text:
    James W. MATHIS, Appellant, v. KELLY CONSTRUCTION COMPANY and Employers Insurance of Wausau, Appellees.
    No. AG-100.
    District Court of Appeal of Florida, First District.
    July 16, 1982.
    Rehearing Denied Aug. 20, 1982.
    Barry M. Salzman, St. Petersburg, for appellant.
    Kathleen R. Hudson, St. Petersburg, for appellees.
   PER CURIAM.

In this workers’ compensation appeal the claimant argues that Section 440.15(3)(a)3, Florida Statutes (1979), as implemented by Section 440.15(3)(b)l, denies substantive due process of law because it restricts the evaluation of permanent physical impairment to the American Medical Association’s Guides to the Evaluation of Permanent Impairment. We disagree.

The relevant facts are essentially undisputed. Dr. Sullivan, the claimant’s treating orthopedic physician, testified that according to the AMA Guides, no impairment rating was assignable to claimant's knee injury because the only criterion used by those Guides in the evaluation of impairment to the knee joint was loss of range of motion and claimant had no such problem. Based on his own experience as an orthopedic surgeon and upon an alternative guideline, Dr. Sullivan opined that the claimant had a thirty percent (30%) permanent partial impairment rating as a result of his knee injury. Since this particular injury (a knee joint injury) is covered by the Guides, Sections 440.15(3)(a)3 and 440.15(3)(b)l, Florida Statutes (1979), are constitutional as applied. Rhaney v. Dobb’s House, Inc., 415 So.2d 1277 (Fla. 1st DCA, 1982), modified on rehearing, (June 16, 1982). See also, Carr v. Central Florida Aluminum Products, Inc., 402 So.2d 565 (Fla. 1st DCA 1981).

AFFIRMED.

McCORD, MILLS and SHIVERS, JJ., concur.


source: Caselaw Access Project

author: WIGGINTON, Judge.

license: Public Domain

text:
    STATE ex rel. Rosamund L. DOUGLASS, Appellant, v. DUVAL COUNTY SCHOOL BOARD, Appellee.
    No. AG-488.
    District Court of Appeal of Florida, First District.
    July 16, 1982.
    David A. Hertz, Jacksonville, for appellant.
    Dawson A. McQuaig, Gen. Counsel, William Lee Allen and Gary E. Eckstine, Asst. Counsel, Jacksonville, for appellee.
   WIGGINTON, Judge.

We affirm the trial court’s denial of the appellant’s Petition for Writ of Mandamus; we write this opinion to make clear the limited nature of our holding today.

Douglass, a public school librarian, requested the writ to require the Duval County School Board to grant her tenure. In his order denying relief, the judge held: “the term ‘teacher’ as contained in the Duval County Teacher Tenure Act does not include librarians.” In this appeal, Douglass has purposely limited our review to the question of whether this holding was erroneous as a matter of law. She has adamantly refused to present this Court with the facts and circumstances of her duties in the school system, arguing that testimony presented before the trial judge played no part in his ruling and that such testimony is immaterial to this appeal.

With the issue thus narrowed, it is apparent that the judge’s ruling was entirely correct. The Act clearly contemplates that the only employees to receive tenure will be those who serve as teachers. For example, Chapter 72-576, Section 1, Laws of Florida, specifies that tenure may be granted “principals, assistant principals, supervisors, deans, coaches and other certified personnel performing administrative duties” only while they also perform the duties of a classroom teacher. We are not asked to decide whether librarians fall into one of these categories. On the other hand, the appellant has not shown that librarians should be regarded differently so as to remove them from the “classroom teacher” requirement.

The parties have spent considerable energy arguing whether we should consider subsequent unrelated legislation as shedding light on legislative intent regarding the term “teacher” in the Act. We find such enlightenment unnecessary, given the plainly-worded provisions in the Act that clearly evince an intent to grant tenure only to those who teach. Because the record contains no evidence that Douglass is one who teaches, the trial judge did not err in failing to require the School Board to grant her tenure.

In passing, Douglass has attempted to point out numerous similarities between public school librarians and teachers. However, these assertions are not supported by record evidence.

Accordingly, judgment of the trial court is affirmed.

BOOTH and WENTWORTH, JJ., concur.

      . Ch. 21197, Laws of Florida (1941) as amended by Ch. 70-671 and Ch. 72-576, Laws of Florida.


text:
    RAMADA INN, Appellant, v. Kenneth FOSTER, Appellee.
    No. AI-268.
    District Court of Appeal of Florida, First District.
    July 16, 1982.
    Rehearing Denied Aug. 20, 1982.
    Alan Meltzer, Palm Beach Gardens, for appellant.
    Gerald A. Rosenthal, of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, P. A., West Palm Beach, and Joseph C. Segor, Miami, for appellee.
   WIGGINTON, Judge.

We affirm the order of the deputy commissioner awarding claimant temporary total and temporary partial disability benefits, penalties and interest thereon, and remedial treatment and attention. However, the deputy failed to indicate the appropriate periods for which the penalties and interest are due. Accordingly, we hold, that as to the TTD benefits, a 10% penalty is due for the period from September 21, 1979 to October 2, 1979, with interest accruing thereon. As to the TPD benefits, a 10% penalty is due on the period from September 16, 1980 to September 30, 1981, with interest accruing thereon.

BOOTH and WENTWORTH, JJ., concur.


author: PER CURIAM.

text:
    Robert John WINICKI, Petitioner, v. Robert A. MALLARD, et al., Respondents.
    No. AK-427.
    District Court of Appeal of Florida, First District.
    July 16, 1982.

      Robert John Winicki, Jacksonville, in pro. per.
    Robert A. Mallard, Property Appraiser of Duval County, and Lynwood Roberts, Tax Collector of Duval County, Linda Logan Bryan, Asst. Counsel, Jacksonville, Randy Miller, as Executive Director of the Dept, of Revenue, and Jim Smith, Atty. Gen., Barbara Staros Harmon, for respondents.
   PER CURIAM.

Robert John Winicki petitions this Court for a Writ of Certiorari to review the trial court’s order granting Respondent Mallard’s Motion to Stay “pending final disposition of both Osterndorf v. Turner, et al., [411 So.2d 330] Case No. 81-864, Fifth District Court of Appeal, and Maguire v. Schultz, et al., Case No. 81-2447, Second District Court of Appeal.” By his complaint below Winicki seeks to have Section 196.031(3)(d) and (e), Florida Statutes (1981), [providing for a $25,000 increased homestead real property tax exemption for those persons who have resided in Florida for at least five years] declared unconstitutional as violative of his fundamental right to travel as protected by the privileges and immunities clause and the due process clause of the Fifth and Fourteenth Amendments of the United States Constitution.

We agree with Winicki’s contention that the trial court abused its discretion in granting the stay. We recognize the similarity of issues in both Osterndorf and Ma-guire. However, Winicki is a party to neither of these appeals. Neale v. Aycock, 340 So.2d 535 (Fla. 1st DCA 1976). Second, considering the nature of the constitutional issues involved in these various appeals, there is a substantial likelihood that a definitive ruling by the Florida Supreme Court or, conceivably, the United States Supreme Court may not be forthcoming for some time. Id. Thus, Winicki’s due process right to have his grievances heard by a court of competent jurisdiction will be indefinitely delayed, and, as the old adage goes, justice delayed is justice denied.

Accordingly, for the reasons expressed above, we grant the petition, quash the trial court’s order granting stay, and remand this cause for further proceedings consistent with this opinion.

McCORD, MILLS and SHIVERS, JJ., concur.

      . The Fifth District Court of Appeal has since ruled adversely to Winicki’s contentions. Ost-erndorf v. Turner, 411 So.2d 330 (Fla. 5th DCA 1982).


author: JORGENSON, Judge.

text:
    Stuart COHEN and Jay Cohen, as Personal Representatives of the Estate of Lewis X. Cohen, deceased, and Pearl Cohen, individually, Appellants, v. Bert ROTH and Gertrude Roth, Husband and Wife, Appellees.
    No. 81-758.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.

      Mershon, Sawyer, Johnston, Dunwody & Cole and C. Randolph Coleman, Miami, for appellants.
    Cohen, Kokus & Ostrow and John B. Os-trow, Miami, for appellees.
    Before NESBITT, DANIEL S. PEARSON, and JORGENSON, JJ.
   JORGENSON, Judge.

This is an appeal from a final judgment entered by the trial court denying a partition and other relief sought by the appellants. For the reasons which follow, we affirm in part and reverse in part.

In the early 1970’s, Lewis X. Cohen, now deceased, and Bert Roth made certain real property investments in northeast Dade County. Their oral understanding was reduced to writing in a joint venture agreement which appears as an appendix to this opinion. The properties in question were managed primarily by Bert Roth, with occasional consultation from Lewis Cohen. Throughout the period of co-ownership, the profits were evenly divided. Following the death of Lewis X. Cohen in July, 1979, the estate and Pearl Cohen determined that they no longer wished to participate in the joint venture agreement, resulting in the action below.

We conclude that the trial court properly denied the partition action. Iglehart v. Phillips, 383 So.2d 610 (Fla.1980); Condrey v. Condrey, 92 So.2d 423 (Fla.1957). The joint venture agreement, viewed in its totality, precludes partition where, as here, a unanimous consent provision is present. The agreement specifically establishes in Paragraph 7 that husband and wife are to be treated as a unit. It is clear from this record that there has been substantial performance under the agreement and that the parties have relied upon it. The trial court correctly viewed the Cohens and the Roths as two separate units and did not abuse its discretion in denying partition.

It was error, however, to deny the accounting. The Roths owe a fiduciary duty to the appellants and, thus, must give account of their activity. Donahue v. Davis, 68 So.2d 163 (Fla.1953); Manning v. Clark, 56 So.2d 521 (Fla.1951); Cushman v. Schubert, 110 So.2d 703 (Fla. 2d DCA 1959).

Affirmed in part, reversed in part and remanded for further proceedings in accordance with the views expressed herein.

APPENDIX

JOINT VENTURE AGREEMENT

THIS AGREEMENT OF JOINT VENTURE made and entered into by and between BERT ROTH and GERTRUDE ROTH, husband and wife, of 11950 North Bayshore Drive (Apartment 7B), North Miami, Florida, hereinafter referred to as “First Parties”, and LEWIS X. COHEN and PEARL COHEN, husband and wife, of 1301 N. E. Miami Gardens Drive (Apartment 606W), North Miami Beach, Florida, hereinafter referred to as “Second Parties”;

WITNESSETH:

WHEREAS, the parties hereto are the owners in fee simple absolute of each of the parcels of property hereinafter described, each of the parties having an undivided one-half interest in and to each of the said parcels of property; and

WHEREAS, the parties are desirous of formalizing their understanding and agreement with respect to the ownership, management, obligations and benefits and profits appertaining to the said parcels of property and derived from the said parcels of property.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, and other good and valuable considerations, it is mutually agreed by and between the parties hereto as follows:

1. That the above recitations are true and correct and are incorporated herein as if fully set forth.

2. The subject parcels in which the parties each own an undivided one-half interest are as follows:

PARCEL NO. 1 — “Mid-Bay Club Apartments”
Lots 212 and 213, Block 14, SANS SOUCI ESTATES, according to the Plat thereof, recorded in Plat Book 50, Page 86, of the Public Records of Dade County, Florida. Lot 5, in Block 7, of SANS SOUCI ESTATES, according to the Plat thereof, recorded in Plat Book 50, Page 86, of the Public Records of Dade County, Florida.
PARCEL NO. 2 — 'Nanis Building”
The West 20 feet of Lot 3, and all of Lot 4, in Block 339, of UNIT “A” MIAMI SHORES, as recorded in Plat Book 17, at Pages 44, 45, 46, 47 and 48, Dade County Public Records.
PARCEL NO. 3 — “Miami Shores Stores”
All of that part of Lot 16, East of Easterly line of Biscayne Boulevard or State Road No. 4-A, of ASBURY PARK, according to the Amended Plat thereof, recorded in Plat Book 4, at Page 110, of the Public Records of Dade County, Florida.

Irrespective of the fact that record title with respect to the parcels of property above-described may be vested in husband and wife or husband, individually, the parties acknowledge that the “First Parties” have an undivided one-half interest in and to each of the above-described parcels of property and, also, that the “Second Parties” have an undivided one-half interest in and to the above-described parcels of property.

3. Certain mortgage note or notes have been executed by the parties to this Agreement or, in some instances, by the husband alone and, in some instances, by parties other than the parties hereto, namely, mortgagors in the chain of title. Notwithstanding this fact, the parties acknowledge, each to the other, that with respect to the mortgage obligations outstanding against the parcels of property hereinabove described, each of the parties hereto (Husband and Wife) is and shall continue to be liable for one-half of the mortgage obligations inclusive of the monthly principal and interest provisions thereof. Similarly, with respect to all other obligations appertaining to the maintenance, operation and upkeep, each of the parties agrees and acknowledges that they are liable for and shall continue to be liable for one-half of each of said obligations.

4. Each of the parties hereto (husband and wife) shall share equally in the revenues and income derived from each of the subject properties.

5. The parcels of property hereinabove described, and any of them, may be sold only upon the unanimous consent and agreement of the parties hereto. In the event, however, a party is desirous of selling their interest in any one or more, of the subject parcels of property, and the other parties are unwilling to sell, then the parties desirous of selling shall notify the other parties in writing of any offer received from a third party willing to acquire the interest of the selling parties, and the parties unwilling to sell shall have 30 days within which to purchase the parcel (or parcels) from the selling parties upon the terms as set forth in the offer received from the third party. Should the declining parties fail to accept the terms as set forth in the offer received from the third party within said 30 day period, the selling parties shall thereupon be permitted to consummate the sale of their one-half interest to the third party.

6.Should either of the parties fail to pay their share of any of the taxes, assessments, mortgage payments, and other obligations appertaining to the management, maintenance and upkeep of the parcels of property afore-described, or any of them, the other parties shall have the right to advance the required monies and to receive interest thereon computed at the rate of 10% per annum and, also, upon such ad-vanee, or advances, to have a lien upon and against the undivided one-half interest of the defaulting parties.

7. Any reference hereto to “party” or “parties” shall mean the husband and wife acting as a unit.

8. Nothing herein contained shall be deemed to construe the existence of a partnership or joint venture with respect to any other holdings or properties of the respective parties.

9. This Agreement shall be binding upon the parties hereto, their heirs and personal representatives.

IN WITNESS WHEREOF, we have hereunto set our hands and seals at _, Dade County, Florida, this _day of February, 1975.

      . Stuart and Jay Cohen appear as the personal representatives of the estate of Lewis X. Cohen, deceased. Pearl Cohen appears individually.


author: McCORD, Judge.

text:
    DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF LABOR, Appellant, v. FLORIDA HOME BUILDERS ASSOCIATION, et al., Appellees, v. FLORIDA BUILDING TRADES COUNCIL, et al., Intervenors.
    No. MM-159.
    District Court of Appeal of Florida, First District.
    July 20, 1982.

      Kenneth H. Hart, Jr., Tallahassee, for appellant.
    Stephen W. Metz, Tallahassee, for appel-lees.
    Jerry G. Traynham of Patterson & Traynham, Tallahassee, for intervenors.
   McCORD, Judge.

This appeal is from a final order of the Division of Administrative Hearings finding appellant’s Rule 8C-16.05(2)(e) 2 and 5 to be an invalid exercise of delegated legislative authority. Upon our initial consideration of this appeal, we did not reach the merits but reversed the hearing officer’s ruling that appellees had standing to challenge the rule. Dept. of Labor, etc. v. Fla. Home Builders, 392 So.2d 21 (Fla. 1st DCA 1980). We then certified the question to the Supreme Court of Florida as one of great public importance, and the Supreme Court reversed, ruling that appellees have standing to challenge the rule. The Supreme Court remanded the cause with directions that we review the question of the rule’s validity on the merits. Fla. Home Builders Ass’n v. Dept. of Labor, 412 So.2d 351 (Fla.1982).

We affirm the ruling of the hearing officer of the Division of Administrative Hearings. Other periphery questions were raised by Florida Home Builders in the proceeding below, but since we find that the rule is an invalid exercise of legislative authority, it is unnecessary that we reach such issues.

The sections of the rule which are challenged provide as follows:

8C-16.05 Standards of Apprenticeship. The following standards are prescribed for an apprenticeship program:
* * * * * *
(e) Wage Provision—
******
2. The entry apprentice wage rate shall be not less than 50 percent of the established journeyman hourly rate paid by all participating employers in the program, unless a different percentage is provided for in a collective bargaining agreement. Provided further that if a higher journeyman hourly rate is established for a particular project pursuant to state or federal law, the higher rate so established shall be controlling for purposes of determining apprentice wages applicable to the particular project.
* * * ^! * ^!
5. The minimum hourly apprentice wage rate paid during the last period of apprenticeship shall be not less than 85 percent of the established journeyman wage rate, unless a different percentage is provided for in a collective bargaining agreement. (Emphasis supplied.)

The phrases to which we have added emphasis above render the rule an invalid exercise of legislative authority because they provide for a nonuniform application of the rule in violation of Section 446.041(3), Florida Statutes (1977) [now covered by § 446.-031(2), Florida Statutes (1981) ], which mandates that the Department “shall also establish uniform apprenticeship standards which shall not be limited to traditional training standards or traditional appren-ticeable occupations” (emphasis supplied). These phrases likewise violate Section 446.-041(2)(a)(2), Florida Statutes (1977), which mandates that the Bureau of Apprenticeship administer the “uniform preapprenticeship and apprenticeship standards established by the Department of Commerce” (emphasis supplied).

Hearing Officer Diane D. Tremor has made a very lucid and correct analysis of the Rule’s deviation from statutory authority. We will not attempt to gild the lily. We approve and adopt such analysis which we quote as follows:

The portions of the rule in question do two things: they set a specified percentage to be paid to certain apprentices and they exempt from said percentage requirements those apprentices covered by a collective bargaining agreement which provides for a “different” percentage. These provisions must be considered in light of the statutory authorization and intent.
After carefully reviewing the evidence, statutory provisions and the parties’ legal argument with regard to this issue, it is concluded that a rule relating to wages which exempts from its provisions the “different” percentages provided for in a collective bargaining agreement constitutes an invalid exercise of delegated legislative authority. As noted above, the statutory provision relating standards for the apprenticeship program speak in terms of “uniform” standards. “Uniform” is generally regarded to apply equally to all those affected. The only exception or limitation to this requirement of uniformity is contained in F.S. § 446.081, which provides as follows:
“Nothing in this chapter or in any apprentice agreement approved under this chapter shall operate to invalidate any apprenticeship provision in any collective agreement between employers and employees setting up higher apprenticeship standards.”
Thus, while a collective agreement between employers and employee may set up higher apprenticeship standards than the minimum standards approved or authorized by Chapter 446, it follows that such agreements may not contain lower standards. Stated differently, F.S. § 446.081 allows different standards between union and nonunion apprenticeship programs only when higher standards are provided in the collective bargaining agreement. Had the Legislature intended to exempt all provisions of a collective bargaining agreement from the statewide standards, it would have been a simple matter to indicate such intent by using the word “different,” “other” or by simply omitting any adjective to describe such apprenticeship standards. Having specifically exempted “higher” standards, it cannot be assumed that the Legislature also intended to exempt lower standards.
The rule in question, by referring to a “different percentage” provided for in a collective bargaining agreement, rather than a “higher” percentage, allows unions or other groups covered by a collective bargaining agreement to establish standards lower than the statewide minimum uniform standards. Indeed, the evidence adduced at the hearing illustrates that some collective bargaining agreements do in fact provide for an entry apprentice wage rate of thirty-five percent (35%) of the established journeyman hourly rate. This conflicts with the statutory requirement of uniformity in standards, and is not within the exception or limitation allowed in Section 446.081(1). The respondent and the intervenor assert that the purpose and rationale for the subject rule are to protect apprentices where they are not otherwise represented through the collective bargaining process. They further point out that the collective bargaining agreements generally contain provisions for apprentices to receive fringe benefits in addition to their rate of pay. While such rationale may be laudable, it simply finds no authority in the statutes and, indeed, conflicts with § 446.081(1). The Legislature recognized the existence of collective bargaining agreements and expressly provided that such agreements could contain higher standards. Such an expression negates the promulgation of a rule which would permit a lower standard. Therefore, those portions of Rule 8C-16.05(2)(e)(2) and (5) [sic] which contain the language “unless a different percentage is provided for in a collective bargaining agreement” are without statutory authority and constitute an invalid exercise of delegated legislative authority. ...”

The hearing officer’s ruling that those portions of Rule 8C-16.05(2)(e)2 and 5 reading “unless a different percentage is provided for in a collective bargaining agreement” constitute an invalid exercise of delegated legislative authority is affirmed and such portions are stricken from the rule.

MILLS and SHIVERS, JJ., concur.

       Also see F.S. Section 215.19(l)(d) which refers to the “apprenticeship agreement of higher standards as provided in § 446.091.”


text:
    DEPARTMENT OF EDUCATION, Appellant, v. Bettie C. ATWATER and Department of Labor and Employment Security State of Florida, Unemployment Appeals Commission, Appellees.
    No. AF-273.
    District Court of Appeal of Florida, First District.
    July 20, 1982.

      Gene T. Sellers, Tallahassee, for appellant.
    James R. Parks and Richard S. Córtese, Tallahassee, for appellees.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

The Unemployment Appeals Commission construed the “refusal of suitable work” disqualification provisions of section 443.-101(2), Florida Statutes (Supp.1980), as being applicable only when the work offer was made during the time the claimant was unemployed. The claimant in this case, ap-pellee Atwater, though aware that her part-time job with the Department of Education was soon to be terminated, refused without good cause the Department’s offer of other suitable work. Because the work offer was extended while claimant was still on the Department payroll, the Commission concluded that the refusal of the work offer did not constitute disqualification under the statute and awarded claimant unemployment compensation benefits. We reverse.

The essential facts as found by the appeals referee (which findings of fact the Commission adopted) are supported by competent, substantial evidence in the record and can be stated quite succinctly. Dr. Bettie C. Atwater was employed by the Department of Education from May, 1976 to October 3, 1980, as a part-time Educational Consultant, the position being supported through federal funding. Dr. Atwa-ter was aware that effective June 30, 1980, the position would be deleted because of the loss of federal funds. After that date she was retained in the same position on a temporary basis with funding from another source. In the latter part of August, the Department offered her other suitable work which, without good cause, she refused to accept. She was then given timely notice by Commissioner Turlington that since she could not accept the work which had been offered and since there were no other positions available in the Department, and in view of the expiration of the funding for her current position, her last day of employment would be October 3, 1980.

The appeals referee concluded on these facts that the claimant had refused to accept an offer of suitable work without good cause within the meaning of the statute, and that she was therefore disqualified from receiving unemployment benefits. The Commission reversed and awarded unemployment benefits, its order, excluding formal parts, stating only the following:

The record discloses that the employment relationship was not severed at the time the offer of work was proffered. This fact precludes imposition of a disqualification pursuant to Section 443.-101(2), Florida Statutes, since the intendment of that statutory provision is to disqualify only those claimants who refuse an offer of suitable work without good cause while they are unemployed. For this reason, the employer’s offer of full-time employment does not constitue an offer of work within the meaning of the law.

Appellant’s principal argument is that the Commission, having accepted the findings of fact of the appeals referee, may not substitute its own different conclusion, and institute, without explanation or record foundation, a heretofore unannounced non-rule policy which requires that a refusal of suitable work, to be disqualifying, must be based upon a work offer made while the claimant is unemployed. The Commission has admittedly not promulgated rules on this matter under the rule making procedures of Section 120.54, Florida Statutes. We need not be concerned, however, with the question of whether the Commission’s construction of Section 443.101(2), Florida Statutes — that it does not countenance the imposition of a disqualification on the basis of a claimant’s refusal of proffered employment while still gainfully employed— amounts to an agency policy statement of general applicability which would require adoption as a rule. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). It is, at the least, and as conceded by the Commission, a non-rule interpretation of the statute manifesting policy that is now emerging. As such, it requires record foundation and explication of the basis for the agency’s non-rule policy. Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla.1980); ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); McDonald v. Department of Banking and Finance, supra. There is in this case neither record foundation nor explication of the basis for the Commission’s non-rule policy. For this reason alone the order must be reversed.

We also conclude that as it relates to the unique and specific facts of this case, the Commission’s interpretation of the disqualification statute is erroneous. Assuming, without deciding, that in enacting Section 443.101(2), Florida Statutes, the Legislature intended that a prerequisite to disqualification was a work offer made while unemployed, it seems evident that the lawmakers did not contemplate a situation such as existed in this case. Dr. Atwater’s position had already terminated, and she was, so-to-speak, “on borrowed time,” of which she was well aware. The Department, anxious to retain her services as long as possible, arranged a temporary position for her. When a permanent position became available, it was offered to her. Dr. Atwater, without good cause, declined to accept the offered position. Without doubt, the Department could have terminated her temporary position first, and then, while Dr. At-water was in the category of “unemployed,” could have offered her the full-time position (which the appeals referee found to be suitable work, a finding adopted by the Commission), a procedure which, if followed, apparently would have satisfied fully the Commission as constituting an offer of work within the meaning of the disqualification statute. Granted the humanitarian nature of the unemployment compensation act, see, e.g., City of Ft. Lauderdale v. Fowler, 355 So.2d 159 (Fla. 4th DCA 1978); Rodriguez v. Florida Department of Commerce, 328 So.2d 24 (Fla. 3d DCA 1976), it nonetheless becomes illogical if not outright ludicrous to require an employer first to discharge an employee whose termination is known by the employee to be imminent, before offering the employee other suitable work, in order for the offer and refusal to trigger the disqualification provisions of the statute.

The award of unemployment compensation is reversed.

MILLS and WENTWORTH, JJ., concur.

      . The statute, in pertinent part, reads as follows:
      443.101 Disqualification for benefits. — An individual shall be disqualified for benefits:

      (2) If the division finds that the individual has failed without good cause ... to accept suitable work when offered . . . such disqualification shall continue for the week in which such failure occurred and for not more than 5 weeks immediately following such week .... However, disqualification under this subsection shall continue for the full period of unemployment next ensuing after he has failed without good cause ... to accept suitable work . . . and until such individual has become reemployed .... The division shall by rule provide criteria for determining the “suitability of work,” as used in this section. The division in developing such rules shall consider the duration of a claimant’s unemployment in determining the suitability of work ....

      . Appellee says that the policy is not only now emerging, but is doing so “fully ripened.”

      . The identical position, but on a full-time basis rather than part-time, with commensurate increase in salary and benefits.


author: WENTWORTH, Judge.

text:
    FLORIDA ELECTRIC POWER COORDINATING GROUP, INC., et al., Petitioners, v. COUNTY OF MANATEE, et al., Respondents.
    Nos. AH-139, AH-249, AH-141 to AH-143 and AH-213.
    District Court of Appeal of Florida, First District.
    July 20, 1982.
    Wade L. Hopping, Richard D. Melson, George N. Meros, Jr., Robert L. Rhodes, Jr., Lawrence E. Sellers, Jr., Roderick K. Shaw, Jr., David C. Garrett, III, and David Card-well, City Atty., Tallahassee, for petitioners.
    Thomas W. Reese and Paul H. Amundsen, Tallahassee, for respondents.
    Bram D. E. Canter, William W. Deane, Asst. Gen. Counsel, Tallahassee, for Dept, of Environmental Regulation.
   WENTWORTH, Judge.

These appeals are from an order of the hearing officer which denied motions to intervene in a rule challenge proceeding instituted by the County of Manatee. They are considered as petitions from nonfinal agency action. The issue presented is whether a party can intervene in a rule challenge proceeding on behalf of the agency. We reverse.

The order appealed states that the purpose of a rule challenge proceeding is solely to determine whether or not the rule lacks statutory authority or was not properly promulgated in accordance with the Administrative Procedure Act. The hearing officer reasoned that if a third party had no legal right to the continued existence of any rule, then the party should not have standing to intervene in a proceeding challenging the rule. The order states that to allow intervention in support of an agency’s rule would be to acknowledge a right held by a private litigant to dictate what an agency’s policy should be. The order permits the appellant corporations to participate as ami-cus curiae but denies the petitions to intervene.

Appellants argue the hearing officer applied an improperly restrictive test in determining petitioners’ standing to intervene in the proceeding. Section 120.56(5) states:

Hearings held under this provision shall be conducted in the same manner as provided in s. 120.57 .... The Petitioner and the agencies whose rule is attacked shall be adversary parties. Other substantially affected persons may join in the proceedings as parties or intervenors on appropriate terms which shall not unduly delay the proceedings.

Petitioners have alleged that their substantial interests will be affected and have also alleged that they are parties as defined by § 120.52(10), Florida Statutes. Rule 221-2.13, F.A.C., permits any “person” to intervene in any adversary proceeding before the Division. The law implemented by the Division’s rule on intervention includes § 120.56. Further, model Rule 25-5.207 permits intervention by persons who have a substantial interest in the proceedings.

Courts in other jurisdictions have determined the analogous issue of whether a person may properly intervene in support of the validity of a statute or ordinance which another party seeks to invalidate. In New York P.I.R.G., Inc. v. Regents of the University of the State of New York, 516 F.2d 350 (2d Cir. 1975), the appellate court held that an association of pharmacists should be permitted to intervene in support of the validity of a challenged regulation which prohibited the advertising of the price of prescription drugs. In State ex rel. Westlake v. District Court of First Judicial District, 119 Mont. 222, 173 P.2d 896 (1946), the court concluded that dairymen and others should be permitted to intervene in a proceeding attacking the constitutionality of an oleomargarine licensing tax statute because the statute was passed for the benefit of the intervenors. Petitioners also note that in several instances courts and hearing officers have permitted parties to intervene in support of the validity of a challenged provision although the opinion does not disclose that the propriety of the intervention was specifically considered by the court or hearing officer. See, Agrico Chemical Co. v. State of Florida Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978).

Respondents Manatee County and Mana-sota-88 argue that the court should look at the procedural context in which the order under review is entered. Nine separate petitions for leave to intervene in support of the rule have been filed by four business associations, 35 individual business corporations and one municipality. At least one of these intervenors has directed voluminous amounts of discovery to Manatee County. In reply, petitioners state that the order appealed does not indicate that intervention was denied to prevent the proceedings from being unduly delayed. Petitioners also argue that they have not in any way delayed the proceedings but were willing to defend the rule challenge on its original schedule.

The order of the hearing officer is quashed because we conclude that § 120.-56(5) does not limit participation in a rule challenge proceeding to those parties seeking to intervene on behalf of the petitioner. All parties to this appeal have requested that we remand the proceedings with instructions to grant their petitions to intervene as party respondents “subject to ... proof at the final hearing of disputed factual matters, if any, relating to standing.” We find no necessity for this court’s determination of whether any of the corporations is a substantially affected person. Our reversal of the hearing officer’s order should not be construed as limiting in any way the hearing officer’s authority to control the rule challenge proceedings. Section 120.56(5) provides that substantially affected persons may join the proceedings as parties or intervenors “on appropriate terms which shall not unduly delay the proceedings.”

Reversed and remanded for further proceedings consistent herewith.

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


author: SHIVERS, Judge.

text:
    FARMWORKER RIGHTS ORGANIZATION, INC., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and Lehigh Acres Hospital, Appellees.
    No. AI-454.
    District Court of Appeal of Florida, First District.
    July 20, 1982.

      Robert J. Willis of Florida Rural Legal Services, Inc., Bartow, for appellant.
    James M. Barclay, Tallahassee, for Dept, of Health and Rehabilitative Services, and Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for Lehigh Acres Hosp., appellees.
   SHIVERS, Judge.

Appellant appeals the dismissal by the Department of Health and Rehabilitative Services (HRS) of its request for a formal administrative proceeding pursuant to section 120.57(1), Florida Statutes (1979).

Appellee, HRS, awarded appellee, Lehigh Acres Hospital, a certificate of need to construct a one hundred bed acute care hospital in Lehigh Acres, Florida. Appellant objected and requested a formal administrative proceeding pursuant to section 120.-57(1), Florida Statutes (1979). In denying this petition, HRS relied on the standing requirements for associations as set forth in Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), and Florida Department of Education v. Florida Education Association/United, AFT-AFL-CIO, 378 So.2d 893 (Fla. 1st DCA 1979), and concluded that since no individual was made a party to the petition, appellant lacked standing to request a section 120.57 proceeding. This appeal followed.

On the basis of the Florida Supreme Court’s recent decision in Florida Home Builders Association, et al., v. Department of Labor and Employment Security, 412 So.2d 351 (Fla.1982), we reverse the denial of appellant’s request for a formal proceeding pursuant to section 120.57(1), Florida Statutes (1979). In Florida Home Builders, the Supreme Court of Florida held that a trade or professional association has standing to institute a rule challenge under section 120.56(1), Florida Statutes (1979), even though it acted solely as the representative of its members, provided the following requirements are met:

(1) the association demonstrates that a substantial number of its members, although not necessarily a majority, are substantially affected by the challenged rule;
(2) the subject matter of the challenged rule is within the association’s general scope of interest and activity; and
(3) the relief requested is of a type appropriate for a trade association to receive on behalf of its members.

Id. at 353-54.

Although Florida Home Builders involved a rule challenge under section 120.56, rather than a request for a formal proceeding pursuant to section 120.57(1), we find that the standing requirements for associations as set forth in Florida Home Builders should be extended to section 120.57(1) proceedings. For the purpose of standing, there is no significant difference between a section 120.56(1) and a section 120.57(1) proceeding. In order to establish standing in the former case a person must show that he has been “substantially affected” by the challenged rule, while in the latter case a party must show that his “substantial interests” are being determined. Based on the similarities between the standing requirements of these two sections, we now hold that the standing requirements for associations as set forth in Florida Home Builders shall apply equally in both section 120.56(1) and section 120.57(1) proceedings.

We REVERSE the order of HRS and REMAND for a determination of standing consistent with this opinion.

McCORD and WIGGINTON, JJ., concur.


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Ronnie WILLIAMS, Appellee.
    No. 81-1275.
    District Court of Appeal of Florida, Fifth District.
    July 21, 1982.
    Rehearing Denied Aug. 3, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    Gregory M. Wilson, of Taylor & Wilson, Orlando, for appellee.
   SHARP, Judge.

The state appeals the trial court’s order, which suppressed the results of Williams’ blood-alcohol level test, prior to the commencement of his trial for manslaughter by driving while intoxicated. We reverse.

A head-on collision between Williams in his pick-up truck and a woman in a small car resulted in her death. Williams had crossed the center line of State Road 15-A, and hit the small car in its lane. Trooper Harper who observed the scene of the accident shortly after it occurred, suspected Williams was intoxicated. His suspicions were based on observations of how the accident occurred. Harper also smelled alcohol on Williams’ person, and noticed that Williams’ eyes were unusually red. Harper told Williams he had begun a homicide investigation, and then read him a warning pursuant to the implied consent statute.

Williams was not arrested at that time. It was the policy of the force Trooper Harper worked with not to arrest a suspect until a blood test had been taken. Harper asked Williams to take the blood test. Williams asked what would happen if he refused. Harper told him his driver’s license would be suspended for three months. Williams then consented to the test because his job required him to drive. At the hospital he signed a written consent form. The blood test was administered at a hospital approximately three hours after the accident.

In determining whether or not the blood test evidence is admissible, like any other kind of evidence, if it is relevant (and this clearly is), the assumption should be that it is admissible unless barred by some privilege, constitutional right, statute, or rule. The only two possible bars in this case are the Fourth and Fifth Amendments of the United States Constitution, and section 322.261, Florida Statutes (1979).

The Florida Supreme Court held in State v. Mitchell, 245 So.2d 618 (Fla.1971) that, based on Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826,16 L.Ed.2d 908 (1966), the Fifth Amendment does not bar the use of physical as opposed to testimonial evidence. It also held that the Fourth Amendment protection against unreasonable search and seizure did not bar the taking of blood for testing, where there was probable cause to believe the driver had been driving while intoxicated. Whether or not the driver had been arrested makes no difference for purposes of the Fourth Amendment if probable cause to arrest exists prior to the search. In this case, the record shows such probable cause existed.

Other state courts have also reached the same conclusion. The justification is that a search warrant is not needed where there is probable cause to arrest, and the evidence sought is likely to dissipate before a search warrant can be obtained — so called “exigent circumstances.” Clearly, such circumstances exist in these cases because the blood test must be taken close in time to the accident, or the alcohol will be eliminated by physiological processes from the driver’s body in a matter of hours.

The test when properly administered, produces highly probative and accurate evidence. Its use should be encouraged, where constitutionally allowed, as a means to stop the carnage on the highways caused by drunk drivers. The Florida Supreme Court in Mitchell quoted with approval Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448 (1957) which is relevant to this case:

The test upheld here is not attacked on the ground of any basic deficiency or of injudicious application, but admittedly is a scientifically accurate method of detecting alcohol content in the blood, thus furnishing an exact measure upon which to base a decision as to intoxication. Modern community living requires modern scientific methods of crime detection lest the public go unprotected. The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield. The States, through safety measures, modern scientific methods, and strict enforcement of traffic laws, are using all reasonable means to make automobile driving less dangerous.

The more difficult issue in this case is whether Williams’ blood test is barred by section 322.261, Florida Statutes (1979). The court in Mitchell held that the blood test was admissible under section 322.-261(l)(c) because the driver-defendant was sufficiently incapacitated to put him in the category of being “incapable of refusal by reason of unconsciousness, or other mental or physical condition.”

In Sambrine v. State, 386 So.2d 546 (Fla. 1980) the court had to determine whether section 322.261 barred the blood test results of a driver who was conscious and who refused to take both the breath test and the blood test, and had the blood test taken over his active protest. The court said that section 322.261 goes beyond the protection of the Fourth and Fifth Amendments in requiring consent and allowing drivers the right to refuse to take tests.

Section 322.261 is an unfortunate example of poor drafting. Subsection (l)(a) covers the situation where a driver is lawfully arrested, and put to the choice of taking the chemical breath test, or losing his license for three months. If the driver is not arrested, the chemical breath test may be taken, with the driver’s consent, but the results of the test are not admissible. Subsection (l)(b)2 requires an officer to advise a driver who has not been arrested he can refuse to take the chemical breath test, and obtain his written consent. Subsection (l)(c) is the first place “blood tests” are mentioned. It provides that in lieu of the chemical breath test, a blood test may be taken from an unconscious person, and no consent is required (it is “deemed” to have been given) and it is not necessary to tell the person that refusal will result in suspension of his driver’s license. Obviously the person who drafted subsection (l)(c) assumed consent and warnings in subsection (l)(b)2 were required for blood tests as well as breath tests.

The court in Sambrine construed section 322.261 as requiring consent of a conscious person to take a blood test, and allowing the imposition of sanctions (suspension of a driver’s license) if the person refuses.

This court is not free to ignore plain statutory language and obvious legislative intent. Any careful reading of section 322.261 leads to the inescapable conclusion that a person is given the right to refuse testing. If this were not so, it is unclear why the legislature provided for a definite sanction and a detailed procedure for the enforcement of such sanction. Not once but twice the implied consent law provides for a three month suspension in the case of refusal.

386 So.2d at 548. In Sambrine, the driver refused to take the blood test. Hence, it was not admissible against him in his criminal trial.

In this case, the trooper Harper told Williams, as the Florida Supreme Court said he must in Sambrine, that he could refuse the blood test, and if he did, his license would be suspended. But unlike Sambrine, in this case Williams consented to take the test. Thus, it was admissible.

The question then arises whether subsection (l)(a) of section 322.261 applies to this case, because chemical breath tests are barred from being admissible in court if not taken in connection with a lawful arrest for driving while intoxicated. Sambrine does not discuss this point, and we decline to rewrite section 322.261 by inserting “blood test” every time “chemical breath test” appears. The rewritten statute effective July 1982 continues to treat blood tests differently than chemical breath tests for many purposes, one of which is not requiring an arrest for blood tests, but continuing to require it for breath tests, if the test is later to be admissible. See Ch. 82-155, §§ 3, 4, 5, Laws of Florida. This is indicative of prior legislative intent regarding section 322.261. See Watson v. Holland, 155 Fla. 342, 20 So.2d 388 (1944); Amos v. Conkling, 99 Fla. 206, 126 So. 283 (1930); Foremost Insurance Company v. Medders, 399 So.2d 128 (Fla. 5th DCA 1981); Stafford v. State, 380 So.2d 538 (Fla. 5th DCA 1980).

For the reasons stated in this opinion, the order appealed is

REVERSED.

ORFINGER, C. J., and COWART, J., concur.

      . Fla.R.App. 9.140(c)(1)(B).

      . § 322.261, Fla.Stat. (1979).

      . State v. Edge, 397 So.2d 939 (5th DCA), review denied, 407 So.2d 1103 (Fla. 1981).

        .State v. Oevering, 268 N.W.2d 68 (Minn.1978); State v. Heintz, 286 Or. 239, 594 P.2d 385 (1979); Van Order v. State, 600 P.2d 1056 (Wyo.1979).

      . The relevant portions of the statute provide:
      (l)(a) Any person who shall accept the privilege extended by the laws of this state of operating a motor vehicle within this state shall by so operating such vehicle be deemed to have given his consent to submit to an approved chemical test of his breath for the purpose of determining the alcoholic content of his blood if he is lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of alcoholic beverages. The test shall be incidental to a lawful arrest and administered at the request of a peace officer having reasonable cause to believe such person was driving a motor vehicle within this state while under the influence of alcoholic beverages. Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 3 months.
      (l)(b)l. Notwithstanding the provisions of this section, a law enforcement officer who has reason to believe that a person’s ability to operate a motor vehicle is impaired by alcohol and that the person has been operating a motor vehicle during the period of such impairment may, with the person’s consent, give, or the person may demand, a pre-arrest breath test for the purpose of determining if said person is in violation of section 316.-193(1), but the taking of such pre-arrest breath test shall not be deemed a compliance with the provisions of paragraph (a). The results of any test administered under this section shall not be admissible into evidence in any civil or criminal proceeding.... (l)(b)2. Prior to administering any pre-ar-rest breath test, a law enforcement officer shall advise the motor vehicle operator that he has the right to refuse to take such test, and, prior to administering such test, a law enforcement officer shall obtain the written consent of the motor vehicle operator.
      (l)(c) Any such person who is incapable of refusal by reason of unconsciousness or other mental or physical condition shall be deemed not to have withdrawn his consent to such test. Any such person whose consent is implied as hereinabove provided, and who, during the period within which a test prescribed herein can be reasonably administered, or who, being admitted to a hospital as a result of his involvement as a driver in a motor vehicle accident, is so incapacitated as to render impractical or impossible the administration of the aforesaid test of his breath shall be deemed to have consented also to an approved blood test given as provided for herein and shall be deemed not to have withdrawn his consent therefor. Under the foregoing circumstances, a blood test may be administered whether or not such person is told that his failure to submit to such blood test will result in the suspension of his privilege to operate a motor vehicle upon the public highways of this state. (Emphasis added).
      * * * * * *

      . The more lengthy revised statute which goes into effect July 1, 1982 fails to remedy all of the defects of section 322.261, but at least under the circumstances of this case, a new “get tough” section provides that a driver such as Williams who has been involved in an accident which results in the death or serious injury of another human being has no right to refuse the blood test. It can be taken by force, and the results, plus the driver’s resistance, may be used as evidence against him in a criminal or civil case. Ch. 82-155, §§ 4, 5, Laws of Fla. Clearly, this statute no longer will give greater protection than the Fourth Amendment.


author: THOMPSON, Judge. WENTWORTH, Judge,

text:
    SAMBO’S and American Home Assurance, Appellants, v. Betty Lou SCOTT, Appellee.
    No. AC-445.
    District Court of Appeal of Florida, First District.
    July 23, 1982.
    Rehearing Denied Aug. 20, 1982.
    John Neil Buso of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellants.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P. A., West Palm Beach, and Edna L. Caruso, West Palm Beach, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a compensation order contending there is no competent substantial evidence to support the deputy’s finding that the claimant sustained a loss of wage earning capacity.

The claimant injured her back in a com-pensable accident on January 6, 1978. Her treating physician found that the claimant had reached maximum medical improvement (MMI) on May 15, 1980 and had sustained a five to ten percent permanent partial impairment. The E/C paid temporary total disability (TTD) benefits to May 15, 1980 and paid ten percent permanent partial disability (PPD) benefits. In his order, the deputy found that under the circumstances the claimant made a satisfactory work search and was entitled to 55% PPD benefits based on loss of wage earning capacity. The deputy specifically found that the claimant had worked at Redi-Nurse, had applied for a job at Lum’s Restaurant, and had worked at several other places.

In order to constitute a proper basis for an award based on loss of wage earning capacity, the claimant’s work search must take place after she reaches MMI. Exxon Co. v. Alexis, 370 So.2d 1128 (Fla.1978). The record in this case reveals that all the jobs which claimant actually attempted to perform were obtained prior to MMI, including the job at Redi-Nurse which was specifically referred to by the deputy in his order. The record does not show that she applied for any jobs after she reached MMI with the exception of the job at Lum’s which, by her own testimony, was not within her capabilities, and with the possible exception of a job at a convenience store which again, by her own testimony, was not within her capabilities. She admitted making no work search whatsoever between September 1980 and March 20, 1981, the date of the final hearing. Her physical limitations are not such as would justify excusing her from an adequate work search.

The deputy’s finding that the claimant sustained a 55% loss of wage earning capacity is wholly unsupported by competent substantial evidence.

REVERSED.

MILLS, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting:

I would affirm because the decisions disregarding work search efforts before maximum medical improvement are not in my opinion pertinent to this case in which claimant’s medical restrictions, treatment and symptomatic conditions did not change materially at the time of the stipulated date of maximum medical improvement. That date here apparently marked only the end of any expectation of change from the preceding two and a half years of conservative treatment for temporary disability, which did not involve surgery or other significant medical intervention. The deputy, in measuring permanent loss, could therefore reasonably rely upon the doctor’s continuous restriction against work involving “any demands on her back,” and upon claimant’s experience in actually working in six different occupations for short periods during a two-year span. All of those jobs ended with physical incapacity (not negated by her physician) except one which required her to have a phone which she could not then afford. I find no admitted hiatus in work search except for six weeks preceding her October 1980 deposition, following exacerbation of her back and leg syndrome by a “sprained medial collateral ligament” requiring a splint. Interruption of this work search, serving only to measure incapacity, would not in any event have the same significance as would lack of continuity of search in connection with wage loss claims under statutory amendments following claimant’s accident.

The deputy’s award of 55% loss of wage earning capacity is sustained by his findings and the evidence on all pertinent factors affecting claimant. Those facts included a seventh grade education and a 22-year employment history primarily in physical labor commencing in a cigar factory without evidence of disability until her back injury from lifting a large grease container in her work as a cook at Sambo’s. I find no reason to overturn the deputy’s explicit reliance on claimant’s credibility, good faith, and motivation, evidenced in part by her success in a recommended weight loss of 70 pounds. Nor would I discount a job application as admittedly inappropriate when the stated rejection is “We won’t take you with a brace.” The order and record seem to me to be patently inappropriate for appellate relief.

      . See Corral v. McCrory Corp., 228 So.2d 900 (Fla.1969).

      . § 440.25, Florida Statutes (1978), citing eight critical factors preceding a reference to “evidence of good faith work search.”


author: THOMPSON, Judge.

text:
    STATE of Florida, Appellant, v. Victor Maurice ROBINSON, Appellee.
    No. AH-191.
    District Court of Appeal of Florida, First District.
    July 23, 1982.
    Rehearing Denied Aug. 20, 1982.

      Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellant.
    Roosevelt Randolph of Knowles, Randolph & Cooper, and James P. Judkins of Davis, Judkins & Simpson, Tallahassee, for appellee.
   THOMPSON, Judge.

The state appeals an order granting the defendant a new trial. We reverse the order because we find that the the trial court was without jurisdiction to grant the motion for new trial.

Defendant was charged in a two count information with sexual battery and with kidnapping to facilitate a felony. Following a jury verdict of guilty as charged, rendered on July 23, 1981, defense counsel orally requested an extension within which to file post-trial motions. The trial judge granted the motion for extension of time, saying that he would like to have a written indication of when the motions would be filed. On August 4, 1981 defendant filed a written motion for extension of time, indicating that his post-trial motions would be filed no later than August 10, 1981. The trial court granted this motion, extending the time for filing post-trial motions to August 10, 1981. Defendant’s motion for new trial, filed on August 10, 1981 was subsequently granted by the trial court.

Rule 3.590(a), Florida Rules of Criminal Procedure, effective January 1, 1981, allows the filing of a motion for new trial within 10 days after the rendition of the verdict or the finding of the court. In re Rules of Criminal Procedure, 389 So.2d 610 (Fla.1980). The current rule does not specifically allow the trial court to extend the time for filing a motion for new trial as did the former rule. The tenth day after the rendition of the verdict was August 2,1981, a Sunday. Accordingly, pursuant to Rule 3.040, Fla.R.Crim.P., defendant had until August 3, 1981, a Monday to timely file a motion for new trial. However, defendant’s motion for new trial was not filed until August 10, 1981, the eighteenth day after the rendition of the verdict. Accordingly, defendant’s motion for new trial was untimely filed. See Denard v. State, 410 So.2d 976 (Fla. 5th DCA 1982).

The time limits of former Rule 3.590(a), Fla.R.Crim.P., which permitted the filing of a motion for new trial or in arrest of judgment within four days after the verdict in a jury trial, or by leave of court within 15 days after the verdict, were jurisdictional. See State v. Farmer, 384 So.2d 311 (Fla. 5th DCA 1980); Pittman v. State, 370 So.2d 1207 (Fla. 1st DCA), cert. dismissed 375 So.2d 911 (Fla.1979). Furthermore, a trial court was without authority under the former Rule 3.590, Fla.R.Crim.P. to extend the motion period beyond 15 days from entry of the verdict. Lamberti v. Wainwright, 513 F.2d 277 (5th Cir. 1975). We therefore find that the time limits enunciated under the current rule 3.590, Fla.R.Crim.P., effective January 1, 1981, are jurisdictional and that under said rule the trial court is without authority to extend the motion period beyond 10 days from rendition of the verdict. Accordingly, since the motion for new trial was not filed within 10 days of the rendition of the verdict, the trial court was without jurisdiction to hear the motion. We therefore vacate the order granting defendant a new trial and remand for further proceedings consistent with this opinion.

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


author: MINER, CHARLES E., Jr., Associate Judge. ANSTEAD, Judge,

text:
    David Levon NICKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1108.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Rehearing Denied Aug. 26, 1982.
    Richard L. Jorandby, Public Defender, West Palm Beach, and Frank B. Kessler, Lake Worth, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   MINER, CHARLES E., Jr., Associate Judge.

In this appeal, Nickerson challenges his conviction and enhanced sentence for attempted possession of a firearm by a convicted felon. He contends that the state failed to prove a prior felony conviction, that the trial court erred in allowing evidence of the nature of the prior conviction, and that the court improperly denied his requested jury instruction clarifying the definition of “possession” of a firearm. We affirm.

Nickerson’s first two contentions have been laid to rest by the Florida Supreme Court in Parker v. State, 408 So.2d 1037 (Fla.1982), which affirmed a prior decision of this Court reported as Parker v. State, 389 So.2d 336 (Fla. 4th DCA 1980).

In Parker, the Supreme Court held that, as regards a charge of possession of a firearm by a convicted felon, the state is entitled to prove a prior conviction by use of a certified copy of the judgment of conviction unless its probative value is “substantially” outweighed by danger of unfair prejudice, confusion of issues, misleading of the jury or needless presentation of cummu-lative evidence. In the instant case, there is no showing in the record that the latter considerations outweighed the probative value of the certified copy of Nickerson’s prior judgment of conviction offered by the state.

Appellant’s contention that the trial court erred in refusing to grant his requested jury instruction is likewise without merit.

Testimony adduced at trial indicated that appellant had grabbed the gun from his girlfriend who had pointed the gun at him. The weapon fired and he ran from the scene. A police officer apprehended him and retrieved the gun a short distance away.

During the charge conference, Nickerson argued the necessity of a specially tailored instruction on possession of a firearm by a convicted felon asserting he possessed the gun merely to prevent its use against himself. He asked that the court instruct the jury in the following words:

Possession of a firearm must be conscious and substantial possession by the defendant as distinguished from mere involuntary or superficial possession.

The trial judge denied this request, explaining that the word “superficial” is vague and confusing and does not admit of ready understanding by a jury. He did, however, modify the standard jury instruction for this offense and instructed that

after such conviction, he did knowingly and intentionally own or have in care, custody, possession or control a firearm. (Emphasis added to words included by Judge.)

Although we reject the state’s contention that appellant failed to preserve this issue for appellate review, we believe he has failed to show the inadequacy of the instruction as given by the trial court or the applicability of the “involuntary or superficial possession” standard to the circumstances of this case. The cases upon which he relies, Maloney v. State, 146 So.2d 581 (Fla. 2d DCA 1962), and Jones v. State, 325 So.2d 436 (Fla. 1st DCA 1975), did not involve possession of a firearm for purposes of self defense. Moreover, self defense is not a viable defense to the offense of possession of a firearm by a convicted felon. Coleman v. State, 345 So.2d 1093 (Fla. 4th DCA 1977); Dardy v. State, 324 So.2d 178 (Fla. 1st DCA 1975). Further supporting the trial court’s refusal to give the requested instruction is Thorpe v. State, 377 So.2d 221 (Fla. 1st DCA 1979). In Thorpe, the court held that the evidence supported a conviction for attempted possession of the firearm by a convicted felon, notwithstanding the defendant’s testimony that he had managed to wrest possession of the gun from a man who had accosted him.

Accordingly, the judgment and conviction appealed from are hereby affirmed.

HURLEY, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

Lest it appear that we have approved of a conviction for attempted possession of a firearm by someone who acted solely in self-defense I would like to point out that appellant’s counsel expressly advised the trial court that there was no claim of self-defense and that no such argument would be made to the jury. In addition, the trial judge specifically charged the jury:

It is a defense to the crime of attempted possession of a firearm by a convicted felon that, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, the defendant abandoned his attempt to commit the possession of a firearm by a convicted felon or otherwise prevented the commission of that offense.

In reality the jury was presented with a clear choice between appellant’s position (he did not actually testify at trial) that his possession was unintentional and forced upon him by circumstances and the state’s position that appellant knowingly and intentionally possessed the firearm under circumstances totally contrary to appellant’s contention. I agree that the trial court’s instructions were adequate and no reversible error has been demonstrated.


author: ERVIN, Judge.

text:
    R. J. PADGETT, as Personal Representative of the Estate of Tommy Allen Padgett, Deceased, Appellant, v. WEST FLORIDA ELECTRIC COOPERATIVE, INC., a Florida corporation, Appellee.
    No. AI-12.
    District Court of Appeal of Florida, First District.
    July 29, 1982.

      Charles J. Kahn, Jr., of Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellant.
    Richard Smoak of Isler, Brown, Smoak, Harrison & Nabors, Panama City, for appel-lee.
   ERVIN, Judge.

Tommy Padgett’s act of hitting a utility pole and becoming enmeshed in electrical wires that electrocuted and burned him was an intervening cause of his death. There are inferences of material fact that suggest that the appellee and defendant below, West Florida Electric Cooperative, could have foreseen this intervening cause, thereby making it a question of fact whether acts of the appellee constituted the proximate cause of Tommy Padgett’s death. Paradoxically, these same inferences of material fact preclude the lower court’s summary judgment for the appellee. We reverse and remand.

Young Padgett was driving home in the dark of early morning in rural Washington County. He apparently failed to negotiate a curve to the left in the roadway, because a post-accident investigation indicated that his car left the road, traveling 200 feet down into a ditch, hitting a clump of bushes, and continuing on until hitting and severing from the ground a utility or telephone pole. The car traveled another 96 feet before stopping. Padgett left his car, ran 33 feet and came into contact with three downed electrical wires, which caused his death by electrocution. His father filed suit, charging that the power company’s negligence in maintaining its power pole and electrical line safety equipment was the proximate cause of his son’s death. Implicit in this contention is the argument that the appellee was also negligent in placing the power pole in the location where it had been placed.

In granting summary judgment for the appellee, an affidavit before the court reveals that, as to the placement of the pole, an experienced professional electrical engineer stated that the defendant had negligently placed the pole on the outside of the curve of the roadway. Other than this statement the exact location of the pole is unknown, although the appellee asserts that it was placed 45 feet from the pavement. Concerning the defendant’s negligence as to the maintenance of the electrical wires, there is evidence to suggest that two of the wires came into contact with each other, thereby tripping a circuit breaker that de-energized them. Deposition testimony suggested that the circuit breakers were designed to operate within seconds of contact between two wires, but it is questionable whether this occurred, because there is evidence suggesting that the wires were fused together. A third wire was apparently still “live” and somehow suspended in mid-air. The engineer opined that the electric company not only had a duty to provide a reasonable safety system for downed power lines for the purpose of protecting the public, but that the power company had negligently breached its duty.

As a general rule, utilities have “a duty to exercise care, both in the location or construction and in the use and maintenance of its lines,” poles, and equipment. Peninsular Telephone Co. v. Marks, 144 Fla. 652, 198 So. 330, 332 (1940); Gibson v. Garcia, 96 Cal.App.2d 681, 216 P.2d 119, 120 (1950). “Although those engaged in transmitting current for domestic use are not insurers ..., they are held to a high degree of care.” Florida Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911, 915 (1938) (emphasis in original; cites omitted). They must “ ‘do all that human care, vigilance, and foresight can reasonably do, consistent with the practical operation of its plant to protect those who use its electricity.’ ” Rice v. Florida Power & Light Co., 363 So.2d 834, 838 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979).

There is evidence in the record suggesting that the appellee could have breached its duty by negligently placing and maintaining the power pole, as well as by negligently operating the circuit breaker safety system. Whether this purported negligence was the proximate cause of Tommy Pad-gett’s death is another matter, because a power company is not under “a continuing duty to protect against any and all activity, however unlikely .... ” Rice, supra, at 839.

In essence the case at bar creates a classic case of intervening causation. “This presents the question whether the asserted negligence in the placement of the pole is to be considered as the proximate cause, or whether the operation or movement of the colliding vehicle may be said to be the real cause, the collision with the pole being merely incidental.” Injury to Traveler From Collision With Privately Owned Pole Standing Within Boundaries of Highway, 3 A.L.R.2d 6, 56 (1949). Thus, liability is recognized by the courts as generally turning upon: (1) location of the pole, e.g., is it so close or dangerously positioned as to pose a hazard, and (2) maintenance of the pole, as well as the circuit breaker system. Id. at 9.

Whether any negligence has occurred in carrying out either of the two foregoing considerations, so as to sustain a recovery, turns on whether such negligence can be considered the proximate cause of the accident. In turn, whether the negligence was the proximate cause rests on questions as to whether an unreasonable risk of harm occurred and upon traditional tort concepts of foreseeability, because “[fjoreseeability is the measuring stick by which proximate cause is determined.” Bryant v. School Board of Duval County, 399 So.2d 417, 421 (Fla. 1st DCA 1981), aff’d. in part and rev’d in part sub nom., Rupp v. Bryant, 417 So.2d 658 (Fla., 1982).

The appellee argues that decedent’s injuries were proximately caused by the extraordinary exigencies of his car going out of control and striking the power pole, and, because of such unusual circumstances, the resulting death must be deemed unforeseeable. The law is clear that for the maintenance and placement of the pole and/or the unsafe operation of the electrical transmission system to be the proximate cause of the death, the death must have stemmed in a natural and continuous sequence from the placement and maintenance of the pole, the electrical transmission system and safety equipment. Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227, 229 (Fla. 1st DCA 1960), cert. denied, 127 So.2d 441 (Fla.1961). Since the evidence reveals that Padgett in all probability lost control of his car in order to have hit the pole, his actions constitute an intervening cause. Cf. Bryant, supra, 399 So.2d at 421; Gibson v. Garcia, supra, 216 P.2d at 121. Notwithstanding the fact that such actions are considered an intervening cause, if they were reasonably foreseeable the defendant’s acts of maintaining and placing the pole and operation of the circuit breaker safety system may still be deemed to be a proximate cause of Padgett’s death. Id.

The crux of the appellee’s argument is that it was an extraordinary occurrence for the decedent’s car to have gone out of control and traveled such a great distance, ending in Padgett’s death. However, the method and extent of the injury is irrelevant, if the power company could have reasonably foreseen the occurrence of the injuries. Braden v. Florida Power and Light Co., 413 So.2d 1291, 1292 (Fla. 5th DCA 1982); Crislip v. Holland, 401 So.2d 1115, 1117 (Fla. 4th DCA 1981); Broome v. Budget Rent-A-Car of Jax., Inc., 182 So.2d 26, 29 (Fla. 1st DCA 1966). In other words, whether an intervening cause is reasonably foreseeable is dependent on whether the harm that occurred is within the scope of danger or risk attributable to the power company. Bryant, supra, 399 So.2d at 421.

We have observed in another case that there are at least three different ways in which the harm that has occurred may be determined to be within the scope of danger:

First, the legislature may specify the type of harm . . . Second, if the same type of harm has occurred previously due to the same type of negligent conduct, and the tortfeasor has actual knowledge of this, liability can be established .... Third, liability can be made out if the negligence complained of has resulted in harm so frequently “in the field of human experience” that harm may be expected to happen again.

Bryant, supra, 399 So.2d at 421 (cites omitted); see also Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522-523 (Fla.1980).

In the case before us, the record infers that the appellee was aware that the same type of harm had occurred previously. First, appellee’s employee, James Kirkland, a member of the repair crew, was questioned concerning the condition of the utility pole. He answeréd that he could not remember because so many of the appellee’s poles had been involved in auto collisions. Second, the harm to which Tommy Padgett was subjected — injury or death from contact with downed, energized power lines— has occurred so frequently “in the field of human experience” as to be one which can be reasonably foreseen as coming within the scope of danger. This reasonable inference was referred to by the Florida Supreme Court in the following terms:

“The presumption of negligence is almost universally applied where travelers along a highway come in contact with a wire charged with a deadly current of electricity. The fact that a person while traveling along a highway, is injured by contact with a highly charged electric wire raises a presumption of negligence on the part of the company maintaining the wire. This rule applies to a wire not normally dangerous, such as a telephone or telegraph wire, which in falling comes in contact with a wire conveying a dangerous current and carries the current to the street.”

Florida Power & Light Co. v. Bridgeman, supra, 182 So. at 915.

Recently, the Fifth District Court of Appeal was squarely faced with a case of a downed power line which caused injury due to the fact that it was still energized, because the power company’s automatic safety equipment had failed to operate properly. In Braden v. Florida Power and Light Co., supra, a tree with a wasp nest in it was cut down. A young boy was waiting nearby with a jar of gasoline which he intended to put on the nest once the tree had been felled. The tree’s fall caused it to sever a power line, and the company’s safety equipment failed to de-energize the line that in turn discharged electrical energy, igniting the gasoline and injuring the boy. The court noted that it was not unforeseeable that the power line might have been severed or that injury might have occurred. Id. at 1292. Implicit in this case is the recognition of the fact that downed, energized power lines have caused injury so frequently “in the field of human experience” as to be occurrences reasonably foreseeable enough to fall within the scope of danger.

The foregoing considerations suggest at the minimum reasonable inferences of foreseeable harm. If reasonable people could not differ as to the “total absence of evidence to support an inference that the intervening cause was foreseeable,” only then may a court determine the issue as a matter of law. Overby v. Wille, 411 So.2d 1331, 1332 (Fla. 4th DCA 1982); Guice v. Enfinger, 389 So.2d 270 (Fla. 1st DCA 1980). Because there remain reasonable inferences that the intervening cause was foreseeable, the final determination as to foreseeability and proximate causation rests with the trier of fact. Bryant, supra, 399 So.2d at 421; see also Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54, 56 (Fla.1978).

In passing we note that the parties devoted significant attention to the fact that the utility pole was placed at a distance from the roadway so great as to negate any inference that the intervening cause of Tommy Padgett’s car leaving the roadway and hitting the pole was foreseeable. We recognize that, as a general rule, as the distance between the pole and the traveled way increases, there is a corresponding decrease in the number of cases favoring the plaintiff whose act of leaving the roadway constitutes an intervening cause. Only in a few instances has a plaintiff in such a situation been able to take his case to the jury, if the pole is located more than three feet from the pavement. See Annot., 3 A.L. R.2d 6, § 16 (1949); but see Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA 1981).

The case at bar is distinguishable from those cases given the fact that this accident occurred in the dead of night, which is a time of poor visibility; based on the inferences of foreseeability noted above and due to questions as to the sharpness of the curve, speed that cars normally travel when entering the curve, and location of the pole in relation to the curve. The record moreover does not disclose whether a car leaving the road at high speed would be likely to veer off the road at such an angle as to come in contact with the pole. Finally, and most importantly, the immediate cause of the decedent’s death was not due to his colliding with a power pole, but with his coming into contact with an energized power line at some time following and at some distance from the collision. Under such circumstances, such factual questions arise as to whether the power lines could be reasonably anticipated to fall from any cause; whether the public might be reasonably expected to come into contact with those wires, and whether, in the event of collision with the poles, the circuit breakers maintained by defendant could properly de-energize the lines. Cf. Brunell v. Mountain States Power Co., 81 F.2d 305 (9th Cir. 1936).

It is apparent that the inferences of ma-' terial fact — that the appellee could have reasonably foreseen the harm that has occurred — yet remain unresolved. Therefore, the summary judgment is REVERSED, and this case is REMANDED for further consistent proceedings.

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

      . This statement is supported only by a letter from one of the attorneys below to the trial judge, which is not competent evidence. Further, the lower court’s order recites that the pole was 47 feet from the pavement. Similarly, this is not supported by the evidence, because the record indicates that it was Tommy Pad-gett’s car that, after hitting the pole and traveling another 96 feet, came to a stop 47 feet from the pavement. However, the record does indicate that a diagram, apparently indicating the exact locations and distances between the road, Padgett’s car and body, and the utility pole, was utilized during the deposition of two investigating highway patrol officers. The diagram would have been helpful, although not disposi-tive, to any appellate review of this case. Unfortunately, the diagram was never placed into evidence.

      . By administrative rule, the Florida Public Service Commission has further defined the duty of a power company: “The facilities of the utility shall be constructed, installed, maintained and operated in accordance with accepted good engineering practices to assure, as far as is reasonably possible, continuity of service, uniformity in the quality of service furnished, and the safety of persons and property.” Fla. Admin.Code Rule 25-6.34(1). However, the fact that the construction and maintenance of electrical facilities and power lines may exceed recognized engineering standards is not necessarily conclusive as to the absence of negligence on the part of an electric utility. See Rice, supra, at 838; Florida Power Corp. v. Willis, 112 So.2d 15, 17 at n. 4 (Fla. 1st DCA 1959), cert. denied, 115 So.2d 6 (Fla.1959).

      . Gibson v. Garcia, supra, 216 P.2d at 120-121.


text:
    COMMERCIAL CARRIER CORPORATION, Self-Insured, Appellant, v. Willie Frank JAMES, Appellee.
    No. AJ-49.
    District Court of Appeal of Florida, First District.
    July 29, 1982.

      Bernard J. Zimmerman and Michael M. O’Brien of Akerman, Senterfitt & Edison, Orlando, for appellant.
    Victor J. Musleh of Musleh, Piccin, Atkins & Krehl and Seymour H. Rowland, Jr., Oca-la, for appellee.
   PER CURIAM.

Affirmed, subject to deletion of paragraph three of the decretal portion of the order. Appellee concedes that the issue of future medical costs was not before the deputy commissioner. See Goodyear Service Store v. Rockey, 382 So.2d 816 (Fla. 1st DCA 1980).

SHIVERS, SHAW and WIGGINTON, JJ., concur.


text:
    SOUTH FLORIDA STATE HOSPITAL, STATE OF FLORIDA and Division of Risk Management, Appellants, v. Ethel GRIER and Division of Workers’ Compensation of the Department of Labor and Employment Security, Appellees.
    No. AJ-170.
    District Court of Appeal of Florida, First District.
    July 29, 1982.
    Charles Desmond Crowley, Fort Lauder-dale, for appellants.
    Peter S. Schwedock, of Pelzner, Schwe-dock, Finkelstein & Klausner, P. A., Miami, for appellees.
   SHIVERS, Judge.

Appellant seeks review of the deputy commissioner’s order awarding wage loss benefits for the period January 25, 1981, until August 25, 1981. The order below did not include and the record would not support a finding that an adequate job search was made. Additionally, there was no evidence that the claimant was medically unable to work. Accordingly, the order awarding wage loss benefits is REVERSED.

SHAW and WIGGINTON, JJ., concur.


text:
    Raymond MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 81-610.
    District Court of Appeal of Florida, Second District.
    July 30, 1982.
    Dorothy M. Walker of Walker & Vetrick, Belle Glade, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Finding no error in the trial court’s refusal to dismiss the informations against appellant and there being no proper showing of prejudice to appellant due to the trial court’s failure to fully comply with Florida Rule of Criminal Procedure 3.172(c)(i), we affirm the judgments of guilt against appellant, albeit without prejudice to his filing a Rule 3.850 motion challenging the voluntariness of his plea.

However, the single sentence imposed on the two counts against appellant is an illegal general sentence and must be corrected. Dorfman v. State, 351 So.2d 954 (Fla.1977); Darden v. State, 306 So.2d 581 (Fla. 2d DCA 1975). In addition, the mandatory three-year minimum sentence for trafficking in cannabis required by Section 893.135(l)(a)l., Florida Statutes (1979) should be included in the sentence. Accordingly, the sentence is vacated and the cause remanded for resentencing. Appellant need not be present at resentencing.

OTT, C. J., and HOBSON and BOARD-MAN, JJ., concur.

      . A showing of prejudice is mandated by Florida Rule of Criminal Procedure 3.172(i).


text:
    Kathryn CONNORS, Appellant, v. Joseph D. THOMANN and Florence M. Thomann, Appellees.
    No. 81-2079.
    District Court of Appeal of Florida, Second District.
    July 30, 1982.

      B. Robert Ohle, St. Petersburg, for appellant.
    Stephen deH. Schwarz of Olmsted, Schwarz, Kahle & Casanueva, Port Charlotte, for appellees.
   PER CURIAM.

We affirm the judgment for compensatory and punitive damages and the injunction against future harassment. However, there was no contractual or statutory basis upon which to predicate the award of attorney’s fees. Shavers v. Duval County, 73 So.2d 684 (Fla.1954). Even if appellant’s conduct could be deemed fraudulent, this was not a case in which the offender’s wrongful act forced the aggrieved person into litigation with a third party. See Stinson v. Feminist Women’s Health Center, 416 So.2d 1183 (Fla. 1st DCA 1982). The judgment is affirmed with the exception that the court is directed to eliminate from taxable costs that portion which constitutes attorney’s fees.

BOARDMAN, A. C. J., and GRIMES and DANAHY, JJ., concur.


text:
    Bernard BEDFORD and David Phillip Shaw, Appellants, v. The STATE of Florida, Appellee.
    Nos. 80-1060, 80-1375.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The trial court committed reversible error in refusing to instruct the jury on temporary unauthorized use of an automobile, an offense which is one step removed from the grand theft for which the defendants were convicted. State v. Abreau, 363 So.2d 1063 (Fla.1978); Hunter v. State, 389 So.2d 661 (Fla. 4th DCA 1980); Garrett v. State, 335 So.2d 876 (Fla. 4th DCA 1976). Because we reverse on this issue, we need not consider the other issues on appeal.

Accordingly, we reverse and remand for a new trial.