author: LARRY G. SMITH, Judge.

text:
    SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Appellant, v. Samuel BLACKSTOCK, Appellee.
    No. AF-230.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.

      Charles A. Williams of Walton, Lantaff, Schroeder & Carson, Miami, for appellant.
    Mark L. Zientz, Williams & Zientz, Coral Gables, for appellee.
   LARRY G. SMITH, Judge.

This is the second time the deputy commissioner has awarded claimant temporary and permanent compensation benefits based upon his determination that the employer’s payments to claimant were pension benefits and did not constitute payment of worker’s compensation benefits. The deputy’s previous award was reversed by the Industrial Relations Commission (IRC), the IRC finding that the evidence showed claimant had been paid compensation benefits due. Southern Bell Telephone & Telegraph Company v. Blackstock, IRC Order 2-3395 (April 11, 1978), cert. den. 368 So.2d 1362 (Fla.1979). On June 11, 1979, a petition for modification was filed based upon a mistake in fact and/or a change in condition; or, in the alternative, a claim for benefits under the provisions of Sections 440.15 and 440.13, Florida Statutes. Again, the deputy commissioner entered an order finding that claimant had not been paid the compensation benefits he was entitled to. Again, the order of the deputy commissioner must be reversed.

In his initial order, the deputy commissioner relied on his examination of claimant’s pay stubs and certain arithmetical computations in arriving at the conclusion that claimant had been paid pension and other benefits and not the workers’ compensation benefits which .he was due. The deputy commissioner ruled that Southern Bell was improperly taking a credit against workers’ compensation benefits in the amount of the pension benefits which claimant received, which is in violation of the holding in Domutz v. Southern Bell Telephone & Telegraph Company, 339 So.2d 636 (Fla.1976). In so ruling, the deputy commissioner ignored the evidence that claimant has never received a pension, but has in fact received supplemental benefits every two weeks in an amount which, added to his workers’ compensation benefits, was equal to one-half of his regular salary. The IRC rejected the deputy commissioner’s reliance on the pay stubs and arithmetical computations as the basis for the finding that the bi-weekly payments represented pension payments only, and instead determined that the evidence showed that compensation payments had in fact been made as compensation payments and not as pension benefits. The IRC noted that unlike the factual circumstances present in Domutz, there was a complete absence of any evidence in the record that claimant was entitled to pension benefits in a specified amount which together with the proper compensation rate would aggregate less than the average weekly wage. In his second order, which we are here being called upon to review, the deputy commissioner found that pursuant to the union contract, claimant has a vested entitlement to pension benefits equal to one-half his regular salary ($230.45), which examination of claimant’s bi-weekly pay stubs showed was being paid and that none of the sum of $230.45 constituted payment of worker’s compensation benefits. Accordingly, claimant, who was stipulated to be permanently and totally disabled, was ordered entitled to temporary total disability benefits until February 13,1976, the date of maximum medical improvement, and permanent total disability benefits thereafter.

Initially, we note that claimant abandoned his contention that he was seeking a petition for modification at the hearing held on October 1,1980 and instead asserted that he was bringing a new claim in this action. However, on appeal, claimant appears to urge a contrary intention. In his brief, claimant argues that the IRC determined the deputy had made a mistake of fact in his initial order and therefore a petition for modification was properly filed in order to bring to the deputy's attention evidence showing claimant’s entitlement to pension benefits in a specific amount. We disagree. The IRC determined that the deputy commissioner made findings of fact contrary to the evidence presented, found that the evidence presented required a ruling on the merits in favor of the employer, and ordered the dismissal of the employee’s claim.

Claimant misapprehends the scope of a petition for modification. Section 440.-28, Florida Statutes, authorizing a petition for modification when there has been a mistake of fact, was not intended to afford claimant a vehicle to relitigate an identical issue which has been previously determined solely upon an increase in the quantum and probative force of evidence in support of a conclusion contrary to that reached by prior determination. Hall v. Seaboard Maritime Corporation, 104 So.2d 384 (Fla. 1st DCA 1958). In limited situations, a petition based upon mistake of fact may be brought when material evidence which adds something new becomes available after entry of an order, and this evidence could not have been discovered at the time of the original hearing and entry of the earlier order. Hughes v. Denny’s Restaurant, 328 So.2d 830 (Fla.1976); Rush Tractor Company, Inc. v. Keene, IRC Order 2-3298 (1977). However, evidence which is merely cumulative to that previously offered upon an identical issue and which adds nothing new is insufficient to show a mistake of fact. Here, the evidence offered before the deputy commissioner was merely cumulative and no new evidence which was not available at the time of the initial order was presented. Accordingly, there was absolutely no basis upon which the deputy commissioner could grant a petition for modification.

Since there was no basis for modification, the IRC Order, as approved by the Supreme Court, is final and governs the resolution of all issues addressed in the pri- or proceeding. While claimant alleges that he brought a “new claim” below, there were no new issues presented to the deputy commissioner. Instead the deputy commissioner permitted claimant to relitigate the identical issue which had been resolved by the prior order of the IRC. As appellant has aptly demonstrated, the deputy commissioner’s order is nothing more than a rewrite of his initial order which was reversed by the IRC. The principles of res judicata, estop-pel and law of the case apply in worker’s compensation to prevent just such a result. Hodges v. State Road Department, 171 So.2d 523 (Fla.1965); and Power v. Joseph G. Moretti, Inc., 120 So.2d 443 (Fla.1960).

Accordingly, the order on appeal is reversed and the cause remanded with directions that the claim be dismissed.

MILLS and SHAW, JJ., concur.

      . The record in the initial proceeding, as determined by the IRC, showed a gross amount paid every two weeks of $230.45 (one-half of the claimant’s regular salary), during periods of both temporary total and permanent total disability. The record further showed that of the gross amount paid during temporary total disability the sum of $112.00 every two weeks was for workers’ compensation and $118.45 for supplemental benefits. During permanent total disability, $145.60 was for workers’ compensation, and $84.85 for supplemental benefits.

      . There is no union contract contained in the Record on Appeal. Presumably, the deputy was relying on Southern Bell’s Employees’ Pensions, Disability Benefits and Death Benefits Plan, a copy of which is contained in the Record on Appeal and which the evidence shows is negotiated as part of the union contract.

      . We do not discuss the law applicable to a petition based upon change of condition as there is no contention here that claimant has suffered a change in condition nor does any evidence exist in the record supporting such contention.

      . There is absolutely no contention and no evidence that the booklet outlining Southern Bell’s Benefits Plan was not available at the previous hearing.

      . In denying certiorari, the Supreme Court considered whether the Commission “acted strictly according to the law” and whether there was “substantial competent evidence” to support the commission order. Knight v. Munday Plastering Company, 220 So.2d 357 (Fla.1968).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Wesley JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. AG-66.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.

      Salvatore D. Mollica, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

■ Jordan appeals his conviction of the offense of trafficking in cannabis, greater than 100 pounds. Section 893.135(l)(a), Florida Statutes (Supp.1980). We affirm.

In his- first point, appellant argues that the state failed to present any competent evidence establishing the weight of the marijuana to be in excess of 100 pounds. However, evidence at the trial that the freshly cut marijuana weighed 440 pounds, and that the plastic and twine used to bundle it weighed about 6 pounds, presented a jury issue. We conclude that the evidence was sufficient to carry the state’s burden of establishing the requisite weight of marijuana beyond and to the exclusion of a reasonable doubt. Purifoy v. State, 359 So.2d 446 (Fla.1978). We reach this conclusion after examination of the numerous cases cited by appellant, but note, in passing, that these cases were decided under the old definition of cannabis, which has been amended,. Section 893.02(2), Florida Statutes (1979), and now reads;

“Cannabis” means all parts of any plant of the genus Cannabis, whether growing or not, the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.

In our view it defies reason and common sense to conclude that over 300 pounds of the matter weighed in the case at hand constituted water and soil. See, Asmer v. State, 416 So.2d 485 (Fla. 4th DCA 1982). The determination of the defense predicated on a contrary assumption presented a matter peculiarly within the province of the jury.

Next, appellant complains that the trial judge erred in failing to grant his mid-trial motion for continuance, so that he might obtain a doctor’s testimony, to explain his failure to appear for trial on a prior occasion. Appellant alleges this error was further compounded when the trial court gave an instruction on flight to avoid prosecution. A motion for a continuance is directed to the sound discretion of the trial judge. Harrelson v. State, 259 So.2d 526 (Fla. 1st DCA 1972). The motion for continuance was made while, the state was presenting its case in chief, and there was nothing to bar trial counsel from making contact with Dr. Krantz, so that he might testify in behalf of appellant during the defense portion of the case. Unlike the circumstances presented in Hawkins v. State, 326 So.2d 229 (Fla. 2nd DCA 1976), cert. den., 336 So.2d 611 (Fla.1976), appellant was not surprised by newly developed evidence. Further, appellant, when he took the stand, testified that he did not appear for his first court date because he was ill, and was following his doctor’s orders. In any event, the instruction on flight was justified by the evidence that upon being accosted by officers at the site of the growing marijuana, appellant ran and jumped on the back of a car, which his wife, who was driving, inadvertently ran into a ditch, thereby foiling the escape attempt. Villageliu v. State, 347 So.2d 445 (Fla. 3rd DCA 1977); Williams v. State, 268 So.2d 566 (Fla. 3rd DCA 1972).

Appellant’s urging of a Sixth Amendment, United States Constitution, violation resulting from the trial court’s denial of his mid-trial continuance, was never brought to the attention of the trial judge. Absent fundamental error, even a constitutional right may be waived if not timely presented. Rubin v. State, 368 So.2d 69 (Fla. 3rd DCA 1979); Ray v. State, 403 So.2d 956 (Fla.1981). This alleged error was not one of fundamental dimension in view of the fact, previously noted, that appellant took the stand and explained that he failed to appear for his first trial because he was ill. The cases relied upon by appellant on this point involve additional compelling circumstances.

With respect to appellant’s argument that improper prosecutorial argument denied him a fair trial, we find that this issue was not preserved for appellate review since appellant did not bring this objection to the trial court’s attention. State v. Jones, 204 So.2d 515 (Fla.1967). Appellant’s reliance on cases holding that fundamental error occurred in the closing argument, is misplaced since a review of these cases reveals the comments were much more prejudicial and clearly neither rebuke nor retraction would cure the error. Appellant’s additional argument that the failure of the public defender to object constitutes state action as does the trial court’s failure to perform its duty of halting improper remarks must also fail as this cannot properly be raised for the first time on direct appeal. Chester v. State, 276 So.2d 76 (Fla. 2nd DCA 1973). We further find no merit in appellant’s contention that the colloquy between the trial court and the witness Franklin Lamar Davis constituted an indirect comment on the credibility of Davis, so as to deprive appellant of a fair and impartial trial. Again, no objection was made to the court’s comments and we do not find this alleged error reaches the magnitude of fundamental error. Worthington v. State, 183 So.2d 728 (Fla. 3rd DCA 1966).

Finally, we conclude that the evidence was sufficient to sustain the verdict. Accordingly, the judgment of conviction and sentence are AFFIRMED.

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

      . Blair v. State, 384 So.2d 685 (Fla. 4th DCA 1980), (state failed to carry its burden to prove possession of more than 100 pounds of marijuana where weight of marijuana admitted into evidence was 197 pounds, 20 ounces, but gross weight included weight of burlap and plastic bags, as well as weight of stems and stalks); McIntire v. State, 381 So.2d 1154 (Fla. 5th DCA 1980), (conviction of possession of more than 5 grams reversed where cannabis weighed 7 grams, including stems, but not including stalks); Woodward v. State, 379 So.2d 664 (Fla. 5th DCA 1980), (Purifoy not violated when conviction for possession of more than 100 pounds upheld, where gross weight of matter recovered was 38,000 pounds, on the grounds that at least 100 pounds of this was prohibited drug); Leavitt v. State, 369 So.2d 993 (Fla. 1st DCA 1979), cert. den., 374 So.2d 101 (Fla. 1979), U.S. cert. den., 444 U.S. 839, 100 S.Ct. 78, 62 L.Ed.2d 51 (1970), (state did not meet its burden under Purifoy where matter weighed 47.2 grams and included seeds, stems and certain sticks); and Kenny v. State, 382 So.2d 304 (Fla. 1st DCA 1978), (evidence substance weighed 1,589 pounds sufficient on which to base conclusion that defendant possessed more than 100 pounds of cannabis, exclusive of mature stalks and stems).

      . In United States v. Barker, 553 F.2d 1013 (6th Cir. 1977), indigent defendants were denied subpoenas for witnesses at government expense; and in Singleton v. Lefkowitz, 583 F.2d 618 (2nd Cir. 1978), cert. den., 440 U.S. 929, 99 S.Ct. 1266, 59 L.Ed.2d 486 (1970), the defendant was denied the opportunity to call a witness who had relevant testimony, and the government had contributed to the unavailability of the witness.

      . Grant v. State, 194 So.2d 612 (Fla.1967), Wilson v. State, 294 So.2d 327 (Fla.1974); and Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. den., 386 So.2d 642 (Fla.1980).


author: SHIVERS, Judge.

text:
    Gail B. GENTZEL, Appellant, v. In re ESTATE OF Alma B. BUCHANAN, Appellee.
    No. AG-303.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.
    George G. Phillips, Pensacola, for appellant.
    Joseph Q. Tarbuck, Pensacola, for appel-lee.
   SHIVERS, Judge.

Appellant Gail Gentzel, daughter of the decedent Alma B. Buchanan, appeals the probate order determining that a' savings and loan association savings account, a commercial bank certificate of deposit, a commercial bank savings account, and a commercial bank checking account, all in the joint names of appellant Gentzel and decedent, are probatable assets of the decedent which pass under the decedent’s will rather than to the appellant Gentzel as surviving account holder. The trial court found that these joint accounts were really the property of the decedent, that the presumption in law favoring the daughter was rebutted by the daughter’s own testimony that she considered the questioned assets to be the decedent’s property that it is clear it was the intention of both the daughter and the decedent that the accounts were opened and maintained for the benefit of the decedent, and that the daughter had no interest in the accounts.

Appellant contends the trial court erred by failing to apply section 665.271, Florida Statutes (1979) and section 659.291, Florida Statutes (1979) to the facts of this case.

We conclude the trial court correctly applied these statutes to this case and there is competent evidence upon which to affirm the trial court’s order.

The decedent Alma B. Buchanan died testate March 17, 1980. Except for a few items of personal clothing and jewelry which she bequeathed to her daughter, the decedent devised her entire remaining estate to her two children, John G. Buchanan and the appellant, Gail B. Gentzel, in equal shares.

The decedent had been badly injured in an automobile accident in 1967 and from the time of her husband’s death in 1974, decedent was maintained in nursing homes in Pennsylvania, California and Florida. She did not reside with her daughter or with her son.

It was dangerous for decedent to walk by herself. She was partially paralyzed on the left side, experienced frequent dizzy spells, and was medicated for seizure activity. After a brain abscess operation in approximately 1971, decedent lost interest in caring for her personal business, gave up playing bridge, and did not want to go anywhere. She had difficulty in swallowing, and the cause of her death was food strangulation.

Following her husband’s death, the decedent gave her daughter power of attorney so that, according to the daughter’s testimony, the daughter “could do all the running,” and the joint accounts were opened then. The money in the joint accounts was later used to open the joint accounts in Pensacola after the decedent moved to a nursing home in Pensacola, the city where the daughter resided.

The daughter testified that the money in all of the questioned accounts was “my mother’s money,” that she, the daughter, had no interest in the accounts.

The daughter declared that it was not until after she talked to her lawyer after her mother’s death that the daughter considered the funds in these accounts to be hers.

The money in the four accounts in question came solely from the decedent’s assets and the daughter did not deposit any of her own money there. Money was expended from the accounts for the decedent.

Section 665.271, Florida Statutes (1979) reads:

When a savings account, other than a convenience account as provided in s. 665.272, is maintained in any association or federal association in the names of two or more persons, whether minor or adult, in such form that the moneys in the account are payable to either or the survivor or survivors, then, in the absence of fraud or undue influence, such account and all additions thereto shall be the property of such persons as joint tenants. The moneys in the account may be paid to or on the order of any one of such persons during their lifetimes or to or on the order of any one of the survivors of them after the death of any one or more of them. The opening of the account in such form shall, in the absence of fraud or undue influence, be conclusive evidence in any action or proceeding to which either the association or the surviv- or or survivors is a party of the intention of all of the parties to the account to vest title to such account and the additions thereto in such survivor or survivors. By written instructions given to the association by all the parties to the account, the signatures of more than one of such persons during their lifetime or of more than one of the survivors after the death of any one of them may be required on any check, receipt, or withdrawal order, in which case the association shall pay the moneys in the account only in accordance with such instructions, but no such instructions shall limit the right of the survivor or survivors to receive the moneys in the account. Payment of all or any of the moneys in such account as provided in this section shall discharge the association from liability with respect to the moneys so paid, prior to receipt by the association of a written notice from any one of them directing the association not to permit withdrawals in accordance with the terms of the account or the instructions. After receipt of such notice, an association may refuse, without liability, to honor any check, receipt, or withdrawal order on the account pending determination of the rights of the parties. No association paying any survivor in accordance with the provisions of this section shall thereby be liable for any estate, inheritance, or succession taxes which may be due this state.

Section 659.291, Florida Statutes (1979) reads, in pertinent part:

(1) Unless otherwise expressly provided in the signature contract card or other similar instrument delivered to and accepted by a bank in connection with the opening or maintenance of an account, including a certificate of deposit, in the names of two or more persons, whether minor or adult, payable to or on the order of one or more of them or the surviving account holder or holders, all. such persons and each person depositing funds in any such account shall be presumed to have intended that upon the death of any such person all rights, title, interest and claim in, to, and in respect of, said deposits and account and the additions thereto, and the obligation of the bank created thereby, less all proper setoffs and charges in favor of the bank, shall vest in the surviving account holder or holders.
(2) The presumption herein created may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent. In the absence of such proof, all rights, title, interest and claims in, to, and in respect of, said deposits and account and the additions thereto, and the obligation of the bank created thereby, less all proper set-offs and charges in favor of the bank against any one or more of such persons, shall, upon the death of any such person, vest in the surviving account holder or holders, notwithstanding the absence of proof of any donative intent or delivery, possession, dominion, control, or acceptance on the part of any person, and notwithstanding the provisions hereof may constitute or cause a vesting or disposition of property or rights or interests therein, testamentary in nature, which, except for the provisions of this section, would or might otherwise be void or voidable.

As to the bank savings account, checking account and certificate of deposit the facts of this case clearly show the trial court to be correct in finding the presumption of right of survivorship overcome by clear and convincing proof of contrary intent. Section 659.291 makes explicit provision for such a finding. More problematical is the savings account maintained in the Pensacola Home and Savings Association, a savings and loan association. Section 665.271 appears to create a mandatory, irrebuttable presumption of the intent of the parties to create a right of survivorship. We conclude, however that on the facts of this case, section 665.271 does not apply.

In order for section 665.271 to apply the account must be “maintained ... in such form that the moneys in the account are payable to either or the survivor or survivors.” The signature card entitled “Original Contract” from the Pensacola Home and Savings Association is signed by both decedent and appellant. Nowhere in that contract, however, is provision made for right of survivorship. Even the words “joint tenants” are conspicuously absent from the signature card. From the four corners of this instrument which created the account, it is impossible to tell whether the parties intended a joint tenancy with right of survivorship, tenancy in common, or a “convenience account,” i.e., an agent and principal relationship under section 665.272, Florida Statutes (1979).

Another statute relevant to this case is section 665.231(2), Florida Statutes (1979):

Each holder of a savings account shall execute a savings account contract setting forth any special terms and provisions applicable to such savings account and the ownership thereof and the conditions upon which withdrawals may be made not inconsistent with the provisions of this chapter.

The Second District Court of Appeal faced a question similar to the one sub judice in Fortman v. Freedom Federal Savings and Loan Association of Tampa, 403 So.2d 985 (Fla. 2d DCA 1981). In Fortman a certificate of deposit was purchased by a man and issued in his name and two others. Nothing on the certificate indicated manner of ownership. A signature card with sur-vivorship language was given to the purchaser to be signed by himself and the others, but at the purchaser’s death the card was unexecuted. The court held that section 665.271 should be read in pari mate-ria with section 665.231(2) and that since the special terms of the signature card contract were not executed, a joint account with right of survivorship never came into existence. This reasoning is even more compelling in a case such as the one at bar. Where the evidence below shows that no right of survivorship was intended, this court cannot overlook the absence of surviv-orship language in the contract of the parties.

This case, as was Fortman, is distinguishable from the decision of the Fourth District Court of Appeal in Teasley v. Blankenberg, 298 So.2d 431 (Fla. 4th DCA 1974). In Teasley there was no evidence that the account expressly provided for right of sur-vivorship, nor was there clear and convincing evidence of contrary intent. The court found that because of the savings and loan rules and regulations that the account was held under, the account was maintained in such form as to be payable to either or the survivor or survivors. Thus the mandatory presumption of section 665.271 was applied. In the case sub judice, as in Fortman, there is no evidence to show that there are savings and loan rules and regulations which would automatically cause an account placed in two names, without more, to be a survivorship account.

Appellant’s reliance on Drozinski v. Straub, 383 So.2d 301 (Fla. 2d DCA 1980) is misplaced. Drozinski is inapposite here since in that case there was no question as to whether or not the accounts were joint. Under the facts at bar the account at Pensacola Home and Savings Association would appear to be closer to a convenience account under section 665.272 rather than a joint account with right of survivorship subject to section 665.271. We find it unnecessary to decide whether this account is a convenience account vel non, since we hold that the account is not maintained in such form as to be payable to either or the survivor. There is no error.

AFFIRMED.

ERVIN and WENTWORTH, JJ, concur.

      . Section 665.271, Florida Statutes (1979) (current version at section 665.063(l)(a), Florida Statutes (1981)) applies to savings and loan associations. Section 659.291, Florida Statutes (1979) (current version at section 658.56, Florida Statutes (1981)) applies to banks.

      .The parties have stipulated that the Pensacola Home and Savings Association was at all material times a savings and loan association. It is unclear why the legislature chose to treat bank accounts differently from savings and loan accounts in this situation. See generally, Note, Survivorship Rights in Joint Accounts, 24 U.Fla.L.Rev. 476 (1972).

      . In the criminal law, such irrebuttable presumptions are constitutionally suspect. See, County Court of Ulster County, New York v. Allen, 442 U.S. 140, 157-160, 99 S.Ct. 2213, 2224-26, 60 L.Ed.2d 777 (1979). We express no opinion as to the constitutionality of section 665.271.

      . Personal Representative’s Exhibit No. 6.

      . Current version at section 665.063(7), Florida Statutes (1981).

      . Current version at section 665.0611(2), Florida Statutes (1981).


text:
    VANNICE CONSTRUCTION COMPANY, and American States Insurance Company, Appellants, v. Frank SILVERMAN, Appellee.
    No. AG-352.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.

      John H. Thompson, IV, Earle & Thompson, St. Petersburg, for appellants.
    Stevan T. Northcutt, Levine, Freedman, Hirsch & Levinson, Tampa, for appellee.
   LARRY G. SMITH, Judge.

In this worker’s compensation appeal, the employer/carrier contend the deputy erred in utilizing and relying on Dr. Lossing’s rating which was not based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides). The employer/carrier further urge as error paragraph five of the deputy’s order — which arguably requires them to pay claimant’s psychiatric bills — on the ground that there was no compliance with the reporting requirements of Section 440.13(1), Florida Statutes (Supp.1978). In his cross-appeal, claimant contends the deputy erred in determining his disability solely on the basis of his anatomical impairment without consideration of his loss of wage earning capacity. He also complains that the deputy erred in failing to require payment of his physicians’ bills.

Although the deputy’s reliance on Dr. Lossing’s rating was a technical error, we nevertheless affirm this point because the employer/carrier failed to bring this error to the deputy’s attention during the thirty day period before the order became final. Dade American Hospital Supply v. Perez, 417 So.2d 296 (Fla. 1st DCA 1982). We also affirm without discussion, the deputy’s finding of no wage earning capacity loss in excess of the 35% permanent impairment rating as this is supported by competent and substantial evidence in the record. Next, we find that payment of claimant’s physicians’ bills was a contested issue below and thus the deputy was required to determine whether the reporting requirements of Section 440.13(1) were met, or if not, whether there-was an excuse for noncompliance. The deputy’s failure to make findings in this respect requires reversal on this point. Arkin Building Corporation v. Miller, 401 So.2d 874 (Fla. 1st DCA 1981).

Finally, we construe paragraph five of the deputy’s order as requiring payment of claimant’s psychiatrist’s bill. This was error since the order does not set forth good cause for the psychiatrist’s failure to follow the reporting requirements of Section 440.-13(1). A finding of good cause is a prerequisite to an order for payment of medical services where the statutory reporting requirements have not been met. Thus on remand, the deputy is directed to make findings on the existence or nonexistence of good cause which would excuse the psychiatrist from timely filing his medical reports. Cedars of Lebanon Health Care Center, Inc. v. Summerset, 409 So.2d 185 (Fla. 1st DCA 1982).

Accordingly, the order is AFFIRMED in part and REVERSED in part and REMANDED for further proceedings consistent with this opinion.

JOANOS and THOMPSON, JJ., concur.

      . Paragraph five of the decretal portion of the deputy’s order provides:
      The Employer/Carrier shall reimburse the Claimant, or pay directly to the pharmacies, as the case may be, the charges for medications prescribed by the various physicians for the treatment of the Claimant’s traumatically induced seizure syndrome, and the psychiatric care related thereto.

      . On remand, claimant is reminded of the requirement that copies of medical bills are to be introduced into evidence. American Grinding and Equipment v. Rodman, 411 So.2d 917 (Fla. 1st DCA 1982).


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

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, DIVISION OF RISK MANAGEMENT and Crawford and Company, Appellants, v. David MASSILLON and the Division of Workers’ Compensation, Appellees.
    No. AH-178.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.
    Jerry V. Wilkey, Coral Gables, Thomas J. Maida, McConnaughhay & Roland, Tallahassee, for appellants.
    Jay M. Levy of Silver, Levy & Herschoff, Miami, for appellees.
   SHAW, Judge.

The employer/carrier appeal the deputy commissioner’s order finding the claimant to have a 70% permanent partial disability based on loss of wage earning capacity. The claimant cross appeals the partial disability award, arguing that the deputy erred in failing to award permanent total disability benefits. We agree with the claimant.

The deputy commissioner bases his determination that the claimant has sustained a 70% permanent partial disability of the body as a whole upon the following finding:

Considering my above-noted subsidiary findings of fact, including claimant’s age, education, work experience, physical impairment, limitations, lack of post-accident earnings or ability to obtain employment, impairment to compete in the open labor market and unsuccessful work search, it is my determination that the claimant has sustained a seventy (70%) percent permanent partial disability of the body as a whole based upon a loss of wage earning capacity. In arriving at same it should be noted that the claimant is not working at this time and in his current condition it would appear that he is unable to obtain employment in the open labor market. However, as ordered herein, I am requiring that the employer provide the claimant with treatment in the Jackson Memorial Hospital Pain Clinic in an attempt to alleviate and relieve some form of his unremitting and extensive pain. In arriving at the aforementioned loss of earning capacity, I have considered that there will be a reduction in the claimant’s pain level through this treatment, and that he will thus then be able to obtain some form of palliative parttime employment through which he will be able to earn some marginal sums.

The practical effect of such a finding is to reduce a permanent total award to 70% based on the speculation that at some future date there will be a reduction in the claimant’s pain level as a result of treatment rendered by the clinic. Having found that the claimant is unable to obtain employment in the open labor market in his current condition, the deputy cannot in the same breath modify that finding on the basis of some future event that may or may not occur. Such conjecture is not a proper basis for reducing a present award of benefits. Ramon Rivera v. Pumpernicks of Hallandale, IRC Order 2-3670, January 29, 1979. We therefore modify that portion of the judge’s order finding the claimant 70% permanently partially disabled and find him permanently totally disabled. If, as prophesied by the deputy commissioner, the claimant benefits from treatment at the clinic and his pain level is reduced to the point that he is able to obtain employment, the carrier is free to bring this change of condition to the deputy’s attention within the statutory period by way of a petition for modification. The remaining point on cross appeal is AFFIRMED, and the order, as modified, is AFFIRMED.

ERVIN, J., concurs.

ROBERT P. SMITH, C. J., dissents in part with opinion.

ROBERT P. SMITH, Jr., Chief Judge,

dissenting in part.

I would affirm the deputy’s order in its entirety. In my opinion the deputy applied chapter 440 principles consistently with the evidence taken as a whole and in a way responsive to the legitimate needs of this particular claimant. There was considerable medical evidence that claimant’s complaints of disabling pain were either exaggerated or, if wholly genuine, would respond to short term pain treatment that claimant had incentive to believe would be helpful. Thus the award of permanent partial disability benefits, based on a 70 percent loss of wage earning capacity, was designed both to verify claimant’s disability and to declare to him that he could and would respond to brief therapy and return to some gainful occupation. The overriding purpose of chapter 440 being precisely that, I know of no reason why this Court, reviewing the presumptively correct action of a deputy commissioner who was on the scene and sensitive to the unique circumstances of the claim, should quibble over such a detail as the deputy’s prospective assessment that a few sessions at the pain clinic would help both claimant’s back and his will.

What were the alternatives?

To find claimant still temporarily and totally disabled, and to prescribe the same treatment as remedial? That perhaps would have been consistent with a doctor’s testimony that claimant could be considered at maximum medical improvement only if he did not submit to recommended surgery, but such a finding would have offered claimant no inducement to respond to pain treatment and to strive for some working capacity without surgery. Indeed, the deputy obviously considered continued temporary benefits, which were claimed, a clear disincentive to recovery.

Should the deputy have found claimant 70 percent permanently disabled at the time of hearing, based on a permissible evaluation of his loss of wage earning capacity? Such a finding, accompanied by an order for the same palliative pain therapy, would have been verbally neater, but of the same effect as the deputy’s order.

How did this appeal, this cross-appeal, and this judicial labor advance the purposes of chapter 440? The carrier’s appeal, questioning the work search evidence and arguing the effect of medical evidence not accepted by the deputy, resulted in the carrier withholding for the period of this appeal, about eleven months, both the permanent disability payments and the pain treatment. The appeal also produced the cross-appeal, and we by sustaining it place claimant in a position of having little economic incentive to respond to pain treatment belatedly to be gotten. We now place upon the carrier the burden of showing that, through pain treatment and a renewed work search that claimant can make or not as he will, claimant’s wage earning capacity has improved by 30 percent. I rather expect the carrier will not bother to undertake that task.

I view the deputy’s order like so many orders that we similarly remodel, as an attempt to end the litigation with due regard to all competing interests and with reasonable deference to the categorical strictures encrusting chapter 440. The deputy’s acceptance of claimant’s disputed medical testimony rather than the carrier’s, his crediting of claimant’s disputed work search, and his assessment of 70 percent permanent disability at the end of palliative pain treatment, is rather like a sturdy three-legged stool. For a minor internal verbal inconsistency we have removed one leg. So the stool falls over, and claimant, deprived of the healing incentive intended by the deputy, is placed in a practically impregnable condition of compensated total disability. I think our labors here are neither worth the effort nor fulfilling of chapter 440.


text:
    Danny Haines McCORKLE, Appellant, v. STATE of Florida, Appellee.
    No. AM-25.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1982.
    Danny Haines McCorkle, pro se.

      No appearance for appellee.
   PER CURIAM.

Appellant appeals the denial of his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion contained allegations which, if true, constitute grounds for relief under the rule. In denying the motion, the trial judge relied on an affidavit submitted by the attorney who had represented appellant at the time of his conviction and sentence. Although the affidavit contained information which indicated that appellant was not entitled to relief, it was not part of the files and records in the case. The portions of the files and records which conclusively show that appellant is not entitled to relief were not attached to the order denying the motion. The order therefore does not comply with the requirements of Rule 3.850.

The cause is remanded with instructions to the trial court to attach those portions of the record which refute appellant’s claims or to afford him an evidentiary hearing.

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


text:
    BLAND CONSTRUCTION COMPANY and Aetna Life and Casualty, Appellants, v. Thomas WILLIAMS, Appellee.
    No. ZZ-287.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1982.
    Peter C. Burkert of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
    Richard I. Cervelli, Naples, for appellee.
   PER CURIAM.

This is an appeal from an order of the deputy commissioner awarding claimant wage loss benefits pursuant to section 440.-15(3)(b), Florida Statutes (1979). We affirm.

Appellant contends that the deputy commissioner erred in awarding wage loss benefits because claimant failed to conduct an adequate work search and because the anatomical impairment rating was not based on the American Medical Association Guides to Evaluation of Permanent Impairment (AMA Guide). We conclude that there is competent, substantial evidence in the record to support a finding that the work search which claimant conducted was sufficient, thus appellant’s first contention must fail. The applicability of the AMA Guide was not substantially or specifically raised before the deputy commissioner. Therefore, any error pertaining to that issue was not preserved for this court’s review. Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); E. C. Goldman Roofing v. Rogers, Case No. AF-467, Fla. 1st DCA, opinion filed August 23, 1982.

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


author:
ERVIN, Judge.
      WENTWORTH, Judge,

text:
    Robert C. SHERMAN and Michael Adrian Sherman, Appellants, v. STATE of Florida, Appellee.
    Nos. AG-141, AG-142.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1982.
    Larry Byrd, Sarasota, for appellants.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Appellants were charged by information with possessing and importing methaqua-lone. They entered pleas of not guilty and subsequently filed motions to suppress the physical evidence taken from the boat they were using. After a hearing, the motion was denied. Appellants then changed their pleas to no contest on the possession charge, and the state nolle pressed the importation charge. Appellants properly preserved their right to appeal the convictions. We affirm.

On April 13, 1980, Marine Patrol Officers Cook and Whalen were in their office when they observed an 18-foot motor boat coming into the Carrabelle River at about four o’clock on a Sunday afternoon. The weather was bad, and the water was rough. Although the officers did not at that time see anything unusual about the boat, they decided to look further. By the time they got to the landing, the boat was on its trailer and had been pulled up away from the boat ramp, although it was still near the ramp. Officer Cook asked appellants if they would like a safety inspection and was told by Michael Sherman that they did not have the boat registration certificate. Cook then said that he could conduct the inspection without a registration and asked Michael if he had any other identification. Michael did not respond, but produced his driver’s license. Cook testified that he assumed from Michael’s silence that he consented to the inspection. Officer Cook then boarded the vessel to check both for the registration certificate and to determine whether the equipment on board complied with the safety requirements of a boat its size. While doing so, he pulled back a canvas tarp that was covering the stern where he found a man lying on the seat beneath the canvas with a rifle in his hands. Next to the discovered passenger, he also saw some boxes and plastic garbage bags, and inside one of the bags he was able to see some clear, smaller plastic bags containing pills. At this point appellants and the third person were placed under arrest.

In denying the motion to suppress, the court stated:

A full consideration of the totality of the circumstances yields a firm conclusion that effective consent was given to the search of the small boat for the purpose of a safety inspection and that it was pursuant to such search that evidence of unlawful trafficking in controlled substances was revealed.

Although we observe that the evidence before the court was hardly substantial on the question of whether consent was given by Michael Sherman to Officer Cook to board the vessel, cf. Bailey v. State, 319 So.2d 22, 27 (Fla.1975), requiring that evidence of consent be clear and convincing, this is an issue we need not address because we find the evidence was supportive of the lower court’s ultimate determination that the search was legal. The officers unquestionably were authorized by Section 371.58, Florida Statutes (1979), to board the motor boat once they had probable cause to believe that a violation of Chapter 371 had occurred. We consider that the marine patrol officers clearly possessed such belief since neither of the two appellants were able to produce the certificate of registration generally required of all motorboats using the waters of this state, see Sections 371.041 and 371.051(4), Florida Statutes (1979), or give a reason why the boat was exempt from the numbering provisions of Chapter 371. See Section 371.131.

We find nothing in State v. Casal, 410 So.2d 152 (Fla.1982), contrary to our disposition of this case. Although Casal reversed a search on the ground that it found the officers did not have evidence sufficient to give them probable cause to believe contraband was on board the vessel, the facts in Casal are clearly distinguishable from those here. In Casal, after the officers had lawfully boarded the vessel pursuant to consent from its operator, they conducted a search — not “for the limited purpose of checking fishing permits, registration certificates and safety equipment,” Casal, at 155, but expanded the search for the purpose of determining whether the boat carried marijuana, which Casal decided was conducted with neither consent nor probable cause. Although, as stated, the officers in Casal were given consent to board, Casal implicitly recognizes that even in the absence of consent, probable cause to board would exist if the operator was unable to display a certificate of registration: “[T]he state’s interest in random stopping and brief detention of motor boats for the limited purpose of cheeking fishing permits, registration certificates and safety equipment outweighs a person’s interest in being completely free from such limited intrusion.” 410 So.2d at 155. Casal therefore indicates that an inspection of a boat, limited to the purposes specified in Chapter 371, is not an unreasonable search and, therefore, does not contravene the provisions of the Fourth Amendment.

We consider that Section 371.58, Florida Statutes (1979), is a legislative recognition of a lesser standard of probable cause to search than that required in criminal cases. The United States Supreme Court has long countenanced varied standards of probable cause by weighing the need for the intrusion against the scope and goals of the intrusion. See Camara v. Municipal Court, 387 U.S. 523, 525, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). As noted in Marshall v. Barlow’s, Inc., 437 U.S. 307, 308, 320, 98 S.Ct. 1816, 1818, 1824, 56 L.Ed.2d 305 (1978): “Probable cause in the criminal law sense is not required” in instances of an intrusion by a governmental employee for reasons other than a traditional police search for contraband or evidence of a crime. Barlow’s, Inc. involved an inspector working for the U. S. Occupational Safety and Health Administration (OSHA) who sought to inspect an electrical and plumbing installation business for compliance with certain safety requirements. The Court observed that for the purposes of an administrative search, probable cause “may be based not only on specific evidence of an existing violation but also on a showing that ‘reasonable legislative or administrative standards ... are satisfied ....’” 436 U.S. at 320, 98 S.Ct. at 1824 (footnote omitted). Thus, if such standards are clearly defined, warrantless searches may be sustained in furtherance of a regulatory scheme, and the owner of property so regulated “cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.” Donovan v. Dewey, 452 U.S. 594, 601, 101 S.Ct. 2534, 2539, 69 L.Ed.2d 262, 270 (1981).

The theory for permitting a lessened standard of probable cause for the purposes specified under Chapter 371 is somewhat analogous to border searches. Stops and searches conducted in a maritime locale are viewed from a special perspective, United States v. Williams, 617 F.2d 1063 (5th Cir. 1980), and those who venture on the seas are presumed to do so cognizant of the myriad number of regulations designed to promote their safe passage. United States v. Whitmire, 595 F.2d 1303 (5th Cir. 1979), cert. denied, 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980). Customs officials have been granted broad statutory authority to board vessels and conduct inspections. See United States v. Freeman, 579 F.2d 942 (5th Cir. 1978), and 19 U.S.C. § 1581(a). As a result, one’s reasonable expectation of privacy is often less aboard a vessel than on land. United States v. Whitmire, 595 F.2d at 1313; United States v. Ortega, 644 F.2d 512, 514 (5th Cir. 1981).

Once having lawfully boarded the boat, and while conducting an inspection for the limited purposes authorized under Chapter 371, Florida Statutes (1979), Officer Cook saw in plain view methaqualone tablets, which he was then empowered to seize. Plain view is the type of situation, described in Ensor v. State, 403 So.2d 349, 352 (Fla.1981), in which an officer is legally inside, by warrant or warrant exception, a constitutionally protected area and inadvertently observes contraband within the area. The doctrine requires the existence of two discrete factors: (1) the officer’s presence within the constitutionally protected area must have come about through a prior valid intrusion, and (2) the officer’s observations must come about through inadvertence rather than deliberation.

Both factors are satisfied in the instant case. Officer Cook was legally on board the vessel because the operator had failed to produce the required registration certificate; he was legally conducting a search of the vessel, restricted in scope to the purposes delineated in Chapter 371, and while doing so, inadvertently observed the contraband — unlike the situation that occurred in Casal. Compare Albo v. State, 379 So.2d 648 (Fla.1980).

AFFIRMED.

SHIVERS, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting.

I respectfully disagree with the conclusion that the erroneous finding of consent can be disregarded. The record clearly negates the assumption in the majority opinion that Officer Cook boarded the vessel “because the operator had failed to produce the required registration certificate ... and ... inadvertently observed the contraband.” To the question, “Did he have [registration] numbers on his boat?” the officer answered, “Yes, sir,” and stated further that there were no violations apparent before the boarding, that he told appellants the certificate of registration was not necessary, that he had “no authority to make any of these inspections unless there is consent,” and with respect to such inspection of a boat on its trailer “the only way you could do this was to get their consent.”

In addition to my disagreement on the foregoing factual premises, the opinion in Casal, infra, approves only “random stopping and brief detention ... for ... checking registration certificates.” That purpose, in any event, did not exist in this case, which does not involve either an inadvertent observation or a prior valid intrusion. The officer here assumed consent from silence, boarded the boat only because of that erroneously assumed consent and not because appellants were not “able to produce the certificate of registration” which, as noted above, he told them was not required. He commenced his search by removing a tarpaulin before any contraband was observed, which the State does not in this case claim to be inadvertent.

Section 371.58, Florida Statutes (1979), permits an officer to board a vessel with consent of the owner or operator or when he has probable cause or knowledge to believe that a violation has taken place. At no time during the proceedings below or in this court has the State contended that the search in this case was conducted pursuant to a probable cause determination. The State has relied solely on its contention, which was accepted by the trial judge, that the search was pursuant to a § 371.58 safety inspection to which appellants consented. The State contends such inspections are administrative in nature and therefore involve a lesser standard for proving consent than that in Fourth Amendment search and seizure cases. No authority is cited for this assertion, and I would conclude otherwise.

In State v. Casal, 410 So.2d 152 (Fla. 1982), the Supreme Court considered the legality of a non-consensual search after the operators of a boat had in fact consented to the initial boarding by Marine Patrol officers. Significantly, the court noted that § 371.58 did not permit even the initial boarding without consent or probable cause. The court then went on to hold that although the initial boarding was consented to, there was no consent to the subsequent search. Therefore, the officers were precluded from further search unless there was probable cause to believe that a crime was being, or was about to be, committed.

While the opinion is not specific on the subject, it does not differentiate searches under § 371.58 from constitutional consent standards. If a Marine Patrol officer is not permitted to search a vessel under the guise of a § 371.58 inspection after being permitted to board, it follows that consent under that section should also invoke constitutional standards.

The opinion in Casal provided another helpful guide for determining the standard for finding consent under § 371.58 by noting that marine safety inspections are akin to agricultural inspections and stops on the highways. Under § 570.15, Florida Statutes (1979), Department of Agriculture inspectors may obtain a search warrant when access to certain structures and vehicles is refused. Clearly under that section the State has the burden to establish that consent to the search of a vehicle was free and voluntary. Villari v. State, 372 So.2d 522 (Fla. 1st DCA 1979). The consent may not be founded upon a mere submission to apparent authority of an officer, nor will silent acquiescence or cooperation with the officer constitute consent. Id. Thus, the standard for determining consent to an agricultural inspection would appear to be the same constitutional standard applied in other warrantless search situations. See King v. State, 371 So.2d 120 (Fla. 1st DCA 1978); Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978).

Finally, the language of the statute itself provides a guide in determining the standard which should be applied. As already mentioned, there are two situations in which an officer may board a vessel for the purpose of conducting a safety inspection: (1) when there is consent or (2) when there is probable cause to suspect a violation. The term probable cause is itself a constitutional standard for determining when a person’s private property rights may be invaded. By using that term in conjunction with the word consent, I would assume that the legislature intended to apply constitutional standards for determining a valid consent.

The trial court found, and the State does not contest, that appellants had sufficient possessory control to have a reasonable expectation of privacy in the boat. In fact the trial court correctly found that the burden was on the State to prove that a valid consent to the search was given. As previously noted, however, the court found that under the totality of the circumstances the consent was free and voluntary. From my study of the record, when all possible inferences are considered in a light most favorable to the State, the inescapable conclusion is that consent to the search was not proven.

Clearly there was no actual, verbal consent. The appellants cooperated with the officers and may be deemed to have acquiesced to their apparent authority, but as previously noted this has not been considered equivalent to consent. Further, a finding of consent could not have been based on the subjective opinion of Officer Cook that Michael consented to the search by remaining silent. Bailey v. State, 319 So.2d 22 (Fla.1975). Although the opinion of the trial judge contains a lengthy statement of the facts, it does not indicate which facts contributed to the circumstances upon which he based his findings of consent. In my view, the record requires a conclusion that the State failed to prove that a valid consent to the search was given.

The decision of the trial court denying appellants’ motion to suppress should therefore be reversed.

      . Section 371.58, Florida Statutes (1979) (now Section 327.56, Florida Statutes (1981)), provides:
      No officer shall board any vessel to make a safety inspection if the owner or operator is not aboard. When the owner or operator is aboard an officer may board a vessel with consent or when he has probable cause or knowledge to believe that a violation of a provision of this part has occurred or is occurring.

      . Now § 327.56, Florida Statutes (1981).

      . For the purposes of this opinion, I would assume without deciding that the actions of Officer Cook in climbing onto the boat and pulling back the canvas tarp could have been considered proper procedure in performing a § 371.58 safety inspection.

      . Section 570.15 was amended in 1980. § 570.-15, Florida Statutes (Supp.1980).


author: WENTWORTH, Judge. BOOTH, Judge,

text:
    SEACOAST BUILDING SUPPLY and CNA Insurance Co., Appellants, v. Bernard JACKSON, Appellee.
    No. AJ-99.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1982.

      Wendell J. Kiser and W. Michael Miller of Ackerman, Senterfitt & Eidson, Orlando, for appellants.
    Thomas R. Mooney of Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeals an order awarding workers’ compensation benefits for wage loss based on forms timely filed between July 6 and November 6, 1981. Jurisdiction was reserved to classify such benefits as permanent disability “wage loss or temporary total/temporary partial” after receipt of a medical report required by the order “to resolve the question as to the extent or need of further ophthalmological care.” The parties have not noted the patently non-final character of the order. See Mills Electrical Contractors v. Marthens, 417 So.2d 700 (Fla. 1st DCA 1982). Because appellant asserts the absence of essential record predicates for both permanent and temporary wage loss benefits, we elect to treat the issues raised by application of certiorari standards, and in the exercise of that jurisdiction we conclude the order does not depart from the essential requirements of law.

Appellant contends the interim award cannot be sustained as either permanent or temporary disability compensation because of (1) the absence of a specific claim for temporary partial disability benefits, (2) the absence of determination or proof of the prerequisite permanent impairment for permanent disability wage loss, and (3) the lack of eligibility for temporary total disability compensation following claimant’s medical release.

We conclude preliminarily that, upon the conflicting evidence before him, the deputy did not err in reserving jurisdiction on the issue of maximum medical improvement pending receipt of the further medical evaluation authorized by the order. § 440.25(3)(b), Florida Statutes. Without foreclosing the question of future modification by reclassification, we also affirm the interim award (except for the two-weeks’ period conceded by claimant) as one for wage loss for temporary partial disability, because the deputy effectively determined that on the existing record claimant has not reached maximum medical improvement. He found “[t]he claimant is in need of additional remedial care” and expressly rejected the contrary medical testimony. Those factual findings, together with the assessment of claimant’s effort as a “conscientious job search ... made in an attempt to find employment” after his medical release, appear to be within the deputy’s ordinary province on this record. We find no indication that claimant voluntarily limited his income or failed to accept appropriate employment. § 440.15(4)(b), Florida Statutes. Vida Appliances v. Gates, 416 So.2d 1186 (Fla. 1st DCA 1982).

With respect to appellant’s contentions that only temporary total and permanent disability compensation were in issue because the wage loss claims did not refer to temporary partial disability, we find no substantive merit. When, as here, claims for both temporary total and permanent disability wage loss for a defined period are the subject of a hearing, and maximum medical improvement is also in controversy, then the award of wage loss benefits for temporary partial disability is in order because, except for the existence of permanent impairment (not involved in temporary benefits), wage loss standards for temporary partial and permanent wage loss do not differ in any way which impacts the defense of such claims. Due process standards, which dictate specification of benefits in issue, are therefore not infringed because the defense of such a claim is not prejudiced in any way, as might be the case when no wage loss claim is in controversy for the period in question. See Albertson’s Southco v. Williams, 402 So.2d 1342 (Fla. 1st DCA 1981). Cf., Farm Stores v. Dyrda, 384 So.2d 269, 270 (Fla. 1st DCA 1980).

Appellant’s final contention is that the deputy had no jurisdiction and no evidence to make the factual finding that “the employer terminated the claimant because of a valid claim he made for compensation benefits,” as proscribed by § 440.205, Florida Statutes. Cited for reversal on this point is the decision in Piezo Technology v. Smith, “that a deputy commissioner is without jurisdiction to make such a determination unrelated to any pending claim for benefits ... under Chapter 440,” Florida Statutes (emphasis supplied). That opinion concluded that the “Section 440.205 wrongful discharge finding in the case before us is neither a claim for ‘compensation’ nor ‘benefits’ as those terms are used in Chapter 440,” in view of the fact that a prior order had denied all additional benefits for the claim in question. The decision plainly preserved authority in a deputy to consider and find wrongful discharge connected with a pending compensation claim pursuant to his authority under § 440.25(1) to “hear and determine all questions” in respect to a claim for compensation.

Although the order in the present case does not expressly relate the wrongful discharge finding to the claim for compensation based on claimant’s ensuing wage loss, the relevance of such discharge in this case does not appear to be seriously questionable when considered in the context of facts recited by the deputy in the order. The discharge occurred shortly before claimant’s release for return to work, and the deputy clearly had a tenable basis for considering it to be a factor in the following period of unemployment on which the wage loss claim was based.

Appellant’s argument with respect, to the evidence on this issue presents a simple credibility issue resolved by the deputy’s rejection of the employer’s testimony that the claim had nothing to do with claimant’s termination. Employer’s manager testified he was never “able to get information from [claimant] or contact him about the injury,” and that the carrier “had not been able to get ahold of him for a period of time.” Another employer witness stated he told claimant, when he returned from work upon medical release, that he had been fired (sometime before his return) because “[y]ou should have called us and let us know what happened to you,” and because he did not “report to us and let us know what was happening with his case.”

The order rejects these contentions based on evidence of employer’s receipt of regular medical reports, on the fact that termination occurred before any medical release, and on evidence of several contacts by claimant with employer. Because the issue was not jurisdictionally foreclosed before the deputy in this case for reasons above stated, and because of the conflicting and circumstantial nature of the evidence, we are not persuaded that our appellate function requires or permits reversal of the finding in question.

The order is affirmed except with respect to the period of conceded temporary employment, and the cause is remanded for further proceedings consistent herewith.

WIGGINTON, J., concurs.

BOOTH, J., concurs and dissents with opinion.

BOOTH, Judge,

concurring in part and dissenting in part:

I agree that the deputy may reserve jurisdiction to determine maximum medical improvement pending receipt of Dr. Fitzgerald’s report. However, I respectfully dissent from the majority’s affirmance of the award of unclassified benefits prior to the determination of maximum medical improvement; from the majority’s determination that the benefits awarded constituted temporary partial disability benefits, although such benefits were not claimed; and to the affirmance of the deputy’s determination that the employer improperly terminated claimant.

      . 413 So.2d 121 (Fla. 1st DCA 1982). See also Southern Freightways v. Reed, 416 So.2d 26 (Fla. 1st DCA 1982). Cf., Publix Super Markets, Inc. v. Dean, 416 So.2d 12 (Fla. 3d DCA 1982).


text:
    David Andrew STEWART, Appellant, v. STATE of Florida, Appellee.
    No. AJ-455.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1982.
    Paul G. Komarek, Panama City, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

AFFIRMED. See United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Grimes v. State, 416 So.2d 488 (Fla. 1st DCA 1982).

McCORD, BOOTH and WENTWORTH, JJ., concur.


text:
    Raymond F. McMAHON, Appellant, v. STATE of Florida, Appellee.
    No. AM-343.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1982.
    Appellant pro se.
    Walter M. Meginniss, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See In re Estate of Beeman, 391 So.2d 276 (Fla. 4th DCA 1980); Fiber Crete Homes, Inc. v. Division of Administration, Department of Transportation, 315 So.2d 492 (Fla. 4th DCA 1975).

MILLS, ERVIN and WIGGINTON, JJ., concur.


text:
    Isaac MUHTAR and Hilda Rosenblatt, Appellants, v. Aaron GOLDMAN, Appellee.
    No. 80-2392.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1982.
    Rehearing Denied Oct. 8, 1982.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, Norman Schwarz, Miami Beach, for appellants.
    Eli Breger, North Miami Beach, and Melvin I. Muroff, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal taken by the seller of real property from an adverse final judgment of specific performance, as amended, entered by the trial court below in favor of the buyer of said realty. We have carefully and painstakingly examined the evidence adduced at the trial below to determine whether sufficient evidence was presented to support the final judgment. We conclude that no such evidence was presented in this record and reverse.

The law is well-settled that “in a suit for specific performance of an alleged contract for the sale of real estate the plaintiff must do more than merely prove his case by a preponderance of the evidence, but he must prove the contract as alleged in his complaint by competent and satisfactory proof which must be clear, definite and certain.” Miller v. Gardner, 144 Fla. 339, 198 So. 21, 23 (1940), quoted with approval in Miller v. Murray, 68 So.2d 594, 596 (Fla. 1953); see also Hi-Acres Groves, Inc. v. Bassett, 338 So.2d 1076, 1077 (Fla. 4th DCA 1976); Scott v. Anchor Inn Apartments, Inc., 282 So.2d 640 (Fla. 1st DCA 1973). Stated differently, “the granting of a final decree in a specific performance suit requires that the proof be clear, competent, and satisfactory. This test imposes a greater degree of proof than that required under the preponderance of evidence rule.” Humphrys v. Jarrell, 104 So.2d 404, 410 (Fla. 2d DCA 1958). This law applies with particular force to a parol contract where the requirements of definiteness, certainty and completeness are especially applicable. 29A Fla.Jur., “Specific Performance” § 27, at 613 (1967); see Muller v. Gables Racing Ass’n, 142 Fla. 834, 196 So. 864, 867 (1940).

In the instant case, suit was brought by the buyer Aaron Goldman seeking specific performance on a written contract, as orally modified, for the sale of real property against the sellers Isaac Muhtar and Hilda Rosenblatt. The case here turns on the alleged oral modification of the contract, for it is asserted that the sellers breached this oral modification. At trial, the parties hotly contested whether any such oral modification had taken place. The written contract herein specifically provided that the sellers’ liability for premises repairs was limited to $1,000. Notwithstanding this contractual provision, the buyer Aaron Goldman testified below that sometime pri- or to October 4, 1979, the intended closing date here, he had a conversation with Leon Rosenblatt — the seller Hilda Rosenblatt’s son and manager of the subject apartment premises — wherein it was agreed that the sellers would put $10,000 in escrow for any repairs which might be needed for the sub-' ject apartment building; no additional consideration was apparently agreed upon for this alleged escrow promise. Leon Rosen-blatt, in turn, flatly denied this testimony and stated at trial that he at no time made any such agreement. It is undisputed that the closing broke down in this case when the sellers denied any verbal agreement to escrow $10,000 for premises repairs and would only put up $1,000 for such repairs in accord with the written contract. The buyer refused to close on that basis and subsequently brought this suit.

We conclude, after a careful examination of the record, that the buyer Aaron Goldman did not prove by the requisite burden of proof required in specific performance cases that the written contract here was orally modified so as to require $10,000, instead of $1,000, for premises repairs. The oral modification was not established below by competent and satisfactory proof which was clear, definite and certain; on the contrary, the proofs presented below on this issue were thin, contradictory, and in no way enough to satisfy a burden greater than a preponderance of the evidence. The sole evidence below of the existence of the subject modification was the uncorroborated testimony of an interested witness, the buyer Aaron Goldman; that testimony, in turn, was flatly denied by the sellers’ alleged agent Leon Rosenblatt. The asserted modification was entirely parol and was in no way reduced to or evidenced by a writing of any kind. Moreover, no additional consideration was given for this alleged change from the written contract, although one might have expected same, given the substantial nature of the asserted change. And, finally, the sellers denied the existence of the oral modification at the closing in this case when they were first informed of same. Under these circumstances, we cannot say that the alleged oral modification to the subject contract was established below by the requisite degree of proof necessary to support , a specific performance decree.

The final judgment of specific performance under review, together with the incidental damages awarded therein, is, accordingly, reversed and the cause is remanded to the trial court with directions to enter a judgment in favor of the defendant sellers Isaac Muhtar and Hilda Rosenblatt.

Reversed and remanded.


text:
    Calvin BUTTS, Appellant, v. STATE of Florida, Appellee.
    No. 81-2015.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1982.

      Bennett H. Brummer, Public Defender and William A. Meadows, Jr. Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

We affirm the convictions and sentences in all respects except for the sentence imposed in count eight of the information which is a lesser included offense of count two of the information, armed robbery. Multiple sentences for a lesser included offense are precluded by State v. Monroe, 406 So.2d 1115 (Fla.1981); State v. Hegstrom, 401 So.2d 1343 (Fla.1981); Section 775.-021(4), Florida Statutes (1979).

Consistent with our certification in Marshall v. State, 413 So.2d 872 (Fla.3d DCA 1982), we certify to the Supreme Court as a matter of great public importance the question of whether the trial court is empowered to impose separate punishments for the statutory offenses relating to the use of a firearm during the commission of a felony and the commission of that same felony by the use of a firearm.

Affirmed in part, reversed in part and remanded with directions to vacate the sentence only for unlawful possession of a firearm.


author: HUBBART, Chief Judge.

text:
    J. R. FURLONG, INC., d/b/a Joe Martino Chrysler-Plymouth, Appellant, v. CHRYSLER CORPORATION, Appellee.
    No. 81-2117.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1982.
    Leib & Martinez and Karl J. Leib, Coral Gables, for appellant.

      Mershon, Sawyer, Johnston, Dunwody & Cole and William J. Dunaj and Felice K. Schonfeld, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   HUBBART, Chief Judge.

This is an appeal from a final order dismissing with prejudice a complaint for attorneys’ fees filed pursuant to Section 320.-641(5), Florida Statutes (1981). The basis for the dismissal below was the trial court’s conclusion that the above statute was unconstitutional based on due process and equal protection grounds. We cannot agree and reverse.

I

In the instant case, the plaintiff J. R. Furlong, Inc., d/b/a Joe Martino Chrysler-Plymouth, filed a complaint seeking an award of attorneys’ fees under Section 320.-641(5), Florida Statutes (1981), against the defendant Chrysler Corporation in the Circuit Court in and for the Eleventh Judicial Circuit of Florida. Specifically, the complaint alleged, in relevant part, as follows:

“4. Plaintiff is entitled to relief against Defendant upon the following facts. On or about April 3, 1978, CHRYSLER, a licensee under Section 320.61, Florida Statutes, notified its franchise dealer, FURLONG, a duly licensed dealer pursuant to Section 320.27, Florida Statutes, of its election to cancel and terminate, ninety days from the date of delivery of notice of termination on April 3, 1978, of its Chrysler and Plymouth Direct Dealer Term Sales Agreement with FURLONG, a copy of which is attached hereto and made a part hereof as Plaintiff’s Exhibit “A”. The specific reason for termination, as set out in said letter, was that FURLONG had failed to fulfill its minimum sales responsibility pursuant to Paragraph 7 of the Chrysler and Plymouth Direct Dealer Term Sales Agreement dated June 28, 1976.
5.One [sic] June 12, 1978, FURLONG filed with the Department of Motor Vehicles of the State of Florida, pursuant to Section 320.641(3), Florida Statutes, a verified complaint in triplicate for determination of unfair discontinuance or cancellation, a copy of which is attached hereto and made a part hereof as Plaintiff’s Exhibit “B”.
6. In the said complaint, FURLONG alleged that CHRYSLER, without due regard to the equities of FURLONG and/or without just provocation, unfairly cancelled the aforesaid agreement contrary to Sections 320.64 and 320.641(3), Florida Statutes.
7. FURLONG prayed that the cancellation of said agreement be determined unfair and that CHRYSLER be enjoined from adversely affecting agreements between itself and CHRYSLER and that FURLONG have such other and further relief, both legal and equitable as the Department may deem meet and proper.
8. The Director of the Division of Motor Vehicles, John D. Calvin, thereafter, by final ordered [sic] dated August 22, 1979, a copy of which is attahced [sic] hereto and made a part hereof as Plaintiff’s Exhibit “C”, ruled pursuant to Section 320.641, Florida Statutes, that CHRYSLER’s attempted cancellation of the Franchise Agreement between CHRYSLER and FURLONG was done in bad faith and constituted an unfair cancellation; and the Director further ordered that FURLONG shall continue to act as the licensed-Chrysler dealer in Vero Beach, Indian River County, Florida, under all of the contractual agreements between the parties thereto.
9. Upon appeal taken by CHRYSLER to the District Court of Appeal, First District, in and for the State of Florida, said court, in a per curium [sic] opinion, dated August 12,1980, a copy of which is attached hereto and made a part hereof as Plaintiff’s Exhibit “C”, affirmed the order of the Director of the Division of Motor Vehicles.
10. Section 320.641(5), Florida Statutes, states that if a motor vehicle dealer prevails against a licensee, in this case CHRYSLER, for unfair cancellation of the Franchise Agreement, said plaintiff motor vehicle dealer shall have a cuase [sic] of action against the defendant licensee for reasonable attorneys’ fees and costs incurred by him in such proceeding for unfair cancellation, a copy of which is attached hereto and made a part hereof as Plaintiff’s Exhibit “E”.
11. FURLONG has demanded payment by CHRYSLER of reasonable attorneys’ fees and costs incurred by FURLONG in such proceeding for unfair cancellation and to date, CHRYSLER has failed to pay Plaintiff FURLONG same.”

Upon proper motion, the trial court dismissed the above complaint with prejudice upon a finding that Section 320.641(5), Florida Statutes (1981), was unconstitutional. This appeal follows.

II

Section 320.641(3), (5), Florida Statutes (1981), upon which the subject complaint was based, provides as follows:

“(3) Any motor vehicle dealer whose franchise agreement is discontinued, canceled, or not renewed may, within such 90-day notice period, file with the department a verified complaint in triplicate for a determination of unfair discontinuation or cancellation. Agreements and certificates of appointment shall continue in effect until final determination by the department of the issues raised in such complaint by the motor vehicle dealer, and no replacement motor vehicle dealer shall be named for this point or location to engage in business prior to the final adjudication by the department on the discontinuation, cancellation, or failure to renew.
(5) If said complainant motor vehicle dealer prevails, he shall have a cause of action against the defendant for reasonable attorneys’ fees and costs incurred by him in such proceeding for unfair discontinuation, cancellation, or failure to renew, pursuant to this section.” [emphasis added]

We think this statute passes constitutional muster both on due process and equal protection grounds.

A

When read in context, Section 320.-641(5), Florida Statutes (1981), provides for “a cause of action” for “reasonable attorneys’ fees and costs” whenever, as alleged here, a “complainant motor vehicle dealer prevails” in its verified complaint filed pursuant to Section 320.641(3), Florida Statutes (1981), with the “department” [Department of Highway Safety and Motor Vehicles, § 320.60(6), Fla.Stat. (1981)]. The trial court, however, in the order under review struck the statute down on due process grounds for being too vague; the trial court concluded that the subject statute “fails to enunciate any standard by which a determination of liability for such fees and costs may be made,” and “does not indicate the conditions' upon which liability may be found to exist.” We cannot agree. The standard for liability on the claim for attorneys’ fees and costs is clearly set forth in the statute: (1) the complainant must be a motor vehicle dealer who has prevailed in his verified complaint filed with the Department of Highway Safety and Motor Vehicles pursuant to Section 320.641(3), Florida Statutes (1981), and (2) the complainant must have incurred reasonable attorneys’ fees and costs in said administrative proceeding. Upon proof of these two elements, the complainant has established a prima facie cause of action for said reasonable attorneys’ fees and costs under the subject statute. We think that the established due process standards requiring reasonable certainty in a statute have been more than satisfied here. Newman v. Carson, 280 So.2d 426 (Fla.1973).

B

The trial court also struck the statute down on equal protection grounds because the statute fails to accord a cause of action for reasonable attorneys’ fees and costs “to a prevailing motor vehicle manufacturer, factory branch, distributor or importer who may prevail against a motor vehicle dealer” in the above-stated administrative proceeding before the Department of Highway Safety and Motor Vehicles. The trial court found no legitimate basis to create a unilateral award of attorneys’ fees and costs to the prevailing motor vehicle dealer here because, in its view, the entire proceeding here is purely “an action between two private parties, with no public interest at issue.” We cannot agree.

If no public interest were at stake here, there would be no need for the extensive regulation undertaken by the legislature of motor vehicle manufacturers, factory branches, distributors or importers, §§ 320.-61 — 320.70, Fla.Stat. (1981), and the entire statutory scheme would be unconstitutional. Obviously, that is not the case, and no effort has been made either below or here to attack the entire legislative scheme. In particular, there would be no need for the legislature to give a motor vehicle dealer some protection against unfair discontinuation or cancellation of his franchise agreements with a motor vehicle manufacturer, factory branch, distributor or importer. § 320.641(3), Fla.Stat. (1981). The legislature, however, has taken the view that this regulation is necessary in order to equalize the conceded difference in bargaining power between the two parties here and to accord some protection to the motor vehicle dealer as the weaker of the two parties. International Harvester Co. v. Calvin, 353 So.2d 144, 147-48 (Fla. 1st DCA 1977). As part of this scheme, the legislature has decided to create a cause of action for any motor vehicle dealer who prevails in his above-stated verified administrative complaint. Quite apart from the wisdom of this policy decision and the corresponding statutory scheme, we cannot say that the legislative decision to provide special protection here for motor vehicle dealers has no reasonable basis; indeed, this legislative scheme has been upheld in Florida and elsewhere against similar constitutional attack. See e.g., New Motor Vehicle Board of California v. Orrin W. Fox Co., 439 U.S. 96, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978); Plantation Datsun, Inc. v. Calvin, 275 So.2d 26 (Fla. 1st DCA 1973); Forest Home Dodge, Inc. v. Karns, 29 Wis.2d 78, 138 N.W.2d 214 (1965). We are, accordingly, of the view that equal protection standards have been more than satisfied here. Newman v. Carson, 280 So.2d 426 (Fla.1973); Hunter v. Flowers, 43 So.2d 435 (Fla.1949).

The final order dismissing the plaintiff’s complaint in this cause is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.


text:
    Errol G. TUBELL, Emile J. Tubell and Virginia Tubell, Appellants, v. DADE COUNTY PUBLIC SCHOOLS, Appellee.
    No. 81-2309.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1982.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Louise H. McMur-ray and Susan J. Cole, Miami, for appellants.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Stephen Stieglitz, Miami, for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Should a cause of action for “educational malpractice” be recognized in the State of Florida? The trial court answered this in the negative by entering a final summary judgment adverse to the plaintiff-appellants herein. We agree and affirm.

The basis of the plaintiff’s complaint was a mistesting and misclassification resulting in the minor plaintiff being placed in an improper special educational program for a number of years to his detriment. We hold that even if these allegations are correct there is no cause of action stated. D. S. W. v. Fairbanks North Star Borough School District, 628 P.2d 554 (Alaska 1981); Smith v. Alameda County Social Services, 90 Cal.App.3d 929, 153 Cal.Rptr. 712 (1979); Peter W. v. San Francisco Unified School District, 60 Cal.App.3d 814, 131 Cal.Rptr. 854 (1976); Hunter v. Board of Education of Montgomery County, 292 Md. 481, 439 A.2d 582 (1982); Hoffman v. Board of Education of the City of New York, 49 N.Y.2d 121, 424 N.Y.S. 376, 400 N.E.2d 317 (1979); Helm v. Professional Childrens’ School, 103 Misc.2d 1053, 431 N.Y.S. 246 (1980); Donohue v. Copiague Union Free School District, 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352 (1979).

The appellants urge that the enactment of Section 768.28 of Florida Statute, (1975), which is the waiver of sovereign immunity statute, in effect permits such an action. We disagree. Zorick v. Tynes, 372 So.2d 133 (Fla. 1st DCA 1979); Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699 (1944); Dodson v. Solomon, 134 Fla. 284, 183 So. 825 (1938); Miener v. State of Missouri, 498 F.Supp. 949 (E.D.Mo.1980); Loughran v. Flanders, 470 F.Supp. 110 (D.C.Conn.1979).

Therefore the summary judgment here under review be and the same is hereby affirmed.

      . While the plaintiffs complaint alleged, in separate counts, causes of action for negligence, false imprisonment, violation of civil rights and equal protection, and violation of state constitutional rights to enjoy and defend life and liberty, to pursue happiness and be rewarded for industry, and denial of due process, the underlying facts pleaded to support each count were, in fact, those that would support a claim for “educational malpractice”, regardless of the nomenclature.

      . Generally the addition of a waiver of immunity statute cannot create a cause of action. Airport Sign Corporation v. Dade County, 400 So.2d 828 (Fla.3d DCA 1981); e.g., Welsh v. Metropolitan Dade County, 366 So.2d 518 (Fla. 3d DCA 1979). Moreover, if there was cause of action for “educational malpractice” in the State of Florida the sovereign immunity defense would still be available under the facts in the instant case because the alleged negligent action was not of the type of conduct that gives rise to a valid cause of action against a public agency. Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979); Ellmer v. City of St. Petersburg, 378 So.2d 825 (Fla.2d DCA 1979).


text:
    Thomas A. PRICE, Appellant, v. FLORIDA NATIONAL BANK OF MIAMI and Thomas W. Kenworthy, Personal Representatives of the Estate of Mary Elizabeth Adams Price, deceased, Appellees.
    No. 81-2587.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1982.

      Hendricks & Hendricks, Coral Gables, for appellant.
    Thomas W. Kenworthy, South Miami, for appellees.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

A surviving spouse appeals an order denying him interest on his elective share of estate assets where twenty-two months elapsed between the date of his wife’s death and tender by the personal representative of his elective share. He claims, in addition, a pro-rata share of the interest income earned by the estate during the course of administration.

The testatrix died on October 19, 1979, and her will was admitted to probate on January 25,1980. Notice of administration was published on January 31, 1980, and on June 26, 1980, appellant filed Election of “Spouse’s Elective Share”. By petition filed January 29, 1981 the personal representative requested an extension of one year in which to close the estate, asserting as grounds “the complexity of the tax matters concerning the estate and the fact that the assets of the estate and interested parties to the estate are located in several states.... ” The court granted the extension ordering that the estate be closed by June 15, 1982. By order entered May 1, 1981, the court found that appellant’s Election of Spouse’s Share was timely filed in that the Personal Representatives had filed an inventory of estate assets on March 10, 1981; the order directed the Personal Representative to satisfy the spouse’s share. On August 20,1981 the personal representatives tendered to appellant a check representing the value of his elective share without interest or pro-rata share of the income earned by estate assets.

Two sections of the probate code appear to control resolution of the question presented. Section 732.207, Florida Statutes (1979) provides:

The elective share shall consist of an amount equal to 30% of the fair market value on the date of death of all assets . .. computed after deducting from the total value of the assets all valid claims against the estate paid or payable from the estate.

The second statutory provision is Section 732.214 which states:

Proceedings on the election.—
On petition of the personal representative or the surviving spouse and after notice and hearing, the court shall determine the amount of the elective share and order its payment in cash or in kind within a time certain from the assets of the estate subject to the elective share. No distribution shall be required until six months from the date of death, when no federal or state tax return is required to be filed, or until the tax return is timely filed when required. The order may provide for partial distributions. On petition of any interested party after notice, the court may suspend distribution of the elective share or any part of it until final settlement of the federal estate tax liabil ity of the estate. Assets distributed in kind shall be distributed at fair market value on the date of distribution, [emphasis supplied]

Although the statute provides that assets distributed in kind shall be distributed at fair market value on the date of distribution, it makes no provision for the surviving spouse to receive interest on his elective share whether distribution is timely or has been suspended.

The appellant argues that it would be inequitable for the beneficiaries of the residuary estate to receive the interest earned on the assets comprising his elective share while the estate is being administered. The argument has appeal but is without support in the statute. The statute specifically directs that where an election is filed, the remaining assets of an estate are to be distributed as though the surviving spouse had predeceased the decedent. § 732.211, Fla.Stat. (1979).

Appellant, however, is entitled to interest on his elective share from May 5, 1981, the date of order directing the personal representative to make payment. The order to pay created a due debt against the estate in favor of appellant which like any other debt, entitled appellant to the principal of the debt plus interest at the lawful rate from the due date. See § 55.03, Fla.Stat. (1979); McNitt v. Osborne, 371 So.2d 696 (Fla. 3d DCA 1979); Parker v. Brinson Construction Company, 78 So.2d 873 (Fla.1955).

Affirmed in part, reversed in part, and remanded for further consistent proceedings.

      . “The elective share is an amount computed without regard to income that may be earned by estate assets and no interest is payable to the surviving spouse by virtue of it. It seems likely, however, that, as with judgments generally, if the personal representative failed to make payment ‘within a time certain’ as prescribed by a judgment entered under § 732.214, interest at the legal rate would be payable. Hanley, Elective Share, Basic Practice Under the Florida Probate Code 264 (2d ed. 1981).


text:
    The STATE of Florida, Appellant, v. Richard JOSEPH, Appellee.
    No. 82-185.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1982.

      Jim Smith, Atty. Gen., Theda R. James, Asst. Atty. Gen., and Scott Silver, Asst. Atty. Gen., for appellant.
    Pollack, Komorowski & Headley and John H. Lipinski, Miami, for appellee.
    Before BARKDULL and SCHWARTZ, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The State appeals from a pre-trial order excluding evidence, the effect of which order is to substantially impair the ability of the state to prosecute its case. We treat the notice of appeal as a petition for writ of certiorari. State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982).

Richard Joseph, while operating an automobile in daylight, committed a traffic violation which was observed by two City of Miami police officers in a patrol car. The officers turned on the patrol car lights, whereupon Joseph sped away with the patrol car in close pursuit. When Joseph made a left turn at an intersection, the officers observed a yellow plastic bag, distinctively marked with black and red stripes, being thrown from Joseph’s automobile. This information was immediately relayed by radio to Officer Walters who was in another patrol car two blocks from the intersection, and who proceeded at once to the intersection where he retrieved a bag matching the description which he had received. Upon opening the bag, he found it to contain cocaine. He then delivered the bag to one of the patrol officers who identified it as one thrown from Joseph’s car.

At the hearing on the motion to exclude the bag and its contents as evidence, there were some conflicts in the officers’ testimony as to whether the bag had been thrown from the passenger’s side or the driver’s side of the Joseph vehicle, and whether the bag had been found by Officer Walters in the northwest quadrant or in the southwest quadrant of the intersection. The court, noting these conflicts, concluded that the State would be unable to prove that Joseph ever had in his possession the particular bag which was found at the intersection, as the facts did not show, to the court’s satisfaction, that the bag recovered at the intersection was the same bag which was thrown from Joseph’s vehicle. The court thereupon ruled that the bag would be irrelevant and immaterial to the charge of possession of cocaine and would be excluded from evidence.

The material fact issue in this case was Joseph’s possession of cocaine. Any evidence tending to prove or disprove a material fact is relevant, Section 90.401, Florida Statutes (1981); Drayton v. State, 292 So.2d 395 (Fla. 3d DCA 1974), and any fact relevant to the issue is admissible into evidence unless precluded by a specific rule of exclusion. Moreno v. State, 418 So.2d 1223, (Fla. 3d DCA 1982); § 90.402, Fla.Stat. (1981). The bag, which contained cocaine, was clearly relevant to the issue in this case if it was the same bag which the patrol officers had observed being thrown from Joseph’s vehicle. Given the very distinctive appearance of this bag, and an interval of approximately two minutes between the time the officers saw a bag thrown and the time Officer Walters recovered a bag of matching description at the same intersection, there would seem to be little likelihood that a jury would not be satisfied that it was the same bag, notwithstanding the conflicts in the officers’ testimony as to how the bag was thrown from the car and where in the intersection it was located by Officer Walters. Those conflicts would go to the weight or credibility of the evidence to be resolved by the trier of fact.

The order excluding the bag and its contents is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    Jesse Francis DIAZ, a/k/a George N. Feder, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1760.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1982.
    Michael P. Weisberg, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Appellant, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from an Order denying post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented, especially a transcript of the plea colloquy, has determined that it conclusively appears that ap-péllant is entitled to no relief. The denial of the motion is AFFIRMED.