author: OVERTON, Justice. ADKINS, Justice,

text:
    DEPARTMENT OF EDUCATION and the State Board of Education, Appellants, v. The SCHOOL BOARD OF COLLIER COUNTY, Florida et al., Appellees.
    No. 56570.
    Supreme Court of Florida.
    Feb. 26, 1981.

      James D. Little, Gen. Counsel, State Bd. of Ed., Tallahassee, for appellants.
    James H. Siesky, Naples, for appellees.
    Larry Levy of Dickinson, Levy & Taylor, Tallahassee, and Louis F. Ray, Jr. and Robert W. Kievit, Pensacola, for Escambia County School Bd., amicus curiae.
    Douglas K. Sands, Stuart, for School Bd. of Martin County, amicus curiae.
    Talbot D’Alemberte of Steel, Hector & Davis, Miami, and Sharyn L. Smith, House of Representatives, Tallahassee, for Hyatt Brown, amicus curiae.
   OVERTON, Justice.

This appeal concerns the constitutionality of a condition in the 1978-79 appropriations bill guaranteeing a minimum increase of 7.25 percent in school funding for all counties except those counties that have a millage value per student of more than twenty percent over the statewide average.

The School Board of Collier County, one of four counties excluded from this 7.25 percent guaranteed increase, brought this action alleging this appropriation condition was unconstitutional under article III, section 12, of the Florida Constitution on the principal grounds the condition amended and modified the substantive law already in effect and contained in section 236.081(6)(c), Florida Statutes (1977).

This action commenced in a declaratory judgment proceeding, and the circuit court made the following findings in its final judgment:

4. Item 353A within that appropriations bill eliminated minimum level funding for those School .Districts whose value of a mill per WFTE exceeded the statewide average of 20% or more.
5. The action taken in paragraph 4 above constitutes a modification of the substantive law expressed in Florida Statute 236.081(6)(c).
6. That portion of Item 353A, 78 — 401 Laws of Florida which purports to deny minimum level funding to some districts is contrary to the precepts of Art. Ill Section 12 of the Florida Constitution.
7. Plaintiffs have suffered irreparable injury as a result of Item 353A 78-401 Laws of Florida and will continue to suffer such injury in the future unless this Court takes remedial action.
8. Plaintiffs have a right to minimum funding under the provisions of Florida Statute Section 236.081(6)(c).
10. No allegation has been made regarding the constitutionality of the 7.25% increase in minimum level funding that is stated in the Appropriations Act of 1978.
11. Even if the allegation stated in paragraph 10 had been made, the 7.25% increase is a permissible matter for inclusion in an appropriations act under the doctrine of Thomas v. Askew, 270 So.2d 707 (Fla.1972).

The trial court then specifically struck from the appropriations bill the following portion of Item 353A: “except that those districts with a value of a mill per WFTE 20% or more over the statewide average value of a mill per WFTE shall not receive such guarantee,” and directed the Department of Education to give full force and effect to the remaining portion of Item 353A. The effect of this ruling was to give the benefit of this 7.25 percent increase to the four excluded county school districts which produced the most tax dollars from their assessment of property. Proportionate equality in the distribution of school funds was not relied on by the trial judge and is not an issue in these proceedings.

We disagree with the holding of the trial judge and reverse. For the reasons expressed, we find the 7.25 percent guaranteed increase in funding is a supplement to the statutory formula in existence at the time the appropriations bill was adopted. We recognize that an appropriations bill must not change or amend existing law on subjects, other than appropriations, but that principle is subject to the exception that a general appropriations bill may allocate state funds for an authorized purpose in amounts in addition to those previously allocated or substitute adequate specific appropriations for continuing appropriations. Brown v. Firestone, 382 So.2d 654 (Fla.1980); Thomas v. Askew, 270 So.2d 707 (Fla.1972); In re Advisory Opinion to the Governor, 239 So.2d 1 (Fla.1970).

Section 236.081, Florida Statutes, contains very complicated formulae and variables which are devoted to determining the annual state allocation to each school district. These variables include funds generated locally from real estate property taxes and funds contributed to the local school districts by the state from various revenue sources. To ensure that school districts do not receive less money than they received in the prior budget year, there is a “no loss” or “hold harmless” provision in section 236.-081(6)(c), which reads in part as follows: “[Notwithstanding any of the provisions herein, each district shall be guaranteed a minimum level of funding in the amount and manner prescribed .... ” The effect of this provision guarantees a minimum level of funding for the new year, ensuring the district that its allocation will not fall below the level of funding from the previous year. It acts as an alternative to the allocation formula set forth in prior sections.

The School Board of Collier County contends this “hold harmless” provision was amended by the 7.25 percent guaranteed increase condition in the appropriations bill. We disagree and find the condition was a one-time 7.25 percent guaranteed supplemental increase for all but those four districts which received revenue from property taxes in an amount twenty percent above the average for all districts.

The appellees concede that the legislature, if it desires, may allocate more funds to property poor counties than it does to property rich counties. Their claim of unconstitutionality rests solely on whether the condition modifies an existing statute. The Collier County district and the three other districts did not receive less than they received in the prior budget year, and, in fact, the Collier County district actually recognized a 7.13 percent increase under the statutory formula. All the excluded county school districts were entitled to the funds properly allocated under the provisions of the formula set forth in section 236.081. What they did not receive was the one-time additional 7.25 percent guaranteed increase for the year 1978-79. The “hold harmless” provision of section 236.081(6Xc) does not conflict with the concept of a guaranteed 7.25 percent increase for districts with a logical need as determined by the legislature. This “hold harmless” provision was not amended and in fact was not activated because all districts received an increase over the previous year’s funding. Under the present statutory scheme, the legislature cannot reduce in the appropriations bill the amount the four excluded districts would receive as determined by the “hold harmless” provision without amending the substantive statute. That principle, however, does not prohibit the legislature from providing a specific amount of additional money for specifically identified school districts.

The legislature is not required to distribute educational funds to all school districts in an equal mathematical proportion. The legislature may, if it so desires, distribute the state funds on the basis of public educational need. That need is readily apparent in this record. The legislature determined that this guaranteed supplemental increase of 7.25 percent should not apply to districts that had a millage yield per student of twenty percent above the average because those districts had much greater local resources. There is a substantial difference in what a district may produce in school funding from local real property taxes. The average statewide yield of a mill for all counties for 1978-79 was $79. The variance is graphically illustrated by the fact that the Collier County tax roll generates $134 per mill, while the Gadsden County tax roll generates only $18 per mill. This disparity in school funding between rich and poor districts was clearly the reason the legislature decided to provide supplemental money only to those districts which had a value of a mill of less than twenty percent over the statewide average. In our view, the legislature was clearly acting within its constitutional authority in providing these additional educational funds in the appropriations bill.

The amicus, Brown, has contended that this cause is moot because the funds have been distributed in accordance with the appropriations bill as enacted by the legislature for the 1978-79 period. This distribution occurred even though the trial court directed otherwise because the judgment was stayed pending this appeal. In view of the trial court specifically holding the condition unconstitutional, we believe it is necessary to resolve the issue and, consequently, we reject the contention of mootness.

We reverse the holding of the trial court, but since the funds have already been distributed in accordance with the appropriation condition, no further directions are necessary.

It is so ordered.

ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

SUNDBERG, C. J., concurs in result only.

ADKINS, J., dissents with an opinion, with which BOYD, J., concurs.

ADKINS, Justice,

dissenting.

I dissent.

Item 353A, chapter 78-401, Laws of Florida, reads, in part, as follows:

353A GRANTS AND AIDS
FLORIDA EDUCATION FINANCE PROGRAM GRADES K THROUGH 12
FROM GENERAL REVENUE FUND .974,290,318
FROM INTEREST STATE SCHOOL TRUST FUND . 2,000,000
FROM PRINCIPAL STATE SCHOOL TRUST FUND . 4,000,000
FROM FEDERAL REVENUE SHARING FUND. 70,200,000
The base student allocation is $899.27. The required local effort shall be 6.4 mills on the official final tax roll.
In the allocation of the FEFP each district shall be guaranteed a minimum increase of 7.25% in total potential funding per unweighted FTE for 1978-79 over the total funding available per unweighted FTE in 1977-78, except that those districts with a value of a mill per WFTE 20% or more over the statewide average value of a mill per WFTE shall not receive such guarantee. Total potential funding shall include the 1978-79 state allocation for current operation exclusive of all categorical programs, post-secondary vocational fees and the calculated yield of 8 mills. Total funding available in 1977-78 shall include the 1977-78 allocation for current operation exclusive of all categorical programs, post-secondary fees and the calculated yield of the actual non-voted millage levied in 1977-78. The calculations shall be before prior year adjustments and shall be on the same tax roll used in the other FEFP calculations.

The letters “WFTE” stand for weighted full time equivalent. These terms are defined in section 236.013, Florida Statutes (1977).

The emphasized portion of item 353A, supra, is under attack in this litigation. By general law the legislature has provided for the annual allocation from the Florida Education Finance Program funds to each district for current operations of school and has provided the method by which such application shall be determined. Section 236.081, Florida Statutes (1977).

In all candor, the legislature has utilized a complex and unusual manner to accomplish the purpose of providing “substantial equality” in education among the school districts of Florida. Perfect equality of educational opportunities is not and never will be possible. There are too many variables. There would appear to be any number of much less complicated formulas that would be as efficient as the one utilized in providing substantially equal educational opportunities. Some might even harbor an opinion that other systems would come closer to providing absolute equality, but such an opinion would involve a value judgment.

Article III, section 12, Florida Constitution (1968), provides that laws making appropriations for current expenses of the state “shall contain provisions on no other subject.”

The majority opinion recognizes that an appropriations bill must not change or amend existing law on subjects other than appropriations. However, the majority says that the underscored language under attack providing for the 7.25% guaranteed increase in spending is a “supplement to the statutory formula in existence at the time the appropriations bill was adopted.” In my opinion, if a general law is “supplemented”, it is “amended”. The appropriations bill does more than authorize amounts different from those previously allocated, it also provides for a method of allocation which is contrary to that provided in general law.

The Florida Education Finance Program constitutes a cluster of “funding receptacles” created by general substantive law. The determination of the precise amount of funds allotted to each district by the Florida Education Finance Program is accomplished by the application of an integrated formula composed of a multitude of variables, each one dependent on others within the formula. This interdependence means that the alteration of one variable has repercussions throughout the entire formula. Further, it is a delicately balanced system which does not well tolerate special interests. See section 236.012, 236.014, Florida Statutes (1977).

The legislature could have validly chosen to refuse minimum level funding for all districts in Florida; to reduce minimal level funding for all districts in Florida; to fully fund the minimum level provisions for all districts in Florida; or, to permit some level of minimum level funding for all districts in Florida upon the happening of a condition. The legislature chose none of these valid alternatives. Instead, it chose to alter the general substantive law by eliminating minimum level funding for some districts. The condition imposed was one that did not apply uniformly to the entire appropriation, but only to a portion of it. Yet, the law requires that “each district be eligible for minimum level funding.”

Article VII, section 8, Florida Constitution (1968), provides that state funds may be appropriated to the several counties, school districts, or special districts “upon such conditions as may be provided by general law.” (Emphasis supplied). This provision mandates that the allocation and distribution of state funds to the schools be established by general law, which means that the formula cannot be fragmented so that part is found in general law and part in either the appropriation act or special law.

The purpose of article III, section 12, Florida Constitution (1968), was to preclude exactly what has happened in this case: fragmentation of the distribution formula whereby proper debate and consideration of the distribution formula wholly separate and apart from consideration of the appropriation law is not afforded.

I disagree also with the majority statement that the legislature may provide a “specific amount of additional money for specifically identified counties.” Article III, section 12, Florida Constitution (1968), prohibits a special law granting additional money of a specific amount to a specific county for school purposes.

I would affirm the judgment of the trial court.

BOYD, J., concurs.

      . The condition in the appropriation law, chapter 78-401, is identified in section 1, item 353A, and reads in part as follows:
      IN THE ALLOCATION OF THE FEFP EACH DISTRICT SHALL BE GUARANTEED A MINIMUM INCREASE OF 7.25% IN TOTAL POTENTIAL FUNDING PER UNWEIGHTED FTE FOR 1978-79 OVER THE TOTAL FUNDING AVAILABLE PER UNWEIGHTED FTE IN 1977-78, EXCEPT THAT THOSE DISTRICTS WITH A VALUE OF A MILL PER WFTE 20% OR MORE OVER THE STATEWIDE AVERAGE VALUE OF A MILL PER WFTE SHALL NOT RECEIVE SUCH GUARANTEE. TOTAL POTENTIAL FUNDING SHALL INCLUDE THE 1978-79 STATE ALLOCATION FOR CURRENT OPERATION EXCLUSIVE OF ALL CATEGORICAL PROGRAMS, POST-SECONDARY VOCATIONAL FEES AND THE CALCULATED YIELD OF 8 MILLS. TOTAL FUNDING AVAILABLE IN 1977-78 SHALL INCLUDE THE 1977-78 ALLOCATION FOR CURRENT OPERATION EXCLUSIVE OF ALL CATEGORICAL PROGRAMS, POST-SECONDARY FEES AND THE CALCULATED YIELD OF THE ACTUAL NONVOTED MILLAGE LEVIED IN 1977-78. THE CALCULATIONS SHALL BE BEFORE PRIOR YEAR ADJUSTMENTS AND SHALL BE ON THE SAME TAX ROLL USED IN THE OTHER FEFP CALCULATIONS. [Emphasis supplied.]

      . The four counties are Charlotte, Collier, Highlands, and Martin.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. John Henry FIELDS, Respondent.
    No. 58493.
    Supreme Court of Florida.
    Feb. 26, 1981.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for petitioner.
    Gene S. Taylor, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Certiorari having been granted on the basis of an express and direct conflict between the district court’s decision below, Fields v. State, 377 So.2d 223 (Fla. 1st DCA 1979), and our recent decision in Doerr v. State, 383 So.2d 905 (Fla.1980), we quash the decision below and remand for further proceedings in light of our Doerr decision.

It is so ordered.

OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J., and ADKINS and BOYD, JJ., dissent.


author: BOYD, Acting Chief Justice.

text:
    David SARDIELLO and Bal Enterprises, Inc., Appellants, v. STATE of Florida, Appellee.
    No. 58516.
    Supreme Court of Florida.
    Feb. 26, 1981.
    Yale T. Freeman, Miami, for appellants.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., Miami, for appellee.
   BOYD, Acting Chief Justice.

This cause is before the Court on appeal of a judgment of the County Court of Dade County. In rendering judgment the court passed upon the constitutionality of a state law. The notice of appeal was filed on January 11, 1980. This Court has jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

The appellants were charged with possession of obscene materials with intent to distribute in violation of section 847.011, Florida Statutes (1977). Section 847.011(1) provides:

(l)(a) A person who knowingly sells, lends, gives away, distributes, transmits, shows or transmutes, or offers to sell, lend, give away, distribute, transmit, show or transmute, or has in his possession, custody, or control with intent to sell, lend, give away, distribute, transmit, show, transmute, or advertise in any manner, any obscene, lewd, lascivious, filthy, indecent, sadistic, or masochistic book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing, paper, card, picture, drawing, photograph, motion-picture film, figure, image, phonograph record, or wire or tape or other recording, or any written, printed, or recorded matter of any such character which may or may not require mechanical or other means to be transmuted into auditory, visual, or sensory representations of such character, or any article or instrument of indecent use, or purporting to be for indecent use or purpose; or who knowingly designs, copies, draws, photographs, poses for, writes, prints, publishes, or in any manner whatsoever manufactures or prepares any such material, matter, article, or thing of any such character; or who knowingly writes, prints, publishes, or utters, or causes to be written, printed, published, or uttered, any advertisement or notice of any kind, giving information, directly or indirectly, stating, or purporting to state, where, how, of whom, or by what means any, or what purports to be any, such material, matter, article, or thing of any such character can be purchased, obtained, or had; or who in any manner knowingly hires, employs, uses, or permits any person to do or assist in doing, either knowingly or innocently, any act or thing mentioned above, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A person who, after having been convicted of a violation of this subsection, thereafter violates any of its provisions, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) The knowing possession by any person of six or more identical or similar materials, matters, articles, or things coming within the provisions of paragraph (a) is presumptive evidence of the violation of said paragraph.

Appellants moved to dismiss the information on the ground that the statute is unconstitutional. After denial of the motion to dismiss, pleas of nolo contendere were made, with specific reservation of the right to appeal the court’s ruling on the motion to dismiss.

We find that there is directly applicable legal precedent. We have consistently upheld the constitutionality of section 847.011. State v. Kraham, 360 So.2d 393 (Fla.1978), appeal dismissed, 440 U.S. 941, 99 S.Ct. 1415, 59 L.Ed.2d 630 (1979); Johnson v. State, 351 So.2d 10 (Fla.1977); Rhodes v. State, 283 So.2d 351 (Fla.1978).

The judgment is affirmed.

It is so ordered.

OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


author: ENGLAND, Justice.

text:
    STATE of Florida, Appellant, v. G. D. M., a Juvenile, Appellee.
    No. 58762.
    Supreme Court of Florida.
    Feb. 26, 1981.
    Jim Smith, Atty. Gen., and John D. Ceci-lian, Asst. Atty. Gen., West Palm Beach, for appellant.
    Ronald Payne, Fort Lauderdale, for ap-pellee.
   ENGLAND, Justice.

By direct appeal from the county court for Broward County, the state asks us to reverse an order dismissing an information against G.D.M., a juvenile, in which the trial judge found that section 39.01, Florida Statutes (1979), is:

violative of due process of law in failing to exclude from the definition of “juvenile traffic offense”, [s/c] reckless driving, pursuant to Florida Statute 316.192, thereby unlawfully depriving the juvenile court of jurisdiction of that offense, in contravention to the purposes of the juvenile court set forth in Florida Statute 39.001... .

An order clarifying the original order of dismissal also recites that the statute violates substantive due process and equal protection of the laws under the federal and state constitutions.

The trial court’s order and G.D. M.’s arguments here are premised on a right to treatment as a juvenile under Florida’s juvenile justice laws. That premise is erroneous. The legislature has absolute discretion to determine whether an individual charged with a particular crime is entitled to the benefit of the juvenile justice system. State v. Cain, 381 So.2d 1361 (Fla.1980); Johnson v. State, 314 So.2d 573 (Fla.1975). Neither substantive due process nor equal protection are denied G.D.M. by the legislature’s decision to include or exclude a particular traffic offense within the jurisdiction of the juvenile court.

The order of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.

       Section 39.02, Florida Statutes (1979), provides in relevant part that the juvenile court shall have jurisdiction of all traffic offenses expressly excluded from the definition of “juvenile traffic offense,” section 39.01(21)(a)-(e), Florida Statutes (1979). Thus, by not excluding “reckless driving” in violation of section 316.-192, Florida Statutes (1979), from the definition of “juvenile traffic offense,” the legislature has decided, albeit in a roundabout fashion, to leave intact the jurisdiction of that offense to the county court.


text:
    THE FLORIDA BAR, Complainant, v. Thomas A. MERRITT, Respondent.
    No. 59723.
    Supreme Court of Florida.
    Feb. 26, 1981.
    Harris K. Solomon, Bar Counsel and Walter G. Campbell, Chairman, 17th Judicial Circuit Grievance Committee, Fort Lauder-dale, for complainant.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Thomas A. Merritt, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and Report of Referee. Pursuant to Rule 11.-06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Rule 11.09(1), Integration Rule, has been filed.

Having considered the pleadings and evidence, the referee found as follows:

Respondent, Thomas A. Merritt is and at all times hereinafter mentioned was a member of The Florida Bar subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
COUNT I
1. In late October or early November of 1979, Respondent abandoned his law practice thereby leaving all of his clients’ files unattended.
2. Respondent’s abandonment of his law practice necessitated that this Court appoint inventory attorneys, and pursuant to Florida Bar Integration Rule, article II, section IV, this Court did appoint said inventory attorneys on April 3, 1980.
COUNT II
3. On July 26, 1978, Respondent was retained by Mr. and Mrs. Stephen Barta-nowitz to represent them as purchasers in a real estate transaction.
4. As part of his representation of the Bartanowitzes, Respondent was to deliver to them a title policy and warranty deed on the subject piece of property.
5. At the time of the closing, Respondent received payment from Mr. and Mrs. Bartanowitz for providing them with the title insurance policy.
6. Respondent did not provide Mr. and Mrs. Bartanowitz with a title insurance policy or with a warranty deed at the time of closing. For a period of eight (8) months thereafter, Mr. Bartanowitz periodically telephoned Respondent’s office and left a message that Respondent should provide the title insurance policy and the warranty deed and contact Mr. Bartanowitz regarding same.
7. In July of 1979, Mr. Bartanowitz made an unannounced visit to Respondent’s office and met with Respondent. Respondent informed Mr. Bartanowitz that he would provide Mr. Bartanowitz with a title insurance policy and that he would forward a warranty deed to Mr. Bartanowitz.
8. Approximately two (2) weeks later, Mr. Bartanowitz received a warranty deed in the mail.
9. For the next several months, Mr. Bartanowitz resumed calling Respondent in order to obtain his title insurance policy-
10. In October of 1979, Mr. Bartanow-itz wrote The Florida Bar to seek assistance in obtaining a title insurance policy from Respondent. On November 5, 1979, approximately one (1) month after contacting The Florida Bar, Mr. Bartanowitz received his title insurance policy from Respondent.
COUNT III
11. In September, 1978, Ms. Jacqueline Smith retained Respondent to represent her in the purchase of a piece of property from a Ms. Emma Jean Van-Gunten.
12. The terms of the purchase and sale agreement provided that approximately $15,000 of the $24,000 sale price was to be used to satisfy the first mortgagee, Sun Bank of Ocala.
13. At the closing, on October 11, 1978, Ms. Smith tendered to Respondent $23,900 in cash which was the entire balance due from Ms. Smith as buyer.
14. Respondent informed Ms. Van-Gunten that he would forward a check to her for the balance due seller $7,371.50. Mr. Merritt subsequently forwarded a check to Ms. VanGunten in the amount of $7,371.50, drawn on the American Bank and Trust Company of Fort Lauderdale, Florida, Thomas A. Merritt — Attorney at Law — Trust Account # 2168-0960.
15. Immediately after the closing statement was signed by both Ms. Smith and Ms. Van Gunten, Ms. Smith accompanied Respondent to the American National Bank, 2240 East Sunrise Boulevard, Fort Lauderdale, Florida, where Respondent deposited the $23,900 into his trust account.
16. On December 5, 1978, Mr. Curry had a telephone conversation with Mr. Merritt, confirmed by letter of December 6, 1978, in which Mr. Merritt agreed on behalf of his client to bring the mortgage current by sending Mr. Curry one (1) check in the amount of $2,992.25 and another check in the amount of $118.00.
17. On December 18, 1978, Mr. Curry received Trust Check # 293, issued by Thomas A. Merritt, drawn on American National Bank and Trust Company of Port Lauderdale, Account # 2168-0960, dated December 15, 1978, in the amount of $2,992.25, and signed by Thomas A. Merritt.
18. By letter of December 19, 1978, Mr. Curry requested that Mr. Merritt forward a copy of the deed to Jacqueline Smith showing that she had assumed and agreed to pay the subject mortgage.
19. Mr. Curry received no response to his letter.
20. The subject mortgage is still outstanding.
21. Approximately three (3) months after the closing, Ms. Smith contacted the Respondent and asked him to provide her with her warranty deed. In January, 1979, Respondent sent Ms. Smith a warranty deed which he had prepared which did not show the mortgage held by the Sun Bank of Ocala as an exception.
22. In November of 1979, Ms. Smith received a letter from Mr. Landis Curry, attorney for the Sun Bank of Ocala, stating that no payment had been made on the mortgage held by Sun Bank of Ocala. Mr. Curry informed Ms. Smith that Respondent had indicated to the Sun Bank of Ocala that Ms. Smith had assumed the mortgage on the property purchased from Ms. VanGunten.
23. Because of Respondent’s failure to use the money he received from Ms. Smith to satisfy the mortgage in favor of Sun Bank of Ocala, Ms. Smith has had to pay $2,000 to bring the mortgage current and is required to pay $165.34 every month until she satisfies the outstanding balance of approximately $11,000.
24. In addition to her obligation to the Sun Bank of Ocala, Ms. Smith was required to pay $173.31 for taxes and penalties thereon, which Mr. Merritt was supposed to satisfy from the $23,900 delivered to him by Ms. Smith.
25. Mr. Merritt has not contacted Ms. Smith and has not returned any of the money that he received in trust from her and failed to use for the specific purpose for which it was delivered to him.
COUNT IV
26.Respondent has failed to maintain appropriate trust account records of the funds he is supposed to be holding for Ms. Smith in his trust account and Respondent has failed to render an appropriate accounting to Ms. Smith regarding her funds.

The referee recommends that respondent be found guilty of violation of Disciplinary Rules 1~102(AX6), 6-101(A)(3), 7-101(A)(2) and (3), 9-102(B) of the Code of Professional Responsibility and article XI, Rule 11.-02(4) of the Integration Rule of The Florida Bar and further recommends that respondent be disbarred from the practice of law pursuant to article XI, Rule 11.10(5) of the Integration Rule of The Florida Bar.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, Thomas A. Merritt, is hereby disbarred from the practice of law effective this date.

Costs in the amount of $2,369.09 are hereby taxed against respondent.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Sheldon R. ZILBERT, Respondent.
    No. 60194.
    Supreme Court of Florida.
    Feb. 26, 1981.
    Paul A. Gross, Bar Counsel, Miami, Fla., Stanley A. Spring, Staff Counsel, Tallahassee and S. Alan Stanley, Chairman, Judicial Circuit Grievance Committee 11 G, Coral Gables, for complainant.
    Sheldon R. Zilbert, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of Disciplinary Rules 1-102(A)(4), 6-101(A)(3), and 9-102(B)(l) and (4) of the Code of Professional Responsibility of The Florida Bar. We approve the Petition, and Respondent, Sheldon R. Zil-bert, is hereby suspended from the practice of law for a period of six (6) months effective March 30,1981, thereby giving Respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients. Respondent is to accept no new clients from the date of this opinion, and it is further

ORDERED that prior to reinstatement to The Florida Bar, Respondent show proof of rehabilitation, make restitution to all the complainants who have monies due them, and submit a favorable psychiatric report by a psychiatrist selected by The Florida Bar.

Costs in the amount of $1,012.45 are hereby taxed against Respondent.

It is so ordered.

BOYD, Acting C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


text:
    Omar RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1776.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Rehearing Denied Nov. 7, 1980.
    Jose E. Ferrer and Sheridan Weissen-born, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

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


author: HERSEY, Judge.

text:
    George CARI, Appellant, v. Gerald ERICKSON and Monika Erickson, his wife, Appellees.
    No. 79-2307.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1981.
    Rehearing Denied March 31, 1981.
    Richard W. Springer, of Kohl, Springer, Springer & Garrison, Palm Springs, for appellant.
    Thomas A. Bratten, of Bratten & Harris, P. A., West Palm Beach, for appellees.
   HERSEY, Judge.

This is an appeal from an order of the trial court assessing attorneys’ fees against appellant for services rendered to appellees in a previous appeal. No motion for attorneys’ fees was filed by appellees in those appellate proceedings.

It is appellant’s position that the rule then in effect (Rule 3.16(e), 1962 Florida Rules of Appellate Procedure) precludes the allowance of attorney’s fees by the trial court for services performed in the appellate court.

We agree and reverse. Howell v. Howell, 183 So.2d 261, 264 (Fla. 2nd DCA 1966) succinctly states the rule that “the trial court is without authority to fix attorneys’ fees for services rendered in the Appellate Court....”

In Re Estate of Potts, 199 So.2d 319 (Fla. 2nd DCA 1967) and In Re Estate of Garvey, 212 So.2d 790 (Fla. 3rd DCA 1968) are cited and argued in the briefs of both parties. Because of the importance of the question involved and the frequency with which it is raised, we will touch briefly upon what we perceive to be the distinguishing feature between the rule in those cases and the rule involved here.

First, the rule applied in the instant case is that the trial court is without authority to assess attorney’s fees for services rendered in the Appellate Court. This rule continues to be applicable under the appellate rules adopted in 1977. (Fla.R.App.P. 9.400.) Second, the rule referred to in the cited cases provides that the probate court has exclusive jurisdiction (Art. V, § 7(3), Fla.Const.) to award attorneys’ fees in the settling of estates.

Any supposed conflict in the application of these two rules is superficial. The appellate rule simply permits the appellate court under appropriate circumstances to require the losing party to pay the attorney’s fees incurred by the prevailing party for prosecuting the appeal. The case law interprets this rule as prohibiting the trial court from doing so. Thus the probate court may not assess a fee to be paid by the estate to an attorney representing a party adverse to the estate for services rendered in prosecuting a successful appeal against the estate.

The probate rule gives the probate court authority to require an estate to pay an attorney for services rendered to the estate, which may include services rendered in the appellate court. It follows that an appellate court is not permitted to award a fee to be paid from the estate to the attorney for the estate for services rendered on appeal.

With this clarification, we reverse the order of the trial court awarding an attorney’s fee.

REVERSED AND REMANDED.

LETTS, C. J., and DOWNEY, J., concur.


author: DOWNEY, Judge. BERANEK, Judge, DOWNEY, Judge. BERANEK, Judge,

text:
    Charles BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1121.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1981.
    Rehearing Denied March 18, 1981.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was charged with robbing one Patricia A. Faris of a sum of money in excess of $100 by force, violence, assault, and putting said victim in fear, in violation of Section 812.13(2)(c), Florida Statutes (1978). A jury found appellant guilty of the lesser included offense of grand theft. From a judgment of guilty and sentence of five years in prison, appellant has perfected this appeal.

The sole question on appeal is whether the trial court erred in denying appellant’s requested instruction on the lesser included offenses of aggravated assault and assault.

Grand theft is a felony of the third degree, as is aggravated assault. Assault is a misdemeanor of the second degree. Thus, it would appear that the failure to instruct on aggravated assault, while error, was harmless error because aggravated assault is a crime of the same magnitude as the crime of which appellant was convicted. Riley v. State, 367 So.2d 1091 (Fla. 3rd DCA 1979). However, the failure to charge on assault is not harmless because the jury was never given the opportunity to invoke its “inherent pardon power.”

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

REVERSED AND REMANDED with directions.

RUTTER, WILLIAM, Jr., Associate Judge, concurs.

BERANEK, J., concurs specially, with opinion.

BERANEK, Judge,

concurring specially:

I specially concur to raise, once again, a question as to the necessity for reversal in a case of this sort. Although I agree that State v. Abreau, 363 So.2d 1063 (Fla.1978), requires it, I suggest that the concept of jury pardons should be re-examined. Notwithstanding the judicial establishment of the jury pardon theory, we do not instruct juries about their right to pardon defendants. In fact, the standard instructions inform the jury they should do exactly to the contrary by convicting the defendant of the highest offense proved beyond a reasonable doubt. Here, the defendant was tried and instructions were given on robbery, attempted robbery, grand theft, and petty theft. Defendant also requested instructions on aggravated assault and assault. Pursuant to binding precedent, this court reverses for the failure to instruct on assault. I am unable to understand how we can find reversible error under the “one step removed” rule when we do not tell the jury about it. I do not urge that juries should be instructed on jury pardons, but I frankly cannot justify their existence nor the finding of reversible error for failure to properly deal with them without also suggesting that juries should be told about the concept. In short, how can reversible error occur because the jury has only a limited ability to pardon the defendant when the jury is not told that they have that ability at all. I believe “jury pardons” should be re-examined. Were it not for the effect of binding precedent to the contrary, I would urge this court to do so.

ON PETITION FOR REHEARING

DOWNEY, Judge.

The State in its petition for rehearing points out that the trial court instructed the jury that it could find appellant guilty of petit theft, a second degree misdemeanor. The State goes on to argue that the giving of the petit theft instruction renders the trial court’s failure to give an assault instruction harmless error, since the court presented the jury with an opportunity to find appellant guilty of an offense having the same magnitude as assault.

Our January 28, 1981, opinion did not reflect that the trial court instructed the jury that it could find appellant guilty of petit theft, a second degree misdemean- or. However, the giving of the petit theft instruction does not render harmless the trial court’s refusal to give an assault instruction. While petit theft and assault are offenses of the same magnitude, both being second degree misdemeanors, they are unrelated offenses in that one can occur without the other, depending upon the circumstance of the crime. We adhere to our holding that the trial court acted prejudicially in refusing to give the requested instruction on assault despite the giving of the petit theft instruction, since assault is a lesser included offense of robbery. Although the trial court, by giving the petit theft instruction, afforded the jury one opportunity to invoke its inherent pardon power, the court; by refusing to give the requested instruction on assault, deprived the jury of another opportunity to invoke that power.

Petition for rehearing denied.

RUTTER, WILLIAM, Jr., Associate Judge, concurs.

BERANEK, J., concurs specially, with opinion.

BERANEK, Judge,

concurring specially on rehearing.

In view of the recent Supreme Court opinion in Reddick v. State, 394 So.2d 417 (Fla.1981), I am compelled to recede from my prior special concurrence criticizing jury pardons.

      . State v. Abreau, 363 So.2d 1063 (Fla.1978).

      . See Reddick v. State, 380 So.2d 1330 (Fla. 5th DCA 1980). See also Keenan v. State, 379 So.2d 147 (Fla. 4th DCA 1980).


text:
    Stanley ABRAMS and Nancy Abrams, his wife, Petitioners, v. George E. COCHRANE, Respondent.
    No. 80-2153.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1981.
    Dean M. Freitag of Layne & Brill, Miami, for petitioners.

      No appearance for respondent.
   PER CURIAM.

Respondent having failed to show cause why relief should not be granted, the writ of certiorari is granted and the trial court’s order of November 13, 1980 is herewith quashed.

DOWNEY, MOORE and HURLEY, JJ„ concur.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. James ALBANO, Appellee.
    No. 80-63.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1981.
    Rehearing Denied March 9, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    W. C. McLain of Smith, Carta & Rings-muth, Fort Myers, for appellee.
   CAMPBELL, Judge.

The state appeals the trial court’s order granting appellee’s motion to suppress tangible evidence seized during a warrantless search of his person and a vehicle following his arrest. Appellee’s arrest and the subsequent search resulted from surveillance of the vehicle undertaken because of information received from a court-ordered intercept of telephone conversations. Appellee was not a party to these conversations, nor was he a subject of the intercept. Appellee’s motion to suppress did not attack the validity of the application for or the order of intercept but addressed only the validity of the warrantless search.

The information charging appellee was filed August 16, 1979. The parties undertook extended discovery procedures, and jury trial was set for January 8, 1980. On January 4,1980, appellee filed his motion to suppress which was heard on the morning of January 9,1980, the day the case actually came up for trial. At the suppression hearing, appellant sought to present testimony to support the seizure of the evidence sought to be suppressed. The testimony offered was that of an investigator for the state attorney’s office who stated that the arrest of appellee and seizure of the evidence resulted from surveillance of a vehicle initiated because the vehicle was described in the intercepted telephone conversations. Appellee objected to introduction of the testimony on the sole ground that the state had not furnished him a copy of the court order of intercept and the accompanying application at least ten days prior to the hearing pursuant to Section 934.09(8), Florida Statutes. The court granted the motion to suppress, and the state timely appealed. We reverse.

On October 24, 1979, appellee moved for an order of court compelling appellant to disclose, among other things, all applications and orders for electronic or other surveillance of any wire or oral communications in which appellee was named or otherwise referred to. As far as the record shows that motion was never pursued by appellee, and no order was ever entered concerning it.

On November 14, 1979, appellant filed a notice of offer of stipulation in which it offered to stipulate to the entry of an order disclosing all of the wiretap materials “herein available” and moved at the same time for a waiver of the ten day period prescribed by Section 934.09(8). At a hearing on that motion to waive the ten day period, appellant stated it did not intend to use in its case-in-chief any wiretap material against appellee since his name was not mentioned in the wiretaps. Appellant then withdrew the motion to waive the ten day period. At that same hearing, counsel for appellee admitted that in these cases pending against appellee’s co-defendants involving the same or similar charges and at times consolidated with appellee’s case, he had the wiretap information, as appellant had furnished him the materials so that he could make copies of them in his office.

Appellee argues that even though his attorney had the information, because it was not specifically designated to be furnished in his case, appellant is precluded from using information derived from the wiretap, not only in appellant’s case-in-chief, but also in sustaining its burden in appellee’s suppression hearing directed toward the warrantless search. Such a position cannot be sustained. Nowhere does the record reveal how appellee was surprised or prejudiced by the failure of appellant to provide a copy of the application for and order of intercept in this particular case. Appellee’s attorney not only had knowledge of the existence of the intercept but actually had possession of the wiretap material. The record, on the contrary, shows that appellee’s counsel at the suppression hearing anticipates what the testimony offered will be, stating to the court, “but to be perfectly candid with the Court, the testimony will reveal that he was acquainted with this vehicle as a result of a wire tap [sic] .... ” This certainly does not appear to be a case of willful withholding by the state of the application and order of intercept. Cf., State v. King, 372 So.2d 1126 (Fla. 2d DCA 1979). (The court held that before dismissing an information because of a prosecutor’s discovery violation, the court must find that the violation prejudiced the defendant or was willful.)

There are no Florida cases which we have found or have been referred to that address the effect of a failure to strictly comply with Section 934.09(8), Florida Statutes. However, 18 U.S.C. § 2518(9) is for all intents and purposes identical with Section 934.09(8), and there are several decisions of the federal courts construing that provision.

The leading case is United States v. Woik, 466 F.2d 1143 (8th Cir.1972), wherein the Court, in interpreting the notice provisions of 18 U.S.C. § 2518, analyzed the distinction between a conventional search and a wiretap intercept. In contrasting a conventional search, which is normally preceded by notice, to a wiretap, which to be an effective law enforcement tool depends on secrecy prior to the tap, the court reasoned that the statutory post-wiretap notice requirements were devised to insure that all persons against whom such wiretaps are used will become aware of their existence so that when proper the validity of the application and order for wiretap might be tested. In Woik, supra, the record indicated that the appellee knew of the wiretaps and had access to the wiretap materials. In light of that knowledge the Court stated:

To us the statute is concerned with adequate notice and not formalities. The record demonstrates that the appellees were sufficiently aware of the wiretap so as to be able to seek suppression of the evidence on a number of grounds including the argument that the “probable cause” requirement of the statute had not been satisfied. The appellees had adequate notice in this case, and they have not shown that any prejudice resulted from the failure of the Government to formally serve them with the inventories. See United States v. LaGorga, 336 F.Supp. 190, 194 (W.D.Pa.1971); United States v. Lawson, 334 F.Supp. 612, 616-617 (E.D.Pa.1971).
Inasmuch as the statute has been substantially complied with in that the ap-pellees had actual notice and the appel-lees have not been prejudiced by the delay in formal notification, the evidence should not have been suppressed. This is not to say that the notice requirements may be taken lightly in future cases. We hold only that “whatever violation occurred was surely insufficient in nature and extent to justify the drastic result dictated by the suppression doctrine.” Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 418—419, 91 S.Ct. 1999, 2016, 29 L.Ed.2d 619 (1971) ....

466 F.2d at 1146.

Woik, supra, was cited with approval by the court in United States v. Johnson, 539 F.2d 181 (D.C.Cir.1976), when it said:

[T]he record in this case makes clear that all Appellants had actual notice that their words had been intercepted in the 28 September wiretap. And as we read the precedents advanced by both sides, actual notice is a bar to any suppression argument based on non-compliance with the inventory requirement, at least where the failure to give formal notice was not a deliberate act of either the court or the Government.
It has been freely conceded throughout this proceeding that Mr. Coffman, then attorney for all Appellants, was provided in mid-October 1973, with copies of the affidavits supporting both the 28 September wiretap and the subsequent search warrants, as well as the court orders themselves. It has been further conceded that these materials reflected “what was done as far as the wire intercept was concerned,” and that during the pre-in-dictment period “everybody knew there was a wiretap.” In fact, the wiretap application contained the names of all but Appellant Matthews, as objects of the gambling investigation. The Government alleges further, and appellants do not contest, that a discovery meeting at which specific wiretap evidence was disclosed, took place well within the ninety day period. It was attended by all but Appellants Madre and Byers.
Moreover, Appellants concede, even as they come before this court, that actual notice of interception was not lacking as to any of them. Nowhere in their written and oral arguments do we find a claim that a lack of formal inventory notice denied any Appellant the opportunity to bring an early challenge to the wiretap procedure applied here. To the contrary, this third theory of appeal rests on a highly formalistic construction of the statute, which would exclude evidence for the most technical forms of non-compliance, however unintentional and however insignificant the effect on the rights of the persons involved. Because we see no purpose in suppressing the fruits of good faith investigative efforts for failure to give formal notice, where it is clear that actual notice has otherwise been timely received, we reject this argument as unpersuasive. We find the precedents dealing with the inventory requirement, under the parallel federal statute, to be fully supportive of this position.
We rely primarily on United States v. Wolk and United States v. Bohn, [508 F.2d 1145 (8th Cir.)], which stand for the proposition that failure to comply with the inventory requirement is not grounds for suppression if the ends of that requirement have otherwise been achieved. Since all Appellants had actual notice well within the ninety day period, and thus had an opportunity to challenge the wiretap while the circumstances surrounding it were still fresh, we see little function that would be served by requiring further formal notice. There being no assertion here of bad faith on the part of the Government, we need not determine whether this principle would hold in the case of deliberate non-compliance.

539 F.2d at 193-94.

United States v. Alfonso, 552 F.2d 605 (5th Cir. 1977), approved Wolk, supra, in holding that constitutional and statutory notice requirements were substantially satisfied when actual notice as contrasted to formal notice was provided to unnamed but overheard individuals in a court-ordered intercept.

Similarly in United States v. Kohne, 358 F.Supp. 1053 (W.D.Penn.1973), in considering the failure of the government to serve copies of the wiretap applications and court orders on all parties as required by 18 U.S.C. § 2518(9), the court stated:

The purpose of 18 U.S.C. § 2518(9) is to provide a defendant with notice so that he can move to suppress wiretap evidence prior to trial. U.S.Code Cong, and Admin.News, 1968, p. 2195. The defendants in this case did move to suppress the wiretap evidence prior to trial, asserting as one of the grounds therefor that the applications for the court orders authorizing the wiretaps did not set forth probable cause. At the hearing on their motions on March 16, 1972, defendants, by their counsel, extensively cross-examined witnesses using the applications and court orders they now complain were not served on them ten days prior to trial. Furthermore, these documents were offered into evidence as exhibits at this hearing, and prior to the hearing had been public records on file in the Office of the Clerk of Court since January 14, 1972. Since the record clearly establishes that defendants had access to these documents almost one year prior to trial and, in fact, moved to suppress the wiretap evidence because of the alleged insuffi-ciencies in them, we find substantial compliance with the statute, and hold that the refusal to suppress the wiretap evidence during the trial was correct. United States v. Wolk, 466 F.2d 1143 (8th Cir. 1972); cf. United States v. Eastman, 465 F.2d 1057 (3d Cir. 1972).

358 F.Supp. at 1057.

Aside from the fact that appellee had actual notice of the application and order of intercept, we feel there is a further reason that his motion to suppress should have been denied. The purpose of the notice required by Section 934.09(8), Florida Statutes, as stated in Kohne, supra, is to provide a defendant notice so that he can move to suppress wiretap evidence. Appel-lee here does not have standing to contest the validity of the application and order for wiretap or the information derived therefrom. Appellee was not a party to any intercepted conversations nor were his premises the site of any electronic surveillance.

In Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), the Court addressed the issue of standing in a situation similar to that in the instant case. In Alderman, petitioners Alderman and Al-derisio had been convicted of conspiring to transmit murderous threats in interstate commerce. They alleged on rehearing that Alderisio’s place of business had been the subject of electronic surveillance by the government. The government conceded that Alderisio’s conversations had been intercepted by unlawful electronic surveillance but asserted that “Alderman neither participated in any conversation overheard nor had any interest in the places which were the object of the surveillance.” 394 U.S. at 168 n.1, 89 S.Ct. at 963 n.1. The Court held that suppression can only be obtained by those persons whose rights were violated by the search itself, which in a wiretap situation would be those persons whose conversations were intercepted or whose premises were the site of electronic surveillance. Alderman was remanded to the district court for a determination as to whether there was electronic surveillance which violated either of the petitioner’s Fourth Amendment rights; if there was no such violation of a petitioner’s rights, that petitioner would have no standing to challenge the unlawful surveillance.

Alderman v. United States, supra, was the basis for a per curiam opinion in Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 1164, 22 L.Ed.2d 297 (1969), and was more recently a building block for United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), wherein the Court receded from Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), by abolishing “automatic standing” for possessory offenses. Cf., United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). (The Court held that not only does a petitioner lack standing under the Fourth Amendment to challenge the seizure of documents from a third party, but the supervisory power of the federal courts does not convey to the courts the authority to suppress otherwise admissible evidence illegally seized from a third party.)

Since Albano has no standing to challenge the admissibility of information stemming from the electronic surveillance, the purpose of Section 934.09(8), Florida Statutes (as expressed in Kohne, supra), would not be served by applying the statute to disallow the testimony in this case. Rather, in order to read Section 934.09(8) in conjunction with the rest of Chapter 934 and consistent with its purpose, Section 934.-09(8) must be read as having the nature of a discovery device, its purpose being to give notice of the intercept to parties in the proceeding who did not receive notice pursuant to Section 934.09(7)(e). The state’s noncomplianee with Section 934.09(8) is then essentially a discovery violation, and disallowing testimony because of a discovery violation without any showing of prejudice to the defendant or willfulness on the part of the prosecution is too strong a sanction and constitutes an abuse of discretion in this ease. See Richardson v. State, 246 So.2d 771 (Fla.1971).

For the reasons discussed above, we hold that the testimony regarding the wiretap and information derived from the wiretap is admissible during the hearing on the motion to suppress. We remand to the trial court for the proceedings consistent with this opinion.

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

      . It is important to emphasize again that appel-lee’s motion to suppress was not directed to the validity of the application and order of wiretaps; his standing to do so will be later discussed.


text:
    STATE of Florida, Appellant, v. Gregory CARLSON, Appellee.
    No. 80-64.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    B. Anderson Mitcham, Tampa, for appel-lee.
   CAMPBELL, Judge.

This is a companion case to State v. Albano, 394 So.2d 1026 (Fla.2d DCA 1981). In both cases the state appeals the trial court’s order granting appellees’ motions to suppress tangible evidence seized during a war-rantless search of their persons and a vehicle following their arrest. The facts given in State v. Albano, supra, are also the facts in the instant case except Carlson did not have copies of the application for wiretap and resulting court order, though the record indicates he was aware that a wiretap and wiretap evidence existed.

Although Carlson did not have copies of the application and order, we reverse the trial court’s disallowance of the testimony at the hearing on the motion to suppress with regard to Carlson for the second reason discussed in Albano, supra, at 1030.

REVERSED AND REMANDED.

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


author: BASKIN, Judge. PER CURIAM.

text:
    Jeffrey M. JESSUP, Appellant, v. Ricardo REDONDO and U-Totem, Inc., Appellees.
    No. 79-1415.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Rehearing Denied March 13, 1981.

      Horton, Perse & Ginsberg and Mallory H. Horton, High, Stack, Lazenby, Bender, Pa-lahach & Lacasa, Miami, for appellant.
    Adams & Ward and Robert Ward, Miami, for appellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

We reverse the order granting a new trial and remand with directions to the trial court to conduct an evidentiary hearing to determine whether the juror who had worked for U-Totem twelve years prior to trial lied or concealed information concerning the manner in which he left his employment, that is, whether he left voluntarily or was fired. Our decision does not depend upon remarks which may have been made to other members of the jury by the juror in question, but upon the fact that if the juror concealed information during voir dire, the parties were deprived of a completely impartial jury. Loftin v. Wilson, 67 So.2d 185 (Fla.1953); Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972).

In addition, we find error in the trial court’s ruling that compensatory damages of $65,000 and punitive damages of $425,000 awarded against the store, in addition to $5,000 punitive damages awarded against the employee, were so excessive as to shock the conscience of the court. Viewing the record in the light most favorable to appellant and to sustaining the verdict, Warning Safety Lights, Inc. v. Gallor, 346 So.2d 92 (Fla. 3d DCA 1977); Warn Industries v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977), we hold that the amount of damages awarded as a result of U-Totem’s employee shooting appellant Jessup in the chest for using foul language was within the province of the jury. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Jenkins v. Arab Termite and Pest Control of Florida, Inc., 388 So.2d 44 (Fla. 2d DCA 1980). Under the circumstances of this case, the verdict was not manifestly against the weight of the evidence and the trial court abused its discretion in granting a new trial.

Reversed and remanded.

ON MOTION FOR REHEARING

PER CURIAM.

The appellees’ motion for rehearing is denied. We have considered the Florida Supreme Court’s recent decision in Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla. 1981), upon which the appellee corporation, U-Totem, Inc., heavily relies.

The rule laid down in Mercury Motors Express that “in the absence of some fault on the part of the corporate employer, it is not punitively liable for the wilful and wanton misconduct of its employees” would likely have been relevant to this case. U-Totem, however, has waived, on this appeal, any right to rely on the contention that there was no proof of its fault which would give rise to punitive damages being assessed against it on account of Redondo’s conduct. We point out that U-Totem moved in the trial court both for a directed verdict and for a judgment in accordance with the earlier motion for a directed verdict, asserting, inter alia, this very contention. Those motions were denied, but an alternative motion for new trial was granted. Jessup took the present appeal from the order granting U-Totem and Redondo a new trial. In order for U-Totem to complain of the trial court’s denial of U-Totem’s motions for a directed verdict on the issue of punitive damages, it was incumbent upon U-Totem to cross-appeal. See In re Emergency Amendments to Rules of Appellate Procedure, 381 So.2d 1370 (Fla. 1980), and Bowen v. Willard, 340 So.2d 110 (Fla. 1976). See also Mendelson v. Mendelson, 341 So.2d 811 (Fla. 2d DCA 1977). U-Totem’s failure to do this precluded it from raising this issue on appeal and precludes it from raising this issue in a motion for rehearing of our decision.

      . In the event that the trial court determines, after the evidentiary hearing to be conducted pursuant to our remand, that the appellees were deprived of an impartial jury and that a new trial is, therefore, required, U-Totem would, of course, be free to raise the issue of its responsibility for punitive damages.


author: SHARP, Judge. SHARP, G. KENDALL, Associate Judge,

text:
    A. N. ABRAMOWITZ, Appellant, v. BARNETT BANK OF WEST ORLANDO and John L. Maynard, Appellees.
    No. 79-97/T4-367.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.
    Rehearing Denied March 10, 1981.

      Darryl M. Bloodworth, Orlando, for appellant.
    C. Brent McCaghren, Winter Park, for appellee, Barnett Bank of West Orlando.
    No appearance for appellee, John L. Maynard.
   SHARP, Judge.

Abramowitz appeals from a judgment denying him any relief in his suit against the Barnett Bank of West Orlando, appellee, in which he sought damages for an allegedly “usurious” loan. An earlier appeal reversed a summary judgment entered in favor of the bank because there was a fact issue concerning whether or not a $4,000 “service fee” or “point” charge made at the mortgage loan closing was “interest” or whether it was in whole or in part repayment of a legitimate expense of the lender.

After a non-jury trial, the lower court concluded that the bank had incurred at least a $300 final inspection fee, several other inspection expenses during construction of the building, and unspecified expenses in obtaining other banks to participate in the loan; and that a sufficient amount of the $4,000 charge was attributable to the lender’s bona fide “expenses,” so as to remove from the transaction any possible “taint” of usury. It also found the bank had no intent to claim in excess of the maximum legal rate of interest. We reverse because there is not sufficient evidence in the record to sustain the trial court’s findings.

The record established that Abramowitz filed three or more loan applications with the bank from February 1973 through October 1973. Originally he sought a construction loan to build a building to be leased to Ford Motor Company on land he owned near the John Young Parkway. C. Lee Maynard, president of the bank, wanted the loan for his bank, although the $300,000 to $400,000 loan requests considerably exceeded the bank’s lending limits. In anticipation of making the loan, Maynard made “inspections” of the site and building being constructed, although Ford was financing the construction itself and the bank had made no loan commitment.

When the building was completed in November of 1973, the parties rushed into a mortgage loan closing without the benefit of a written loan commitment and without a carefully prepared loan closing statement. Maynard had verbally promised Abramow-itz a $400,000 loan for one year, at 9% interest, with a 1% “point” or “service fee.” The $4,000 “service fee” was shown on the closing statement as a “discount,” but everyone agreed no “discount” was involved because the bank was not purchasing a mortgage loan from another party at less than face value.

The $4,000 service fee was deducted in full from the loan proceeds, and it was immediately received by the bank as income. During the one year term of this loan, Abramowitz was charged and he paid $36,347.78 in “interest.” If the $4,000 charge was also “interest,” Abramowitz paid more than $40,000 or 10% of his $400,-000 loan in total interest charges. If viewed as a “discount” loan where interest is paid in advance, the rate should be properly gauged on the amount of principal actually disbursed to the borrower plus legitimate expenses — ($396,000 or a somewhat larger figure if any part of the $4,000 were attributable to a legitimate expense of the lender.)

Maynard testified that the $4,000 charge was meant to be a “service charge” or “points.” He was the only mortgage loan officer at his bank, so he made “in-house” inspections of the construction of the building and a final inspection. He reported verbally to the bank’s loan committee. He admitted that part of the $4,000 went to pay the bank’s normal overhead expenses, such as salaries and utilities. Another expense attributed to this loan was Maynard’s contacting other Barnett banks to obtain the participation of other lenders, and the preparation of loan participation agreements.

The other banker witnesses at trial testified that their banks normally imposed “service fees” or “points” on real estate loans in addition to interest, but they were careful not to exceed the usury limits when the two amounts were combined. Sometimes inspection fees were paid to architects or engineers for which the customer was charged; sometimes the inspections were done “in-house,” and the borrower was charged a small amount, or was not charged at all.

A real estate appraiser testified he would have done a “final inspection” on this building for $300. If it had been a construction loan requiring approximately 5 separate inspections, his charges would have been $800.

A lender will not be allowed to impose any miscellaneous fees or service charges on the front end of a loan when that sum, added to the interest charged, exceeds the maximum legal rate of interest allowable. Ayvas v. Green, 57 So.2d 30 (Fla.1952); Richter Jewelry Co. v. Schweinert, 125 Fla. 199, 169 So. 750 (1935); Williamson v. Clark, 120 So.2d 637 (Fla.2d DCA 1960). Application of such fees to pay the general overhead of a lender or the cost of participating out the loan are not sufficient to alter the characterization of these charges as interest. 91 C.J.S. Usury § 48 (1955).

It is also well established that a borrower can be charged the actual reasonable expenses of making a particular loan. Financial Federal Savings & Loan Assn. v. Burleigh House, Inc., 305 So.2d 59 (Fla.3d DCA 1974), cert. dismissed 336 So.2d 1145 (Fla.1976), cert. denied, 492 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 (1977); Mindlin v. Davis, 74 So.2d 789 (1954). However “bogus” charges for services not actually rendered will not be allowed to cloak the extraction of illegal interest. Williamson v. Clark, 120 So.2d 637 (Fla.2d DCA 1960).

The only basis to characterize the “service fee” in this case as something other than interest, is to allocate part of it as an “inspection” fee performed “in-house” by the bank’s president. Such fees are usually paid to third-parties, and are documented on the mortgage loan closing statement. We are not prepared to say, however, that in all cases the inspection must be done by a third-person or that it must be documented on the closing statement, although that obviously is the better practice. The fact that Maynard himself performed the inspection does not flaw the charges although any charge for this “service” is inconsistent with his testimony that he did the inspection “in-house” to save the borrower money.

It is fundamental that the charges must be “reasonable.” Financial Federal Savings & Loan v. Burleigh House; Abramowitz v. Barnett Bank of West Orlando, 356 So.2d 329 (Fla. 4th DCA), cert. denied, 364 So.2d 880 (1978). This loan was not a “construction” loan which requires more inspections to insure the lender’s construction funds are being properly used as the building progresses. Rather, it was a loan on a completed building, and similar to a “takeout” loan for a permanent lender, only a final inspection fee is required. The only testimony in the record on this point established that $300 was the maximum a third party expert would have charged.

The conclusion thus follows inescapably that Abramowitz was charged in excess of 10% interest on this one-year loan.

“Service Fee” $ 4,000.00
Less “Reasonable Expenses” - 300.00
“Hidden Interest” $ 3,700.00
Principle of Loan $400,000.00
Less Prepaid Interest -3,700.00
Actual Principal $396,300.00
Maximum legal amount of interest collectible on this loan (10%) of actual principal $ 39,630.00
Actual interest charged and billed 36,347.78
Plus “hidden interest” + 3,700.00
$ 40,047.78
Amount of over-charge $ 40,047.78
-39,630,00
$ 417.78

The lower court found there was no “corrupt” intent on the part of the bank to charge a usurious rate of interest because the bank did not deliberately charge more than 10%. It charged 9% on the loan plus 1% in points only. The difficulty here was that the 1% was taken up-front, resulting in a reduction in principal received, and an increase in the rate paid. Hamm v. St. Petersburg Bank & Trust Co., 379 So.2d 1300 (Fla.2d DCA 1980). The “intent” to exceed the legal rate of interest need not be to consciously decide to charge a borrower greater than the legal rate, when the lender consciously intends and does in fact make the charges which add up to usury. Ellis National Bank of Tallahassee v. Davis, 359 So.2d 466 (Fla. 1st DCA), cert. denied 365 So.2d 711 (Fla.1978), cert. denied 440 U.S. 976, 99 S.Ct. 1547, 59 L.Ed.2d 796 (1979). See Sailboat Apt. Corp. v. Chase Manhattan Mortgage, 363 So.2d 564 (Fla.3d DCA 1978).

In this case, the closing statement showing a 1% point or service fee was prepared by the bank; and it calculated and billed the borrower interest throughout the year. No errors were shown to have occurred in the billing. In fact during 2 quarters, the lender billed on a 360 day year basis, which for a 10% or maximum rate loan, was usurious in and of itself. Ellis. We conclude the bank had the requisite intent to make the usurious charges. Sumner v. Investment Mortgage Co. of Florida, 332 So.2d 103 (Fla. 1st DCA 1976); Curtiss National Bank of Miami v. Solomon, 243 So.2d 475 (Fla.3d DCA 1971); River Hills, Inc. v. Edwards, 190 So.2d 415 (Fla.2d DCA 1966).

Accordingly, the judgment is reversed and this case is remanded for imposition of damages against the bank, pursuant to section 687.04 and other appropriate charges.

REVERSED and REMANDED.

DAUKSCH, C. J., concurs.

SHARP, G. KENDALL, Associate Judge, dissents with opinion.

SHARP, G. KENDALL, Associate Judge,

dissenting.

The trial judge issued a memorandum supplementing his final judgment in which he found that after some difficulty in obtaining a loan from other lending institutions, appellant secured a loan from Barnett Bank at a total rate of 9% plus a 1% service fee. At the time, all banks were charging a similar fee. The lower court found that in many instances the service fee is nothing more than concealed interest. In this case, the trial judge found as a matter of fact the bank performed several functions other than those of a straight loan transaction. The president of the bank periodically and frequently investigated progress of the construction of the building on the property. The bank also had to find other participating banks to join in making the loan, as the loan exceeded this bank’s lending authority. The court found that the bank was entitled to charge a service fee therewith.

Appellant contends that the $4,000.00 service fee was totally interest and was withheld from the principal loan, i. e. only $396,-000.00 was disbursed, plus the fact that for approximately Vfe of the term of the loan, interest was charged on a 360 day year versus 365 days. With all of these factors taken as true, the interest rate would be 10.1883%. See Hamm v. St. Petersburg Bank & Trust Co., 379 So.2d 1300 (Fla.2d DCA 1980).

Accepting the computation set forth above, the transaction would be facially usurious and tainted in the amount of $717.78. Even so, the trial judge found that the bank performed services to borrower in excess of that amount and could rightfully charge for those services.

The second element of usury is intent of the lender. Again, if we give the benefit to the appellant and find that the $4,000.00 service charge was all interest, it would then be the legal intent of the lender to make a 9% loan and a 1% service charge, still within the rate allowed by law.

In Dixon v. Sharp, 276 So.2d 817 (Fla. 1973), the Supreme Court spoke to the requisite intent required for a usurious transaction:

... (4) There must exist a corrupt intent to take more than the legal rate for the use of the money loaned.

In court in Dixon stressed that usury is largely a matter of intent, and is not fully determined by the fact that the lender actually receives more than the law permits, but is determined by the existence of a corrupt purpose in the lender’s mind to get more than the legal interest for the money lent. Simple mathematical computation will not in itself determine necessary intent to make the debt unenforceable.

In this case there was sufficient evidence presented to the trial court to show services rendered by the bank which could be charged against the loan at least to the extent to remove the $717.78 taint of usury. The trial court further found that the bank had no other intent at the time of making the loan than to charge the stated amount of 9% plus a 1% service charge. The majority of this court is imposing its own judgment that no more than $300.00 should be allocated for reasonable expenses. They do not take into consideration any charge for securing participating lenders. It does not appear to me that $417.78 is an unreasonable charge for all services other than inspections so as to make the transaction usurious and imposes damages under section 687.04.

      . Abramowitz v. Barnett Bank of West Orlando, 356 So.2d 329 (Fla. 4th DCA), cert. denied, 364 So.2d 880 (1978).

      . At the time the loan was consummated, the maximum interest rate chargeable to an individual was 10%. Section 687.03, Florida Statutes (1973). If the 10% rate was exceeded the bank would be subject to the penalties provided in section 687.04, Florida Statutes (1973).

      . Crompton v. Smith, 140 Fla. 511, 192 So. 186 (1939); Hamm v. St. Petersburg Bank & Trust Company, 379 So.2d 1300 (Fla.2d DCA 1980).


author: SHIVERS, Judge.

text:
    KENILWORTH INSURANCE COMPANY, Appellant, v. Donna J. McCORMICK, Appellee.
    No. YY-35.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.
    Rehearing Denied March 25, 1981.

      E. N. Stephens, Jr., Pensacola, for appellant.
    Robert J. Mayes and Stephen H. Echsner, of Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellee.
   SHIVERS, Judge.

This is an appeal from a summary judgment holding that a carrier is obligated to secure a second rejection of uninsured motorist benefits and to offer a new personal injury protection deductible when an insured, who has previously rejected uninsured motorist coverage and has elected a personal injury protection deductible, purchases a replacement vehicle. We reverse.

On October 15,1977, the named insureds, Charles McCormick and Lucy Harrison McCormick, renewed their automobile insurance policy with Kenilworth Insurance Company for the period beginning October 20, 1977, and expiring October 20, 1978. The policy provided for a $2,000 personal injury protection deductible and a $10,-000/$20,000 liability coverage for a 1976 Ford pick-up and a 1967 Ford sedan. At the time of the renewal, the insureds rejected uninsured motorist coverage.

On February 13, 1978, a change-of-car endorsement was issued by the carrier which deleted the Ford sedan and added a 1972 Ford Gran Torino. At the time the change-of-car endorsement was issued, uninsured motorist coverage was neither requested nor rejected by the insureds and the coverage limits and premium amounts set out in the renewal policy issued in October 1977 remained unchanged. The endorsement expressly indicated that it formed a part of the renewal policy in which the insureds had rejected uninsured motorist coverage and elected the $2,000 personal injury protection deductible.

On July 16, 1978, appellee, a member of the insureds’ household, was involved in an accident while driving the Ford Gran Tori-no.

In rendering a partial summary judgment in favor of appellee and finding that the change-of-car endorsement was a new insurance policy, the lower court ruled that the carrier was obligated to secure a second rejection of uninsured motorist benefits pursuant to Section 627.727(1), Florida Statutes (1977), when the change-of-car endorsement was issued. Since there was no new rejection of uninsured motorist coverage obtained by the carrier at that time, the court held that the policy provided uninsured motorist coverage to the insureds in the same amount as the bodily injury liability coverage. Additionally, because a personal injury protection deductible was neither offered by the carrier nor selected by the insured when the change-of-car endorsement was issued, the lower court ruled there was no deductible under Section 627.-739, Florida Statutes (1977).

The lower court erred in ruling the carrier was obligated to secure a second rejection of uninsured motorist coverage when the change-of-car endorsement was issued. State Farm Mutual Automobile Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980). Section 627.727, Florida Statutes (1977), requires that an automobile insurance policy must contain uninsured motorist coverage in an amount not less than the personal injury liability limits of the policy unless uninsured motorist coverage is rejected by the insured. Section 627.727(1) provides, in part:

Unless the named insured, or lessee having the privilege of rejecting uninsured motorist coverage, requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy when the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

Bergman, supra, held that once an insured has rejected full coverage under the uninsured motorist portion of an insurance policy, a carrier is not required to secure another rejection of uninsured motorist coverage under Section 627.727(1) when the insured buys a replacement vehicle.

Under the facts of the present case, which are identical to the situation found in Bergman, supra, there was no change in either the amount of the premium or the amount of personal injury coverage as set out in the October 1977 renewal policy when the change-of-car endorsement was issued in February of 1978. Instead, the change-of-car endorsement was based upon and subject to the same terms and conditions contained in the October 1977 policy in which the insureds had rejected uninsured motorist coverage. Therefore, the trial court erred in ruling that the change-of-car endorsement constituted a new policy which, in turn, required the carrier to secure a second rejection of uninsured motorist coverage under Section 627.727(1) in order to avoid liability for payment of uninsured motorist benefits.

The trial court further erred in holding there was no personal injury protection deductible because the carrier did not offer a deductible and the insureds did not select a deductible at the time the change-of-car endorsement was issued. Section 627.736, Florida Statutes (1977), requires that personal injury protection benefits shall be provided to a limit of $5,000. Section 627.739(1), Florida Statutes (1977), requires a carrier to offer an insured a personal injury protection deductible in specified amounts upon the renewal of an existing policy. Here, the insureds elected a $2,000 deductible when they renewed their policy in October 1977. The lower court refused to recognize the deductible because the insureds were not offered a deductible when the change-of-car endorsement was issued. However, as discussed earlier, a change-of-car endorsement for a replacement vehicle is neither a renewal of a policy nor a new policy when subject to the terms and conditions of a previous policy and where the amount of premiums and coverage limits remain unchanged. State Farm v. Bergman, supra.

Therefore, the summary judgment is reversed and this case is remanded for further proceedings in accordance with this opinion.

SHAW and THOMPSON, JJ., concur.


text:
    Edward James THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. VV-302.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The trial court erred in not complying with Florida Rule of Criminal Procedure 3.390(a). See Tascano v. State, 393 So.2d 540 (Fla.1980). By objection to the trial court’s denial of the requested instruction, appellant properly preserved this point for review. We have considered the remaining points raised by appellant and find them to be without merit.

Reversed for new trial.

McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: ORFINGER, Judge.

text:
    Archie L. STUDSTILL, Appellant, v. STATE of Florida, Appellee.
    No. 80-157.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 1981.
    Rehearing Denied March 12, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant was convicted of two counts of kidnapping, two counts of sexual battery, and one count of robbery. He was sentenced to a term of life imprisonment upon the condition that after he had served fifteen years of said term he would be placed on probation for life. He appeals. We affirm.

Appellant first says that the trial judge erred in not permitting him to ask a defense witness about a prior inconsistent statement allegedly made by a state witness, but appellant concedes that the state’s witness was not asked if he had made the supposedly inconsistent statement. There was no error in refusing to permit testimony of the alleged inconsistent statement in the absence of a proper predicate.

Appellant next contends that the life sentence given him exceeds the statutory maximum because of the fifteen-year incarceration, followed by probation for life. He characterizes it as being greater than a life sentence, although recognizing the penalty for the crimes for which he was convicted can be life imprisonment. The period of probation would be for the remainder of appellant’s life following the expiration of the prison term, so it does not, nor could it, exceed a life sentence. Cf. Alvarez v. State, 358 So.2d 10 (Fla.1978). There is no merit to this point.

At oral argument, appellant contended that the recent decision of Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1980), applies to this case and should be followed. Appellant did not raise as a point on this appeal the length of his prison term as it applied to his subsequent probation, but only contended that the prison term and subsequent probation exceeded the total maximum sentence authorized by law. Thus, any issue potentially raised by Villery has not been preserved for appeal.

We affirm the judgment of conviction and sentence without prejudice to the right of appellant to apply to the trial court for such collateral relief as he may deem proper.

AFFIRMED.

DAUKSCH, C. J., and COWART, J., concur.

      . § 787.01(l)(a)2, Fla.Stat. (1979).

      . § 794.011(3), Fla.Stat. (1979).

      . §§ 812.13(1) and 812.13(2)(a), Fla.Stat. (1979).

      . Section 90.614, Florida Statutes (1979), which codifies prior Florida law to the effect that before a prior inconsistent statement may be admitted in evidence, the witness allegedly making the statement must be asked if he made the statement and given the opportunity to explain, admit or deny making the statement. Hancock v. McDonald, 148 So.2d 56 (Fla. 1st DCA 1963).


text:
    HALL’S CAMP, INC., and Hartford Insurance Group, Appellants, v. Annie DECKER, Appellee.
    No. SS-226.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.
    Rehearing Denied March 25, 1981.

      Eugene E. Williams and Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellants.
    Stephen Marc Slepin, and Arnold I. Levy, of Slepin & Slepin, Tallahassee, for appel-lee.
   SHIVERS, Judge.

Employer/carrier appeal a workers’ compensation order awarding claimant temporary partial disability benefits, payment of an outstanding medical bill, and a 35% permanent partial disability of the left leg. We affirm.

This appeal presents three questions. First, the employer/carrier contend they were denied their right to due process when the deputy commissioner awarded temporary partial disability benefits, alleging that the issue of temporary partial disability had not been placed into issue and they were therefore prejudiced by the lack of advance notice of the necessity to defend such a claim.

This question is without merit. The record reflects that the workers’ compensation claim, as well as the notice of hearing, clearly and expressly states that the claimant was seeking temporary total and temporary partial disability compensation. Due process notice requirements are adequately met by a claimant’s request for benefits set out in a claim, Bay Plumbing Company, Inc. v. Harbin, 337 So.2d 799 (Fla.1976), and the request need not be renewed before the deputy commissioner. G & S Packing Company v. Driggers, 382 So.2d 446 (Fla. 1st DCA 1980). Moreover, the pretrial stipulation, which was accepted by the deputy commissioner, indicates the claimant was seeking temporary total disability benefits. The employer/carrier should be on notice that the denial of claimed temporary total disability benefits might well result in an award of temporary partial disability benefits if there is a gap between the cessation of temporary total disability and the date of maximum medical improvement. See, Farm Stores v. Dyrda, 384 So.2d 269 (Fla. 1st DCA 1980).

The second question is whether it was error to award payment of Dr. Arnold’s medical bill and an associated bill for physical therapy. The employer/carrier object to payment for the medical treatment rendered by Dr. Arnold because he was unauthorized to treat the claimant, failed to file timely medical reports on the prescribed workers’ compensation forms, and, further, because Dr. Arnold’s medical bills were not submitted into evidence at the hearing below.

The deputy commissioner did not err in awarding payment of Dr. Arnold’s medical bill and the associated bill for physical therapy which was part of Dr. Arnold's treatment of the claimant’s injury. A claimant may recover payment of an unauthorized physician’s medical bill if the nature of the injury requires treatment and the employer had knowledge of the injury and does not provide treatment. Lance v. Witters, 270 So.2d 4 (Fla.1972). The record shows that the nature of claimant’s injury required the treatment received from Dr. Arnold and that the employer/carrier knew of the need for such treatment. Upon learning that the claimant was moving to Fayetteville, Arkansas, the authorized Florida physician advised the claimant that she should arrange to see an orthopedic surgeon when she arrived in Arkansas, and provided her with a paper containing information concerning her need for medication and periodic blood tests to be given to the Arkansas physician. Since the Florida physician also notified the carrier of the claimant’s need for periodic medical supervision for the rest of her life, the employer/carrier could not argue that they did not know of her need for continued treatment for her injuries.

However, more significant to the resolution of this question is the finding that Dr. Arnold’s clinic contained the only orthopedic surgeons in the Fayetteville area. Although the carrier did not specifically authorize treatment by Dr. Arnold, it would be unreasonable for the employer/carrier to have required the claimant to travel outside of the local Arkansas community for treatment by another orthopedic surgeon. Besides, Dr. Arnold informed the carrier of his treatment of the claimant and submitted narrative medical reports and no formal objection to such treatment was ever made by the carrier. Since the treatment rendered by Dr. Arnold was required and his clinic was the only source of orthopedic care in the area, there was no error in awarding payment for his medical services, especially since the authorized physician acknowledged its necessity. Moreover, because Dr. Arnold, in turn, referred the claimant to Gene Anderson, a physical therapist, the award of his bill was also proper. McKinney v. McKinney, 380 So.2d 469 (Fla. 1st DCA 1980).

As to the failure of Dr. Arnold to file timely medical reports on the prescribed workers’ compensation forms, Section 440.-13(1), Florida Statutes (1973) provides the deputy commissioner with the authority to excuse the failure to timely file the reports for good cause. Hardware Mutual Casualty Company v. Sutton, 197 So.2d 502 (Fla. 1967); Jackson Plumbing v. Butcher, 8 FCR 320 (1974); Sears v. Latimer, IRC Order 2-3718 (1979). It cannot be said that a deputy commissioner abused his discretion in excusing the untimely filing of the medical reports since Dr. Arnold was an out-of-state physician and he did in fact file periodic narrative medical reports to the carrier.

Additionally, although Dr. Arnold’s medical bills were not introduced into evidence, he did testify as to the amount of the bills and their causal connection to the treatment rendered to the claimant for her injuries. His testimony was corroborated by the claimant as well as his own narrative medical reports which were introduced into evidence.

Finally, the employer/carrier assert that the award of a 35% permanent partial disability of the left leg was erroneous because the physician who assigned the 35% anatomical rating had assigned a different date of maximum medical improvement than the date of maximum medical improvement accepted by the deputy commissioner which was based upon the testimony of the claimant and another physician.

We disagree. It is the responsibility of the deputy commissioner to evaluate all of the testimony in a case and to resolve all conflicts. Crowell v. Messana, 180 So.2d 329 (Fla.1965). When dealing with a scheduled injury, expert medical testimony is non-conclusive and a deputy commissioner is free to consider other evidence in arriving at a permanent partial loss or loss of use of a scheduled member. Kennedy v. Tyson, 382 So.2d 820 (Fla. 1st DCA 1980); Magic City Bottle and Supply Company v. Robinson, 116 So.2d 240 (Fla.1959). Based upon the record, there is competent, substantial evidence comporting with logic and reason to support the award of a 35% permanent partial disability of the left leg.

Accordingly, the appealed order is AFFIRMED.

ERVIN and SMITH, JJ., concur.


author: McCORD, Judge.

text:
    MONTGOMERY WARD, Appellant, v. Donald Edward TYNAN, Appellee.
    No. SS-213.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1981.
    Rehearing Denied March 25, 1981.

      Thomas M. Burke of Rumberger, Kirk & Caldwell, Orlando, for appellant.
    No brief filed for appellee.
   McCORD, Judge.

Appellant, employer, appeals from a workers’ compensation order in which the deputy commissioner found that appellee, claimant, sustained a compensable injury to his back and that appellant’s defense, pursuant to Martin Company v. Carpenter, 132 So.2d 400 (Fla.1961), that appellee made false representations on his job application, is not appropriate or applicable because no causal relationship was established between the alleged false representations and appellant’s injury. We affirm.

In Martin Company v. Carpenter, the court ruled as follows:

We therefore adopt the rule that false representation as to physical condition or health made by an employee in procuring employment will preclude the benefits of the workmen’s compensation act for an otherwise compensable injury if there is shown to be a causal relationship between the injury and the false representation

On appellee’s job application and personal history statement, a check mark was made under the answer “No” to the question whether appellee had ever had a back injury. At the hearing, appellee denied ever previously sustaining a back injury and did not recall filling out that block on the personal history sheet. One of appellant’s employees testified that appellee made the check mark in answer to that question. The record shows that appellee sought compensation benefits in Illinois for a back injury alleged to have occurred in June 1975 but, as a result of that claim, he received benefits only for an injury to his leg. Competent substantial evidence supports the deputy commissioner’s finding of no causal connection between the alleged previous back injury and the present injury.

In his order, the deputy commissioner stated that the parties stipulated that the only issue before him was the question of compensability. In his order, however, he found that because appellee is in need of further medical attention based upon his subjective complaints, he should be returned to the original treating physician for further evaluation and treatment and he ordered appellant to pay for same. Contrary to the deputy commissioner's statement and appellant’s contention here, the parties did not stipulate that the only issue was compensability. In fact, the transcript of the hearing before the deputy commissioner reveals that, at the hearing, counsel for appellee related to the court that appel-lee was seeking medical treatment also; that he could remain in Florida for two weeks to obtain that treatment, if awarded. Appellant made no objection to that statement. Consequently, the deputy commissioner was justified in considering and disposing of the medical benefit issue.

AFFIRMED.

SHIVERS and JOANOS, JJ., concur.