author: ANSTEAD, Judge.

text:
    Adolphus McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 81-2098.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 26, 1983.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

Appellant, Adolphus McCray, and his brother, Tracy, were convicted of robbery with a handgun. On appeal Adolphus claims that the trial court erred in failing to suppress identification evidence; in allowing evidence that he was guilty of another crime; and in failing to instruct the jury on his diminished legal capacity, by reason of age, to commit a crime. We affirm.

We have reviewed the record with respect to the identification procedures involved and find no error by the trial court in denying the motion to suppress the identifications. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). We have also examined the record with regard to the alleged improper reference to other crimes and find no merit to appellant’s claim on this issue. The remarks of the prosecutor relied upon appeared to be made in direct response to remarks on the same subject first made by appellant’s counsel. In any case we find no harmful error on this issue.

At the time of the incident Adol-phus, who was tried as an adult, was thirteen years and ten months old and his brother, who eventually pled guilty, was fifteen. Adolphus and Tracy were indicted by a grand jury for robbery with a handgun. At trial Adolphus requested the court to instruct the jury on the common law rule applicable to juveniles between the ages of seven and fourteen raising a progressively decreasing rebuttable presumption of incapacity to commit a crime. The court, on the basis that the existence of the presumption was a legal matter to be decided by the court, denied this request.

Adolphus contends on appeal that the trial court should have instructed the jury on the common law presumption in accord with the decision in Clay v. State, 143 Fla. 204, 196 So. 462 (1940). Since he was two months shy of being fourteen years old, Adolphus claims it was reversible error to deny the instruction.

The state, on the other hand, argues that the legislature, by the enactment of Chapter 39, Florida Statutes (1979), has supplanted that presumption with a statutory scheme for determining when a juvenile may be deemed capable of committing an offense for purposes of being treated as an adult. We agree. In particular section 39.-02(5) contains a comprehensive scheme for making such a determination. The state also relies on sections 39.04(2)(e)(3) & (4), Fla.Stat. (1979) which provide that a state attorney may file, along with a petition for delinquency, a motion to transfer and certify the child for prosecution as an adult or to refer the case to the grand jury. In fact, the latter occurred in this case. The Florida Supreme Court has commented that Chapter 39, Florida Statutes, was intended by the legislature to serve “the remedial purposes of reformation” of juveniles. State v. D.H., 340 So.2d 1163, 1165 (Fla.1976). The legislature, the court said, did not intend to apply to delinquency proceedings “the common law rebuttable presumption that a child between the ages of 7 and 14 is incapable of committing a crime ... [because sjuch construction, [would be inconsistent with the purpose[s] of juvenile proceedings .... ” Id. at 1164-65. In a similar fashion, we believe that by specifying the instances when a juvenile may be treated as an adult for purposes of criminal prosecution that the legislature intended to replace the common law presumption with the statutory scheme set out in Chapter 39 and under which Adolphus was prosecuted herein. Thus, we conclude that a juvenile tried as an adult under this scheme is not entitled to an instruction to the jury on the common law presumption of disability by reason of age.

Accordingly, we affirm the judgment and sentence of the trial court.

GLICKSTEIN and HURLEY, JJ., concur.

      . Section 39.02(5) provides:
      (5)(a) If the court finds, after a waiver hearing, that a child who was 14 years of age or older at the time the alleged violation was committed and who is alleged to have committed a violation of Florida law should be charged and tried as an adult, then the court may enter an order transferring the case and certifying the case for trial as if the child were an adult. The child shall thereafter be subject to prosecution, trial, and sentencing as if the child were an adult but subject to the provisions of s. 39.111(6).
      (b) The court shall transfer and certify the case for trial as if the child were an adult if the child is alleged to have committed a violation of law and, prior to the commencement of an adjudicatory hearing, the child, joined by a parent or, in the absence of a parent, by his guardian or guardian ad litem, demands in writing to be tried as an adult.
      (c) A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set forth in s. 39.-06(7) unless and until an indictment on such charge is returned by the grand jury. When an indictment is returned, the petition for delinquency, if any, shall be dismissed and the child shall be tried and handled in every respect as if he were an adult. No adjudicatory hearing shall be held within 21 days from the date that the child is taken into custody and charged with having committed a capital or life felony unless the state attorney advises the court in writing that he does not intend to present the case to the grand jury or that he has presented the case to the grand jury and that the grand jury has returned a no true bill. If the court receives such a notice from the state attorney, or if the grand jury fails to act within the 21-day period, the court may proceed as otherwise authorized under this chapter.
      (d) Once a child has been transferred for criminal prosecution pursuant to a waiver hearing, indictment, or information and has been found to have committed the offense for which he is transferred or a lesser-included offense, the child shall thereafter be handled in every respect as if he were an adult for any subsequent violation of Florida law.
      (e) If the court determines not to impose adult sanctions, then the court must next determine what juvenile sanctions it will impose. If the court determines not to adjudicate and commit to the department, the court shall then determine what community-based penal sanctions it will impose in a community control program. Community-based penal sanctions may include, but are not limited to, rehabilitative restitution, curfew, revocation or suspension of the child’s driver’s license, community or public service, the deprivation from the child of nonessential activities or privileges, or other appropriate restraints on the child’s liberty.

      (j) It is the intent of the Legislature that the foregoing criteria and guidelines shall be deemed mandatory and that a determination of disposition pursuant to this subsection is subject to the right of the child to appellate review pursuant to s. 39.14.


source: Caselaw Access Project

author: DELL, Judge.

license: Public Domain

text:
    James McFADDEN, Appellant, v. STATE of Florida, Appellee.
    No. 81-2143.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 26, 1983.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

McFadden appeals from his convictions and sentences for aggravated battery and shooting into an occupied vehicle.

The State charged appellant with the crimes of attempted first degree murder, shooting into an occupied vehicle and possession of a firearm while engaged in a criminal offense. These charges arose out of a fight between appellant and Elijah Peterman which began on the business premises of East Coast Starter Drive in Pompano Beach and ended in a roadside gun battle that left Peterman seriously injured. At appellant’s jury trial, Peterman testified that appellant was lying in wait for him at a curve in the highway and then shot him with a rifle as he drove past. Peterman returned the fire with his pistol but did not hit anyone. Appellant testified that Peterman was the one who ambushed him at the curve and who fired the first shots. Appellant admitted shooting at Pe-terman but claimed he only fired in self-defense.

Appellant completed his direct testimony at the end of the day before an agreed upon holiday recess. The trial judge, at the pros-eeutor’s request, ordered appellant’s counsel not to discuss appellant’s own trial testimony with him during the holiday recess. In response to appellant’s counsel’s objection the court limited its ruling, “You just don’t coach him and discuss his testimony.” When trial resumed, appellant’s counsel declined the court’s offer for him to talk with appellant but admitted that he had met with appellant the previous day.

Appellant presents four points on appeal; none warrant reversal but one requires further discussion. Appellant contends that the trial court erred in ordering appellant and his attorney not to discuss the case during a recess which lasted a day and a half. We disagree.

Contrary to his contention, appellant did not suffer a constitutional deprivation of the right to consult with counsel over the recess. Appellant’s reliance on Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), is misplaced in two respects. First, the Geders court held that an order prohibiting a defendant from consulting with his counsel “about anything” during an overnight recess between his own direct and cross-examination violated the defendant’s Sixth Amendment right to the assistance of counsel. Id. 425 U.S. at 91, 96 S.Ct. at 1337, 47 L.Ed.2d at 601. The complete prohibition on consultation “about anything” during a recess, condemned in Geders, supra, is missing in the case at bar. Second, defendant’s trial counsel in Geders complied with the court’s order prohibiting any recess consultation. In the case sub judice, counsel met with appellant during the recess period but refused to disclose what took place. More importantly, appellant’s counsel refused the trial court’s offer to extend the recess to permit counsel to confer with his client to the extent he considered necessary. Although the trial court erred by instructing counsel not to discuss appellant’s testimony with him during the holiday recess, because the trial court gave appellant ample opportunity to meet with counsel before proceeding with trial, there was no prejudice, Bova v. State, 410 So.2d 1343 (Fla.1982), and the error was thereby rendered harmless.

Accordingly, we affirm appellant’s convictions and sentences below.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.

      . The following exchange took place before the prosecutor began cross-examining appellant when the trial reconvened after the holiday recess:
      MR. GOLDSTEIN: One other thing, something I should have done before we started; I ask the Court to ask Mr. Kollin if he is ready for trial today at 1:30, because there was a problem this morning at 9:20 — I believe it was 9:36 when Mr. Kollin stated he didn’t have time to prepare for trial.
      MR. KOLLIN: Those weren’t my words.
      My words were that I think the damage has occurred, and it’s irreparable, and we are proceeding, and that is my position.
      THE COURT: I told you I would recess and we wouldn’t start until you are ready. By appearing here, I assumed you are ready.
      MR. KOLLIN: My statement—
      THE COURT: Do you need to talk to him now?

      MR. KOLLIN: No.

      THE COURT: Okay.
      MR. KOLLIN: I just think—

        THE COURT: You didn’t talk to him during the time—
      MR. KOLLIN: Your Honor, what I did or did not do with my client remains attorney/client privilege.

      THE COURT: If the purpose of your—
      MR. KOLLIN: I met with him yesterday.

      [Emphasis added.]


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Gene A. MOORE, Appellee.
    No. 82-370.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 27, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellee, Gene Arthur Moore, was indicted by the Palm Beach County Grand Jury for murder in the first degree. From an order granting appellee’s motion to dismiss the indictment, the State has perfected this appeal.

It appears from the briefs of the parties that the State obtained statements from four eye witnesses who identified appellee as the person who committed the homicide in question. Two of the four testified under oath before the grand jury. Subsequently, all four of the said witnesses recanted in sworn statements. Thereupon, appellee moved to dismiss the indictment pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), on grounds that there were no disputed issues of fact and the undisputed facts fail to establish a prima facie case of guilt. The thrust of appellee’s motion was that the State has no remaining witness who could identify appellee as the perpetrator of the crime. The State filed a response to appellee’s motion to dismiss acknowledging that the four eye witnesses had changed their testimony. The response alleges that the four witnesses are prostitutes for the appellee and one is related to him. The State conceded that, as the law presently exists, if the State has no substantive evidence to identify appellee as the person who committed the crime, the court must grant the motion to dismiss. However, the State’s response advised the trial court that the State would not nolle pros the case and intended to ask the appellate court to revisit the question of the limited admissibility of the prior statements. Finally, the State requested the trial court to admit the recanted, prior inconsistent statements as substantive evidence of the crime and allow the jury to decide which statement is the more credible.

In its order granting the motion to dismiss the trial court stated that the State acknowledged the present status of the law in Florida is that prior inconsistent statements are admissible only for impeachment and not as substantive evidence. However, the trial court observed,

Nevertheless, the State has not filed a nolle prosequi of this case. Instead, the State prefers this Court to enter its order of dismissal so that the State can take an appeal therefrom, alleging error on the part of this Court — an inconsistent position to say the least. But, as President Harry Truman observed, ‘The buck stops here!’

On appeal the State contends that the prior inconsistent statements were admissible as substantive evidence. Appellee responds with the suggestion that the State cannot tender a position to the trial court and then successfully offer a different basis for reversal on appeal. It must be remembered that, while the prosecutor trying the case was under the impression that Florida law precluded use of the statements as substantive evidence (because that is what the existing case law holds), he advised the trial court that he would not nolle pros the case because he wanted to try to get the appellate court to change that rule and allow the admission of such statements for consideration by the jury. The prosecutor did not say that dismissal was proper and then stop; rather, he said dismissal was proper but that the State would seek review of any order granting dismissal and argue to an appellate court that dismissal was erroneous. Under these circumstances the State is not estopped from asking this court to reverse the order dismissing the indictment against appellee. As we shall point out hereafter, the prosecutor was mistaken in his understanding of the current status of Florida law on the question. We do not say that critically because there are several Florida cases that held prior inconsistent statements are admissible only for impeachment. The change in the law is of recent vintage and has come about in Florida because of the adoption of the Florida Evidence Code. Thus, there was good reason for the prosecutor and the trial court to assume the statements were not admissible as substantive evidence, and that therefore the State could not survive a motion for judgment of acquittal. Although he was mistaken about the status of the law, the prosecutor was completely candid with the court, and such candor is to be encouraged. In view of his complete disclosure to the trial court and in view of the seriousness of the charge in this case, we have no difficulty in treating the question on appeal.

Adverting now to the merits of the appellate question, we hold that the cases decided before the advent of the Florida Evidence Code, which held that prior inconsistent statements could not be admitted as substantive evidence but only for impeachment, are now modified by Section 90.801(2)(a), Florida Statutes (1981), which provides:

“(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(a) Inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;”.

The problem envisioned, though rarely discussed, in the cases announcing the old rule was that the prior statement of a witness was hearsay as to the defendant on trial, because there was no confrontation and no cross examination. However, there has been a strong movement in later years against the exclusion of such statements as hearsay. The historical background for this change in the rule is set forth in the Notes of Advisory Committee on Proposed Rules, Fed.Rules Evid.Rule 801, 28 U.S.C.A. 528-531; however its inclusion would unduly lengthen this opinion. It should suffice to consider the commentary to Section 90.801, Florida Statutes, which, in pertinent part, states:

Paragraph (a) This paragraph excludes from the definition of hearsay certain out-of-court statements by a witness who testifies at the trial or hearing and is subject to cross-examination. Since the declarant is in court and may be cross-examined in regard to the statement, the dangers inherent in hearsay testimony are minimized. See 5 Wigmore, Evidence §§ 1361-1362 (3rd ed. 1940). The prior statement may be used as substantive evidence. It is unrealistic to believe that a jury properly discriminates when told to accept certain evidence as bearing only on the credibility of the witness. The prior statement may be more reliable than the present testimony.
-6C F.S.A. 238

The rationale behind the rule change is set forth in Ladd, Some Highlights of the New Federal Rules of Evidence. 1 Fla.St.U.L.Rev. 191, 200. See also: California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); DiCarlo v. United States, 6 F.2d 364 (2d Cir.1925); United States v. DeSisto, 329 F.2d 929 (2d Cir.1964).

Accordingly, the State, in this case, is not without substantive evidence of the crime, which may be considered by the jury if the requirements of Section 90.801(2)(a) are complied with. Therefore, the order granting appellee’s motion to dismiss is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

BERANEK and WALDEN, JJ„ concur.

      . The ... rule is sound in reason and is practical and realistic. The witness who perceived the events in issue is present in court and has given testimony of those events under oath. If he admits making the inconsistent statement, he has the opportunity to explain it. If his explanation is not acceptable to the triers of fact, they may use what he admitted to be a prior inconsistent statement to discredit his testimony. If the triers of the fact believed the witness spoke the truth in the prior statement that he admitted making, it is not reasonable to expect the triers to limit its use to credibility in their decision-making process regardless of a court’s instruction that it may be used to discredit but not to prove. The mental gymnastics required to articulate and segregate the use of prior statements for impeachment purposes only makes the limitation rule a formalistic fiction in disregard of realism.


text:
    In re FORFEITURE OF 1979 TOYOTA COROLLA AUTOMOBILE VIN # KE30619534.
    No. 82-641.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Bernard Berman of Roderman & Berman, P.A., Fort Lauderdale, for appellant-German Mora.
    Jeffrey J. Hochman, Sp. Counsel, Police Legal Unit, Fort Lauderdale, for appellee-City of Fort Lauderdale.
   DOWNEY, Judge.

German Mora, owner of a 1979 Toyota Corolla, appeals from a trial court decision ordering forfeiture of his automobile for its participation in a drug deal.

The appellee’s statement of the facts reveals the connection that appellant’s automobile played in the criminal episode:

On December 2, 1981 between 6:30 P.M. and 6:45 P.M. Detective Michael Gregory Kridos of the Fort Lauderdale Police Department Organized Crime Unit met the Appellant, German Mora in the parking lot of a Winn-Dixie shopping center located in the City of Fort Lauder-dale, Broward County, Florida. The Appellant drove to the parking lot in the automobile that is subject to this forfeiture action, parking it adjacent to the vehicle that Detective Kridos arrived in immediately prior to the Appellant’s arrival. It was stipulated that the Appellant was the sole owner of the automobile that was seized for forfeiture purposes. The Appellant then entered and sat in the back seat of the vehicle Detective Kridos was sitting in, with Detective Kri-dos sitting in the front right passenger seat. A conversation then ensued in which the Appellant told Detective Kri-dos that he would sell him a kilo of cocaine for $55,000.00. 'Detective Kridos agreed to the price. While discussing the quality of cocaine that he was selling, the Appellant expressed that he liked doing business in the parking lot as he felt secure from possibly losing cocaine as had happened to him on a past occasion. The Appellant and Detective Kridos then got out of Detective Kridos’ vehicle. The Appellant stated that the cocaine was not in his car but that, his contact (one Pablo Mirulanda) was going to bring it. Mr. Mirulanda then arrived in the parking lot and handed a brown grocery bag to the Appellant. The Appellant placed the bag in Detective Kridos’ vehicle and removed some grocery items. He then removed the bag from the vehicle and handed it to Detective Kridos. The bag was found to contain 2.5 pounds of cocaine.... Subsequently, during an attempted transfer of the alleged currency to Mirulanda for the cocaine, both the Appellant and Miru-landa were arrested for Trafficking In Cocaine and Conspiracy To Traffic in Cocaine. ...
(Record references omitted.)

In the judgment and order appealed from the trial court found:

6. The said automobile, the property of German Mora, was driven by him to the shopping center parking lot which had been selected by him as the scene of the illegal transaction. Although there was no evidence that drugs were transported in the vehicle in question, and although the conversations and delivery took place in the motor vehicle being utilized by the undercover law enforcement officer, the Court finds that the aforesaid 1979 Toyota Corolla automobile was significantly involved in the transaction and that its use facilitated the illegal transaction. Considering the nature of the transaction and the location selected by Mora, the Court finds that there was a sufficient connection between the vehicle and the transaction so as to result in a finding by this Court that the vehicle was used in furtherance of the transaction, notwithstanding the fact that there is no evidence that any contraband was ever contained within the vehicle itself.

Mora takes issue with the finding that his car was used in a manner to facilitate the purchase, sale, etc., of contraband so as to violate Section 932.702, Florida Statutes (1981), and thereby authorize its forfeiture.

The controlling statutes (the Florida Uniform Contraband Transportation Act) were passed by the Legislature in 1980 as part of an effort to stem trafficking in illicit drugs. Section 932.702(3), makes it unlawful

[t]o use any vessel, motor vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.

To further assist in stemming the tide of drug activity the Legislature passed Section 932.703(1), which provides:

Any vessel, motor vehicle, aircraft, and other personal property which has been or is being used in violation of any provision of s. 932.702 or in, upon, or by means of which, any violation of said section has taken or is taking place, as well as any contraband article involved in the violation, shall be seized. All rights and interest in and title to contraband articles or contraband property used in violation of s. 932.702 shall immediately vest in the state upon seizure by a law enforcement agency, subject only to perfection of title, rights, and interests in accordance with this act.

The real issue in this case is how little a nexus is necessary to make a vehicle subject to forfeiture. In this case, we have no question of the following things: a drug deal was made; Mora was a key figure in the deal; the deal was to be consummated in a parking lot; Mora drove the car in question to the parking lot to consummate the criminal transaction. Given those facts, we hold that is all that is necessary to warrant a forfeiture of the car in question. By using his car to transport himself to the site of a drug transaction, Mora used the car to facilitate the consummation of the transaction.

Two federal cases have held that transportation by automobile of a key figure to the site of a drug transaction constitutes a sufficient nexus to justify the forfeiture of the car. Those cases are United States v. One 1974 Cadillac Eldorado Sedan, Etc., 548 F.2d 421 (2nd Cir.1977), and United States v. One 1977 Cadillac, Etc., 644 F.2d 500 (5th Cir.1979). This court has aligned itself with those federal cases construing its drug forfeiture statutes when it said in Mosley v. State ex rel. Broward Cty., 363 So.2d 172, 173 (Fla. 4th DCA 1978):

It was the intention of the Legislature that the passage of this Act [the Florida Uniform Contraband Transportation Act] would facilitate “ ‘uniformity between the laws of Florida and the laws of the United States’ which was ‘necessary and desirable for the effective drug abuse prevention and control.’ ” The Legislature intended that the Florida forfeiture statute be uniform with the federal counterpart. Accordingly, it is most appropriate that we consider the federal cases construing the uniform act as well as our own Florida cases. (Footnotes omitted.)

In view of the foregoing, we affirm the judgment and order of the trial court forfeiting the automobile in question.

AFFIRMED.

LETTS, C.J., and DELL, J., concur.


author: PER CURIAM. WENTWORTH, Judge,

text:
    Hal GENTRY and Michael B. Swindle, Appellants, v. Lloyd MATTAIR, Jr., and Maryland Casualty Company, Appellees.
    No. AL-12.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 28, 1983.
    Michael B. Swindle, Winter Park, for appellants.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellees.
   PER CURIAM.

Affirmed. West Building Materials, Inc. v. Allstate Insurance Co., 363 So.2d 398 (Fla. 1st DCA 1978).

McCORD and BOOTH, JJ., concur.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting.

This case is before us on appeal from an order granting summary judgment in favor of an alleged tort-feasor’s insurer. I would reverse the order appealed, as I believe the case presents a disputed issue of material fact as to whether the insured expected or intended the damage which resulted from his actions, whereby coverage was excluded under the terms of the insurance policy.


author: JOANOS, Judge.

text:
    Brenda Lee KIRKLAND, incompetent, By and Through her legally appointed guardian, Emma Lee KIRKLAND, and John C. Kirkland and Emma Lee Kirkland, as individuals, Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and Northeast Florida State Hospital, an agency of the State of Florida, and Sonia F. Aznar, M.D., Appellees.
    No. AI-305.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.
    Rehearing Denied Jan. 28, 1983.

      E.C. Deeno Kitchen, Brian S. Duffy and Mary Lee Sweet of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and Althea M. Lachicotte, Jacksonville, for appellants.
    Jerrold K. Phillips of Brooks, Callahan & Phillips, Tallahassee, for appellees.
   JOANOS, Judge.

Kirkland appeals an order dismissing her amended complaint based upon the principles set forth in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979). We reverse.

As alleged in the amended complaint, Brenda Kirkland was suffering from a severe and incapacitating mental illness when she was voluntarily committed to the Northeast Florida State Hospital (NFSH) on June 11,1979. NFSH is supervised and controlled by the State of Florida Department of Health and Rehabilitative Services (HRS). Brenda was treated by Dr. Sonia Aznar, an employee of NFSH and HRS. On July 6, 1979, while a patient at the hospital, Brenda was given a “buddy pass” when she was in an agitated and disoriented state of mind. A “buddy pass” enabled a patient to leave the hospital grounds accompanied by a buddy. Kirkland alleges that Brenda was negligently unsupervised and allowed to leave without a buddy. While outside the hospital, alone and unsupervised, she stepped in front of a truck, resulting in multiple, permanent injuries. Before she was admitted to NFSH, Brenda had tried to hurt herself by stepping in front of cars, which was known by appel-lees. Kirkland’s first suit against HRS and NFSH was amended to add Dr. Aznar. Upon a motion to dismiss, the trial court gave leave to amend as to Dr. Aznar, to allow Kirkland to allege willful and wanton conduct as required by section 768.28(9)(a), Florida Statutes (1980). Kirkland stood on her complaint.

In the first of two points, Kirkland contends that appellees’ acts were operational, rather than discretionary, therefore, sovereign immunity was waived. Appel-lees’ counter position is that the acts were discretionary and, therefore, the trial court was correct in dismissing the complaint. In considering the arguments we must, of course, consider the sovereign immunity test of Evangelical United Bretheren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965) as adopted by Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979). A search of the amended complaint reveals that there are two alleged acts that may be actionable: (1) that Brenda was given a “buddy pass” when she was in an agitated and disoriented state of mind; and (2) that Brenda was negligently unsupervised and allowed to leave the hospital grounds without a buddy. We describe these as acts that “may” be actionable because at this state of the pleadings we do not have sufficient detail to make that determination. The Commercial Carrier analysis requires a case by case study of the individual facts of a case to determine whether an act is operational or discretionary. As to the alleged facts before us, we do not have sufficient detail to answer the four questions posed in the Evangelical United Bretheren Church case. For instance, we do not know the requirements of the so-called “buddy system” or how and by whom it was established. Nor do we know how and by what authority Brenda was given a “buddy pass.” Further, we do not know the factual situation through which she was allowed to leave the hospital grounds without a buddy. Until those facts and perhaps others are known, a determination under Commercial Carrier cannot be made.

A plaintiff must allege ultimate facts, which if proven would support relief. Clark v. Boeing Company, 395 So.2d 1226 (Fla. 3d DCA 1981). Kirkland has failed to allege such ultimate facts, but she should be given the opportunity to amend her complaint. Amendments to pleadings should be freely allowed in the interest of justice so that the merits of the case may be reached. Sapp v. City of Tallahassee, 348 So.2d 363, 366 (Fla. 1st DCA 1977), citing Conklin v. Smith, 191 So.2d 311, 313 (Fla. 1st DCA 1966). Cf. Fla.R.Civ.P. 1.190. The trial court erred in entering a final judgment without granting leave to amend as to this point.

In her second point, Kirkland contends it was error to dismiss her simple negligence suit against Dr. Aznar based upon section 768.28(9)(a), Florida Statutes (1980), which limits suits against state employees personally to situations involving bad faith, malicious purpose or wanton and willful disregard of human rights. Prior to this 1980 amendment, section 768.28(9) permitted suits based on negligence. While this suit was filed after the effective date of the 1980 amendment, Kirkland’s cause of action accrued on the date of the accident. The date of the accident controls and the prior version of the statute would apply. See Galbreath v. Shortle, 416 So.2d 37 (Fla. 4th DCA 1982).

Accordingly, the order of the trial court is reversed and this cause is remanded for further proceedings consistent with the above.

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


author: SHIVERS, Judge.

text:
    Michael Anthony BATES, Appellant, v. STATE of Florida, Appellee.
    No. AK-47.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.
    Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   SHIVERS, Judge.

Appellant Bates appeals judgment and sentence against him, contending the trial court erred in revoking his probation.

We reverse and remand.

Appellant’s probation was revoked by the trial court based on its finding that appellant had “substantially and materially” breached the terms and conditions of his probation by failing to submit the required monthly reports and “by failing to make payments for the cost of his supervision.” As a result appellant was sentenced to five years in prison.

The trial court failed to make a determination as to whether appellant was financially able to make those payments.

We are asked whether the trial court erred in revoking appellant’s probation for failing to pay the costs of his supervision absent a finding that appellant was financially able to pay those costs.

In Page v. State, 363 So.2d 621 (Fla. 1st DCA 1978) and in Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978), we held that absent a showing of financial ability, a trial court may not revoke a defendant’s probation based on the failure to pay for the costs of his supervision. In the case sub judice, the trial court failed to make a finding of financial ability and, therefore, appellant’s probation may not be properly revoked on the ground that appellant failed to pay for the costs of his supervision.

Although the revocation of probation could be based on appellant’s failure to file timely reports, we are not sure at all that the trial court would have revoked appellant’s probation and imposed a five year sentence based solely on that ground.

On that basis, we reverse the revocation of appellant’s probation and remand for a determination as to whether appellant had the financial ability to pay for the costs of his supervision, and, if financially unable, whether appellant’s probation should be revoked based solely on his failure to file timely monthly reports. See Page v. State, supra.

REVERSED and REMANDED.

ROBERT P. SMITH, Jr., C.J., and THOMPSON, J., concur.


text:
    J.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. AK-414.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.
    Melanie Ann Hines, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

J.H., a juvenile, raises two points on appeal. We need only address the dispositive Point One: whether the trial court erred in denying appellant J.H.’s motion to dismiss the amended delinquency petition filed against him.

Appellant argues the amended petition should have been dismissed since it was not filed within 45 days from the date appellant was taken into custody. We agree and reverse.

On November 16, 1981, J.H. was taken into custody for purposes of juvenile procedure. On December 14, 1981, the State filed a delinquency petition against appellant, alleging that he had committed aggravated battery on William Klein. On January 4, 1982, the State filed an amended delinquency petition against appellant J.H., changing the name of the victim from William Klein to David Klein.

Prior to the hearing on the amended petition, appellant J.H. moved to dismiss the petition because it contained an entirely new charge against appellant which was not filed within the required time period of 45 days as set forth in section 39.05(6), Fla.Stat. (1981). The trial court found the change was a technical one and ordered that the proceedings could continue on the amended petition. At the delinquency hearing, appellant renewed his motion to dismiss based on the filing requirement of section 39.05(6).

Again the trial court denied appellant’s motion and found appellant guilty of battery. Thereafter, at the disposition hearing, the trial court withheld adjudication of delinquency and placed appellant on community control under the supervision of the Department of Health and Rehabilitative Services.

Appellant contends the amended petition alleged a separate and unique offense from the first petition because it contained a materially different fact from that against which the defense was originally prepared to defend.

Appellee maintains the trial court did not err in denying the motion to dismiss. Ap-pellee argues that appellant failed to show that he was prejudiced by the filing of the petition since the amended petition was filed well before the hearing on the merits.

We conclude that the original petition was fatally defective because it alleged the wrong victim. In T.R. v. State, 364 So.2d 100 (Fla. 1st DCA 1978), we held that an allegation in a delinquency petition placing ownership of stolen property in a wrong person — that is, naming the wrong victim— was a fatal misallegation because it misled appellant in the preparation of his defense.

Here, since the original petition was defective, the filing of that petition did not toll the running of the 45-day filing requirement and, therefore, did not save the amended petition which was filed outside that time period. T.R. v. State, at 103, and I.H. v. State, 405 So.2d 450, 453 (Fla. 1st DCA 1981). The amended petition should be dismissed since it was not filed within the 45-day filing requirement set forth in section 39.05(6). The fact that appellant has failed to allege that he was prejudiced by late filing of the amended petition is irrelevant. The statute gives the trial court no discretion to deny a motion to dismiss under section 39.05(6) when it is clear that a petition has not been filed within the designated 45 days. See T.R. v. State, supra.

We hope that David Klein and J.H., who attend the same school, will try to be friends. This will be a test for them and for their families. The court hopes all will earn good grades on this test.

ROBERT P. SMITH, Jr., C.J., and THOMPSON, J., concur.


author: PER CURIAM.

text:
    John E. JACKSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-291.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.
    Steven L. Seliger, Quincy, for appellant.
    Earl H. Archer, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

Jackson seeks judicial review of Florida Parole and Probation Commission (Commission) action affirming its extension of his presumptive parole release date (PPRD) 39 years. See Gobie, Jackson and Logan v. Florida Parole and Probation Commission, 416 So.2d 838 (Fla. 1st DCA 1982) (ordering the Commission to grant § 947.173 reviews to the three named petitioners). Pursuant to the authority vested in us by § 120.68(1), Fla.Stat. (1981), we vacate the aspect of the Commission order extending Jackson’s PPRD to December 15, 2020, because the objective parole guidelines were not used in arriving at this date. We further find that the Commission has not provided adequate record support for the reasons it gave in denying parole to Jackson and has not explained why some of the reasons given are relevant to parole prognosis. We therefore remand this case to the Commission for reconsideration and clarification of its decision not to parole him. ,

Jackson, 64 years of age, is serving a life sentence for a second degree murder conviction from 1956. Upon enactment of the Objective Parole Guidelines Act, chapter 947 of the Florida Statutes, he was given a PPRD of September 26, 1980. This PPRD was vacated, due to an alleged escape in August, 1980. His new PPRD, in consideration of the nolle prossed escape charge, was established to be December 15,1981. Jackson was interviewed on October 27, 1981, for purposes of authorizing his effective parole release date (EPRD). See § 947.174(6), Fla.Stat. (1981). However, by Commission action certified on December 11, 1981, his EPRD was not authorized and a new, extended PPRD of December 15, 2020, was established.

Three factors justify changing a PPRD: new information, institutional conduct, and extraordinary circumstances. See §§ 947.16(4) and 947.173(3), Fla.Stat. (1981); McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981). The Commission order indicates that it relies on new information as grounds for extending Jackson’s PPRD 39 years. In fact, none of the reasons given are new information. Even the most recent escape charge was considered by the Commission when it extended his PPRD from September 26, 1980 to December 15, 1981.

We conclude that the Commission action extending Jackson’s PPRD is outside the scope of the objective parole guidelines, in that it violates §§ 947.16(4) and 947.173(3). Jackson’s PPRD of December 15, 2020, is therefore vacated. We find that his December 15, 1981, PPRD should remain his PPRD, even though he was not paroled on that date.

We noted in Gobie, supra, that prior to actually paroling an inmate, the Commission is required to make a finding under § 947.18, Florida Statutes (1981),

that there is reasonable probability that, if [the inmate] is placed on parole, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society.

When the Commission is unable to make that finding, it should so state and give its reasons, as it has done in Jackson’s case. Further, in order to aid a court in reviewing the Commission’s decision for abuse of discretion, the Commission should provide record support. Cf. McKahn, supra, at 478. This it has not done. The rationale behind Gobie, supra, is that the inmate may challenge the factual basis for the Commission action, which Jackson has done. The Commission did not answer his challenges, but merely affirmed its action. Additionally, the Commission’s answer brief fails to point out the relevant pages in the record that support its action here.

This court has carefully reviewed the record and found Jackson’s factual arguments compelling. Due to this finding, we will not affirm the Commission’s action denying parole without receiving further explanation of how it arrived at its decision.

We therefore remand this case to the Commission for further consideration in light of Jackson’s arguments and our findings from a complete review of the record before us. The Commission is directed to conduct another review of Jackson’s case within 30 days from the date our mandate issues and report findings and action to this Court within 10 days thereafter.

MILLS, ERVIN and WIGGINTON, JJ., concur.

      . We do not believe that when a PPRD is found invalid, and a court finds that another PPRD, which has already passed, is in fact the valid PPRD, the result must be to order an inmate released on parole. The ultimate decision to parole an inmate lies within the sound discretion of the Commission. See Ivory v. Wainwright, 393 So.2d 542, 544 (Fla.1981); Moore v. Florida Parole and Probation Commission, 289 So.2d 719, 720 (Fla.1974); Gobie v. Florida Parole and Probation Commission, 416 So.2d 838 (Fla. 1st DCA 1982); Arnett v. State, 397 So.2d 330, 332 (Fla. 1st DCA 1981); and Staton v. Wainwright, 665 F.2d 686, 688 (5th Cir.1982). See also, Ch. 82-171, § 2, Laws of Fla.

      . The Commission’s order is set forth here:
      II. COMMISSION ACTION:
      The Commission has decided NOT to authorize your Effective Parole Release Date because:
      A. New Information (see Rule 23-21.-02(24)):
      The Commission is unable to make a finding that there is reasonable probability that, if you are placed on parole, you will live and conduct yourself as a respectable and law-abiding citizen and that your release will be compatible with your own welfare and the welfare of society, as required by 947.18, Florida Statutes, for the following reasons:
      1. You were paroled by this agency on two different occasions and did not successfully complete either period of supervision as evidenced by the Revocation Order dated January 13, 1969 and the Revocation Order dated October 29,1973 (revocations reconfirmed by the Commission per Turner decision at the Commission meeting held November 25, 1981).
      2. You escaped from custody as evidenced by your conviction and sentences on November 13, 1959, September 10, 1973 and August 16, 1976. Further, a recent Escape charge was Nolle Prossed against you in Osceola County on June 23, 1981; that escape occurring on August 1, 1980.
      3. You have a long history of criminal activity dating back to 1934.
      4. You have a record of assaultive behavior as evidenced by your conviction and sentence in 1956 for Second Degree Murder.
      III. Extend the Presumptive Parole Release Date 39 years

      .The December 15, 1981 PPRD should be reinstated. Although effectively this action makes Jackson an inmate without a meaningful PPRD, it appears to be the only action acceptable under the Objective Parole Guidelines Act. The Commission is still bound by § 947.174(1) to review Jackson’s case biennially. The Commission would therefore have to consider him for parole at least biennially. The only other viable alternative we see is to extend the PPRD 2 years, to the biennial review; this however, is not contemplated by chapter 947 and since the Commission has not promulgated rules governing its use of § 947.18 and integrating that section with the rest of the Objective Parole Guidelines Act, we do not think any extension of the already passed PPRD is authorized.

      . As to the first reason that two prior paroles have been revoked, Jackson points out that the most recent parole was almost ten years ago, which could be adequate time in which to rehabilitate himself. While prior record may be the best predictor of recidivism, § 947.002(2), Jackson’s actions from over 10 years ago may not, without more, be indicative of his parole prognosis, in view of the rehabilitative function of prisons. It appears the parole system is based on the proposition that certain amounts of time must be spent in prison in order for an inmate to become able to live a respectable and law-abiding life outside prison.
      Second, there is no explanation why convictions for escape are relevant to parole prognosis, as parole concerns one’s ability to live a law-abiding life in society, while escape is a crime involving the prison. Two of the escape convictions occurred almost ten years ago and may not be relevant to present consideration of parole prognosis. Further, the Commission order indicates that one of Jackson’s escapes occurred while he was on parole. Although the details of the most recent nolle prossed escape charge are not contained in the record, the August 16, 1976, escape is described. Jackson escaped from minimum custody at Union Correctional Institution in 1974 and proceeded to live an apparently law-abiding and respectable life in Gainesville, Florida, for the next two years. He worked steadily for a former employer and otherwise appears to have conducted his life in a responsible manner. This may be a consideration of positive parole prognosis, rather than a negative indicant.
      Third, the record shows that Jackson has been crime free for about ten years and that all of his convictions, with the exception of his second degree murder conviction, have been relatively petty.
      Finally, the only evidence in the entire record of Jackson’s assaultive behavior is a document saying he pleaded guilty to second degree murder. His institutional conduct has been exemplary; the accounts of all his paroles, escapes and other crimes indicate that he is not an assaultive person whatsoever. It would appear that when the only evidence of assaultive behavior in an inmate’s record is a 25-year old conviction, one could doubt whether this constitutes a record of assaultive behavior.


text:
    John F. MESSAL, Appellant, v. Sharon E. MESSAL, Appellee.
    No. AL-376.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.

      C. Valentine Bates of Bates & Costello, Gainesville, for appellant.
    Zelda J. Hawk of Sieg, Comfort, Hawk, LaCroix & Reid, Gainesville, for appellee.
   PER CURIAM.

On this appeal from a final judgment in a dissolution of marriage case, we find error in the award of the exclusive use and occupancy of the marital home to the wife, for the benefit of the minor children, without provision for termination in event of the wife’s remarriage. Lambert v. Lambert, 403 So.2d 484 (Fla. 1st DCA 1981).

We agree with appellant also that an abuse of discretion has been shown in the financial obligations imposed upon the husband by the final judgment, under which he will be left with less than $23.00 per week upon which to support himself. It appears that the trial court relied upon the husband’s 1981 earnings, despite the husband’s uncontroverted testimony that his higher income for that period (which included certain bonuses which had been discontinued) was no longer reflective of his current earnings.

We note also some confusion with respect to the evidence supporting the award of $658.92 per month for child support. In her financial affidavit, the wife listed the children’s expenses at $1,025.00 per month. This figure included $315.78, representing two-thirds of the mortgage payment on the house, not including taxes and interest. The total house payment, including taxes and interest, amounted to $572.00 per month. The transcript indicates that the trial court was under the impression that the figure given as representing the children’s living expenses did not include an amount attributable to the house payments, and the judgment includes a separate provision requiring the husband to pay one-half of the mortgage payments, taxes and insurance on the home mortgage. Both parties, being gainfully employed, were properly considered as being required to share child support expenses. However, the misinterpretation of the evidence regarding the children’s expenses resulted in a miscalculation of the husband’s proportionate child support obligation. This issue appears to have been raised during the proceedings sufficiently to afford appellate review. We note, however, that although appellant filed a motion for rehearing, the motion fails to mention this error or miscalculation, so that the trial judge has not been given an opportunity to make such correction in the child support payment as might be indicated.

We find no error in the consideration of expenses for electricity, gas, and telephone as a portion of the children’s living expenses. While it can be said that the telephone is not a necessity for the two year old and eleven year old children for their own use, it is obvious that the telephone is a convenience which the wife will use in their behalf.

The judgment is REVERSED and the cause is remanded for redetermination of the husband’s financial obligations based upon the evidence of his current earnings, and with due consideration to the evidence with respect to the children’s living expenses, and for revision of the final judgment so as to provide for termination of the wife’s exclusive use and occupancy of the marital home upon her remarriage.

ERVIN; LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    DOOLEY & MACK CONSTRUCTION, INC. and Aetna Insurance Company, Appellants, v. Fletcher B. TATE, Appellee.
    No. AL-442.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.
    Mark E. Hungate of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellants.
    Alex Lancaster, Sarasota, for appellee.
   PER CURIAM.

This employer/carriers’ appeal from a workers’ compensation wage loss award presents basically straight-forward factual issues regarding (1) whether the claimant was justified in leaving a job found for him through job placement assistance provided by the E/C, and (2) the adequacy of claimant’s efforts to secure other employment. We find that the deputy commissioner’s rulings on these issues were fully supported by competent substantial evidence, and we therefore affirm.

The E/C’s disappointment over the outcome of their reemployment efforts here is understandable. The fact is that, without any fault on the part of the E/C, a job was obtained for this well-motivated claimant that was beyond his physical capabilities. Even the manager of the security guard service who agreed to hire claimant stated that if he had known of claimant’s extensive limitations he would not have been given a job; and further, even if claimant had asked for a transfer to another position, he would not have had one suitable for him.

Finally, we concede that the deputy commissioner’s roughly two-page order may be considered rather sparse by ordinary standards. However, because this appeal essentially is a request for this court to re-weigh the evidence, which we will not do, review has not been impeded. See, Gomez v. Jack Steinberg Neckwear, 424 So.2d 106 (Fla. 1st DCA 1982), en banc opinion filed December 22, 1982; Cf. Westberry v. Copeland Sausage Company, 389 So.2d 1214 (Fla. 1st DCA 1980); Mobley v. Fulford Van & Storage, 390 So.2d 426 (Fla. 1st DCA 1980).

AFFIRMED.

LARRY G. SMITH, SHAW and JOA-NOS, JJ., concur.


author: THOMPSON, Judge. WENTWORTH, Judge,

text:
    NIKKO SIGHTSEEING BOATS, INC., and Old Republic Insurance Company, Appellants, v. Meraldo SEJUELOS, Appellee.
    No. AL-445.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1983.
    Mary Ann Stiles of Stiles & Livingston, Tampa, and John F. McMath, Miami, for appellants.

      Mark L. Zientz of Williams & Zientz, Coral Gables, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order awarding claimant temporary partial disability (TPD) benefits from September 8, 1981 to December 2, 1981, plus interest; temporary total disability (TTD) benefits from December 2, 1981, and continuing, plus interest; the outstanding medical bills of Dr. Holmes; and costs and the expert witness fee of Dr. Holmes. We affirm in part and reverse in part.

Claimant suffered a compensable injury on May 22,1981. He first went to a private clinic but was subsequently referred to Dr. Holmes, an orthopedist. When Dr. Holmes examined claimant on June 2, 1981, he found the claimant had sustained a sprained neck and said he was not able to work at that time. Claimant ceased working about a week after the accident and was paid TTD benefits from June 2 to September 8, 1981.

The claimant was examined by Dr. Cohen, an orthopedic surgeon, on September 8, 1981, and he was of the opinion that the claimant could engage in his full work activities. He was seen by Dr. Holmes on September 9, 1981, and Dr. Holmes recommended that the claimant return to his former occupation of truck driving. The day after Dr. Holmes released him to work, the claimant went to his employer in search of a job but was told to come back the next week. He returned to work on September 17 at the same job and at the same or more pay than he had prior to the injury and continued to work until he was terminated by the employer on or about December 3, 1981.

The award of TPD from September 18,1981 to December 2,1981, plus interest is reversed. It is uncontroverted that the claimant was working at the same job and at the same pay as he had prior to the injury. He therefore cannot be entitled to any wage loss benefits for that period of time since there was no loss of wages and it is error for the deputy to award TPD for a period that the evidence shows no wage loss. We affirm the award of TPD benefits from September 8 to September 16 because claimant sought employment promptly after being advised he could return to work at his former occupation and did return to work with his former employer as soon as they would rehire him.

We reverse the award of TTD and interest from December 2 and continuing. The medical evidence of both doctors clearly shows that the claimant was able to return to work without limitation at his former job and there is no substantial competent evidence whatsoever of any work search made by the claimant after he was terminated by his employer. Where there is medical evidence showing that the claimant is able to work, he is required to make a conscientious effort to return to work before he can establish that he is unable to work and is entitled to TTD. Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981); Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981). This reversal is without prejudice to the claimant’s right -to claim wage loss benefits, if any, before or after MMI, upon proof of an adequate work search.

The award of Dr. Holmes’ bill and costs is affirmed. See Sunland Hospital v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

Affirmed in part and reversed in part.

BOOTH, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting.

I would find no reversible error because: (1) TPD benefits through December 2, 1981 were “awarded” only in terms that established eligibility contingent on wage deficiency under the statutory formula, about which the parties have no apparent dispute except for the week’s benefits affirmed by the court. (2) The evidence as to benefits after December 2 covered only a two-week period between the date claimant was fired and the date of the hearing, during which claimant testified, without elaboration or contradiction, that he was “looking for work” while still symptomatic before MMI. The deputy could in my opinion conclude in this context that the substantiality of work search evidence was not fatally deficient for purposes of TPD wage loss. The application of a TTD misnomer in the order is inconsequential, and the direction “to voluntarily continue to pay such benefits” during such disability merely enjoins compliance with law, and plainly does not predetermine any issue which may arise as to continued eligibility, including the good faith of work search for any future period.


text:
    Thomas GRANGER, Appellant, v. FLORIDA STATE PRISON and Bill Price, Appellees.
    No. AJ-232.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1983.
    Thomas Granger, pro se.
    Jim Smith, Atty. Gen., and Harry F. Chiles, Asst. Atty. Gen., for appellees.
   SHIVERS, Judge.

Granger appeals the summary dismissal of his petition for a writ of habeas corpus. We reverse and remand.

While a prisoner at the Union Correctional Institution at Raiford, Granger was charged with the crime of battery on a law enforcement officer. As a result of this charge, he was transferred to the Florida State Prison where he was placed in close management confinement. Close management confinement is a subcategory of administrative confinement which is found only at Florida State Prison and which is reserved for inmates who present security risks. The placement of prisoners in close management confinement is authorized by section 33-3.081, Fla.Admin.Code (1981). After Granger was placed in close management confinement, he filed a petition for writ of habeas corpus, alleging that the procedure by which he was transferred to close management confinement violated his right to due process of law. More specifically, Granger argued that his due process rights were violated by the State’s failure to grant him a pre- or post-close management hearing as well as by the State’s failure to advise him of the reasons why he was placed in close management confinement. The trial court denied Granger’s petition without conducting an evidentiary hearing, citing Despres v. Strickland, 408 So.2d 1092 (Fla.1981), as authority.

On appeal, Granger contends that his petition for a writ of habeas corpus was sufficient to state a ground upon which relief could have been granted and that, therefore, the trial court erred in summarily dismissing the petition. The State contends that since the constitutionality of the procedure used in placing prisoners in close management confinement has already been upheld by the Florida Supreme Court in Depres, supra, the trial court did not commit error by dismissing Granger’s petition without conducting an evidentiary hearing.

We first note that Despres cannot be cited as authority to support the denial of Granger’s petition. In Despres, the Florida Supreme Court denied the petitioner’s request for a writ of habeas corpus without issuing a written order or opinion. For this reason, Despres cannot be properly cited as authority for the proposition that section 33-3.081, Fla.Admin.Code, is constitutional.

The above notwithstanding, even assuming that section 33-3.081, Fla.Admin. Code, is constitutional, we believe that the trial court erred by summarily dismissing his petition. Section 33-3.081(5)(a), Fla.Admin.Code, provides that:

Any inmate placed in administrative confinement shall be given a hearing before the Senior Correctional Officer or the Classification Team.... The hearing shall be documented on a Report of Administrative Confinement, Form DC4-813. The inmate may present any facts or arguments relevant to his placement on administrative confinement.

Granger challenges not only the constitutionality of this section, he also challenges the State’s compliance with it. Specifically, Granger contends that he was denied his right to an administrative hearing pursuant to section 33-3.081(5)(a), Fla.Admin.Code, concerning his placement on close management confinement. In Bagley v. Brierton, 362 So.2d 1048 (Fla.1st DCA 1978), this court held that the summary dismissal of a petition for writ of habeas corpus would be reversed and the matter remanded where the prisoner made specific allegations which, if true, would establish that the Department of Corrections failed to comply with its own rules and due process requirements in a disciplinary proceeding. By alleging that he has been denied the right to a due process hearing as provided by section 33-3.081, Fla.Admin.Code, we believe that Granger has made a specific allegation which, if true, would establish that the State failed to comply with its own rules and requirements. On this basis, we reverse the trial court’s denial of Granger’s petition for writ of habeas corpus without conducting an evidentiary hearing.

In reaching this conclusion, we reject the State’s contention that the denial of Granger’s petition should be affirmed on the ground that he has failed to assert a sufficient liberty interest. While it is true that due process attaches only to those rights created by the State, it cannot be said that the State has not created a liberty interest in being free from arbitrary transfers from the general prison population to administrative segregation. See Parker v. Cook, 642 F.2d 865 (5th Cir.1981); and section 33-3.081, Fla.Admin.Code.

REVERSED and REMANDED.

ROBERT P. SMITH, Jr., J., and THOMPSON, J., concur.


text:
    CITY OF ST. AUGUSTINE and Travelers Insurance Company, Appellants, v. Edward ALLEN, Appellee.
    No. AL-261.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1983.
    See also, Fla.App., 404 So.2d 1115.
    James H. McCarty, Jr., of Boyd, Jener-ette, Leemis & Staas, Jacksonville, for appellants.
    Edward H. Hurt of Hurt & Parrish, Orlando, and Bill McCabe of Shepherd, McCabe & Cooley, Jacksonville, for appel-lee.
   SHIVERS, Judge.

In this workers’ compensation case the employer/carrier appeals the final order of the chief commissioner which grants claimant Allen’s petition for modification and reinstates a prior order of a deputy commissioner which had been reversed by this court. Appellant contends, inter alia, that this case contains no mistake in fact which would warrant a modification of the original order. We agree and reverse.

In January 1980 Allen filed his claim for benefits resulting from the industrial accident which occurred on June 17, 1977. A hearing was held on April 3, 1980 at which the employer/carrier defended on the dual grounds that there was no causal connection between the condition and the industrial accident, and that the statute of limitations barred the claim. On July 22, 1980 a deputy commissioner issued the original compensation order. The deputy commissioner found that the most reasonable and logical cause for the claimant’s condition was his industrial accident and the subsequent medical treatment received for that accident. The deputy commissioner further found that the statute of limitations defense was not applicable since the employer had paid claimant his full salary until July 1, 1978 and that said payments were found to be payments in lieu of compensation. Payments in lieu of compensation for industrial accidents prevent the statute of limitations from starting to run until the date of the last of such payments under section 440.19(l)(a), Florida Statutes (1977).

The employer/carrier appealed the order of the deputy commissioner to this court and we reversed in City of St. Augustine v. Allen, 404 So.2d 1115 (Fla. 1st DCA 1981). In Allen, this court found that the continuing wage payments were not intended as in lieu of compensation and that the claimant could not have reasonably thought that they were. On October 22, 1981 the claimant filed a motion for rehearing contending, for the first time, that the statute of limitations was tolled pursuant to section 440.19(3), Florida Statutes (1977), in that the claimant was incompetent. The employer/carrier filed a reply to the motion for rehearing contending that the issue of incompetency had not been previously raised, and that, therefore, it could not be raised on rehearing. This court denied the motion for rehearing and entered its mandate on December 1, 1981.

On December 14, 1981 the claimant filed a petition with the Division of Workers’ Compensation to modify the original order on the ground that the order contained a mistake of fact. On February 26, 1982 a hearing was held before the chief commissioner at which no evidence was presented, but arguments were made by counsel for both sides. The claimant contended that the deputy commissioner had made a mistake of fact in not finding that the claimant was totally incompetent from December 1977 and continuing. The employer/carrier argued that the claimant was attempting to circumvent the decision of this court, that the chief commissioner did not have jurisdiction over the matter, and that the claimant had waived his position in that incompetency had not been made an issue at the original hearing. On March 31, 1982 the chief commissioner entered the order appealed from which found that the deputy commissioner had made a mistake in fact in not finding the statute of limitations tolled by reason of claimant’s incompetency. The chief commissioner, therefore, granted the petition to modify pursuant to section 440.-28, Florida Statutes (1981), and reinstated the decretal portion of the original order.

Section 440.28 provides a statutory exception to the doctrine of res judicata in workers’ compensation cases. Universal Erectors, Inc. v. Murphy, 410 So.2d 209 (Fla. 1st DCA 1982). It provides, generally, that orders of deputy commissioners can be modified on the ground of a change in condition or because of a mistake in a determination of fact. Not every mistake, or alleged mistake, can provide a basis for modifying an order under this statute. In Hall v. Seaboard Maritime Corp., 104 So.2d 384 (Fla. 1st DCA 1958), we stated:

As we construe it, this section was intended to apply to those cases in which by reason of a lack of evidence the Commission has not had an opportunity to properly determine the issues arising out of a claim — as when a claimant fails to show the true extent of his injury either because such was not then known, or had not manifested itself in sufficient degree as to be subject to proof. While we do not hold this to be the only situation warranting a modification, we are firmly convinced that the legislature did not by this section intend to rape the statute of limitations, provided in the same chapter, of its force and effect; or to provide a secondary means of reviewing an otherwise final order. Such would be the effect of a holding which would permit the relitigation of an issue of fact on the sole ground that it was mistakenly determined, when the challenging party has only a greater or more favorable volume of evidence as to the identical issue upon which to base his contention.

Id. at 387-88 (footnote omitted). In the instant case, the record does not reveal a mistake in a determination of fact within the meaning of section 440.28. Therefore, the chief commissioner erred in granting the petition for modification.

Appellee contends, and the chief commissioner found, that it was a mistake in fact for the deputy commissioner not to recognize a valid statute of limitations defense in the original order. The record, however, reveals that the issue of incompetency as tolling the statute of limitations was never substantially raised in the original hearing before the deputy commissioner. The portion of the record relied upon by appellee in his contention that the issue was raised shows that the incompetency of the claimant was only casually mentioned by claimant’s counsel during his explanation to the deputy commissioner of the “logical cause” theory of causation. Since the issue was never raised, it could not be a “mistake in a determination of fact” for the deputy commissioner not to recognize it and rule upon it. Cf. Sunland Hospital v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982). Our conclusion is bolstered by the fact that no new evidence was introduced at the petition for modification hearing to support appellee’s claim of mistake in a determination of fact. In Cleveland v. Everson, 415 So.2d 763 (Fla. 1st DCA 1982), we stated:

Section 440.28, Florida Statutes (1977), allows a petition for modification based upon a mistake of fact. The petition must be supported with new evidence. It is not available to relitigate previously decided questions. Cumulative evidence or evidence available at the original proceeding cannot support a petition to modify ....

Id. at 765 (citations omitted). See Florida Real Estate Commission v. Felix, 413 So.2d 832 (Fla. 1st DCA 1982).

The order of the chief commissioner dated March 31, 1982 is, accordingly, REVERSED.

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


author: LARRY G. SMITH, Judge.

text:
    Antonio BINIMELIS, Dec’d thru Crispina Binimelis, his wife, Appellants, v. M.E.F. INTERNATIONAL CORP., and Aetna Casualty & Surety Company, Appellees.
    No. AM-127.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1983.
    See also, Fla., 399 So.2d 136.
    Albert E. Harum, Jr., Miami, for appellants.
    Mark J. Mintz, Ress, Gomez, Rosenberg & Howland, North Miami, for appellees.
   LARRY G. SMITH, Judge.

In this worker’s compensation appeal, the wife of a deceased employee appeals an order denying her claim for a penalty under Section 440.20(8), Florida Statutes (1979) and interest. We reverse.

The employee died from injuries received in a compensable accident which occurred on May 17,1978. Later, the parties entered into a joint stipulation for lump sum washout settlement in the amount of $26,500.00. Although the settlement was approved by the deputy commissioner on January 9, 1980, payment was not made until February 12,1980. A subsequent claim for a penalty under Section 440.20(8) was made and re-suited in an order awarding the widow $5,250.00. The employer/carrier appealed the award and this court affirmed. M.E.F. Corp. v. Binimelis, 399 So.2d 136 (Fla. 1st DCA 1981). The mandate was issued May 7, 1981, but the employer/carrier did not pay the penalty until December 1, 1981.

The employee’s widow filed another claim seeking a further penalty of $1,050.00 for the late payment of the $5,250.00 awarded by the deputy. She also sought interest on $5,250.00 from June 5,1980 until December 1,1981, and interest on $1,050.00 from May 7, 1981 until this amount was paid. The deputy entered an order determining that claimant was entitled to interest on the $5,250.00 in the amount of $468.61. However, he declined to award claimant the additional $1,050.00 sought or interest on that amount, reasoning that a penalty cannot be due on a penalty.

Initially, appellant urges that the deputy erred in only awarding $468.61 in interest. She contends, and we agree, that effective July 1,1978, interest is due at the rate of 12% on all amounts due and owing after that date. Myers v. Carr Construction, 387 So.2d 417 (Fla. 1st DCA 1980). Admittedly, prior decisions of our court might have led the deputy to believe that the applicable rate of interest was 6%. See, E & A Concrete v. Perry, 379 So.2d 1015 (Fla. 1st DCA 1980). However, in Myers, this court clarified the Perry decision and held that interest payable for delinquencies accruing on or after July 1, 1978, is governed by Section 440.20(7), Florida Statutes (1978) [now Section 440.20(9), Florida Statutes (1981) ] and is properly awarded at the rate of 12%.

Next, appellant contests the deputy’s failure to award an additional penalty under Section 440.20(8) because the employer/carrier failed to pay the $5,250.00 until December 1, 1981. Appellant contends the $5,250.00 awarded by the deputy on June 5, 1980 meets the definition of compensation set out in Section 440.02(11), Florida Statutes (1979), and therefore she is entitled to another penalty of 20% of the $5,250.00, or $1,050.00, for the employer/carrier’s late payment. On the other hand, the employer/carrier analogize the payment under Section 440.20(8) to a payment of nursing services, the late payment of which this court has already ruled does not result in the award of a penalty. Cox Oil and Sales Inc. v. Boettcher, 410 So.2d 211 (Fla. 1st DCA 1982).

In Boettcher, this court held that the payment of nursing services is not “compensation,” within the meaning of Section 440.20(8). However, the Boettcher case is distinguishable. It is readily apparent that the payment of nursing services is not a money allowance payable to an employee or to his dependents but is instead a payment usually made for the benefit of other individuals. See, W. Jackson and Sons Construction Co. v. Dudley, 374 So.2d 1074 (Fla. 4th DCA 1979); Brantley v. A.D.H. Building Contractors, 215 So.2d 297 (Fla.1968).

Unlike the payment of nursing services, the 20% payment under Section 440.20(8) is primarily designed to compensate a claimant for the injuries he may have suffered as a result of a delinquency. Lockett v. Smith, 72 So.2d 817 (Fla.1954). In Lockett, the Supreme Court held that the sum recovered under Section 440.20(6) [the predecessor of Section 440.20(8) ] is “compensation” within the meaning of Section 440.34(1), and that the claimant was entitled to recover a reasonable attorney’s fee for his successful prosecution of a claim for the additional 20% delinquency payment. The 20% delinquency payment is different from other penalties awarded under Chapter 440 in this important respect. For instance, the penalty provided for in Section 440.54, Florida Statutes (1979) for the employment of minors is primarily considered to be a penalty against the employer and only secondarily to be a benefit to the unlawfully employed minor. Ferlita v. Florida Art Stucco Corporation, 74 So.2d 893 (Fla.1954).

Accordingly, since the dominant purpose of the 20% payment under Section 440.20(8) is to compensate the employee, it follows that failure to pay the penalty under Section 440.20(8) amounts to a failure to compensate claimant so that a further 20% delinquency payment is due on the amount the employer/carrier fails to pay. This court has held that payment of the statutory penalty may be excused where, under the totality of the circumstances, there is an equitable basis for doing so. Crowell v. South Broward Hospital District, 378 So.2d 801 (Fla. 1st DCA 1979). The deputy commissioner made no finding of an equitable basis for excusing the penalty here, and nothing has been pointed to in the record that would support such a finding.

REVERSED and REMANDED.

ERVIN and SHIVERS, JJ., concur.

      . Section 440.20(8), Florida Statutes (1979), provides:
      (8) If any compensation, payable under the terms of an award, is not paid within 20 days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20% thereof, which shall be paid at the same time as, but in addition to, such compensation, unless review of the compensation order making such award is had as provided in s. 440.25.

      . No citation of authority is given for this proposition.

      . It is not entirely clear from the record how the deputy arrived at this interest figure. Presumably, the deputy computed interest at the rate of 6%.

      . Although the employer/carrier did not cross-appeal challenging the propriety of awarding interest on the penalty provided for in Section 440.20(8), they contend before us that an award of any interest on the $5,250.00 amount is improper since that amount does not constitute an award of “basic benefits.” Parker v. Brinson Construction Company, 78 So.2d 873 (Fla.1955). This argument is unavailing. See, Stone v. Jeffres, 208 So.2d 827 (Fla.1968).

      .Section 440.02(11), Florida Statutes (1979) provides:
      (11) “Compensation” means the money allowance payable to an employee or to his dependents as provided for in this chapter.


author: COWART, Judge.

text:
    Thomas Wesley ANDERSON, Appellant, v. Vivian ANDERSON, Appellee.
    No. 82-350.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1983.
    James N. Powers, P.A., Orlando, for appellant.
    Lawrence L. Lidfeldt, Maitland, for ap-pellee.
   COWART, Judge.

The ex-marital home, owned as tenants in common by the ex-husband and ex-wife after dissolution of marriage but subject to the exclusive possession of the custodial spouse and a child of the dissolved marriage, is subject to partition upon re-marriage of the custodial spouse. See, e.g., Scheuermann v. Scheuermann, 423 So.2d 411 (Fla. 4th DCA 1982); Cannon v. Morris, 407 So.2d 372 (Fla. 1st DCA 1981); Lambert v. Lambert, 403 So.2d 484 (Fla. 1st DCA 1981); Caldwell v. Caldwell, 400 So.2d 1270 (Fla. 5th DCA 1981); Abella-Fernandez v. Abella, 393 So.2d 40 (Fla. 3d DCA 1981); McMaster v. McMaster, 379 So.2d 189 (Fla. 4th DCA 1980). This result is not affected by the fact that the custodial spouse was required to make the mortgage, tax and insurance payments on the ex-marital home as an incident of such exclusive possession.

Accordingly, the order dismissing the husband’s partition action is

REVERSED AND REMANDED.

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

      . § 689.15, Fla.Stat. (1981).

      . See, e.g., Cannon v. Morris, 407 So.2d 372 (Fla. 1st DCA 1981) (wife required to make mortgage, taxes, insurance payments); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977) (wife required to make one-half of the mortgage payment).


text:
    Richard F. JONES, Appellant, v. HIGHWAY INN, INC., a Florida corporation; and Adam Henry Jones, Jr., Kenrick A. Jones, and Kathleen M. Jones, each individually and as a beneficiary under Land Trust Agreement, Appellees.
    No. AG-353.
    District Court of Appeal of Florida, First District.
    Jan. 7, 1983.
    Stevan T. Northcutt, Levine, Freedman, Hirsch & Levinson, Tampa, for appellant.
    Robert L. Hinkle, Hinkle & Battaglia, Tallahassee, for appellees.
   LARRY G. SMITH, Judge.

Appellant, a minority shareholder in the corporation, Highway Inn, Inc., appeals a final summary judgment entered in favor of the corporation on his complaint which sought dissolution of the corporation under Section 607.274(1)(a)3., Florida Statutes (1979), and a declaration that a sale of the corporate assets was invalid. We affirm.

Highway Inn, Inc., is a Florida corporation whose shares are owned by appellant Richard F. Jones (30%), Adam H. Jones (30%), Kenrick A. Jones (30%) and Kathleen M. Jones (10%). The corporation’s principle asset was a long term leasehold interest in the Parkway Holiday Inn in Tallahassee, In the late 1970’s, negotiations began to sell this property along with other property owned by the Joneses. An offer was subsequently received which was acceptable to all of the Joneses except appellant. On November 6, 1980, Highway Inn, Inc., gave formal notice of a shareholders meeting scheduled for November 17, 1980. At the meeting, which appellant attended, the shareholders voted 70% in favor of the proposed sale, and 30% (appellant’s shares) against.

Appellant did not file an election of his dissenter’s rights under Section 607.247, Florida Statutes (1979). Instead, he filed suit seeking á dissolution of the corporation under Section 607.274(1)(a)3., and a declaration that a sale of the assets was invalid because the notice of proposed sale did not contain a fair summary of the transaction and was therefore fatally defective under Section 607.241(2), Florida Statutes (1979). Four days later, the closing occurred. Since then, the parties have proceeded under the terms of the sale. Notably, appellant has received several disbursements from the sale which he has not tendered back.

Highway Inn, Inc. sought summary judgment on the grounds that appellant, as a minority shareholder who failed to invoke his exclusive remedy of exercising his right to be paid in cash the full value of his shares, was “bound by the terms of the proposed corporation action,” Section 607.-247(8), Florida Statutes (1979), and that by accepting and negotiating the proceeds of the sale, obtaining a court order requiring the corporation to disburse the proceeds of the sale, and failing to tender back the proceeds he had received, appellant had waived any right he might have had to challenge the finality of the transaction. The trial court granted summary judgment for Highway Inn, Inc.

First, appellant contends that the Notice of Special Meeting (see footnote 1) does not fairly summarize the material features of the proposed sale. Next, he argues that since this notice is inextricably linked to his rights and obligations under Section 607.247, and it was defective, he was unable to make an intelligent decision whether or not to dissent to the sale under Section 607.247. Thus, he concludes he should not be limited to his remedy under Section 607.-247 and should be allowed to bring this action under Section 607.274(1)(a)3.

Appellant’s argument is faulty in several respects. Initially, we observe that appellant attended and fully participated in the November 17th shareholders’ meeting without objection to the form or contents of the notice. We interpolate, furthermore, that appellant cannot claim “surprise” in any respect. He had sought and been represented by counsel in connection with the proposed sale for three months prior to the meeting, and had access to information and draft contracts concerning the transaction during that period. More importantly, we find that the notice adequately explains the contemplated sale. Appellant’s argument, belated as it is, that more information should have been contained in the notice, is unavailing.

Further, it is our view that Section 607.247 provides to a minority shareholder, who opposes the sale of corporate assets, an exclusive remedy. Accordingly, a minority shareholder who does not elect, within ten days from the date of the vote of sale, his “dissenter’s right” to be paid in cash the full value of his shares, is “bound by the terms of the proposed corporation action” and may not thereafter challenge the sale. Florida’s Corporation Law does not contemplate that a minority shareholder, who was properly noticed about the proposed sale of corporate assets, may forego his dissenter’s remedy under Section 607.247 and instead bring an action under Section 607.274(1)(a)3.

In view of our affirmance of the final summary judgment on the grounds that appellant failed to utilize his exclusive remedy under Section 607.247, we find it unnecessary to further elaborate on Highway Inn, Inc.’s contention that appellant waived his right to challenge the sale by his acceptance and retention of benefits from the transaction which he failed to tender back.

The final summary judgment is AFFIRMED.

SHAW and JOANOS, JJ., concur.

      .This notice, signed by the Secretary of Highway Inn, Inc., provides as follows:
      NOTICE OF SPECIAL MEETING OF SHAREHOLDERS OF HIGHWAY INN, INC.
      On call of the President, notice is hereby given that a special meeting of the shareholders of Highway Inn, Inc. will be held at 10:00 A.M., Monday, November 17, 1980 at Suite 15, 950 Francis Place, Clayton, Missouri, for the following purposes:
      1. For the purpose of considering the advisability of desolving the corporation, and specifically for consideration of adoption of a plan of complete liquidation to be completed within a period of twelve (12) months after adoption of the plan to comply with all requirements of Section 337 of the Internal Revenue Code of the United States;
      2. For the purpose of considering a proposed sale, pursuant to the proposed plan of complete liquidation, of all tangible assets of the corporation comprising the Holiday Inn— Parkway in Tallahassee, Florida, including all real property, personal property, and inventory, for $3,500,000.00, subject to normal adjustments as of the closing date, to Inn of Lake City, Inc., a Florida corporation, to be paid by assumption by Buyer of the obligation to pay the existing first mortgage on the property (to be reduced by the corporation to $1,000,000.00 as of closing and restructured to provide full payment in installments within three (3) years after closing), and by execution and delivery of a note of Buyer, secured by second mortgage on the property, for $2,500,000.00, payable with interest at the rate of 10'/4% per annum from date in equal monthly installments of principal and interest according to a 26-year full amortization table, with the entire remaining balance of principal and interest payable as a balloon payment 17 years after closing, with no prepayment right for 10 years and with full prepayment right in whole or in part thereafter. If the sale is effected, shareholders dissenting therefrom are entitled, under Florida law, if they file a written objection to such transaction before the vote of the shareholders is taken thereon and comply with the further provisions of the Florida General Corporation Act (Chapter 607, Florida Statutes, 1979) regarding the rights of dissenting shareholders, to be paid the fair value of their shares;
      3.For the purpose of transacting such other business as may properly come before the meeting.
      This notice is given this 6th day of November, 1980 to each shareholder of record pursuant to and in accordance with the bylaws of the corporation and the Florida General Corporation Act.

      . The pertinent provisions of Section 607.247, are as follows:
      607.247 Rights of dissenting shareholders. —(1) Any shareholder electing to exercise a right of dissent shall file with the corporation, prior to the taking of the vote of shareholders on the proposed corporate action, a written objection to such proposed corporate action. If such proposed corporate action be approved by the required vote and such shareholder shall not have voted in favor thereof, such shareholder may, within 10 days after the date on which the vote was taken, make written demand on the corporation or, in the case of a merger or consolidation, on the surviving or new corporation, domestic or foreign, for payment of the fair value of such shareholder’s shares.

      (3) If such proposed corporate action is effected, such corporation shall pay to such shareholder, upon surrender of the certificate or certificates representing such shares, the fair value thereof as of the date prior to the date on which the vote was effected approving the proposed corporate action by the shareholders of the corporation in which the dissenting shareholder owns shares or, in the case of a merger pursuant to s. 607.227, as of the day prior to the date on which a copy of the plan of merger was mailed to each shareholder of record of the subsidiary corporation. In any case, the fair value of shares shall be computed by excluding any appreciation or depreciation in anticipation of such corporation action. Any shareholder failing to make demand within the applicable 10-day or 15-day period shall be bound by the terms of the proposed corporation action. Any shareholder making such demand shall thereafter be entitled only to payment as provided in this section and shall not be entitled to vote or to exercise any other rights of a shareholder ... (emphasis supplied).

      . Section 607.274(1)(a)3., Florida Statutes (1979) provides for action by a shareholder in the circuit court for liquidation when it is established that the corporate assets are being misapplied or wasted.

      . Section 607.241(2) provides:
      (2) Written notice shall be given to each shareholder of record, whether or not entitled to vote at such meeting, in the manner provided in this chapter for the giving of notice of meetings of shareholders and, whether the meeting be an annual or a special meeting, shall state that the purpose, or one of the purposes, is to consider the proposed sale, lease, exchange, or other disposition. The notice shall fairly summarize the material features of the proposed transaction and shall contain a clear and concise statement that, if the sale, lease, exchange, or other disposition is effected, shareholders dissenting therefrom are entitled, if they file a written objection to such transaction before the vote of the shareholders is taken thereon and comply with the further provisions of this chapter regarding the rights of dissenting shareholders, to be paid the fair value of their shares, (emphasis supplied)

      .As to waiver of any deficiency in notice, where a stockholder, even though objecting to the notice, nevertheless takes part in the transaction of business at the meeting, see Annotation, “Shareholders Meeting — Notice Requirement,” 64 A.L.R.3d 358, § 3[b].

      . Our interpretation and application of the statute, under the facts of this case, is grounded firmly upon the principle, from the law of rescission and cancellation, that a party should have “but one fair opportunity, after full knowledge of his rights,” to either accede to the contract and take the benefits, or disavow it and demand redress by available alternative means; he cannot pursue both courses. Bardwell v. Albertson, 120 Fla. 106, 162 So. 321, 322 (1935), citing and quoting from Hendricks v. Stark, 99 Fla. 277, 126 So. 293, 296.


text:
    Thomas F. FOXX, Appellant, v. Frances G. FOXX, Appellee.
    No. AK-325.
    District Court of Appeal of Florida, First District.
    Jan. 7, 1983.
    G. James Roark, III of Roark & Roark, P.A., Pensacola, for appellant.
    Richard H. Merritt, Sr. of Merritt, Johnson & Ratchford, Pensacola, for appellee.
   JOANOS, Judge.

This is an appeal from an award, in dissolution of marriage proceedings, of exclusive use and possession of the marital home and its furniture and furnishings to the wife. The circumstances of this award do not satisfy the prerequisites for an award of exclusive use and possession set forth in Duncan v. Duncan, 379 So.2d 949 (Fla.1980), therefore we reverse.

In Duncan the Supreme Court set forth the following standards against which to evaluate an award of exclusive use and possession of a marital home to a spouse:

The award of “exclusive possession” of property subject to disposition in a dissolution proceeding should either be directly connected to the obligation to pay support or be temporarily necessary to prevent reduction in the value of the subject property. The critical question is whether the award is equitable and just given the nature of the case. A grant of exclusive possession of property to one of the parties in a final judgment must serve a special purpose, (citations omitted)

In the instant case the award was not directly connected to an obligation to pay support, nor was it alleged to be temporarily necessary to prevent reduction in the value of the property, nor did it purport to serve any special purpose within the mean-, ing of Duncan. See also McDonald v. McDonald, 368 So.2d 1283 (Fla.1979).

The record indicates that in the past several years since the dissolution, during a prior appeal and a substantial delay in seeking an order conforming to this court’s mandate following that appeal, Mrs. Foxx has made a substantial investment in the marital home and has maintained it without assistance from Mr. Foxx. Upon remand and partition of the property should a complaint for partition-conforming with Section 64.011, Florida Statutes, be filed, the trial court shall make special provision for her to recoup those expenditures over and above her one-half interest in that property.

REVERSED and REMANDED for further proceedings in light of this opinion.

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

      . On the issue of support, specifically lump sum alimony, we are bound by the previous decision of this court in Foxx v. Foxx, 357 So.2d 754 (Fla. 1st DCA 1978).


text:
    SCHWIND HARVESTING and Florida Farm Bureau Insurance Company, Appellants, v. Eligia BOATMAN, Appellee.
    No. AM-195.
    District Court of Appeal of Florida, First District.
    Jan. 7, 1983.
    James M. Hess of Driscoll, Langston & Kane, Orlando, for appellants.
    Thomas R. Mooney of Meyers, Mooney, Adler & Hammond, P.A., Orlando, for ap-pellee.
   PER CURIAM.

The employer/carrier appeal the deputy commissioner’s award of wage loss based in part upon the deposition of the claimant who did not attend the final hearing.

Claimant suffered a compensable injury to his foot when he fell from a fruit tree on December 9, 1979. Dr. Flynn evaluated him in October of 1981 and assigned a 5-7% residual disability. Subsequently claimant found employment working twenty-seven hours per week. It was the position of the employer/carrier at the final hearing that claimant should find work to make up the difference between the twenty-seven hours and a full forty-hour work week.

According to the unsworn testimony of the claimant’s attorney, claimant did not attend the final hearing because he feared he would be fired from his job if he took time off. The deputy allowed into evidence, over objection, the deposition of the claimant which became the basis for the wage loss award.

We find the challenge of the employer/carrier well taken. The proper use of depositions in court proceedings is governed by Florida Rule of Civil Procedure 1.330. Subsection (a)(3) sets forth circumstances which justify the use of a deposition when a witness is unable to attend a court proceeding or to testify in the proceeding. None of the enumerated circumstances existed in the present case. Subsection (a)(3)(E) is arguably applicable, but claimant’s failure to comply with the application and notice provisions contained therein forecloses its use in this instance. We know of no other relevant rule of law that would justify admission of the deposition into evidence, and claimant’s brief directs us to none. We can only conclude that the deputy commissioner erred by admitting into evidence, over objection, claimant’s deposition in lieu of live testimony. In the absence of the deposition, the wage loss award is not supported by competent substantial evidence.

REVERSED and REMANDED for further proceedings consistent with this opinion.

LARRY G. SMITH, SHAW and JOA-NOS, JJ., concur.

       (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the State, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or (F) the witness is an expert or skilled witness.