author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. A.N.F., a child, Appellee.
    No. 81-844.
    District Court of Appeal of Florida, Fifth District.
    April 28, 1982.

      Jim Smith, Atty. Gen., Tallahassee, Barbara Ann Butler, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
    Howard H. Babb, Jr., Public Defender, and Marty E. Moore, Asst. Public Defender, Ocala, for appellee.
   SHARP, Judge.

The State appeals from an order entered by the Juvenile Division of the Circuit Court of Marion County dismissing the petition filed against appellee, A.N.F., a child, because of lack of jurisdiction. Initially we were concerned whether or not the State has a right to appeal such an order, but we have concluded it does. State v. W.A.M., 412 So.2d 49 No. 81-249 (Fla. 5th DCA 1982). Reaching the merits of the case, we affirm.

The appellee was arrested on January 21, 1980, when he was seventeen years old. A petition charged him with burglary, driving without a valid driver’s license, fleeing and attempting to elude police officers, and leaving the scene of an auto accident involving property damage in violation of section 316.061, Florida Statutes (1979). Ap-pellee failed to appear at his arraignment. A custody order was issued, but it was never executed because the authorities were unable to locate him.

On May 10, 1981, after appellee had passed his nineteenth birthday, he was arrested on a different burglary charge and incarcerated. When the authorities discovered the prior outstanding custody order, they sought to prosecute the petition in the juvenile system. On May 28, 1981, the juvenile court granted appellee’s motion to dismiss for lack of jurisdiction.

Subsections 39.02(1) and (2) give the Juvenile Division of the Circuit Court “exclusive original jurisdiction” over proceedings in which a child or a person who was a child at the time an offense was committed, allegedly violated the law. Section 39.02(4) further provides:

Notwithstanding the provisions of s. 743.-07 when the jurisdiction of any child who is alleged to have committed a delinquent act is obtained, the court shall retain jurisdiction, unless relinquished by its order, until the child reaches 19 years of age, with the same power over the child that the court had prior to the child becoming an adult. This subsection shall not be construed to prevent the exercise of jurisdiction by any other court having jurisdiction of the child if the child, after becoming an adult, commits a violation of law. (Emphasis supplied). .

Other provisions of Chapter 39 indicate the Legislature intended the powers of the Juvenile Division would terminate when a person attained the age of nineteen.

We conclude that a person who allegedly commits a crime during his minority (before age eighteen), and is not prosecuted in the Juvenile Division before he becomes nineteen years of age, should not be handled as a juvenile under Chapter 39. The jurisdiction of the Juvenile Court is specially carved out of the general jurisdiction of the circuit court, and it is by special legislative grace and favor, that individuals are given special treatment and consideration under that system. Persons over the age of nineteen, even though they committed an alleged crime while under the age of eighteen, because not included under Chapter 39, fall back under the general jurisdiction of the circuit court, and are subject to prosecution therein.

AFFIRMED.

ORFINGER and COWART, JJ., concur.

      . See §§ 39.11(l)(a)2, 39.11(l)(c), 39.12(2), Fla. Stat. (1981).

      . State v. G.D.M., 394 So.2d 1017 (Fla.1981); State v. Cain, 381 So.2d 1361 (Fla.1980).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Willie Lee BURGESS, Appellant, v. STATE of Florida, Appellee.
    No. 82-439.
    District Court of Appeal of Florida, Fifth District.
    April 28, 1982.
    Willie Lee Burgess, pro se.
   PER CURIAM.

AFFIRMED. See Ferby v. State, 404 So.2d 407 (Fla. 5th DCA 1981).

DAUKSCH, C. J., and COBB and CO-WART, JJ., concur.


text:
    In the Interest of P.A., a child.
    No. 81-1698.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    Richard L. Jorandby, Public Defender, and Ellen S. Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Owens, 395 So.2d 1215 (Fla. 4th DCA 1981).

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.


author: DELL, Judge.

text:
    Mary B. SLATER, Appellant, v. BREAKWATER HOMES ASSOCIATION, a Delaware corporation authorized to transact business in the State of Florida, Appellee.
    No. 81-1351.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.

      Claire Cubbin, Fort Lauderdale, for appellant.
    Wynne M. Casteel, Jr., of Cabot, Wenkst-ern & Casteel, Fort Lauderdale, for appel-lee.
   DELL, Judge.

Mary Slater appeals from a judgment awarding attorneys fees and costs to the appellee, Breakwater Homes Association, a Delaware Corporation.

Appellant bought a home in Breakwater Subdivision and agreed to be bound by the certificate of incorporation, by-laws and rules and regulations of the Breakwater Homes Association. Appellee is not a condominium association or a developer, but appellee maintains a clubhouse and pool and provides exterior maintenance to the individual homes in the subdivision and assesses homeowners annually for this service. Appellant notified appellee to cease maintenance on her home and informed appellee that she would not pay for individual service thereafter. Appellee filed suit seeking to compel payment of the assessment and prevailed. The court awarded appellee attorneys fees and costs.

Appellant contends the trial court erred when it awarded attorneys fees because neither the corporate charter, the bylaws nor the rules and regulations contain a clause which provides for attorneys fees. We agree and reverse the order awarding attorneys fees.

Appellee argues that the deed to appellant’s predecessor in title contained a provision subjecting it to a lease which provided for recovery of attorneys fees incurred in the enforcement of the lien for maintenance and repairs of the common facilities. Appellee has failed to establish the relevancy of this argument because neither the record on appeal nor the evidence before the trial court included the lease or appellant’s deed. Furthermore, it affirmatively appears from appellee’s amended prayer for attorneys fees and the order granting ap-pellee leave to claim attorneys fees that appellee relied on the corporate by-laws and the rules and regulations of the association to establish its claim for attorneys fees. Neither the by-laws nor the rules and regulations contained a provision for attorneys fees.

It is well settled that attorneys fees in a case of this nature are recoverable only when they are authorized by statute or agreement. Gregory v. Woodbery, 53 Fla. 566, 43 So. 504 (1907); Dorner v. Red Top Cab and Baggage Company, 160 Fla. 882, 37 So.2d 160 (1948); Rivera v. Deauville Hotel, Employers Service Corporation, 277 So.2d 265 (Fla.1973). Section 57.105, Florida Statutes, does not apply to the facts of this case, nor can appellee rely on Section 718.-125, Florida Statutes, which governs only the condominium form of ownership.

Under the circumstances of this case we find no merit in appellee’s contention that appellant’s payment of the judgment awarding attorneys fees, to avoid execution, terminated her right of appeal. Accordingly, we reverse the trial court’s order awarding appellee attorneys fees with leave to the appellant to seek restitution for same.

REVERSED.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    Jackie SHOOK, Appellant, v. Georgia G. SHOOK, Appellee.
    No. 81-828.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    Peter N. Hanna, Fort Lauderdale, for appellant.
    Michael H. Gora of Wolff & Gora, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Dix v. Dix, 400 So.2d 1294 (Fla. 4th DCA 1981); Weiss v. Weiss, 390 So.2d 1236 (Fla. 4th DCA 1980).

BERANEK, DELL and WALDEN, JJ., concur.


author: DOWNEY, Judge.

text:
    John August HOFFMAN, Appellant, v. STATE of Florida and Broward County, Appellees.
    No. 80-2082.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    Gene Reibman of Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Kent A. Zaiser, Asst. Atty. Gen., Tallahassee, and Edward G. Sullivan, Legal Intern, Dept, of Legal Affairs, for appellee State of Florida.
    Harry A. Stewart, Gen. Counsel, and John Franklin Wade, Asst. Gen. Counsel, Fort Lauderdale, for appellee Broward County.
   DOWNEY, Judge.

John A. Hoffman, while represented by private counsel, was convicted in the County Court of Broward County of leaving the scene of an accident, failure to report an accident, and failure to yield the right-of-way. On appeal to the circuit court, wherein Hoffman was represented by the Public Defender, the conviction of leaving the scene of an accident was reversed, but the other convictions were affirmed. In addition, the circuit court ordered Hoffman to pay $500 for services of the Public Defender, pursuant to Section 27.56, Florida Statutes (1979). That order was entered November 26, 1979, and Hoffman sought no direct review thereof. However, in a motion dated September 26, 1980, Hoffman asked the circuit court to (a) remit attorney’s fees (pursuant to Section 27.56(4)), or (b) vacate, pursuant to Florida Rule of Civil Procedure 1.540(bX4), the judgment of November 26, 1979, on the ground that it was void.

The circuit court, on November 13, 1980, entered an order denying the motion on the grounds that (1) Hoffman had “waived his right to make a showing that the Order to Pay Attorney’s Fees was void by failing to move for review within the time limit set forth in Rule 9.400(c) of the Rules of Appellate Procedure,” and (2) Hoffman’s $12,000 interest in real property precluded relief under Section 27.56(4), since Hoffman would “suffer no ‘manifest hardship’ if the Order to Pay Attorney’s Fees were not now remitted or modified.” The order of denial also specifically found:

That the procedures set forth in F.S. 27.-56(7) were not followed by the Court and Appellant-Defendant was neither given notice of or an opportunity to be heard on the question specified in F.S. 27.56(7) pri- or to the entry of the Order to Pay Attorney’s Fees.

It is the order of November 13, 1980, that we now review in this certiorari proceeding.

Section 27.56(7) provides that a court having jurisdiction may at such stage of the proceedings as it deems appropriate, after due notice to the defendant so that he may be heard, determine the value of the public defender’s services. The circuit judge who assessed the attorney’s fee complained of herein acknowledged at the hearing on the motion to remit and vacate that he had violated the foregoing requisite of notice when the fee was assessed. Therefore, the judgment of November 26, 1979, insofar as it ordered Hoffman to pay $500 for the services of the public defender, was void. Gryca v. State, 315 So.2d 221 (Fla. 1st DCA 1975). Once Hoffman made a showing that the judgment of November 26, 1979, was void insofar as the award of attorney’s fees was concerned, the circuit court was duty bound to vacate the award, since

every court, whether possessed of original or appellate jurisdiction, is vested with inherent power to vacate its own orders, judgments, or decrees, if void, and indeed, every such court is in duty bound to do so when appropriate procedure is invoked for that purpose.

Skipper v. Schumacher, 118 Fla. 867, 873, 160 So. 357 (1935). See, too, 5B C.J.S., Appeal & Error, § 1957, p. 527, note 81.

As we indicated above, Hoffman relied primarily upon Florida Rule of Procedure 1.540(b). This reliance was misplaced because Rule 1.540(b) does not apply to a criminal proceeding in a circuit court (Long v. State, 96 So.2d 897 (Fla.1957)) and the appellate proceedings in the circuit court resulted from criminal proceedings in the county court. In addition, Rule 1.540(b) does not apply to appellate proceedings in the circuit court. Giordano v. City of Boynton Beach, 320 So.2d 411 (Fla.1975); Fla.R. Civ.P. 1.010. We do not believe we are elevating form over substance when we say Hoffman may attack an appellate court judgment by means of a common law motion to vacate for voidness, but may not use Rule 1..540(b) as authority for that motion, because Rule 1.540(b) is designed to permit a trial court to vacate its judgment on any one or more of five grounds, while the common law motion to vacate an appellate court judgment can be based on only one ground, voidness.

Accordingly, the order appealed from is quashed and the cause is remanded to the circuit court to reconsider Hoffman’s motion to vacate the order of November 26, 1979, in light of this opinion.

QUASHED AND REMANDED, with directions.

HERSEY and GLICKSTEIN, JJ., concur.


text:
    Donald H. SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-182.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    As Modified May 12, 1982.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West.Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Since appellant, Donald H. Sullivan, was not advised at sentencing of his right to appeal, this court granted habeas corpus. The only question presented for review is whether the trial court erred in sentencing Sullivan to 330 years in prison rather than committing Sullivan as a mentally disordered sex offender (MDSO) pursuant to Chapter 917, Florida Statutes (1977).

Sullivan was convicted on three counts of burglary, sexual battery, and attempted murder. These charges stemmed from an incident in which Sullivan, a twenty-five year old male, raped the victim, a seventy year old female, and thereafter stabbed her fourteen times. After the jury verdict was received counsel for Sullivan filed a motion pursuant to Chapter 917, Florida Statutes (1977), for appointment of psychiatrists to determine Sullivan’s mental condition on the grounds that counsel believed Sullivan is an MDSO. The trial court granted the motion and appointed two psychiatrists who subsequently reported that Sullivan was not psychotic but was likely to commit further sex offenses. Both recommended that he be treated as an MDSO. Another psychiatrist reported similarly to the court in a pre-trial report. After receipt of the reports the trial court held a hearing in conjunction with sentencing and proceeded to sentence appellant to prison. All of the evidence presented from both experts and lay witnesses strongly indicated that Sullivan could and should be treated for his sexual problem. However, the trial judge indicated his lack of faith in the MDSO treatment program and declined to commit Sullivan for such treatment.

Sullivan contends that under the circumstances of this case the trial judge abused his discretion in refusing to commit him under Chapter 917. Numerous cases are relied on by Sullivan. However, the state points out that all of those cases involved a refusal of the trial judge to submit the defendant to examination to determine if he qualified as an MDSO.

Unquestionably, the trial judge has discretion in determining whether a particular defendant should be committed as an MDSO. Rarely do appellate courts interfere with that exercise of discretion. However, where the evidence is overwhelming (in this case overwhelming and uncon-tradicted), it appears to us a trial judge cannot simply ignore the program because it has not appeared successful in his experience. Presumably, the Legislature has provided for this treatment because it views rehabilitation of these individuals to be in the best interest of society. Thus, when a defendant clearly qualifies as an MDSO, absent some compelling reason for denial, such treatment should be afforded him. If it is an abuse of discretion for a trial judge to refuse to certify a defendant as an MDSO where he meets all of the statutory requirements, Gerardo v. State, 383 So.2d 1122 (Fla.2d DCA 1980), then certainly it is an abuse of discretion to refuse to certify defendant as an MDSO for treatment against overwhelming evidence of the need therefor.

The nature of this heinous crime and the trial judge’s adverse experience with MDSO treatment apparently impelled him to refuse to find Sullivan was an MDSO and commit him for treatment. However, commitment for such treatment does not necessarily mean a defendant will avoid incarceration. After the treatment is concluded, the defendant is returned to the committing court for recommencement of criminal proceedings. The committing court may then a) suspend sentence and place the defendant on probation, b) sentence the defendant to prison, or c) make other suitable disposition of the offender as provided by law. Thus, the trial judge will have the same options for sentencing after the MDSO treatment he had upon return of the jury verdict. On the other hand, after a defendant with an MDSO problem has served his sentence, the court is not in a position to require the treatment available under this statute. The defendant will have paid his debt to society and the court will have no further jurisdiction.

Accordingly, we reverse the sentence appealed from and remand the cause to the trial court with directions to commit appellant for treatment as an MDSO.

REVERSED AND REMANDED, with directions.

ANSTEAD and GLICKSTEIN, JJ., concur.

      . “THE COURT: You may well need help and there’s been professional testimony here indicating that you do need help, and I have no problem with the fact that you will receive help.
      “This Court is, as counsel is aware and I think Dr. Krieger is aware, less than overwhelmingly confident in the abilities of the disciplines which would be involved in this situation to insure that there would not be other incidents of this nature, and that being the case, and having had the opportunity to consider this particular set of circumstances, it is the sentence of this Court, Donald Sullivan, that as to Count I you be sentenced to a term of 150 years; and as to Count II, the sexual battery, that you be sentenced to a term of 150 years; and as to Count III of the attempted murder in the first degree that you be sentenced to a term of 30 years, said sentences to run consecutively.”

      . § 917.215, Fla.Stat. (1977).


text:
    Jimmie Lee BUDGETT, Appellant, v. STATE of Florida, Appellee.
    No. 81-1184.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    Richard L. Jorandby, Public Defender, and Jerry Schwarz, Asst. Public Defender, and Ronald McRae, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See, Kimble v. State, 396 So.2d 815 (Fla. 4th DCA 1980); Porter v. State, 380 So.2d 523 (Fla. 4th DCA 1980); Jess v. State, 384 So.2d 328 (Fla. 3rd DCA 1980).

BERANEK, DELL and WALDEN, JJ., concur.


text:
    Gerald Edward TODD, Appellant, v. STATE of Florida, Appellee.
    No. 81-32.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    Roy Gonzalez, Jr., of Stone, Sostchin & Gonzales, P. A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED without prejudice to the right of Appellant, Gerald Edward Todd, to apply to the lower tribunal for re-sentencing under the provisions of Fla.R.Crim.P. 3.850.

HERSEY and WALDEN, JJ., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Roger FAMBRO, Petitioner, v. Lewis KAPNER, Honorable Judge of the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, Respondent.
    No. 81-2231.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    James K. Green of Green, Eisenberg & Cohen, Lawyers, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of prohibition is hereby denied.

DOWNEY and BERANEK, JJ., concur.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge,

specially concurring:

I agree that a writ of prohibition is inappropriate to review the claim of petitioner. See In the Interest of R. J. B. v. State, 408 So.2d 1048 (Fla.1982).


text:
    Willie Charles BROWN, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1379, 81-1380 and 81-1381.
    District Court of Appeal of Florida, Second District.
    April 28, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s probation was revoked for violating conditions (f), (h), and (k). Because no evidence was presented to prove a violation of conditions (f) and (k), we order the finding of a violation of those conditions stricken from the order revoking appellant’s probation. Otherwise, we affirm the order and the judgment and sentence.

SCHEB, C. J., and HOBSON and CAMPBELL, JJ., concur.


text:
    SOUTHEASTERN DEVELOPMENT AND UTILITIES COMPANY, INC., Appellant/Cross-Appellee, v. HAWKSHEAD HOMEOWNERS ASSOCIATION, INC., Appellee/Cross-Appellant.
    No. 81-1907.
    District Court of Appeal of Florida, Second District.
    April 28, 1982.
    M. Joseph Lieb, Jr. and Jim Syprett of Syprett, Meshad, Resnick & Lieb, P. A., Sarasota, for appellant/cross-appellee.

      Daniel Joy, Sarasota, for appellee/cross-appellant.
   PER CURIAM.

Appellant, Southeastern Development and Utilities Company, and appellee, Hawkshead Homeowners Association, both appeal from the trial court’s order implementing an earlier decision of this court. Southeastern Development and Utilities Co. v. Board of County Commissioners of Sarasota, Florida and Hawkshead Homeowners Association, 398 So.2d 882 (Fla. 2d DCA 1981). This court held that the trial court was in error when it set aside a rate increase which the Board of County Commissioners of Sarasota County had granted. This court also found that the Board properly permitted Southeastern to charge a depreciation expense on contributions in aid of construction (CIAC) property so long as there had been established a reserve account as a condition to collecting the depreciation on the CIAC property. The trial court’s order implementing our opinion directed the Board to “take such action as they deem proper in accordance with the opinion entered herein by the Second District Court of Appeals.”

We interpret the trial court’s order as implicitly requiring that Southeastern establish a reserve account as a condition to collecting depreciation on CIAC property, the mechanics of which account must be acceptable to the Board of County Commissioners.

As interpreted the judgment of the trial court is affirmed.

SCHEB, C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


author: LETTS, Chief Judge. HURLEY, Judge,

text:
    Willie POTTS, Jr., Petitioner, v. Louie WAINWRIGHT, Secretary, Department of Corrections, Respondent.
    No. 82-211.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.
    Rehearing Denied June 16, 1982.

      Richard L. Jorandby, Public Defender, and Tat jana Ostapoff, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for respondent.
   ON MOTION FOR REHEARING

LETTS, Chief Judge.

Defendant’s trial counsel, an assistant public defender in the Fifteenth Judicial Circuit, failed to file a timely notice of appeal because she filed a motion to mitigate the defendant’s sentence pursuant to Rule 3.800(b), Fla.R.Crim.P., and labored under the impression that such a motion tolled the 30-day period for filing a notice of appeal. See Rules 9.140(b)(2) and 9.020(g), Fla.R.App.P; Strucki v. State, 365 So.2d 222 (Fla. 4th DCA 1979). The trial court denied the motion to mitigate on May 4,1981, and defense counsel filed a notice of appeal on May 19, 1981. This court, in an unpublished order, dismissed the appeal for lack of jurisdiction. See Guzman v. State, 364 So.2d 523 (Fla. 2d DCA 1978).

Next, defendant’s appellate counsel, also an assistant public defender in the Fifteenth Judicial Circuit, filed a petition for a writ of habeas corpus seeking delayed appellate review pursuant to the dictates of Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). Initially, with one judge dissenting, this court denied the petition in an unpublished order which cited Adams v. State, 380 So.2d 421 (Fla.1980). Upon consideration of defendant’s motion for rehearing, however, we have concluded that our reliance upon Adams was misplaced and that the motion for rehearing should be granted.

Adams v. State, supra, involved a post-trial motion for post-conviction relief. It was originally filed by the Office of the Public Defender for the Fifteenth Judicial Circuit, but was subsequently assigned to the Office of the Public Defender for the Nineteenth Judicial Circuit — the office which had represented the defendant at trial. The motion contained eleven specific charges that the defendant had been denied effective assistance of counsel at trial. Since the state challenged these allegations, an evidentiary hearing was necessary and it was obvious that trial counsel would be called to testify. Thus, the Public Defender for the Nineteenth Judicial Circuit was faced with a hopeless conflict of interest which precluded his representation of the defendant in the post-conviction proceeding.

In the case at bar, the state has challenged none of the factual allegations in the petition for delayed appellate review. Consequently, there is no need for an evidentia-ry hearing and defense counsel is not faced with the ethical prohibition against serving as an advocate and a witness in the same evidentiary proceeding. Furthermore, it is beyond question that the defendant/petitioner in this case was denied direct appellate review because of state action or, perhaps more accurately phrased, state inaction, i.e., the failure to file a timely notice of appeal. Thus, he has an absolute right to delayed appellate review. Baggett v. Wainwright, supra; Pressley v. Wainwright, 540 F.2d 818 (5th Cir. 1976).

We are confident that the Office of the Public Defender for the Fifteenth Judicial Circuit is fully competent and ethically correct in representing the petitioner in his effort to obtain delayed appellate review. Accordingly, we grant the motion for rehearing, vacate our order of March 3, 1982, grant the petition for writ of habeas corpus and permit delayed appellate review.

It is so ordered.

HURLEY and DELL, JJ., concur.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring specially.

In addition to the above, I wish to express the view that a motion to mitigate, filed pursuant to Rule 3.800(b), Fla.R. Crim.P., is the functional equivalent of a motion to alter or amend. The latter, of course, tolls the rendition of a final judgment. See Rule 9.020(g), Fla.R.App.P. Thus, I submit we erred in the first instance by dismissing appellant’s direct appeal.

Recently, in the case of Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190, (Fla.1982), the Supreme Court held that it was proper to consider the “practical result” of an order in determining whether it justified a non-final appeal. The same analysis should apply here. A motion to mitigate is an authorized motion which has the practical result of requesting an alteration or amendment of the judgment. Thus, I would hold that a motion to mitigate which is filed prior to the expiration of the 30-day appeal period, tolls the rendition of the judgment of conviction.

To hold otherwise is to place form over substance and permit the rules to become a needless snare for the unwary. Similarly, to hold otherwise would violate the well-settled public policy favoring the resolution of disputes on their merits. This policy requires us to construe the rules liberally and to resolve ambiguities in a manner which will guarantee access to the courts.

It is reasonable to assume that a motion to mitigate was authorized because of its useful potential. Enormous time and energy are saved when the trial court corrects an error and obviates the necessity for appeal. Therefore, there is little to be said for an interpretation which permits defense counsel to seek post-conviction relief in the trial court but forces counsel into the predicament of choosing between pursuing relief in the trial court and thereby forfeiting appellate review, or of filing a notice of appeal and thereby abandoning the motion to mitigate. Such a formulation is too mechanistic; its application is both unjust and at odds with sound judicial economy. Therefore, I would hold to the rule announced in Strucki v. State, supra, that a timely motion to mitigate tolls rendition. Although Strucki spoke to an earlier version of the rules, its rationale is still persuasive. Consequently, I would hold that a motion to mitigate pursuant to Rule 3.800(b), Fla.R.Crim.P., which is filed before the expiration of the 30-day period for filing a notice of appeal, should toll the rendition of the judgment of conviction pursuant to Rule 9.020(g), Fla.R.App.P.

      . A motion to reduce or modify is timely if filed within 60 days of the imposition of sentence or within 60 days after receipt of the appellate mandate. Rule 3.800(b), Fla.R.Crim.P. On the other hand, a notice of appeal must be filed at a time between the rendition of a final judgment and 30 days following the entry of a written order imposing sentence. Rule 9.140(b)(2), Fla. R.App.P. Consequently, only a motion to modify or reduce which is filed prior to the expiration of the 30-day appeal period will toll the rendition of the final judgment. See Rule 9.020(g), Fla.R.App.P.


text:
    GOOD SAMARITAN HOSPITAL and Insurance Company of North America, Appellants, v. Ruth BISHOP, Appellee.
    No. ZZ-429.
    District Court of Appeal of Florida, First District.
    April 29, 1982.

      Marjorie D. Gadarian of Jones & Foster, Palm Beach, for appellants.
    J. J. Goodmark of Goodmark & Good-mark, West Palm Beach, for appellee.
   PER CURIAM.

The subject of this appeal is a deputy commissioner’s finding that the employer violated Section 440.205, Florida Statutes, by terminating the claimant’s employment “by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Worker’s Compensation Law.”

Appellants assert that the deputy commissioner lacked jurisdiction to determine whether a violation of Section 440.205 occurred. We agree that the deputy commissioner was without statutory authority to make such a finding and it is without effect. Cf. U. S. Home Corporation v. Parker, 404 So.2d 170 (Fla. 1st DCA 1981) (deputy commissioner lacked specific statutory authority to adjudicate controversy as to validity of contract between carrier and subcontractor). We thus determine that no remedy for termination of employment on account of a claim or attempted claim for compensation exists in a proceeding before a deputy commissioner to obtain benefits under the Worker’s Compensation Law. However, we reserve for determination in a proper case the question whether a cause of action may be implied, based on Section 440.205, in a proceeding in circuit court. See Piezo Technology and Professional Administrators, Inc. v. Smith, 413 So.2d 121 (Fla. 1st DCA Case No. ZZ-27 opinion filed April 26, 1982).

REVERSED

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


author: SHIVERS, Judge.

text:
    STATE of Florida, DEPARTMENT OF CORRECTIONS, and Crawford & Company, Appellants, v. Elijah B. THARPE, Appellee.
    No. AE-264.
    District Court of Appeal of Florida, First District.
    April 29, 1982.

      Kurt Preston Hampp of Jacobs, Robbins, Gaynor, Hampp, Burns, Cole & Shasteen, P. A., St. Petersburg, for appellants.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P. A., Tampa, for appellee.
   SHIVERS, Judge.

The employer/carrier appeal from a workers’ compensation order, contending the deputy commissioner erred in:

(1) determining that medical expenses connected with the treatment of claimant’s rectal bleeding were causally related to the compensable injury; and,

(2) combining claimant’s noncovered, part-time employment wages with his covered employment wages to determine the average weekly wage for compensation.

We affirm the award of medical expenses related to claimant’s rectal bleeding, but reverse the determination of claimant’s average weekly wage.

Claimant sustained a compensable accident on November 13, 1979, when he was bitten by a wild animal while working for the employer, Department of Corrections. As a result of an adverse reaction to rabies shots, claimant developed post-antirabies encephalomyelopathy which caused the loss of use of his right leg, a speech impairment, and an impairment of his right arm.

At the time claimant was working for the employer at an average weekly wage of $250 per week, he had a part-time job as a caretaker on 20 acres of land earning an additional weekly wage of $100. The employer/carrier contended below that claimant’s wages from his part-time employment should not be used to calculate his average weekly wage since the part-time employment constituted agricultural labor which is excluded from coverage under Chapter 440, Fla.Stat. Because of claimant’s speech impairment, the only evidence on this issue was the testimony of claimant’s wife who had been appointed claimant’s guardian. She testified that claimant looked after the 20 acres for the landowner who used the property as a “weekend” retreat. She said it was not really a farm although the owner kept some cows, a horse, chickens, rabbits, and dogs on the property. She testified that the owner did not do any “farming” on the property and that the claimant was the only employee. In the appealed order, the deputy commissioner rejected the employer/carrier’s contention that claimant’s part-time caretaker’s job was not covered employment under Chapter .440 because there was no evidence to support the contention.

Subsequent to the accident, claimant developed rectal bleeding while hospitalized. The employer/carrier contended that the rectal bleeding was not causally related to the claimant’s injury and that they should therefore not be required to pay the medical bills related to treatment for the bleeding. Claimant’s wife testified that claimant had never experienced rectal bleeding until several weeks after the accident. Dr. Saludo, claimant’s treating physician, attributed the bleeding to the stress and anxiety claimant experienced as a result of his sudden overall disability. Dr. Geslani, treating neurologist, testified that he would defer to Dr. Saludo as the general treating physician or a psychiatrist regarding the cause of claimant’s rectal bleeding. The deputy commissioner accepted Dr. Saludo’s testimony and rejected Dr. Geslani’s testimony, concluding that claimant’s rectal bleeding and subsequently related medical bills were causally connected to the claimant’s injury and resulting condition.

Since there is competent, substantial evidence to support the finding that claimant’s rectal bleeding was causally related to the injury and resulting condition that he suffered from the accident, the award of medical expenses incurred for treatment of the bleeding is affirmed.

However, the deputy commissioner did err in combining claimant’s part-time wages with his full-time wages from the employer because the part-time wages were earned in employment excluded from coverage under Chapter 440. Rollins Building Services, Inc. v. Thomas, 393 So.2d 665 (Fla. 1st DCA 1981); Randell, Inc. v. Chism, 404 So.2d 175 (Fla. 1st DCA 1981). Claimant’s employment as a caretaker was excluded from coverage under Chapter 440 on at least one of three grounds. First, if claimant’s part-time employment is classified under Section 440.02(l)(c)2., Florida Statutes (1979), as “agricultural labor performed on a farm in the employ of a bona fide farmer” who “employs 5 or less regular employees,” such employment is non-covered employment and those wages should not be used in computing the average weekly wage. Jay Livestock Market v. Hill, 247 So.2d 291 (Fla.1971). As Section 440.02(l)(c)2., supra, points out, “the term ‘farm’ includes stock, dairy, poultry, fruit, [and] fur-bearing animals .... ” However, the record is unclear as to whether claimant’s part-time employer was a “bona fide farmer” so as to classify claimant’s employment as agricultural labor because there was no testimony regarding the part-time employer’s occupation or trade.

Second, even if claimant’s employment was not agricultural labor, his caretaker duties would constitute those of a domestic servant in a private home. Under Section 440.02(l)(c)l., Florida Statutes (1979), covered employment does not include services performed as “domestic servants in private homes.” Claimant’s wages as a domestic servant are outside the operation of Chapter 440 and may not be used in determining the average weekly wage. Rollins, supra.

Third, assuming the part-time employment was neither agricultural labor nor services performed as a domestic servant, claimant’s employment as a landowner’s sole employee still constitutes noncovered employment. Under Section 440.02(l)(b)2., Florida Statutes (1979), the term “employment” includes only “private employments in which three or more employees are employed by the same employer.” See, Randell, supra, which held that the claimant’s part-time work for an employer who did not have three employees did not constitute employment within the purview of Chapter 440 and thus earnings from this employment should not have been included in determining his average weekly wage.

Consequently, it is clear that claimant’s part-time employment as a caretaker of 20 acres constituted non-covered employment regardless of whether he is classified as a farm hand, domestic servant, or sole employee, and therefore the deputy commissioner erred in using wages earned from such employment in computing the average weekly wage.

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

ERVIN and WENTWORTH, JJ„ concur.


author: MILLS, Judge.

text:
    SUNLAND TRAINING CENTER and Division of Risk Management, Appellants/Cross Appellee, v. Stephenson WOODS, Appellee/Cross Appellant.
    No. AF-19.
    District Court of Appeal of Florida, First District.
    April 29, 1982.

      Jack A. Langdon of Jones & Langdon, P. A., Gainesville, for appellants/cross appel-lee.
    Thomas W. Davis of Law Offices of Barton, Cox & Davis, Gainesville, for ap-pellee/cross appellant.
   MILLS, Judge.

The employer appeals and the claimant cross appeals a workers’ compensation order which determined the date of maximum medical improvement (MMI), awarded temporary total disability (TTD) benefits through the date of the hearing and continuing, and awarded permanent partial disability (PPD) benefits. We reverse.

In separate compensable accidents in 1978, Woods injured his right knee. In April 1979, Dr. Parr surgically corrected tears in the cartilages of the knee. Parr placed MMI in August 1979 and discharged Woods.

Dr. Marsh treated Woods from October to December 1979. He placed MMI before October 1979. He released Woods for work with a 10% permanent impairment in November 1979.

In August 1980, a Veteran’s Administration physician prescribed a Lennox-Hill brace but the Veteran’s Administration would not provide the brace.

On 8 October 1980, Woods was examined by Dr. McLear. Dr. McLear felt that a Lennox-Hill brace would return Woods to full productivity. McLear would not specify a date for MMI because of potential surgery but thought Woods fully recovered from the former surgery. The order identified MMI as having been reached on 8 October 1980, the date of McLear’s examination.

Both parties challenge this date of MMI as not supported by the record. We agree.

Nothing was done by McLear that can be identified as changing the status of Woods from “healing” to “no further improvement reasonably anticipated.” McLear did not identify the date of MMI. The only medical testimony naming a date for MMI was that of Parr and Marsh identifying August or September 1979. The selection of either of these dates would have been supported by the record.

Woods argues on cross-appeal that the date of provision of a Lennox-Hill brace is the only date supported by the evidence.

Weighing the evidence is the prerogative of the trier of fact and not appellate courts, so we remand for the deputy to select a date of MMI based on the record.

The award of TTD after the date of MMI was error, Corral v. McCrory Corp., 228 So.2d 900 (Fla.1969); Broward County v. Damore, 391 So.2d 286 (Fla. 1st DCA 1980). After finding the date of MMI, the deputy commissioner shall award temporary disability benefits till the date of MMI and permanent benefits thereafter.

REVERSED and REMANDED.

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


text:
    SARASOTA COUNTY and R. P. Hewitt & Associates of Florida, Inc., Appellants, v. Roger A. REICHERT, Appellee.
    No. AF-148.
    District Court of Appeal of Florida, First District.
    April 29, 1982.
    John J. O’Riorden of Dickenson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellants.
    Harry G. Goodheart, III, of Harry G. Goodheart, III, P. A., Brandenton, and Wood, Whitsell, Karp, Wellbaum, Miller & Seitl, P. A., Sarasota, for appellee.
   MILLS, Judge.

The employer/earrier appeal from a workers’ compensation order awarding claimant permanent total disability benefits. We affirm.

Apportionment is proper only when the pre-existing condition is disabling at the time of the accident or at the time of the award. Caruso v. Crown Liquors, 379 So.2d 1317 (Fla. 1st DCA 1980). There is competent substantial evidence that claimant was not disabled at either time because of a pre-existing condition.

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


text:
    TRIVOLI AMUSEMENT CO. and Florida Insurance Guaranty Association, Appellants, v. Daisey RODRIGUEZ, Appellee.
    No. AF-463.
    District Court of Appeal of Florida, First District.
    April 29, 1982.
    •Russell A. Ortmayer of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellee.
   PER CURIAM.

The deputy commissioner erred in ordering the Florida Insurance Guaranty Association (FIGA) to pay interest on the accrued but unpaid installments of compensation, section 631.57(l)(b), Florida Statutes (1977); Carballo v. Warren Manufacturing Compa ny, 407 So.2d 603 (Fla. 1st DCA 1981). That portion of the order assessing interest against FIGA is hereby deleted.

The order, as modified, is otherwise AFFIRMED.

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


author: WIGGINTON, Judge.

text:
    Sam A. HEINE, Deceased, Employee, Julia Heine, Widow, Claimant, Appellant, v. J. M. FIELDS, INCORPORATED, Self-Insured, Appellee.
    No. AG-33.
    District Court of Appeal of Florida, First District.
    April 29, 1982.
    Eugene N. Betts, Fort Lauderdale, for appellant.
    Charles Desmond Crowley, Fort Lauder-dale, for appellee.
   WIGGINTON, Judge.

We affirm the deputy commissioner’s decision that funeral benefits under the Workers’ Compensation Act are subject to apportionment under section 440.02(18), Florida Statutes (1975).

However, after finding the claimant’s death was ten percent attributable to a work-related injury, the deputy awarded “ten percent of the maximum of $1,000.00 for payment of funeral expenses.” Because section 440.16(1), Florida Statutes (1975) provides for an award of “[ajctual funeral expenses not to exceed $1,000,” the deputy should have awarded ten percent of the actual funeral expenses, the award not to exceed $1,000. This amount should be determined and paid without the need for further intervention by the deputy.

The deputy commissioner’s order is modified accordingly and, as modified, it is affirmed.

JOANOS and THOMPSON, JJ., concur.


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

text:
    Eddie B. WELLS, Appellant, v. STATE of Florida, Appellee.
    No. AH-122.
    District Court of Appeal of Florida, First District.
    April 29, 1982.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Wells appeals from his conviction of theft, section 812.014, Florida Statutes (1980 Supp.), entered on a plea of nolo contendere reserving the right to appeal the court’s denial of Wells’ pre-trial motion to dismiss on the ground there were no material disputed facts and the undisputed facts did not establish a prima facie case. Fla.R. Cr.P. 3.190(c)(4). Wells’ motion set up facts tending to support his discharge on the theory that the money he received from the victim, which Wells kept, was voluntarily given him in exchange for an unfulfilled promise to perform certain services. Cf. Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980). Even if the promise was false when made, Martin held, that would not be a false representation of existing facts supporting a conviction for larceny by false representations. But as the trial court in this case held, Wells’ motion did not show facts negating the theory, buttressed by the State’s return showing Wells was the victim’s employee, that the money given and possessed by Wells remained his employer’s until, subsequently, Wells embezzled or converted it to his own use. Wells’ motion to dismiss was properly denied.

AFFIRMED.

McCORD and BOOTH, JJ., concur.


text:
    Ravonne GRIFFIN, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-196.
    District Court of Appeal of Florida, First District.
    April 29, 1982.
    Ravonne Griffin, pro se.
    Malcolm S. Greenfield, Tallahassee, Gen. Counsel, Fla. Parole and Probation Comm’n, for appellee.
   PER CURIAM.

Appellee’s Motion to Dismiss is denied. The Court finds that the rules of the Florida Parole and Probation Commission control for purposes of determining the most serious offense, which is used as the offense characteristic. See Rules 23-19.01(5) and 23-19.05, Fla.Admin.Code. Accordingly the action of the Florida Parole and Probation Commission is affirmed.

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


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Cecil SWOVELAND, Appellee.
    No. 81-580.
    District Court of Appeal of Florida, Second District.
    April 30, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellee.
   DANAHY, Judge.

Appellee was charged with carrying a concealed firearm on or about his person contrary to section 790.01(2), Florida Statutes (1979). He moved to dismiss the charge, contending that he could not be prosecuted because he came within the exception fashioned by the legislature in section 790.25(3)(/) for persons who have a firearm securely encased when they are traveling in a private conveyance. The trial judge, citing Hanigan v. State, 312 So.2d 785 (Fla. 2d DCA 1975), agreed and dismissed the charge. When he did so, the trial judge necessarily ruled that the undisputed facts failed to establish a prima facie case of guilt of the crime charged. After an examination of the applicable statutes and the cases construing them, we disagree and reverse.

When we review the dismissal of a criminal charge before a trial on the merits, we must look at the facts in a light most favorable to the state to see whether those facts present a prima facie case of guilt. State v. Davis, 243 So.2d 587 (Fla.1971); State v. Smith, 348 So.2d 637 (Fla. 2d DCA 1977).

The pertinent facts in this case are these:

Appellee alleged that the firearm was in his van and in a holster with a leather strap across the hammer at the time it was seized by a police officer. Appellee told the police officer that he had a gun under the driver’s seat of his van. The officer, who saw the butt of the gun and seized it from appellee’s vehicle, testified that it was in a holster in an upright position, barrel facing the floorboard, leaning up against the frame of the driver’s seat. The leather strap was not snapped across the hammer but, rather, was behind the cylinder. The gun was in a position where the driver could easily take it out by the butt and drop the holster quickly without even unsnapping it.

Based on this set of facts we cannot say, as we could in Hanigan, that, as a matter of law, the firearm was so securely encased as to exempt appellee from the proscription of the concealed firearm statute by the exception contained in section 790.25(3)(7), which states:

(7) Any person traveling by private conveyance when the weapon is securely encased, or in a public conveyance when the weapon is securely encased and not in person’s manual possession; [Emphasis added.]

The trial judge improperly applied existing law to the facts of this case when he dismissed this case on the authority of Han-igan, and the secure encasement exception contained in section 790.25(3)(7). In Hani-gan we said the gun was securely encased because the leather strap was snapped over the hammer and the gun could not be fired until after the strap was unsnapped and the gun removed from the holster. Those actions by a handgun user require some lapse of time and pause for thought — events the legislature anticipated in carving out this exception to the proscription of the concealed gun law.

In the recent case of Cates v. State, 408 So.2d 797 (Fla. 2d DCA 1982), Judge Grimes, writing for this court, provides a comprehensive analysis of this exception to the concealed gun statute, the difficulties it has presented for our citizens and courts, and, together with the concurring remarks of Judge Ryder, some suggestions for legislative review. In Cates this court said that a jury could find that a handgun placed in an unlocked receptacle located between the bucket seats of the driver’s car did not come within the secure encasement exception provision of the statute.

If the facts of this case as stated by the police officer are to be believed, the gun in the case before us was more accessible for quick use, unimpeded by the factors which would cause the slight delay of its use in Hanigan. It may be that the facts in the case before us are like those in Hanigan and that appellee meets the exception because the leather strap was fastened over the hammer and, thus, the gun was relatively inaccessible. But whether that is so is clearly in dispute since the police officer stated that the strap was not over the hammer, but was merely over the cylinder and in a position where the gun could have been easily removed from the holster by the butt for quick use. On the disputed facts which were before the trial judge we are unable to say, as a matter of law, as we could in Hanigan, that the gun was “securely encased” as defined by the statute. This factual dispute can only be resolved by a jury.

Because that is so, we REVERSE the order dismissing the information which charged appellee with carrying a concealed firearm and REMAND the case to the trial court for further proceedings consistent with this opinion.

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

      . The terms “weapons” and “firearms” in section 790.25, Florida Statutes (1979), are used interchangeably. State v. Hanigan, 312 So.2d 785, 788 (Fla. 2d DCA 1975).

      . This is consistent with the purposes of firearm use and safety announced by the legislature in its Declaration of Policy when the exceptions to the proscription of the concealed gun law were created. § 790.25(1), Fla.Stat. (1979).

      .During its 1982 regular session, the legislature amended the statute. Ch. 81-131, Laws of Fla. The provisions of the new law, of course, do not apply to this case.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. George MINNICK, Appellee.
    No. 81-636.
    District Court of Appeal of Florida, Second District.
    April 30, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellee.
   CAMPBELL, Judge.

Appellant, State of Florida, takes this appeal from a final order entered under the authority of section 941.45, Florida Statutes (1979) (Interstate Agreement on Detainers), which dismissed an information charging appellee with burglary and which discharged appellee.

The chronology of events as revealed by the record is as follows:

September 15,1979: Appellee was arrested on a charge of burglary of a dwelling.

October 1, 1979: An information was filed charging appellee with that offense, to which he entered his written plea of not guilty.

November 28, 1979: Trial was scheduled for this date, but prior to trial, appellee escaped and a capias was issued for his arrest.

July 18, 1980: While serving a prison sentence at the Deerfield Correctional Center in Capron, Virginia, appellee had prepared an inmate’s notice of imprisonment and request for disposition of indictment, information or complaint.

July 22, 1980: The-notice was received by the warden of Deerfield for delivery to the state attorney of Pinellas County, Florida. It requested disposition of a charge of escape which was alleged to be the subject of a detainer placed with Virginia by Pinellas County authorities.

August 1,1980: Florida requested temporary custody of appellee from Virginia for the purpose of granting appellee a speedy trial pursuant to section 941.45.

September 16, 1980: Upon receipt of the request, Virginia wrote to Pinellas County’s state attorney informing him that appellee was currently confined in a local Virginia jail awaiting delivery to New Mexico pursuant to a request under the Interstate Agreement on Detainers, and that upon appellee’s return to Virginia, Virginia would notify Florida authorities so further proceedings could be initiated by Florida under the Interstate Agreement on Detain-ers.

The record is then silent until March 10, 1981, when the public defender of the Sixth Judicial Circuit in Pinellas County, on behalf of appellee, filed a motion to dismiss and motion to discharge the burglary charge pending against appellee. This appeal is from the order granting that motion. We reverse.

Section 941.45(3) requires a requesting state to bring a prisoner requesting final disposition to trial 180 days after the state receives notice of such request. Young v. Mabry, 471 F.Supp. 553 (E.D.Ark.1978). The record does not reveal the date Florida received appellee’s notice though it obviously was between July 22, 1980, when Virginia received it, and August 1, 1980, when Florida made its request for temporary custody of appellee.

We conclude that the 180-day period was tolled, pursuant to section 941.45(6), during the time appellee was in the custody of New Mexico authorities and unavailable to stand trial on the Florida charge. State v. Wood, 241 N.W.2d 8 (Iowa 1976). The record does not reveal how long appellee was in New Mexico. However, inasmuch as section 941.45(6) provides that the Florida court, the court having jurisdiction of the matter, is to determine when and for how long the time is tolled by a prisoner’s not being available for trial, the Florida courts would not have been required to make that determination until Virginia notified Florida that appellee had been returned to Virginia, as it had agreed to do in the letter of September 16, 1980.

As pointed out by the court in United States v. Mason, 372 F.Supp. 651 (N.D.Ohio 1973), the Interstate Agreement on Detain-ers does not anticipate a three-state situation where a prisoner, against whom a de-tainer has been placed by a second state, is incarcerated in one state and requests speedy trial by the second state, but prior to the transfer to the second state is transferred to yet a third state for trial under the agreement. We decline to apply the conclusion of the court in United States v. Mason to this cause and require Florida to “chase” appellee to a third state where, as in this case, the sending state (Virginia) had agreed to notify the receiving state (Florida) when appellee was returned. As a matter of fact, section 941.45(5)(d) and (e) seems to contemplate in a three-state situation that a prisoner in temporary custody of one “receiving” state for the purpose of disposition of pending charges in that state would not be subject to transfer to any other “receiving” or “requesting” state, as those subsections require that upon completion of prosecution in the first state the prisoner must be returned to the “sending” state.

Some further confusion is created by the statute because section 941.45(3)(a) provides that after receipt of a request by a prisoner, a receiving state desiring to prosecute must bring the prisoner to trial within 180 days of the date of receipt of the notice; yet section 941.45(4)(c) seems to contemplate that after a state has complied with the request and made demand for delivery of the prisoner, it then has 120 days from the arrival of the prisoner in the receiving state to begin the trial. Section 941.45(5)(c) then provides that if a receiving state refuses to accept temporary custody of the prisoner or accepting custody does not commence trial, then the information on the basis of which a detainer has been lodged shall be dismissed within the period of 180 days as provided in section 941.45(3) or 120 days from receipt of the prisoner as provided in section 941.45(4).

In this case, the State of Florida did not refuse custody, but its request for custody was denied. Therefore, since Florida, a receiving state, did not refuse custody or receive custody, neither the 180-day period nor the 120-day period is applicable. Finally, insofar as the record reveals, only the charge of escape and not the information for burglary which was dismissed by the trial court was the basis of a detainer lodged with the State of Virginia.

Under those circumstances appellee has not shown that he was available for trial in Florida between the time Florida requested him and the filing of his motion to dismiss. On the contrary, apparently by his own action of virtually simultaneous requests that Florida and New Mexico dispose of their charges against him, he was making himself unavailable for trial to the state that did not receive him first. To interpret the statute otherwise would allow a defendant wanted for prosecution in several states to successfully avoid prosecution in some of those states by making simultaneous requests of all.

REVERSED and REMANDED.

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


author: GRIMES, Judge.

text:
    A. Wayne LAFFERTY, Appellant, v. Mildred Cart LAFFERTY a/k/a Mildred C. Lafferty, Appellee.
    No. 81-1784.
    District Court of Appeal of Florida, Second District.
    April 30, 1982.
    George P. Kickliter, Tampa, for appellant.
    Charles F. Clark and Ted R. Manry, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   GRIMES, Judge.

The husband appeals from an order awarding attorney’s fees and costs to his ex-wife for her successful prosecution of a motion for contempt based on the husband’s failure to pay alimony.

The only point which requires discussion is the husband’s contention that the court improperly ordered him to pay the wife, as part of her costs, $800 for the expert witness fee of her accountant. The colloquy before the court on this subject indicates that in preparation for the contempt hearing the husband had retained a bookkeeper to review his records with a view toward the bookkeeper testifying that he could not afford to pay the back alimony. Counsel for the wife then employed an accountant to review the doctor’s records and to testify in opposition. The accountant worked on the case for twenty hours, including three and one half hours in court, and charged $40 an hour.

The husband now asserts that the court could not tax the costs of this expert witness without first taking testimony with respect to whether his charge was a reasonable fee. He cites Posner v. Flink, 393 So.2d 1140 (Fla. 3d DCA), petition for review denied, 402 So.2d 612 (Fla.1981), in which the court held that as in the ease of attorney’s fees it was necessary to conduct an evidentiary hearing in order to determine the reasonable fee of any expert witness. In reaching its decision, the court there relied upon section 92.231, Florida Statutes (1981), which is the only statute on the subject pertaining to civil actions. However, while that section authorizes the court to tax expert witness fees, it does not specify the manner in which this is to be done.

Implicit in the rule that an attorney’s fee must always be proved through the presentation of testimony is that such a requirement is necessary to maintain the image of lawyers in the eyes of the public. Moreover, a claim for attorney’s fees is substantive in nature in that it entails a recovery for services rendered while the expert witness is compensated for testifying. While tradition cannot serve to make proper an otherwise illegal practice, the court in this case followed the customary method of determining expert witness fees. See, e.g., Aetna Casualty & Surety Co. v. Florida Power & Light Co., 367 So.2d 1104 (Fla. 3d DCA 1979), in which the court upheld an expert witness fee of $11,624.76 based upon invoices submitted by the witness. The impracticalities of requiring testimony in every instance are obvious. This would mean that the court could not tax a doctor’s expert witness fee in favor of the prevailing party in the ordinary personal injury action without taking testimony on what constituted a reasonable fee. To pursue this line of thought to its reasonable conclusion, the doctor who testified concerning the reasonableness of the fee would then be entitled to an expert witness fee to be set by further expert testimony.

In order to avoid the possibility of abuse, we hold that upon the specific objection to the setting of an expert witness fee without an evidentiary hearing, the prevailing party will have to present testimony concerning the necessity and reasonableness of the fee. If no specific objection is made, as in the instant case, we believe the judge has the authority to set the amount of the expert witness fee based upon his experience in these matters together with his observation of the witness’s testimony or his review of the record. We hereby recede from any implication to the contrary which may be contained in our opinion in Lyle v. Lyle, 167 So.2d 256 (Fla. 2d DCA), cert. denied, 172 So.2d 601 (Fla.1964).

AFFIRMED.

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


text:
    STATE of Florida, Appellant, v. Donnie Lee COLE, Appellee.
    No. 81-1820.
    District Court of Appeal of Florida, Second District.
    April 30, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellee.
   CAMPBELL, Judge.

The state appeals from an order dismissing a grand theft charge against appellee on double jeopardy grounds.

Appellee and his brother Gary Cole were charged by joint information with grand theft. They were jointly represented by the same attorney in the proceedings before the trial court. The arresting officer testified that when he stopped the brothers in a van operated by Gary, Gary did not have a valid driver’s license. Defense counsel objected and moved for a mistrial on the ground that the testimony concerning the lack of a valid driver’s license constituted evidence of a collateral crime. The court granted the motion and stated that the case would be reset and tried by another jury the next day. The next day counsel made a motion to dismiss appellee’s case on double jeopardy grounds. Counsel stated he had only moved for a mistrial as to Gary Cole. After discussion the court reluctantly granted the motion.

Appellee makes two arguments to support the court’s judgment, the first concerns severance of the parties. It is undisputed that at the unrecorded conference in chambers concerning the motion for mistrial, counsel discussed severing the trial of his clients, but he made no motion to sever. However, appellee now argues the court should have severed the trial of defendants.

The state was entitled to try the brothers jointly as long as no motion to sever was made. Fla.R.Crim.P. 3.150(b)(1). The failure of counsel to make a motion for severance waived the right to severance. Wright v. State, 318 So.2d 477 (Fla. 4th DCA 1975). We conclude that without a motion to sever, the right of the state to a joint trial continued.

Appellee’s second argument is that his counsel did not move for mistrial for him. However, there is no dispute that the record is clear that counsel’s motion did not specify that it was made only on behalf of Gary Cole. As far as the record reveals, it was a motion for mistrial as to both defendants inasmuch as defense counsel was representing both on a joint information and he did not specify that the motion was limited to. only one defendant. After granting the “general” motion for mistrial, defense counsel then remained silent in the face of the discharge of the jury and the judge’s statement that the trial would be reset for the next day. In our opinion, this conduct evidenced defense counsel’s acquiescence to the mistrial as it pertained to appellee. We also conclude that if the trial judge had a legally sufficient reason during the joint trial of defendants to grant a mistrial to one defendant, he also had, absent a motion to sever, the discretion to grant a mistrial to both defendants. See Goodman v. State ex rel. Furlong, 247 So.2d 47 (Fla.1971). It ill behooves appellee to now state that the motion for mistrial applied only to his brother, since his counsel remained silent when it was clear that the judge thought and acted upon a belief that the motion pertained to both defendants. Although the next day the trial judge reluctantly accepted trial counsel’s explanation that the motion for mistrial was for Gary Cole, it is our opinion that counsel was not relieved of his obligation to explain his motion at the time the judge reset the trial and discharged the jury.

Accordingly, we reverse the dismissal of the cause against appellee and order a new trial.

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

      . We do not reach the question of whether there were adequate grounds for a mistrial because that issue has not been presented to us.


author: SCHEB, Chief Judge.

text:
    Nancy VANDEYMARK and Edward Vandeymark, Petitioners, v. DRESDEN & TICKTIN, M.D.’S, P.A. Gary Dresden and Harold Ticktin, Respondents.
    No. 82-99.
    District Court of Appeal of Florida, Second District.
    April 30, 1982.
    Edwin J. Bradley of Lloyd, Henniger & Bradley, P.A., St. Petersburg, for petitioners.
    Thomas Saieva of Woodworth and Saieva, P.A., St. Petersburg, for respondents.
   SCHEB, Chief Judge.

Petition for Writ of Certiorari is denied. Our denial, however, is without prejudice to petitioners’ seeking a protective order in the trial court in respect to disclosure of medical information relating to members of petitioners’ family who are not parties to this litigation.

OTT and SCHOONOVER, JJ., concur.


author: GULOTTA, Judge.

text:
    Robert C. McINTYRE, Individually, and as Administrator of the Estate of his Minor Son, William L. McIntyre, II v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and Miriam Cavanaugh.
    No. 12732.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied May 19, 1982.

      Liskow & Lewis, Joe B. Norman, New Orleans, for plaintiff-appellant.
    Hammett, Leake & Hammett, Herbert B. Bowers, III, New Orleans, for defendants-appellees.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   GULOTTA, Judge.

Plaintiff’s suit individually for property-related damage and out-of-pocket medical expenses and on behalf of his minor child for pain, suffering and lost wages sustained in an intersectional automobile accident was dismissed by the trial judge.

The accident occurred in New Orleans on May 17, 1980, at approximately 11:00 a. m., when sixteen-year-old William L. McIntyre, II, driving his father’s automobile in an uptown, westerly direction on Magazine Street, struck the right front headlight of Miriam Cavanaugh’s car with the left rear of his vehicle at Robert Street. Cavanaugh had been traveling on Robert Street in a northerly, lake direction, and, after stopping for a stop sign, was making a left turn onto Magazine Street. At impact, she was stopped in the middle of Magazine Street with the front of her car protruding two feet into McIntyre’s lane of travel. After the initial impact, the McIntyre car struck a parked vehicle on the lakeside of Magazine, hit an oncoming automobile, and slid approximately 30 feet, before coming to rest against another parked car on the riverside of Magazine.

The trial judge in oral reasons stated in pertinent part:

“... the Court is satisfied that if plaintiff was not entirely negligent, he certainly was contributorily negligent.”

The judge went on to observe that the McIntyre vehicle “... apparently was going at a terrific rate of speed when he ended by hitting four other automobiles before stopping.” Plaintiff’s suit was dismissed.

Appealing, plaintiff claims the trial judge erred in finding his son contributorily negligent; alternatively, if indeed his son was negligent, then plaintiff contends his recovery individually is not barred for property damage, related expenses and out-of-pocket medical expenses. Plaintiff further argues defendants are not entitled to a credit of one-half of those expenses in contribution from plaintiff because they failed to assert timely the affirmative defense of contribution.

Defendants, on the other hand, argue that Cavanaugh was neither negligent nor concurrently negligent and therefore not a joint tort feasor; that the negligence of the driver is imputed to the plaintiff-father thereby barring his recovery to out-of-pocket expenses and property damage; and finally that defendants are not barred from entitlement to contribution from plaintiff because of their failure to plead contribution affirmatively in the trial court.

NEGLIGENCE

A motorist on an unfavored street burdened with a stop sign not only has the duty to stop in obedience to the sign, but also to remain stopped until he has ascertained that he can proceed safely. See Clements v. Allstate Ins. Co., 383 So.2d 1375 (La.App. 4th Cir. 1980), writ denied, 385 So.2d 793 (La.1980); Duchmann v. Allstate Ins. Co., 389 So.2d 896 (La.App. 4th Cir. 1980). Furthermore, a motorist attempting to make a left turn onto a favored thoroughfare is required to ascertain that the way is clear and that the turn can be safely made without endangering or becoming endangered by overcoming or oncoming traffic. Morrison v. Edwards, 323 So.2d 838 (La.App. 4th Cir. 1976), writ denied, 328 So.2d 167 (La.1976).

The evidence is undisputed that although Cavanaugh stopped for the stop sign on Robert Street, she entered the favored right-of-way without exercising proper care. Mrs. Cavanaugh testified that before entering Magazine Street she had looked to her right, had seen the plaintiff more than a block away, had looked to her left, had seen an automobile approaching from that direction, and had again looked to the right and realized that plaintiff, approximately one block away, was traveling at an excessive rate of speed. She clearly left a position of safety when she either knew or should have known of the impending danger of the excessively speeding plaintiff vehicle. Her testimony was that she recognized the excessive speed after seeing plaintiff’s automobile the second time and immediately stopped in the middle of Magazine Street. We conclude under these circumstances Cavanaugh was negligent.

We likewise conclude, as did the trial judge, that the driver of the plaintiff vehicle was contributorily negligent. Although William McIntyre testified that he was traveling at a speed between 30 and 35 miles per hour, Richard Black, the driver of an oncoming automobile on Magazine, testified that McIntyre was traveling “at least” 40 miles per hour before the collision. Black’s testimony corroborated Mrs. Cava-naugh’s statement that McIntyre was speeding. Furthermore, the path of plaintiff’s vehicle subsequent to initial impact with the Cavanaugh automobile supports a finding of excessive speed. Moreover, McIntyre first saw the Cavanaugh vehicle about 40 or 50 feet away. Under the circumstances, the excessive speed of the McIntyre vehicle was a legal cause of the accident, and the trial judge properly denied recovery for William McIntyre’s injuries and pain and suffering.

IMPUTATION OF NEGLIGENCE

The more perplexing problem is whether the minor’s negligence is imputed to the plaintiff-father thereby denying him recovery of the cost of automobile repairs, automobile rental expenses, medical expenses incurred and emergency transportation service. In a case similar to the instant one, Scott v. Behrman, 273 So.2d 661 (La.App. 4th Cir. 1973), we stated:

“Nevertheless, the minor’s concurrent causative negligence is not the equivalent of contributory negligence on the part of her father. The father is made vicariously ‘liable’ for damages caused by his minor’s negligence by C.C. art. 2318; but the minor’s negligence is not thereby ‘imputed’ to the father, at least not as between father and minor or, specifically, minor’s insurer, Deshotel v. Travelers Indent. Co., 257 La. 567, 243 So.2d 259 (1971).”

We concluded in Scott that the minor’s negligence did not bar the father’s recovery for his property damage where the minor driver was a joint tort feasor. Likewise, in Knotts v. State, Dept. of Highways, 395 So.2d 419 (La.App. 3d Cir. 1981) writs denied, 400 So.2d 669 (La.1981), our brothers on the Third Circuit reached the same conclusion, citing Scott as authority. We are aware however, of Gaudet v. G.D.C., Inc., 383 So.2d 1289 (La.App. 1st Cir. 1980), writ denied, 385 So.2d 256 (La.1980), where our other brothers in the First Circuit have reached a different result. Nonetheless, except for this writ denial, we are not aware of any decisions of the Louisiana Supreme Court supporting Gaudet when squarely confronted with this question. Moreover, writs were also denied in Knotts, supra, which is consistent with our result in Scott. We are in accord with the Scott decision in this court, and conclude, based upon that decision, that the minor’s negligence does not bar the plaintiff-father’s recovery for his property damage and out-of-pocket expenses.

In connection with the amount of damages to plaintiff’s automobile, Paul Clement, an automobile damage appraiser for Rosenbush Claim Service, testified that he had made an estimate and itemized the damage to the automobile for Cavanaugh’s insurer at $3,029.79. This amount was in accordance with an exhibit of the estimate introduced into evidence. Although the exhibit further states “total loss” and plaintiff seeks recovery of $4,229.40, apparently for total loss, we find no evidence in the record supporting the value of plaintiff’s automobile as a total loss. Under the circumstances, we conclude plaintiff is entitled to recovery for property damage in the sum of $3,029.79.

Concerning the medical expenses, the stipulated exhibits indicate a total of $750.50, less a $35.00 credit. The amount sought in the petition, as amended, however, totals $515.50. Because the testimony of plaintiff is silent of any explanation regarding the discrepancy and because of the allegations of the petition, we limit recovery of plaintiff’s medical expenses to the sum of $515.50. Furthermore, because we find no evidence regarding expenses for automobile rental and emergency transportation service, we conclude that plaintiff is not entitled to recover for those claimed expenses.

Finally, we reject defendants’ contention that the minor’s contributory negligence entitles defendants to contribution from plaintiff for one-half of plaintiff’s out-of-pocket expenses and property damage. It is true, as pointed out by defendants, that the right of contribution by a joint tort feasor who is vicariously liable for his minor’s tort was recognized by this court in Scott v. Behrman, supra. See also, LSA-C.C. Art. 2103. Contribution may be asserted in answer and réconvention, by way of a third-party demand or by a subsequent action. See Thomas v. W. W. Clarklift, Inc., 375 So.2d 375 (La.1979); Scott v. Behrman, supra; and, Guidry v. Kem Mfg. Co., 598 F.2d 402 (5th Cir. 1979). However, in this case defendants did not plead contribution in the trial court, make any third-party demand seeking contribution, or appeal or answer the appeal to raise the issue. We therefore cannot award contribution under these circumstances.

DECREE

Having so concluded, we affirm that part of the judgment dismissing plaintiff’s suit as administrator of the estate of his minor son for injuries, pain and suffering sustained by the minor. We reverse and set aside that part of the judgment dismissing plaintiff’s suit individually for recovery of property damage to his automobile and medical expenses incurred on behalf of the minor. Judgment is now rendered in favor of plaintiff in the sum of $3,545.29, with interest from date of judicial demand and costs.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . According to the testimony of Richard Black, the driver of the oncoming automobile.

      . In the writ denials in both Gaudet and Knotts, the Supreme Court only stated “Writ denied” and “Denied” respectively.

      . Robert McIntyre testified the automobile was a 1976 Toyota purchased for $5,300-$5,400. There was no testimony concerning the value at the time of the accident.

      . LSA-C.C. Art. 2103 provides as follows:
      “Art. 2103. Liability of debtors among themselves.
      When two or more debtors are liable in soli-do, whether the obligation arises from a contract, a quasi contract, an offense, or a quasi offense, it should be divided between them. As between the solidary debtors, each is liable only for his virile portion of the obligation.
      A defendant who is sued on an obligation which, if it exists, is solidary may seek to enforce contribution, if he is cast, against his solidary co-debtor by making him a third party defendant in the suit, as provided in Article 1111 through 1116 of the Code of Civil Procedure, whether or not the third party defendant was sued by the plaintiff initially, and whether the defendant seeking to enforce contribution if he is cast admits or denies liability on the obligation sued on by the plaintiff.”
      This Codal article was amended by Act 1979, No. 431, effective August 1, 1980. Because this accident occurred on May 17, 1980, the article prior to the most recent amendment is applicable.

      . This amount includes $3,029.79 for property damage and $515.50 for medical expenses claimed.


author: BARRY, Judge.

text:
    John J. DEE, III, on behalf of/and Marion B. Dee v. REPUBLIC PETROLEUM CORPORATION, Empire Land Corporation, American Oil Company and XYZ Insurance Company.
    No. 12776.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied May 19, 1982.
    Bienvenu, Foster, Ryan & O’Bannon, Hugh M. Glenn, Jr., New Orleans, for defendant-appellee.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, Madison C. Moseley, Harry P. Gamble, Jr., New Orleans, for defendant-appellant.
    Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., Roma R. Caramani-ca, New Orleans, for defendants-appellees.
    Before BARRY, BYRNES and WARD, JJ.
   BARRY, Judge.

This appeal involves third party demands that arose out of a lawsuit for personal injuries. Carrollton Lumber and Wrecking Company, Inc. was made a third party defendant because of its alleged negligence in demolition of a gasoline station. Carrollton filed third party petitions against the insurance companies covering its operations in 1973 (when the demolition occurred) and in 1978 (when the accident occurred). During the demolition Bellefonte Insurance Company was the primary insurer with Motor Vehicle Casualty Company and Providence Washington Insurance Group and National Fire & Marine Insurance Company the excess liability carriers.

Bellefonte filed a motion for summary judgment because the accident did not occur during its policy period. The two excess carriers also asked for summary judgments since their policies incorporated by reference the terms of the Bellefonte policy and their coverage had also terminated pri- or to the accident.

The District Court granted summary judgment in favor of the primary and excess carriers. Carrollton appeals urging there is an unresolved issue of fact because the policy submitted in the record by Belle-fonte is different from the policy Bellefonte issued to Carrollton and the excess carriers and there should be a determination of possible fraud. Carrollton agrees, however, if summary judgment is appropriate for Belle-fonte it should also be granted to the excess carriers.

The only issue before us is whether the policy differences affect coverage of the plaintiff’s claim, and if so, is Carrollton entitled to pursue the question of fraud. Carrollton asserts the policy it received from Bellefonte is identical to the one National submitted with its motion for summary judgment, but the policy Bellefonte presented is different. Basically, Carrollton argues that the policy changes were made without notice and might constitute fraud and summary judgment is inappropriate because all doubt must be resolved in favor of the opposition to summary judgment.

The pertinent difference between the policies is the deletion of coverage for “completed operations” under “all written contracts” (on page 8 of each policy) and its replacement with “contractural liability” coverage for “all written contracts” (on page 10) which specifically excludes liability under a warranty of work performed (on page 11 under definitions). The replacements on pages 10 and 11 were not a part of Carrollton’s or National’s policies. Belle-fonte made the changes by an endorsement less than two months after its policy was in effect.

We fail to see any significance in changing the coverage for “completed operations” under “all written contracts” and its replacement with “contractural liability” coverage for “all written contracts.” Carroll-ton purchased coverage for its operations on this particular demolition job with a policy period beginning September 23, 1973 and ending September 23, 1974. Appellees argue, and we agree, that the coverage was under an “occurrence policy.”

The general liability portion of Belle-fonte’s policy provides:

“The company will pay the insured all sums which the insured shall become legally obligated to pay because of
A. bodily injury or
B. property damage to which this insurance applies, caused by an occurrence

and the policy defines “occurrence” as:

“... an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor in-. tended from the standpoint of the insured.” (emphasis added)

We feel the differences in the policies are immaterial as to plaintiff’s claim because the above provisions are part of Carrollton’s policy and our only concern is whether that policy provides coverage for the accident. Clearly, the unambigious language quoted above limits coverage to occurrences “during the policy period.” Appellees cite Oceanonics, Inc. v. Petroleum Distributing Company, 292 So.2d 190 (La.1974) which also considered an “occurrence policy” and the court held that coverage was excluded because the accident happened after the policy had expired.

There is no question that a liability insurance policy can exclude coverage for damages arising from an occurrence after the policy period, although the delictual act which gave rise to the occurrence took place during the policy period. See Oceanonics, supra. Carrollton purchased its policy for a specific period and its alleged negligence was excluded from coverage where the “occurrence” happened approximately five years after the policy period.

Our conclusion is that at the time of plaintiff’s alleged injury no coverage was provided to Carrollton by Bellefonte or the excess insurers and the decision of the District Court is affirmed with appellant to pay all costs of this appeal.

AFFIRMED.


author: WILLIAMS, Judge.

text:
    Willie JONES v. John THOMAS, the Audubon Park Commission, Puritan Insurance Company and the City of New Orleans.
    No. 12705.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied May 19, 1982.
    Gregory P. DiLeo and A. J. Capritto, New Orleans, for plaintiff-appellant.
    Henry W. Kinney, III, New Orleans, for defendants-appellees.
    James Hanemann, Jr., New Orleans, for defendant-appellee.
    Before GARRISON, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment dismissing the plaintiff’s petition based on exceptions of no cause and no right of action as to two of the defendants and a motion for summary judgment as to a third defendant.

The following facts were alleged in the plaintiff’s original petition and his amended and supplemental petition: The plaintiff and defendant John Thomas were employees of the City of New Orleans [hereinafter referred to as “City”] working at Audubon Park for the Audubon Park Commission [hereinafter referred to as “APC”]. The APC is an agency of the City. On October 22, 1980, defendant Thomas attacked the plaintiff resulting in injuries to the plaintiff’s head.

The plaintiff filed suit against Thomas, the City, and Puritan Insurance Co. [hereinafter referred to as “Puritan”], the City’s insurer. The plaintiff later added the APC and its unnamed insurer as defendants to the action. The petition alleged that the City and the APC were liable to the petitioner in tort under the doctrine of respon-deat superior.

Defendant Puritan filed a motion for summary judgment and a peremptory exception of no right of action, asserting that the Comprehensive General Liability Insurance Policy it had issued to the APC expressly excluded coverage for workers’ compensation which was the plaintiff’s exclusive remedy in this ease. The APC and the City filed exceptions of no cause of action and no right of action on the basis that the plaintiff was precluded from bringing an action based in tort because his exclusive remedy was workers’ compensation. After oral argument, the trial court granted the exceptions of no cause of action brought by the City and the APC, and overruled the exception of no right of action brought by Puritan. The trial court later granted the motion for summary judgment brought by Puritan dismissing it from the suit. At an even later date, the trial court granted the exceptions of no cause of action brought by the City and the APC.

The question presented by the instant case is whether workers’ compensation is the exclusive remedy against an employer of an employee injured by an intentional tort of a co-employee.

In 1976, the workers’ compensation suit was amended to provide:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under other statute or the liability, civil or criminal, resulting from an intentional act. The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

La.R.S. 23:1032 as amended by Act 147 of 1976. This question is one of first impression in this circuit since the statutory amendment of 1976. The plaintiff urges that the amendment should be read so as to allow an employer to be sued in tort by an employee who has been intentionally harmed by a co-employee. The plaintiff also argues that recent jurisprudence supports such a construction of the statute.

The decision upon which the plaintiff principally relies is Bazley v. Tortorich, 397 So.2d 475 (La.1981). In Bazley, the Louisiana Supreme Court upheld the constitutionality of La.R.S. 23:1032, as amended, as it precludes suits by employees seeking to recover from certain persons for work related injuries. In Bazley, an employee who was injured because of the negligence of a co-employee, sought to have the amended statute declared unconstitutional because it precluded him from bringing suit against his co-employee in tort and provided that workers’ compensation was his exclusive remedy. The Louisiana Supreme Court outlined the changes brought about by the amendment as follows:

“Formerly, the workers’ compensation statute provided that compensation was an employee’s exclusive remedy against his employer for a compensable injury, leaving him free to pursue other remedies against third persons. The amendment modified the exclusive remedy rule in two respects. First, it provided that for an unintentional injury compensation shall be the exclusive remedy, not only against the employer, but also against any principal, officer, director, stockholder, partner or employee of the employer or principal who was engaged at the time of the injury in the normal course and scope of his employment. Second, it provided that for an intentional act resulting in com-pensable injury the employee may exercise his right under the compensation act and pursue any other remedy available against the employer and other persons under general law.”

Id. at 479 [footnote omitted].

The Supreme Court also held: “[W]e construe the legislation under review as providing that the exclusive remedy rule shall be inapplicable to intentional torts or offenses.” Id. at 482.

The plaintiff argues that these two statements demonstrate the intent of the court to hold specifically that an employer may be sued in tort in situations such as the one presented in this ease. We do not agree.

The 1976 amendment was designed to minimize the potential liability of executive officers from suits brought outside of the scope of workers’ compensation. Before this amendment was enacted, executive officers were not immune from tort suits based upon injury to an employee because of negligence of a co-employee. E.g. Berry v. Aetna Cas. & Surety Co., 240 So.2d 243 (La.App. 2d Cir. 1970). As the court in Bazley noted, the legislature specifically chose to provide that compensation should not be the exclusive remedy in cases of injury caused by intentional acts, thereby imposing sanctions for intentional wrongdoings. 397 So.2d at 480, citing La.H.R.Off. Journal, H.B. 354 at p. 20 (June 4, 1976).

We are aware that the Third Circuit Court of Appeal recently has decided that an employer is liable in tort for intentional harm inflicted on an employee by a co-employee. Rennier v. Johnson, 410 So.2d 1149 (La.App. 3d Cir. 1982). We feel, however, that the better construction of this amendment would be to allow an employee to sue a co-employee in tort for an intentional harm, but not the employer if the employer’s only liability were vicarious, e.g., based on a theory of respondeat superior. If, however, the employer committed the intentional tort personally or caused it to be committed, then workers’ compensation should not be the exclusive remedy of the injured employee and in this instance the employer should be subject to a “fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.” La.R.S. 23:1032; cf. Miller v. Keating, 349 So.2d 265 (La.1977). (corporation president conspired to kill the plaintiff, former vice president of the company).

Not only does a common sense reading of this statute indicate that this is the proper construction, but the majority of commentators also indicate that this is the correct approach. The rationale of this construction is that an intentional tort committed by an employee on a co-employee without the knowledge or consent of the employer is an “untoward happening or event” and should be considered an accident. The injured employee’s exclusive remedy, therefore, would be compensation. W. Malone & A. Johnson, Workers’ Compensation § 365 in 14 La.Civ.L. Treatise 165 (2d ed. 1980). See also A. Larson, 2 Larson’s Workmen’s Compensation § 68.00 at 13-21 (“[w]hen the intentional injury is committed by a co-employee the better rule is that an action in damages will not lie against the employer merely because the co-employee occupied supervisory status in relation to the claimant”); and § 68.00 at 13-2 (“It is well established that deliberate assault upon an innocent employee by some third person or co-employee is an ‘accidental injury,’ and therefore compensable.”)

The amendment enacted in 1976 does not disturb the prior jurisprudence that held that the injured employee was limited to recovery under the compensation statute. Johnson & Malone, supra, at 165. The decision of the trial court dismissing the plaintiff’s action for damages against the defendants was correct.

For the foregoing reasons, the judgment of the trial court is AFFIRMED.

AFFIRMED.

      . Although the plaintiff does not state in his petition the underlying cause of the incident, all parties, in briefs to this court, acknowledge that the plaintiff was attacked during a dispute with Thomas over “break times”.