuana packaged in burlap and plastic bags was seized.

Appellant’s contentions on appeal are (1) that the stop of the appellant’s vehicle was illegal and the evidence seized as a result of the stop should have been suppressed; (2) that the appellant did not knowingly and intelligently consent to the search of his vehicle and the contents thereof; and (3) that the scope of the search conducted by the deputies went beyond any alleged consent given by the appellant, and that the opening of the burlap bags itself warrants suppression of the marijuana.

We have reviewed the record and considered appellant’s contentions and have found them to be without merit. United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d - (1982); Hetland v. State, 387 So.2d 963 (Fla.1980); State v. Perera, 412 So.2d 867 (Fla. 2d DCA 1982); Plant v. State, 407 So.2d 966 (Fla. 1st DCA 1981); State v. Francois, 355 So.2d 127 (Fla. 3d DCA 1978).

The judgment and sentence are affirmed.

Affirmed.


text:
    Morris RAPPS, as Guardian of Joseph Fader, Incompetent, Appellant, v. Mario Diaz CRUZ and Carmen Diaz Cruz, Appellees.
    No. 81-2716.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    Burt E. Redlus, Miami, for appellant.
    Peters, Maxey, Short & Morgan and Wirt T. Maxey, North Miami, for appellees.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Gill v. Livingston, 158 Fla. 577, 29 So.2d 631 (Fla.1947); Steen v. Scott, 144 Fla. 702, 198 So. 489 (Fla.1940); Taylor v. Rosman, 312 So.2d 239 (Fla. 3d DCA 1975); Arvanetes v. Gilbert, 143 So.2d 825 (Fla. 3d DCA 1962); Lipkin v. Bonita Garden Apartments, Inc., 122 So.2d 623 (Fla. 3d DCA 1960).


text:
    Nelson KOWALCZYK, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-1219.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    Nelson Kowalczyk, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Horace DUPREE and Judy D. Dupree, Appellants, v. STATE of Florida, Appellee.
    No. ZZ-37.
    District Court of Appeal of Florida, First District.
    July 20, 1982.

      Phillip J. Padovano, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The appellants in this case are father and daughter. Their convictions arose out of an incident which occurred when a deputy sheriff came to their home to serve a warrant for the arrest of a visitor and they intervened on behalf of the visitor.

Two of the charges made against appellants were resisting arrest with violence, pursuant to Section 843.01, Florida Statutes (1979), and battery on a law enforcement officer, pursuant to Section 784.-07, Florida Statutes (1979). The issue raised as to these charges is whether the trial court erred in denying appellants’ motion to compel election between counts made at the close of the state’s case and renewed at the end of all the evidence. We think not.

Appellants cite in support of their contention that it was error the cases of Soverino v. State, 356 So.2d 269 (Fla.1978), and Meeks v. State, 369 So.2d 109 (Fla. 1st DCA 1979). In Soverino the Supreme Court stated that the statutes at issue frequently overlap and “a prosecutor is imbued .. . with the discretion to decide under which statute he wishes to charge.” In Meeks this court held that under the facts of that case, the defendant was chargeable under either Section 784.07 or 843.01. Appellants reason that since appellants may be charged under either statute, they may not be charged under both, but acknowledge that they can cite no Florida case which so holds.

Appellants’ argument and characterization of the evidence presented at trial establishing identical proof for both offenses ignores the fact that the crimes, as charged, specified different acts committed by them in support of the offenses. The charge in Count I was that appellants resisted arrest with violence by pushing and holding the deputy sheriff and attempting to get his firearm. The charge in Count II was that they committed a battery on the law enforcement officer by striking and attempting to choke the deputy sheriff. There is no contention in this appeal that the evidence is not sufficient to support the convictions. Thus, under the circumstances of this case, the offenses do not overlap and the proof required is not identical. Compare, Walker v. State, 386 So.2d 630 (Fla. 5th DCA 1980).

In affirming the action of the trial judge, we need not reach and do not reach the question of whether it would have been error to deny the motion to compel election of counts if the offenses did overlap.

Appellants’ argument on this point also asserts that when two crimes arise out of the same criminal act, the defendants cannot be charged twice for the same act. This contention ignores the existence of Section 775.021(4), Florida Statutes (1979).

The second issue raised is the denial of the motion for a judgment of acquittal on the charge of aiding or assisting a person to escape, pursuant to Section 843.12, Florida Statutes (1979). Appellants urge that in order to prove aiding an escape the state must establish that there was custody and that it was lawful.

The relevant evidence established that the deputy sheriff had a warrant for the arrest of Kenneth Durrance, the Duprees’ visitor, and that when he attempted to arrest Durrance a struggle ensued and the Duprees intervened. At one point Dur-rance got away and ran, but the deputy sheriff caught him and wrestled him to the ground, at which point Judy Dupree placed a pair of binoculars taken from the deputy’s automobile around the deputy’s neck and tightened the strap. Others then came to the deputy’s aid.

Appellants contend first of all that there was no evidence that the custody was lawful because the state failed to prove that the arrest warrant was valid. The circumstances here are distinguishable from those present in Abbott v. State, 326 So.2d 204 (Fla. 1st DCA 1976), and Maggard v. State, 226 So.2d 32 (Fla. 4th DCA 1969), where it was shown that the persons who escaped were “prisoners” or were confined, but where it was not shown that the confinement was lawful. Here, the evidence was that the deputy sheriff had placed or was placing Durrance under arrest and that he had verified that there was an arrest warrant out for Durrance. In the absence of evidence to the contrary, custody pursuant to an arrest warrant will be presumed valid. Compare, Parrish v. State, 90 Fla. 25, 105 So. 130 (1925).

As for the challenge to the proof that Durrance was in fact in custody, we point out that the actual offense is defined by Section 843.12, as including aiding an escape or attempted escape from an officer or person “who has or is entitled to the lawful custody of such person.” We think it clear that an officer serving an arrest warrant is entitled to custody of the person named in the warrant. Accordingly, we find the challenge to the conviction for aiding an escape to be without merit.

AFFIRMED.

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

      . We are not here asked to rule on the propriety of entry of judgment and sentence on both offenses or on the sufficiency of the evidence.

      . However, Horace Dupree was convicted of the lesser included offense of assault on a law enforcement officer, not the battery. Judy Du-pree was convicted as charged.


text:
    R. P. HEWITT & ASSOCIATES OF FLORIDA, INC. and Lumbermens Mutual Casualty Company, Appellants, v. Betty McKIMIE, Appellee.
    No. AE-147.
    District Court of Appeal of Florida, First District.
    July 20, 1982.

      Robert C. Barrett of Cooper & Rissman, P. A., Orlando, for appellants.
    Curtis B. Goff, Orlando, for appellee.
   PER CURIAM.

The employer/carrier appeal an order of the deputy commissioner finding the claimant’s injuries resulted from her industrial accident, and awarding temporary total disability benefits. We affirm in part and reverse in part.

Claimant suffered three accidents only the last of which was job-related. The first two occurred in May of 1980. The industrial accident occurred in June of 1980. All three were “twisting” injuries to the left knee. The claimant testified that all three accidents caused inflammation and pain of the left knee, but that the third accident was the most painful. After this accident, she felt “very sick,” as though “something in the knee had torn.” This testimony is bolstered by the fact that, following this third accident, she submitted to an arthro-gram because of her increased discomfor-ture. She had previously avoided this procedure because of a fear of needles.

The claimant continued to work after each of these accidents until January 15, 1981, when she entered the hospital with a suspected heart attack. She remained there until January 20,1981. Her knee was not treated in the hospital.

In March of 1981, Dr. Uricchio operated on the claimant’s knee, and discovered a torn medial meniscus which he repaired. This tear was not revealed by the arthro-gram to which claimant submitted following her third accident.

In the absence of objective findings following claimant’s three accidents, Dr. Uric-chio was unable to say with any degree of certainty which accident was the cause of the tear. In response to a hypothetical question propounded by counsel for the employer/carrier, which required the doctor to assume that the claimant’s complaints remained the same following each of her three accidents, the doctor opined that her first accident was the most likely cause of her injury.

Dr. Zilioli saw the claimant after her first and second accidents. He responded to the same hypothetical with the opinion that the first accident could not possibly have caused the injury, and that the second accident was the most likely cause of the tear. Since he had not seen the claimant after her third accident, he would defer to the treating physician on this question.

The deputy commissioner rejected the opinion of both doctors, relying on the claimant’s testimony that her third accident was the most serious of the three, and her discomforture significantly increased after this accident. Under the facts of this case, we cannot say that he erred in doing so.

The deputy erred, however, in awarding temporary total disability benefits from January 15, 1981, “to the date of this hearing and continuing until such time as she returns to work or reaches maximum medical improvement.” Temporary disability is the healing period during which a claimant is totally or partially unable to work due to his injury. Cornelius & Sons, Inc. v. McGrew, 387 So.2d 508 (Fla. 1st DCA 1980); Corral v. McCrory Corporation, 228 So.2d 900 (Fla.1969). The claimant would not be entitled to temporary disability benefits during the time she was in the hospital for a condition unrelated to her industrial injury. Further, temporary total disability is payable only until the time the claimant is no longer entitled to that class of benefits. Pinellas County Board of County Commissioners v. Jomo, 394 So.2d 214 (Fla. 1st DCA 1981).

Accordingly, that portion of the order which awards temporary total disability benefits is vacated, and the cause is remanded to the deputy with instructions that he reconsider the award of temporary total disability in light of this opinion. In all other respects, the order of the deputy is affirmed.

REVERSED in part, AFFIRMED in part.

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

      . An expert opinion based on facts not supported by the record cannot constitute proof of the facts necessary to support the opinion, and is not competent substantial evidence. D’Avila, Inc. v. Mesa, 381 So.2d 1172 (Fla. 1st DCA 1980). A deputy may consider lay testimony and his view of the claimant, and his conclusions may be based on testimony of the claimant to the exclusion of that of a medical expert. Crowell v. Messana Contractors, 180 So.2d 329 (Fla.1965). Lay testimony is of probative value to establish the necessary causal relationship between the accident and the injury where the conditions and symptoms are within the actual knowledge and sensory experience of the claimant. Cf., Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980). Here, the claimant’s condition and symptoms were within her actual knowledge and sensory experience, and the rejected medical opinions were based on a view of the claimant’s symptoms which was not supported by the record.

      . The order of the deputy commissioner awarded temporary total disability benefits from “July 15, 1981.” It is clear from a reading of the order as a whole, that the deputy intended to award benefits from January 15, 1981, the date the claimant entered the hospital.


author: WENTWORTH, Judge.

text:
    Troy Overton RHOADES, Appellant, v. Clara Grace RHOADES, Appellee.
    No. AH-371.
    District Court of Appeal of Florida, First District.
    July 20, 1982.
    Thomas E. Stone, Madison, for appellant.
    Stephen A. Smith of Smith & Smith, Lake City, for appellee.
   WENTWORTH, Judge.

This is an appeal and cross-appeal from an order modifying a final judgment of dissolution. The appealed order reduced the amount of the husband’s child support obligation but left intact an award of $200.00 per month permanent periodic alimony. The husband appeals the alimony award; the wife cross-appeals the modification of the child support obligation. We affirm the alimony award, but reverse the reduction in child support.

In the final judgment of dissolution, custody of the parties’ younger child was awarded to the wife and the husband was ordered to pay $200.00 per month support in addition to the $200.00 per month in alimony. By way of a motion for rehearing, the husband sought reconsideration of the alimony award alleging that such an award was contrary to the evidence. In particular, the motion referred to the fact that the wife had brought four minor children into the marriage whom the husband had provided for until they reached their majority.

Pursuant to this motion, the order modifying final judgment was entered. In pertinent part it held as follows:

2. On rehearing the Court finds that it failed to give proper consideration to the contributions made by the Respondent-Husband to the support of the minor children by the Wife’s previous marriage in determining the equities between the parties, therefore, it is ORDERED that said Final Judgment entered herein be and the same hereby is amended to provide that the support of the minor child of the parties shall be reduced from the sum of $200.00 per month to the sum of $150.00 per month, nunc pro tunc to September 1, 1981.

Such equitable considerations as the husband’s contribution to the support of the wife’s children by a previous marriage, all of whom were independent at the time of the dissolution, have no bearing on the needs of the parties’ minor child or the husband’s present ability to pay. Therefore, it was error to reduce the husband’s support obligation on that basis, and the modification of the final judgment is reversed.

The award of permanent periodic alimony is supported by competent substantial evidence, and the husband has demonstrated no abuse of discretion on the part of the trial judge warranting interference by this court. It is therefore affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

BOOTH and WIGGINTON, JJ., concur.


text:
    CITY OF FORT LAUDERDALE, Appellant, v. Grady FLANDERS, Appellee.
    No. AH-449.
    District Court of Appeal of Florida, First District.
    July 20, 1982.
    Albert P. Massey, III, of Pyszka & Kes-sler, Fort Lauderdale, for appellant.
    Marvin J. Kristal, North Miami, of Ira J. Druckman, P. A., Miami, for appellee.
   McCORD, Judge.

Appellant employer appeals the deputy commissioner’s order directing employer to pay the medical bills of Dr. Centrone, who performed an unauthorized operation on ap-pellee. We reverse.

Appellee injured his back in a June 12, 1979, work-related accident and thereafter received authorized medical treatment. In October 1979, he was seen by Dr. Centrone for authorized evaluation and tests. Dr. Centrone recommended back surgery. In December 1979, appellant had appellee examined by Dr. Sheffel, a neurosurgeon. Dr. Sheffel recommended against surgery. Appellant then denied further authorization of Dr. Centrone and specifically authorized further treatment from three other doctors, including Sheffel. In March 1980, appellee requested that the deputy commissioner appoint another evaluating physician. On May 1, 1980, the deputy commissioner authorized Dr. Woolsey who, after examination, recommended against surgery. Several times, appellee sought authorization of Dr. Centrone. Each time, appellant refused authorization but continued to authorize treatment from other qualified doctors. By June 16,1980, Dr. Centrone was aware that he was no longer authorized. Nevertheless, on August 21, 1980, he performed the non-emergency back operation on appellee. Ap-pellee did not seek a hearing before the deputy commissioner prior to that surgery for a decision as to whether appellant would be responsible for the bills resulting therefrom.

The evidence is undisputed that appellee’s condition has improved since the surgery. After the hearing, the deputy commissioner accepted Dr. Centrone’s opinion that the surgery was reasonable and necessary and thereupon found that appellant, having failed to provide necessary treatment despite numerous requests by appellee, is responsible for the medical bills incurred.

Section 440.13(2), Florida Statutes, provides:

If an injured employee objects to the medical attendance furnished by the employer, it shall be the duty of the employer to select another physician to treat the injured employee [as was done in this case] unless a deputy commissioner determines that a change in medical attendance is not for the best interests of the injured employee; however, a deputy commissioner may at any time, for good cause shown, in the deputy commissioner’s discretion, order a change in such remedial attention, care, or attendance. (Emphasis supplied.)

Section 440.13(1) provides:

If the employer fails to provide [medical treatment] after request by the injured employee, such injured employee may do so at the expense of the employer, the reasonableness and the necessity to be approved by a deputy commissioner. The employee shall not be entitled to recover any amount personally expended for such treatment or service unless such employee shall have requested the employer to furnish the same and the employer shall have failed, refused, or neglected to do so or unless the nature of the injury required such treatment, nursing, and services and the employer or the superintendent or foreman thereof, having knowledge of such injury, shall have neglected to provide the same. (Emphasis supplied.)

In the instant case, although appellant refused to authorize Dr. Centrone, it did not fail to provide medical treatment since it provided appellee alternative medical treatment. Therefore, appellee was not entitled to undergo unauthorized treatment and later have the reasonableness and necessity of that treatment approved after the fact by a deputy commissioner. Appellee should have sought prior approval of the surgery from the deputy commissioner. Compare Mt. Sinai Medical Center v. Lack, 381 So.2d 304 (Fla. 1st DCA 1980), in which the court declared that when the employer was providing alternative medical treatment, the claimant was required to seek authorization for other treatment before the judge of industrial claims after her employer had refused her request for that treatment. Compare also Pinellas County School Board v. Fly, 393 So.2d 610 (Fla. 1st DCA 1980). There the employer refused to authorize one doctor but did authorize another, as in the instant case. This Court determined that the deputy commissioner’s finding that the unauthorized treatment was reasonable and necessary did not excuse the failure to secure the necessary authorization.

REVERSED.

SHIVERS and WIGGINTON, JJ., concur.


text:
    ROCKLEDGE GARDENS & U. S. Fidelity & Guaranty Co., Appellants, v. Thomas R. ADAMS, Appellee.
    No. AJ-168.
    District Court of Appeal of Florida, First District.
    July 20, 1982.
    John R. Gierach, of Gierach & Ewald, Orlando, for appellants.
    Thomas E. Thoburn, Cocoa, for appellee.
   PER CURIAM.

See Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

AFFIRMED.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: ROBERT P. SMITH, Jr., Chief Judge.

text:
    LIPTON PROFESSIONAL SOCCER, INC., a corporation, d/b/a Jacksonville Tea Men, Petitioner, v. Nick MIJATOVIC, Respondent.
    No. AM-154.
    District Court of Appeal of Florida, First District.
    July 20, 1982.
    Peter L. Dearing and Michael G. Tanner of Mahoney, Hadlow & Adams, P.A., Jacksonville, for petitioner.
    Barry L. Zisser of Zisser, Robison, Spohrer, Wilner & Harris, P.A., Jacksonville, for respondent.
   ROBERT P. SMITH, Jr., Chief Judge.

Lipton’s petition for writ of certiora-ri is the proper vehicle for obtaining review of an interlocutory circuit court order denying Lipton’s application, section 682.03, Florida Statutes (1981), “for an order directing the parties to proceed with arbitration . . . . ” Miller Construction Co., Inc. v. First Baptist Church of Live Oak, Inc., 396 So.2d 281 (Fla. 1st DCA 1981); Paine, Webber, Jackson & Curtis, Inc. v. Lucas, 411 So.2d 1369 (Fla. 5th DCA 1982). Respondent Mijatovic’s circuit court claim against Lipton is for $41,500 in salary for performing as a soccer player for Lipton’s team, the Jacksonville Tea Men, during the period November 14, 1981, through February 13, 1982 — the so-called “indoor soccer season” that follows the close of the “outdoor soccer season.” Lipton’s alleged obligation to play Mijatovic for the indoor season, and to pay him additionally for those services, is said to arise from two sources: first, from Mijato-vic’s contract for the period April 1981 to April 1982 with the Washington Diplomats, which Lipton assumed and performed to the extent of paying Mijatovic $41,500 for play in the outdoor season ending in November 1981; and second, from an associated contract, likewise binding Lipton who assumed Washington’s undertakings, by which Washington agreed for a fee of $5,000 to loan Mijatovic to the New York Arrows, through a process of waiving him out of Washington’s North American Soccer League, to play the indoor 1981-82 season for the Arrows at a salary of $41,500.

Whatever Lipton’s obligations to Mi-jatovic were and are, they are said by Mija-tovic to have arisen out of the contract documents exhibited in the record. Though Lipton denies any additional obligation to play and pay Mijatovic beyond November 1981, Lipton does not and indeed cannot deny that the obligation arises if at all out of those contract documents. In explicit terms the Washington (now Lipton) contract with Mijatovic covers the entire period through April 1982, and it explicitly requires binding arbitration of disputes arising under the contract. Too, the record reveals that binding arbitration of contract disputes is required by the collective bargaining agreement between the North American Soccer League, of which both Washington and Lipton are members, and the NASL Players Association, as bargaining agent. Though chapter 682 may not be applicable because the collective bargaining agreement incorporates New York law, see section 682.02, the obligation to arbitrate persists through federal law, 9 U.S.C. §§ 1, et seq., and Florida courts are bound to enforce that obligation. Merrill Lynch, Pierce, Fenner & Smith Inc. v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981).

We therefore GRANT Lipton’s petition for certiorari, quash the circuit court’s order denying Lipton’s motion to require arbitration, and remand with instructions that Mi-j atovic’s claim be remitted to arbitration as provided in the contract documents.

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