author: COBB, Judge.

text:
    Thomas Patrick CARRAHER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1038.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

Carraher appeals his conviction and sentence for aggravated assault on the ground that he had been insolvent at the time of trial and had been denied his request for appointed trial counsel. Upon appealing, Carraher was appointed appellate counsel.

Since no record had been made of the insolvency hearing, this court relinquished jurisdiction to the trial court for forty-five days so that the trial court could conduct an evidentiary hearing and make findings of fact on the record regarding Carraher’s claim of prior indigency.

The trial court held the evidentiary hearing and supplemented the appellate record with the transcript of it. However, Carraher’s appellate counsel was not notified of the hearing and apparently was not allowed to participate in it. Therefore, Carraher has moved for this court to order a second hearing at which his counsel will have the opportunity to appear.

The hearing, from which Carraher’s appellate counsel was excluded, was not a nunc pro tunc hearing. It was part of the appellate process. If Carraher had been able to hire private appellate counsel and had done so, that counsel would have been entitled to notice of any appellate proceedings. Likewise, Carraher’s appointed appellate counsel was entitled to notice and the right to appear at the evidentiary hearing that this court ordered. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Edge v. Wainwright, 347 F.2d 190 (5th Cir. 1965), cert. denied, 385 U.S. 953, 87 S.Ct. 335, 17 L.Ed.2d 231 (1966).

Accordingly, we grant the motion for a second evidentiary hearing and again relinquish jurisdiction to the trial court for forty-five days so that the trial court can conduct a properly noticed evidentiary hearing and make findings of fact on the record regarding Carraher’s claim of prior indigen-cy-

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.


source: Caselaw Access Project

author: COWART, Judge.

license: Public Domain

text:
    Nathaniel BARTEE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1150.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1981.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Edward M. Chew and Edwin H. Duff, III, Asst. Attys. Gen., Daytona Beach, for ap-pellee.
   COWART, Judge.

Stopped by a police officer while driving a motor vehicle, appellant gave the officer a driver’s license. The officer issued a uniform traffic citation charging appellant with “unlawful use of license,” a violation of section 322.32, Florida Statutes (1979). Section 322.32 defines a statutory misdemeanor offense entitled “unlawful use of license,” and describes many prohibited acts including:

(1) To display, cause or permit to be displayed, or have in his possession, any cancelled, revoked, suspended, fictitious or fraudulently altered operator’s or chauffeur’s license.
***** *
(3) To display, or represent as one’s own, any operator’s or chauffeur’s license not issued to him.

Appellant pled nolo contendere to that misdemeanor charge in the county court and was adjudicated guilty and sentenced to ten days in jail.

Thereafter, based on the same event upon which the misdemeanor charge was based, the State filed an information in the circuit court charging appellant with the felony violation of section 322.212, Florida Statutes (1979), by knowingly having in his possession a blank, forged, stolen, fictitious, counterfeit or unlawfully issued operator’s license. Citing London v. State, 347 So.2d 639 (Fla. 4th DCA 1977), the trial court denied appellant’s motion under Florida Rule of Criminal Procedure 3.190(b) to dismiss the information on double jeopardy grounds. We reverse.

Article I, Section 9, of the Constitution of the State of Florida, provides that “no person shall ... be twice put in jeopardy for the same offense. ...”

Most problems under this constitutional provision relate to if, when, how and why “jeopardy” attaches; some involve the word “twice”; others, as here, involve the meaning of “same offense.” These latter words may raise two basic questions: (1) whether a particular factual circumstance constitutes one or two separate and distinct factual events (an identity of acts); (2) whether certain statutory crimes, in form or in substance, constitute the “same offense” or constitute two separate and distinct offenses. Time, space and transactional aspects of factual events may raise questions as to whether or not, as a factual matter, one or two separate and distinct acts are involved. Such questions may inhere in the facts themselves or in the description of the facts as alleged in a charging document. There is no such factual problem in this case because we are concerned only with a single factual event, being the one time on March 25, 1980, when appellant gave (or displayed) a driver’s license to one police officer.

The double jeopardy problem in this case involves the legal question of what is in law a separate and distinct legal offense. This question most frequently relates to the legal relationship between greater and lesser included offenses, however here the question is the relationship between two separate statutory offenses. When a single statutory offense describes multiple alternative acts, each of which is prohibited, each separate prohibited act does not constitute a separate offense for double jeopardy purposes since there is but one statutory offense. Therefore a charge that an accused has violated a specific criminal statute results in jeopardy as to all alternative acts that could have been alleged and proved to have constituted a violation of the statute although the accusato-rial pleading described but one of many alternative factual events proscribed in the one statute. Thus if one is tried for aggravated battery by committing a battery with a deadly weapon, § 784.045(l)(b), Fla.Stat. (1979), and is convicted or acquitted, he cannot thereafter be tried as to the same factual event for aggravated battery by committing a battery causing great bodily harm. § 784.045(l)(a), Fla.Stat. (1979). The alternative prohibited factual events set forth as subsections or alternatives in one criminal statute, constitute but one offense for which an accused cannot be twice placed in jeopardy because the legislature has chosen as a matter of form to make several distinguishable acts violative of but one statutory offense. Conversely, if two separate statutory offenses proscribe acts which are in law the same because they have the same essential constituent factual elements, an accused cannot be placed in jeopardy for a violation of both such statutes because in substance they constitute a single offense — the “same offense” — for which one cannot be placed twice in jeopardy-

By the first misdemeanor charge under section 322.32, Florida Statutes, petitioner was placed in jeopardy of conviction and punishment for an offense which could have been established by proof that petitioner displayed or possessed a fictitious operator’s license. Therefore he cannot again be placed in jeopardy of conviction for an offense under section 322.212, Florida Statutes for knowingly having in his possession a fictitious operator’s license. Accordingly, because a single set of facts, i. e., the knowing possession of a fictitious operator’s license, is sufficient to violate both section 322.32 and section 322.212, Florida Statutes, a person once put in jeopardy of a violation of either statutory offense cannot also be placed in jeopardy of conviction or punishment for the other statutory offense based on the same factual event. Therefore, appellant’s conviction and sentence for violation of section 322.-212, Florida Statutes, is

REVERSED.

COBB and SHARP, JJ., concur.

      . A notice to appear under Florida Rule of Criminal Procedure 3.125 or a uniform traffic citation under section 316.650, Florida Statutes (1979) (see Fla.R.Crim.P. 3.125(i)) which, as in this case, essentially charges only that an accused violated a state statute or municipal ordinance described by name or title of the offense and the section number is barely sufficient, if at all, as a charging document. See Florio v. State, 192 So.2d 289 (Fla.3d DCA 1966). Such a charging document should be subject to a motion for a statement of particulars, Fla.R. Crim.P. 3.140(n), or a motion to dismiss, Fla.R. Crim.P. 3.190(b), such as for double jeopardy, Fla.R.Crim.P. 3.190(c)(2), or because the charging document exposes the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense. Fla.R. Crim.P. 3.140(o). Florida Rule of Criminal Procedure 3.140(n) should apply to such minimal charging documents although references to trial by affidavit was deleted by the 1972 amendment to the Florida Rules of Criminal Procedure (see 272 So.2d 65 at 88-89) immediately before the criminal rules were amended to authorize prosecutions in county courts for violation of municipal ordinances by affidavit or docket entry (see 272 So.2d 513 at 514) and before the adoption in 1973 of Florida Rule of Criminal Procedure 3.125. Florida Rule of Criminal Procedure 3.140(n) and certain other rules (particularly including Florida Rule of Criminal Procedure 3.220 relating to discovery) should be amended to expressly also relate to prosecutions on less formal charging documents upon which one can now be charged under Florida Rule of Criminal Procedure 3.140(a)(2). However, failure of an accused to attack a prior charging document, or to narrow the scope of its jeopardy, does not constitute a waiver ef the right to urge constitutional limitations as to a subsequent charge for the same offense.

      . London took contraband into a prison and was charged with possession of the contraband under one statute, § 893.13, Fla.Stat. (1975), and with its introduction into a correctional facility under another statute, § 944.47, Fla. Stat. (1975). While there, as here, two different statutes were involved, each statute there contained an element not contained in the other. One can “introduce” contraband into a facility without being in possession of the contraband such as when the accused, himself a prisoner, arranges for a second person, outside, to send the contraband to a third person in prison. Cf. Portee v. State, 392 So.2d 314 (Fla.2d DCA 1980) (accused can be convicted for both possession and sale of marijuana).

      . The fifth amendment to the Constitution of the United States contains a similar provision that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. However, some justices on the U. S. Supreme Court believe that court’s opinions relating to double jeopardy are confusing and inconsistent because of shifts in assumptions and emphasis and split opinions. See Whalen v. U. S., 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and the dissent therein.

      . E. g., whether multiple factual events, such as repeated blows or knife stabbings, constitute separate offenses or but one offense in the aggregate, may depend on whether they are different in quality or are sufficiently separated by time or place to be different factual events and therefore “separate and distinct” offenses in fact. See, e. g., Johnson v. State, 366 So.2d 418 (Fla.1978); Walker v. State, 386 So.2d 630 (Fla. 5th DCA 1980); Bass v. State, 380 So.2d 1181 (Fla. 5th DCA 1980); Hearns v. State, 378 So.2d 70 (Fla.3d DCA 1979). As to whether the taking at one time of multiple objects owned by various persons constitutes a single larceny offense or multiple offenses, see Hearn v. State, 55 So.2d 559 (Fla.1951).

      . This appears to be the concern of Florida Rule of Criminal Procedure 3.140(o) which provides for dismissal of a count of an indictment or information that is so vague, indistinct and indefinite as to expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

      . If set forth in separate statutes, so as to be separate “offenses,” many of the alternative prohibited factual events in many statutes (such as the aggravated battery statute, § 784.-045(1), Fla.Stat. (1979)) would require proof of a fact not necessary to proof of some other prohibited factual event and therefore each statute would be sufficiently distinguishable from the other as to constitutionally permit separate and multiple punishment under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . Although section 322.32, Florida Statutes, does not expressly require that the prohibited possession be “knowingly,” nevertheless, since the criminal law does not punish for innocent possession and absolute or strict liability is not applied in criminal law, scienter or guilty knowledge is an understood and essential element of any such criminal possession offense. Knowingly refers only to the state of mind of an accused and means only the possession, actually or imported, of information concerning certain facts and does not require a specific intent to violate the law.


author: SHARP, Judge.

text:
    David Richard RUBASKY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1291.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

In this timely appeal of a criminal judgment and sentence, the sixteen (16) year old appellant charges error in the electronic media coverage of his trial, the denial of his motion to suppress his confession, and the imposition of adult sanctions. We disagree with all three arguments and affirm the judgment and sentence.

Appellant was charged by indictment for the offenses of attempted first degree murder and involuntary sexual battery. The jury found him guilty of both offenses. The trial court adjudicated appellant and subsequently sentenced him to imprisonment for nineteen (19) years for attempted first degree murder and thirty (30) years for involuntary sexual battery, both terms to be served consecutively and with credit for time previously served.

Appellant expressly reserved the issue of electronic media coverage of his trial in the event that the United States Supreme Court reversed Chandler v. State, 376 So.2d 1157 (Fla.1979). However, appellee correctly notes that on January 26, 1981, the Supreme Court affirmed the Chandler decision. Chandler v. Florida, - U.S. ——, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981). Therefore, appellant’s first argument is moot.

Prior to trial appellant moved to suppress a confession he made after being advised of his constitutional rights at a juvenile detention center. The trial court denied the motion and overruled appellant’s renewed objection after determining that the totality of the circumstances showed appellant voluntarily waived his right to remain silent and to consult an attorney. Although the tape and transcript of the interrogation and confession were not included in the appellate record, the trial court’s determination is supported by competent evidence in the transcript of the suppression hearing and we reject appellant’s second argument. See State v. F. E. J., 399 So.2d 47 (Fla. 5th DCA 1981).

Appellant also argues that his sentence is an adult sanction imposed without consideration of the criteria included in section 39.111(6)(c), Florida Statutes (1979). However, appellant did not raise this objection before the trial court and therefore we will not consider the merits of this procedural question. See Jones v. State, 384 So.2d 956 (Fla. 5th DCA), cert. denied, 392 So.2d 1375 (Fla.1980); Smith v. State, 378 So.2d 313 (Fla. 5th DCA), approved, 394 So.2d 407 (Fla.1980). Accordingly the judgment and sentence are affirmed without prejudice to appellant’s right to seek appropriate relief, e. g., through Florida Rule of Criminal Procedure 3.850. See Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981); Smith v. State, supra.

AFFIRMED.

COBB and COWART, JJ., concur.

      . Other appellate courts are divided on the issue of applying the sentencing procedures in section 39.111, Florida Statutes (1979) to juveniles who have been charged by indictment. See Stancil v. State, No. 80-2008 (Fla. 2d DCA May 27, 1981); Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980); Schroeder v. State, 391 So.2d 260 (Fla. 4th DCA 1980); Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980). This question has been certified by the First District Court, Goodson v. State, No. 59,864 (Fla., filed Oct. 27, 1980), and was argued before the Florida Supreme Court on March 4, 1981.


author: MOORE, Judge.

text:
    Karen HOLMES, Appellant, v. Charles Douglas COOLMAN, Appellee.
    No. 79-2410.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1981.
    Karen Holmes of Zamer & Holmes, Oakland Park, for appellant.
    John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale, for appellee.
   MOORE, Judge.

The appellant was adjudged guilty of contempt and was sentenced to serve 60 days in the Palm Beach County Jail. Provisions for purging herself of the contempt were provided in the order. She appeals the adjudication of contempt. We reverse.

The marriage of the parties to this appeal was dissolved in 1975. Incorporated in the final judgment of dissolution is a property settlement agreement which awards custody of the two minor children of the parties to the appellee. It allows the appellant “liberal reasonable rights of visitation.” In 1979, the parties executed an addendum to the agreement delineating in more detail the manner in which the visitation rights were to be exercised. The record does not reflect that the addendum was ever presented to the court, nor was it ever incorporated in any court order. Yet, it is the addendum which the appellant allegedly violated, causing the adjudication of contempt. The issue before us is whether the appellant can be held in civil contempt for violating a private agreement. We hold that she cannot.

The purpose of punishment in civil contempt proceedings is to compel compliance with a court order for the benefit of the opposing party. See, In Re: Tierney, 328 So.2d 40, 46 (Fla. 4th DCA 1976). The punishment is conditioned upon the continued failure to comply with the court order. Here there was no court order; thus, there could have been no failure to comply.

Where no order which the alleged con-demnor has disobeyed appears in the record, an adjudication of contempt, and the sentence thereon, cannot stand. Gilman v. Altman, 300 So.2d 703 (Fla. 3d DCA 1974). Accordingly, the order adjudging the appellant in contempt of court is reversed.

GLICKSTEIN and HURLEY, JJ., concur.


author: PER CURIAM.

text:
    Betty FASANO, Appellant, v. DIEBOLD, INC., Appellee.
    No. 80-929.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1981.
    John R. Young of Hamilton, James, Mer-kle and Young, West Palm Beach, for appellant.
    Robert McIntosh and Deborah C. Poore of Fleming, O’Bryan & Fleming, Fort Laud-erdale, for appellee.
   PER CURIAM.

The only point raised in this appeal from a judgment entered upon a jury verdict for the defendant in a personal injury action challenges the trial court’s refusal to permit the plaintiff to call a rebuttal witness. See Reeder v. Edward M. Chadbourne, Inc., 338 So.2d 271 (Fla. 1st DCA 1976); Driscoll v. Morris, 114 So.2d 314 (Fla. 3d DCA 1959). We do not address the merits of the contention because we are convinced that the error, if any, was harmless. Section 59.041, Florida Statutes (1979).

AFFIRMED.

LETTS, C. J., GLICKSTEIN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    In re the ESTATE OF Max SOLNIK, Deceased.
    No. 80-2229.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1981.

      Murray S. Kaplan of Stierer, Amendola & Kaplan, West Palm Beach, for appellant.
    Kenneth H. Renick, Lake Worth, for ap-pellee.
   SCHWARTZ, ALAN R., Associate Judge.

The trial court held, in entering judgment on the pleadings for the decedent’s daughter, that the appellant-widow’s elective share does not extend under Section 732.206, Florida Statutes (1979), to joint savings accounts with rights of surviv-orship he established in the names of himself and the daughter pursuant to Section 665.063(1), Florida Statutes (1979). Since this property was plainly not “subject to administration” as provided by Section 732.-206, this ruling was entirely correct. See Adams v. Board of Trustees of Internal Improvement Fund, 37 Fla. 266, 20 So. 266, 278 (1896); 31 Am.Jur.2d Executors & Administrators §§ 1, 193 (1967). The widow’s contention that her share should be computed on the basis of including such non-pro-batable assets is belied by the legislature’s specific rejection of Sections 2-201 and 2-202 of the Uniform Probate Code, which would have so provided, see Fenn and Koran, The 1974 Florida Probate Code, 27 U. of Fla.L.Rev. 1, 36-37, and is unacceptably contrary to the unambiguous statutory language it eventually chose instead.

AFFIRMED.

LETTS, C. J., and GLICKSTEIN, J., concur.

      . 732.206 Property entering into computation. —The elective share shall be computed by taking into account all property of the decedent wherever located that is subject to administration except real property not located in Florida,


text:
    Melvin T. GOLDBERGER and Dean Moses, Appellants, v. Bernice ROEHNER and Earl Worsham, Appellees.
    No. 80-1377.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1981.
    Curtis G. Levine of Baskin & Sears, Boca Raton, for appellant.
    James C. Brady, Fort Lauderdale, for Ap-pellee-Roehner.
   PER CURIAM.

Defendants below appeal from an order substituting as party plaintiff the assignee holder of their promissory note. We do not have jurisdiction to hear this appeal since it is a non-final order from which an interlocutory appeal is not permitted by Florida Rule of Appellate Procedure 9.310. Treating this appeal as a petition for writ of certiorari pursuant to Florida Rule of Appellate Procedure 9.040(c), we find that appellants have an adequate remedy on plenary appeal and therefore, we decline to grant the writ.

AFFIRMED.

MOORE, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Floyd H. ZINK, Sr., Appellant, v. Carol M. ZINK, Appellee.
    No. 80-2147.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1981.
    R. T. Shankweiler, Fort Lauderdale, for appellant.
    Steven J. Gutter of Bofshever, Redlich, Gutter & Moldof, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

This appeal from an amended final judgment of dissolution involves seven points, only one of which is meritorious and requires discussion.

The trial court found that appellee was entitled to $36,700 as a special equity for funding part of appellant’s interest in Gulf Atlantic Mortgage Company. Although we agree that a special equity was appropriate, the record reveals that appellee’s contribution was limited to $18,145.33. Therefore, we reduce the special equity award to $18,-145.33 and affirm the amended final judgment as modified herein.

LETTS, C. J., GLICKSTEIN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Wilson TELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-199.
    District Court of Appeal of Florida, Second District.
    July 22, 1981.
    Jerry Hill, Public Defender, and Kathe Kates Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant raises two points on appeal, only one of which is meritorious. Appellant was charged with two counts of battery while using a deadly weapon. The jury returned a verdict finding appellant guilty of one count of attempted aggravated battery with a deadly weapon and one count of assault. The oral pronouncement of the judgment and sentence reflected these two findings by the jury. However, the written judgment and sentence entered subsequently adjudged appellant guilty of two counts of aggravated battery. As this discrepancy appears to be the result of a scrivener’s error, we remand for correction of the written order so that it may comply with the oral pronouncement. See Sampson v. State, 375 So.2d 325 (Fla.2d DCA 1979).

REMANDED for correction of the written judgment and sentence; otherwise AFFIRMED. Appellant need not be present for this purpose.

GRIMES, A.C.J., and OTT and DAN-AHY, JJ., concur.


text:
    Charles William MACK, Appellant, v. STATE of Florida, Appellee.
    No. 81-1326.
    District Court of Appeal of Florida, Second District.
    July 22, 1981.
   PER CURIAM.

Affirmed without prejudice to file a petition for a habeas corpus pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla. 1970), concerning the allegation that appellant’s state appointed attorney failed to file an appeal.

GRIMES, A. C. J., and OTT and DAN-AHY, JJ., concur.


author: ERVIN, Judge.

text:
    DECOR PAINTING & IOWA MUTUAL INSURANCE COMPANY, Appellant, v. David ROHN, Appellee.
    No. XX-467.
    District Court of Appeal of Florida, First District.
    July 23, 1981.

      Bernard J. Zimmerman & William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Bill McCabe of Shepherd, McCabe & Cooley, and Edward H. Hurt of Hurt & Parrish, Orlando, for appellee.
   ERVIN, Judge.

In this worker’s compensation action, the appellants, employer/carrier, contend that the deputy commissioner (the deputy) erred in adopting the impairment rating given by one of the examining physicians, Dr. Flynn, which was determined without strictly complying with the American Medical Association’s Guides to the Evaluation of Permanent Impairment referred to in Section 440.15(3)(a)3, Florida Statutes (1979). We agree and reverse with instructions.

The claimant broke his ankle in connection with a compensable accident on September 14, 1978. Dr. Reckles, the claimant’s treating physician, performed surgery on the ankle, fixing the fracture and applying bone screws, which were later removed. The parties stipulated that the claimant reached MMI on September 5, 1979.

The central dispute on appeal concerns the deputy’s finding as to the permanent physical disability rate which was determined in the midst of a dispute among three physicians as to how AMA tables 36 and 37 at pages 31 and 32 of the AMA guides should be applied.

Dr. Reckles testified, based on his observation of the claimant’s ankle, that each one of the claimant’s joint ankle motions was not totally restricted. He explained that if the subtalor joint is rigid and not moving one degree, then, and only then is it ankylosed (complete fusion of the joints). He took the position that “ankylosis — for purposes of applying the AMA ankylosis tables — meant loss of motion in all the joints of the ankle.” His ultimate conclusion was that the claimant’s ankle was not ankylosed, just severely restricted. Therefore, he utilized the loss of motion tables, instead of the ankylosis tables and arrived at an impairment rating of 21 percent.

Dr. Flynn, however, took the position that the claimant’s ankle, while not technically ankylosed, was ankylosed for all practical purposes at the subtalor joint. Due to this conclusion, Dr. Flynn partially used the ankylosis tables in arriving at his rating. He combined the restricted motion and an-kylosis tables as follows: First, utilizing the restricted motion tables, he determined that claimant suffered a seven percent disability from a loss of 20 degrees of dorsiflexion and a 11 percent disability from a 10 degree loss of plantar-flexion. He next utilized the ankylosis portion of the tables and arrived at a 30 percent disability rating of the subtalor, added the 30 percent to the two restricted motion ratings, and arrived at a composite 48 percent impairment rating. To that he added a 15 percent factor for pain which totaled 63 percent and which he rounded to 65 percent. Prior to the hearing, he had arrived at a 65 percent rating without utilizing the AMA tables.

Finally, Dr. Samford, a consulting physician, opined that Dr. Flynn had improperly used the AMA tables because the claimant’s ankle — which had some motion — was not ankylosed. By referring to the restricted motion tables and by adding a percentage factor for pain he arrived at a 40 percent impairment rating. The deputy accepted Dr. Flynn’s impairment rating and thus determined that the claimant’s right lower extremity was 65 percent permanently partially disabled. The deputy accepted Dr. Flynn’s view that the claimant’s ankle was for all practical purposes ankylosed. The deputy rejected Dr. Reckles opinion, largely because of his earlier inconsistent opinions. He also rejected Dr. Samford’s opinion because Dr. Samford did not personally observe the claimant.

Dr. Flynn’s opinion was invalid because his rating was not made in accordance with Section 440.15(3)(a)3 which provides:

In order to reduce litigation and establish more certainty and uniformity in the rating of permanent impairment, the division shall establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings. The schedule shall be based on generally accepted medical standards for determining impairment and may incorporate all or part of any one or more generally accepted schedules used for such purpose, such as the American Medical Association’s Guides to the Evaluation of Permanent Impairment. On August 1, 1979, and pending the adoption, by rule, of a permanent schedule, Guides to the Evaluation of Permanent Impairment, Copyright 1977, 1971, by the American Medical Association, shall be the temporary schedule and shall be used for purposes hereof, (e. s.)

The Division has yet to adopt by rule a permanent schedule, and thus the American Medical Association Guides are applicable. Due to the stated intent of the legislature, and its multiple use of the word “shall”, we construe the statute as imposing a mandatory obligation, cf. Tascano v. State, 393 So.2d 540 (Fla.1980), upon the deputy commissioner to employ solely the AMA guides when determining a disability rating based solely on anatomical impairment. Cf. Tallahassee Memorial Regional Medical Center v. Snead, 400 So.2d 1016 (Fla. 1st DCA 1981). Dr. Flynn’s fating clearly went beyond the tables when he added a subjective 15 percent factor for pain based upon his composite impairment rating from the tables. Additionally, his application of the AMA tables does not comport with logic and reason. While we are hesitant to interpret these rather technical medical tables, it is our obligation to do so because the statute has mandated the use of the AMA tables, and to that extent those tables are law. Under AMA table 36 are two subtables, one for restricted motion, and another for ankylosis. Following those tables are instructions for computing disability for each respective subtable. The instructions do not indicate that the computation of the two subtables can be combined or intermingled; rather, the manner in which each subtable and their respective instructions are segregated implies the opposite conclusion. Here the deputy’s disability rating was premised on little more than an abstract interpretation of the AMA guides mandated by statute. Cf. Anheuser-Busch, Inc. v. Dept. of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Bowling v. Dept. of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); ABC Liquors, Inc. v. Dept. of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981). Dr. Flynn did not give any testimony in an attempt to explain or justify his combining the ankylosis and loss of motion tables. Moreover, Dr. Flynn’s use of the AMA tables is suspect, giving rise to the conclusion that they were used only to rationalize the previous impairment rating he had given the claimant which had been determined without the use of the tables.

In this opinion, it is not our intention to foreclose the deputy’s right to choose between conflicting medical opinions as to whether claimant’s ankle was anky-losed or severely restricted. We simply hold that once a determination is made in favor of one diagnosis, the table applicable to it must be, consistently with the statute, exclusively utilized and may not be combined with any other table, nor may subjective factors such as pain and suffering be superimposed so as to produce a rating in excess of that permitted within the pertinent table.

Reversed and remanded for further consistent proceedings.

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

APPENDIX

Ankylosis

1. Place goniometer base as if measuring neutral position shown above. Measure deviation from neutral position with goniometer arm. Record goniometer reading.

2. Consult (Ankylosis) Table 36 for corresponding impairment of lower extremity.

Example: Ankle joint ankylosed at 10 degrees dorsi-flexion = 50% impairment of lower extremity.

ANKLE JOINT

Technique of Measurement: Inversion-Eversion

Restricted Motion

1. Place patient in neutral position as shown in fig. 55. Note ankle is at right angle. The goniometer is not used.

2. Inversion: Starting from neutral position with patient inverting foot as shown in fig. 56, record range of motion as estimated by arc described by plantar surface of foot as it turns.

3. Eversion: With patient everting foot as shown in fig. 54, record range of motion as estimated by arc described by plantar surface of foot as it turns.

4. Consult (Restricted Motion) Table 37 for corresponding impairment of lower extremity.

Exampie: 20 degrees inversion from neutral position (0°) OR any 20 degree arc of retained active inversion = 2% impairment of lower extremity.

5. ADD lower extremity impairment values contributed by inversion and eversion. The sum of these values is impairment of lower extremity contributed by inversion and eversion of ankle.

NOTE: There may also be impairment of dorsi-plantar flexion which should be added.

Ankylosis

1. Estimate angle at which joint is ankylosed by angle of plantar surface of foot.

2. Consult (Ankylosis) Table 37 for corresponding impairment of lower extremity.

Example: Ankle joint ankylosed at 20 degrees inversion = 57% impairment of lower extremity.

ANKLE JOINT

When Two Ranges of Motion are Involved

Restricted Motion

1. Calculate separately and record impairment of lower extremity contributed by each range of motion.

2. Add impairment of lower extremity values contributed by ALL ranges of motion. The sum of these values is impairment of lower extremity contributed by ankle joint.

Impairment of Example Lower Extremity

10 degrees active DORSI-FLEXION . = 4%

10 degrees active PLANTAR-FLEXION. =11

10 degrees active INVERSION. = 4

10 degrees active EVERSION. = 2

(4 + 11 + 4 + 2 = 21) 21%

Ankylosis

1. Calculate separately and record impairment of lower extremity contributed by ankylosis in each position.

2. The largest ankylosis impairment value is the impairment of the lower extremity contributed by ankle joint.

Impairment of Example Lower Extremity

Ankle joint ankylosed at:

10 degrees DORSI-FLEXION. =50%

10 degrees INVERSION. =43

The largest ankylosis impairment value is 50%; therefore, lower extremity is 50% impaired by ankylosed ankle joint.

      . The applicable tables are set out in the appendix attached to the conclusion of this opinion.


text:
    Robert R. ROTH, Appellant, v. STATE of Florida, Appellee.
    No. YY-366.
    District Court of Appeal of Florida, First District.
    July 23, 1981.
    Virlyn B. Willis, Jr., Lake City, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

REVERSED. Knoble v. State, 399 So.2d 85 (Fla. 1st DCA, 1981).

McCORD and SHIVERS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: MILLS, Judge.

text:
    The TRUSTEES OF CENTRAL STATES SOUTHEAST AND SOUTHWEST AREAS, PENSION FUND, Under its Trust Agreement dated March 16, 1955, as heretofore and hereafter amended, which Trustees are presently: Frank Fitzsimmons, et al., Appellants, v. INDICO CORPORATION, a Michigan Corporation, et al., Appellees.
    No. SS-469.
    District Court of Appeal of Florida, First District.
    July 23, 1981.

      Clinton E. Foster, Panama City, for appellants.
    Bill R. Hutto, Panama City, for appellees.
   MILLS, Judge.

In this appeal from a deficiency decree after a foreclosure on land, appellant, Trustees of Central States (Trustees), in whose favor the deficiency decree was entered, contend that the trial court erred in permitting the testimony of one expert witness on the value of the property, in determining the amount of the Trustees’ recovery for the deficiency, and in announcing the intention to talk with the former judge to whom the case was assigned and who in the meantime had joined the law firm representing the Appellees, Indico Corporation (Indico). We reverse.

There were three expert witnesses offered and accepted at trial. The two property appraisers offered by Trustees were accepted by Indico as experts. It is the third person, the expert offered by Indico, whose qualifications were challenged below and here. The record reveals that the witness, George Dricsas, was not a real estate appraiser and was offered not as an expert in appraisal, but as an expert in “property value.” He testified that he dealt with commercial mortgages and did financial consulting as a commercial loan officer for a mortgage house. His opinions of property were based on determinations “if the land would go for rent and what it is currently worth and what amount it would go for on a loan. . . . ” (T-72) In other words, he gave opinions as to whether the property was “credit worthy.”

On voir dire examination by counsel for Trustees he stated that he had been to Bay County, Florida, about three times, the most recent of which had been four or five years before the trial. He had never given an opinion for a local lending institution in the area and had never testified before as an expert in Florida. Trustees’ objection to his being accepted as an expert witness was overruled.

Although the trial court has broad discretion in determining whether one proffered as an expert witness should be accepted as such, this discretion is not unbridled. Rule 1.390(a), Fla.R.Civ.P., defines an expert witness as:

The term “expert witness” as used herein applies exclusively to a person duly and regularly engaged in the practice of his profession who holds a professional degree from a university or college and has had special professional training and experience or one possessed of special knowledge or skill about the subject upon which he is called to testify. [Emphasis added]

In the instant case, the defense asserted to the claim for a deficiency decree was the adequacy of sale price at the foreclosure sale. As stated by this Court in Kurkjian v. Fish Carburetor Corporation, 145 So.2d 523 (Fla. 1st DCA 1962), the amount bid at the foreclosure sale is not conclusive on the issue of the value of the mortgaged property in considering a claim for deficiency, rather

The basic equitable doctrines applicable to the chancellor’s discretion in determining the propriety of granting or refusing the entrance of a deficiency decree in mortgage foreclosure proceedings are founded upon the principle that he may properly inquire into all facts and circumstances, including the adequacy or inadequacy of the sales price, prior to entering his decree. 145 So.2d at 527.

See also Jonas v. Bar-Jam Corp., 170 So.2d 479 (Fla. 3d DCA 1965).

As further noted in R. K. Cooper Construction Co. v. Fulton, 216 So.2d 11 (Fla.1968), the trial court has the duty and discretion to inquire into the reasonable and fair market value of the property sold, adequacy of sale price, and relationship, if any, between the foreclosing mortgagee and the purchaser at the sale. It was the issue of the reasonable and fair market value of the property sold for which Dricsas’ testimony was offered. However, Dricsas was not presented as an expert in fair market value of property, that is, the price a willing buyer would pay a willing seller, and he was not shown to be knowledgeable about property and property values in the Bay County area. See State Road Department v. Outlaw, 148 So.2d 741 (Fla. 1st DCA 1963). His stated area of expertise was that of determining the credit worthiness of commercial property, that is, the amount it would go for on a loan. Although he was perhaps an expert in valuation of property for one purpose, he was not shown to be an expert for the purpose for which he was offered.

In Prohaska v. The Bison Co., Inc., 365 So.2d 794 (Fla. 1st DCA 1978), the evidence established that the proffered witness was qualified to testify concerning methods and procedures of injection molding plastic components, but the subject he was called upon to testify to was the structural sufficiency of the design of lock sets. This Court reversed the trial court’s admission of him as an expert witness “in areas beyond the realm of any experience or expertise possessed by him.”

Similarly, we find that the admission of Dricsas’ testimony as to the reasonable and fair market value of the subject property on the date of sale was error. Even if it had not been error initially to accept Dricsas as an expert on this subject, it would have been error for the trial court to deny Indico’s motion to strike Dricsas’ testimony after he admitted that to express an opinion as to value of real estate with some degree of credibility, he had to have the feel of the local market and of the position of financial institutions, information about real estate sales and listings, opinions of brokers and real estate salesmen, and information as to the general status of the local economy and that he did not have that information for September of 1977, the month of the foreclosure sale. In short, he testified that he did not have the information that he needed to express an informed opinion on the subject at issue.

Our ruling on the question relating to the expert witness requires that this cause be reversed and remanded for a new trial because it is evident that the trial court relied on Dricsas’ testimony. The experts presented by Trustees testified that the fair market value of the property on the date of sale was less than the amount bid in at the foreclosure sale by Trustees. Thus, their testimony would support a finding that Trustees should recover the entire amount requested in the motion for deficiency judgment, the difference between the amount stated in the final judgment and the amount bid at sale plus interest and costs, $2,968,784 (rounded to the nearest whole dollar). On the other hand, Dricsas placed the fair market value of the property in the neighborhood of $10,000,000. Thus, his testimony would support the denial of the motion for deficiency judgment or the allowance of a lesser amount than that prayed for. Since the trial court entered a deficiency decree for $438,473, it obviously placed greater weight on Dricsas’ testimony as to value.

Furthermore, since we are reversing and remanding the cause based on the erroneous admission of and reliance on Dricsas’ testimony, we need not reach the issues raised concerning the amount of deficiency awarded in the judgment under review. Suffice it to say that when a deficiency decree is entered for less than the amount due and owing, the judgment must be supported by established equitable principles and the record must disclose sufficient facts and circumstances to justify the judgment. Carlson v. Becker, 45 So.2d 116 (Fla.1950).

Finally, Trustees cite as error the trial judge’s statement of his intention to consult with the judge who handled the foreclosure step of this transaction, before he rendered his opinion. We consider that counsel’s action in stating to the trial judge that there was a “problem” with the stated intention in that the former Judge was, at the time of trial, a member of the law firm representing Indico, while not phrased as an objection, was sufficient to call the trial court’s attention to the error or potential error and to preserve this question for our review.

While we recognize, as Indico points out, that the record does not establish that the trial judge actually did consult with the former Judge, the record leaves a clear impression that the trial judge maintained his intention to do so even after counsel spoke up. If the trial judge did make an ex parte communication concerning this proceeding, it was improper. Canon 3(A)(4), Code of Judicial Conduct. Upon remand of this cause the trial judge must disclose whether he did contact the former Judge concerning this matter and, if he did so, he should disqualify himself from presiding at the retrial.

REVERSED and REMANDED for a new trial.

McCORD and THOMPSON, JJ., concur.


author: McCORD, Judge.

text:
    PINELLAS COUNTY SCHOOL BOARD and Gallagher-Bassett Insurance Service, Appellants, v. Morris J. RAPSON, Appellee.
    No. VV-85.
    District Court of Appeal of Florida, First District.
    July 23, 1981.
    Thomas D. Masterson of Masterson, Rogers, Patterson, Masterson & Lowe, St. Pe-tersburg, for appellants.
    Peter H. Dubbeld of Brown, Watson, Goldstein & Douglass, St. Petersburg, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from the deputy commissioner’s order awarding appellee 30% permanent partial disability benefits based upon a loss of wage-earning capacity and awarding interest. We affirm in part and reverse in part.

On December 29, 1975, appellee suffered a back injury as a result of a work-related accident. After the accident, pursuant to a previous workers’ compensation order, ap-pellee received rehabilitation benefits to attend college. In that order, the deputy commissioner reserved jurisdiction to determine appellee’s entitlement to permanent partial disability benefits until after he had completed his rehabilitation program. After finishing college, appellee was employed as a teacher by appellant school board.

Appellant reached maximum medical improvement on March 10, 1977. Employer/carrier accepted a 10% permanent impairment rating given by appellee’s doctor and paid 10% permanent partial disability benefits accordingly. Appellee sought greater permanent disability benefits. In his April 1980 order, the deputy commissioner found that appellee is 30% permanently partially disabled based on a loss of wage-earning capacity. He ordered employer/carrier to pay the additional 20% permanent partial disability benefits, dating from 40 weeks following March 10, 1977. He further ordered employer/carrier to pay 6% interest, dating from 40 weeks after March 10, 1977, on the 20% additional benefits awarded.

The award of 6% interest on the additional 20% permanent partial disability from 40 weeks following March 10, 1977, was error. Section 440.20(9), Florida Statutes, provides:

In addition to any other penalties provided by this chapter for late payment, if any installment of compensation is not paid when it becomes due, the employer or carrier shall pay interest thereon at the rate of 12% per annum from the date the installment becomes due until it is paid, whether such installment is payable without an order or under the terms of an order. (Emphasis supplied.)

A permanent partial disability rating based on a loss of wage-earning capacity cannot become due until the claimant has demonstrated a loss of wage-earning capacity. Appellee herein had not demonstrated a loss of wage-earning capacity by March 10, 1977, as he was still enrolled in a rehabilitation program at that time, and he did not do so until the hearing before the deputy commissioner. Consequently, the additional 20% permanent partial disability payments did not become due until finality of the deputy commissioner’s order. Thus, interest is payable in this case only from the date of the deputy commissioner’s order, at the rate of 12%. Section 440.20(9), Florida Statutes. Compare Mander v. Concreform Company, 212 So.2d 631 (Fla.1968); Stone v. Jeffres, 208 So.2d 827 (Fla.1968), and Cantillo v. Gator Shoe Corp., 389 So.2d 1245 (Fla. 1st DCA 1980).

We have considered the remaining points raised and find them to be without merit.

Affirmed in part and reversed in part.

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


author: PER CURIAM. OTT, Acting Chief Judge,

text:
    N. Craig McALLISTER, General Contractors, Inc., Petitioner, v. Raymond A. GIROUX and Jame A. Giroux, Respondents.
    No. 80-1754.
    District Court of Appeal of Florida, Second District.
    July 24, 1981.

      Robert P. Rosin of Rosin, Abel, Band, Brown & Russell, Sarasota, for petitioner.
    Henry P. Trawick, Jr., of Trawick & Grif-fis, P. A., Sarasota, for respondents.
   PER CURIAM.

Petition granted and the trial court’s order denying petitioner’s motion to stay is quashed and the court below is directed to stay the respondent’s complaint. See Raymond, James & Associates, Inc. v. Maves, 384 So.2d 716 (Fla.2d DCA 1980).

DANAHY and CAMPBELL, JJ., concur.

OTT, A. C. J., concurs specially with opinion.

OTT, Acting Chief Judge,

concurring specially.

We are returning this case to the court below with instructions to stay proceedings pending the arbitration demanded by petitioner in accordance with the construction contract between the parties.

I am not opposed to arbitration, per se. I believe it can be an expedient and useful tool in resolving many controversies which now clutter the courts and impede the orderly adjudication of more justiciable issues.

I do not and cannot, however, countenance any unilateral denial of the constitutionally guaranteed right of access to the courts. That right is a keystone to our entire system of justice. As with any constitutional right, it should never be deemed to have been relinquished except upon a clear showing of informed waiver, freely given under circumstances in which there is no hint of duress, economic compulsion or unequal bargaining power. So basic a right should not be bought or sold at the bargaining table. When the average citizen is presented with a “take-it-or-leave-it” contract containing provision for mandatory arbitration, it is unrealistic to shrug it off as simply a matter of free choice. In my opinion the arbitration of disputes should be strictly an option available to parties after a dispute or grievance has arisen. Their contract should be independently negotiated and executed without any commitment to mandatory arbitration. No penalty should be suffered by any party rejecting the arbitration option.

When courts sanction irrevocable contract provisions for mandatory arbitration of future disputes, they permit the silent and inexorable erosion of a cornerstone of this democracy. It is an unfortunate trend, and if it is not reversed the phrase “access to the courts” will soon have lost any real meaning or genuine validity.

I quite understand that this is a matter for our supreme court to consider and implement. Unless and until it does so, this court is powerless to do more than sound the alarm. We are not free to ignore controlling precedent, and I therefore reluctantly concur in our disposition of this case.


author: GLICKSTEIN, Judge. LETTS, Chief Judge,

text:
    Elida Pauline SARDINAS, Appellant, v. Manuel V. SARDINAS, Appellee.
    No. 80-248.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.

      Sylvan B. Burdick of Burdick & Daves, West Palm Beach, for appellant.
    John L. Bryan, Jr., of Scott, Burk, Royce & Harris, P.A., Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an unusual case in that the parties separated and entered into a separation agreement when appellant was pregnant with the parties’ only child. Unfortunately, the only provision in the agreement as to visitation was the general statement that appellee would have a reasonable right of visitation. After the birth of the child, appellee filed a “Motion for Contempt and for Visitation,” stating that appellant had refused to permit him to visit with the child except under the strict control of appellant. The only prayer in the motion was that appellant be held in contempt.

The order being appealed denied appel-lee’s motion for contempt, but undertook to make more definite the term “reasonable right of visitation.” The court declared said phrase to mean the right of appellee to visit with the child at the home of appellee’s parents one afternoon a week on appellee’s day off and one evening a week.

Appellant’s point on appeal is that since appellee’s aforesaid motion solely sought to have appellant held in contempt, in the absence of a prayer for change, alteration or modification of the final judgment of dissolution the trial court was without jurisdiction to change, modify or alter the judgment as written. She relies primarily upon Cortina v. Cortina, 98 So.2d 334 (Fla.1957). In that case, the final decree gave the husband reasonable visitation privileges. The husband later filed a contempt proceeding against the wife, alleging that she had refused to allow him reasonable visitation privileges. The trial court entered an order revoking the final decree’s provision for support and providing that if reasonable visitation is given to the husband, the court will again amend the decree to provide for support. The Supreme Court reversed and said at 336:

There can be no doubt that a Chancellor cannot modify a support decree, or any other decree, unless the issue of modification is presented to him in appropriate proceedings and each party is given an opportunity to be heard on such issue. After the expiration of the ten-day period within which to file a petition for rehearing, 31 F.S.A Rule 3.16, Fla.Rules of Civ. Proc., a divorce decree providing support for children is just as final as any other decree, as to all conditions and circumstances that existed as of the date of the decree. Sec. 65.15, Fla.Stat.1955, F.S.A. And as stated in Pace v. Pace, 1930, 99 Fla. 859,128 So. 488, 489, “After the lapse of time as thus provided by rule * * *, final decrees cannot be changed, added to, nor taken from, except as to the correction, nunc pro tunc, of mere clerical errors or misprisions, without resorting to the recognized processes of equity, based upon appropriate grounds.”

Appellant also cites Kranis v. Kranis, 313 So.2d 135 (Fla.3d DCA 1975) wherein the trial court denied the wife’s motion to vacate a contempt order against her, and modified the final judgment by granting the husband visitation rights in the state of his residence and by holding support payments suspended if the wife did not comply with the out-of-state visitation right. The Third District Court of Appeal reversed on the following ground:

The modifications of the judgment in the two respects outlined above, done on hearing Rosalind’s motion to vacate the contempt order, were without any appropriate pleadings therefor and advance notice of hearing on such modification matters.

Id. at 137.

Similarly, we held in Purvis v. Carver, 303 So.2d 681, 682 (Fla. 4th DCA 1974), “that the chancellor was without jurisdiction to summarily change the visitation provisions of a dissolution decree which had become final where no pleading had been filed directed to the modification of the decree.” An oral motion of the husband did not satisfy the pleading requirement. See also Jennings v. Jennings, 353 So.2d 921 (Fla. 4th DCA 1978); Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974); DeWalt v. DeWalt, 305 So.2d 792 (Fla. 4th DCA 1975).

Appellee counters with the argument that the term “reasonable right of visitation” is interpreted in Florida to mean the right to have the child away from the child’s home for short periods. Kranis v. Kranis, supra. Accordingly, he argues that he was enforcing his right under the final judgment; and that if appellant wished to deny appellee the right to take the infant for short periods away from appellant’s home, it was incumbent upon her to file a motion for modification of the final judgment.

We feel constrained by Cortina v. Cortina, supra, and its progeny to agree with appellant. Had appellee’s motion included language that articulated his alleged right and prayed for enforcement thereof, we might agree with him. However, as the motion now stands, the trial court lacked jurisdiction to consider the visitation issue and consequently, we must reverse.

Accordingly, that part of the order making more definite the “reasonable right of visitation” is reversed with direction to vacate it on remand without prejudice to further consideration of this matter upon filing an appropriate pleading. In all other respects the order is affirmed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTION.

BERANEK, J., concurs.

LETTS, C. J., dissents with opinion.

LETTS, Chief Judge,

dissenting:

I dissent.

The motion filed by the husband “For Contempt and for Visitation” was no legal work of art and as the majority notes, the prayer did not ask for any restatement of what “reasonable visitation rights” might be. Nonetheless the purpose of the motion, as its title bears out, was patently obvious, i. e. to procure reasonable visitation rights and paragraph 3 of the motion makes that abundantly clear as follows:

3. ELIDA PAULINE SARDINAS refuses to allow MANUEL V. SARDI-NAS to visit with the child except under the strict control of ELIDA PAULINE SARDINAS. ELIDA PAULINE SAR-DINAS refuses to visit with the parties minor child at reasonable times and under reasonable circumstances and has therefore violated the Court’s Order.

As a result, the wife could claim no surprise. The matter now before us is vastly different from the Cortina case where the trial court upon hearing a contempt motion for refusal to furnish reasonable visitation rights went ahead and revoked the support payments.

There is another reason why I would affirm. There is no record of what transpired at the hearing on the motion “for contempt and for visitation” and the appellant has therefore not demonstrated error.

      . We are aware that the record is devoid of a transcript of the hearing on the motion. Appel-lee has not raised this in his brief nor has he insinuated in any manner that appellant impliedly consented at the hearing to the trial court’s consideration of the visitation issue. Therefore, we disagree with the dissent that in this appeal the failure to file a transcript is fatal to appellant.


author: PER CURIAM. BERANEK, Judge,

text:
    Robert Charles ARMSTRONG, Appellant, v. Joan P. ARMSTRONG (Drowne), Appellee.
    No. 80-87.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.
    Hubert R. Lindsey, West Palm Beach, for appellant.
    Thomas A. Bratten, West Palm Beach, for appellee.
   PER CURIAM.

The former husband has filed an interlocutory appeal from an order of the trial court, striking his answer on the ground of legal insufficiency.

The order was not appealable under Florida Rule of Appellate Procedure 9.130. Accordingly, we consider this as a petition for writ of certiorari and deny same on the authority of Ford Motor Co. v. Nelson, 355 So.2d 158 (Fla. 4th DCA 1978).

PETITION FOR WRIT OF CERTIORA-RI DENIED.

HERSEY and GLICKSTEIN, JJ., concur.

BERANEK, J., concurs specially, with opinion.

BERANEK, Judge,

concurring specially:

I conclude that the trial court did not depart from the essential requirements of law in striking the answer of the former husband which sought to question the legitimacy of the minor child involved in this domestic matter. The answer raising the issue of legitimacy was properly stricken because these same parties had engaged in almost twenty years of sporadic litigation on the issue of child support for the four children in question. From the period of time subsequent to entry of the final judgment up to the present time, at least three petitions for modification of child support have been filed by the husband and at no time did he raise the legitimacy of any of the children. Over the years, at least seven orders relating to child support were issued by the trial court subsequent to entry of the final judgment. Several of these orders specifically noted that there were four minor children involved. In all seven orders, the husband has been compelled to pay child support for the minor child in question and the husband’s successive petitions for modification regarding child support have all been denied. I conclude the husband has waived the right to contest the legitimacy of the child by his participation in this litigation over the years.


text:
    Reginald D. LUCAS, Appellant, v. BOARD OF REAL ESTATE, Alinco Associates, Inc., Alfred C. Couric, Jr., and Carol L. Astin, Appellees.
    No. 79-2334.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.

      Rodger L. Spink, Hollywood, for appellant.
    No appearance for appellees.
   MOORE, Judge.

The appellant attacks a final order of the appellee which publicly reprimanded him. Unfortunately, the appellee has neither appeared before this Court nor filed a brief in support of its final order.

We initially note that appellee’s final order was not rendered timely. However the consequences of such tardiness will not be visited upon the appellee unless the fairness of the proceedings or the correctness of the action taken are impaired. G & B of Jacksonville, Inc. v. State Department of Business Regulation, Division of Beverage, 362 So.2d 951 (Fla. 1st DCA 1978), appeal dismissed, 372 So.2d 468 (Fla.1979). Under the circumstances of this case it can hardly be said that the twenty-two day delay in rendering the final order caused any impairment.

The determinative question, therefore, is whether the final order is supported by competent substantial evidence. Davis v. Florida Real Estate Commission, 263 So.2d 251 (Fla. 3rd DCA 1972). After careful consideration of the record and appellant’s brief, we hold that the Commission’s final order is not supported by substantial competent evidence and the Commission erred in rejecting the hearing officer’s conclusions.

REVERSED.

GLICKSTEIN and HURLEY, JJ., concur.


author: KAPNER, LEWIS, Associate Judge.

text:
    Arthur M. SANSON, Jr., a/k/a A. M. Sanson, Jr., and Nancy Mann Sanson, a/k/a Nancy W. Sanson, Appellants, v. DUTCHER, HIGGINBOTHAM AND BASS, INC., formerly known as Dutcher, Higginbotham, Mayer and Bass, Inc., Appellee.
    No. 79-2416.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.

      Robert E. Ziegler of Rogers, Morris & Ziegler, Fort Lauderdale, for appellants.
    Raymond A. Doumar of Allsworth, Dou-mar, Schuler, Padula & Laystrom, Fort Lauderdale, for appellee.
   KAPNER, LEWIS, Associate Judge.

Defendant/appellant (Seller) appeals from an adverse judgment awarding plaintiff/appellee (Real Estate Broker) a commission for services rendered in connection with the sale of Seller’s home. The trial court found as follows:

1.That although the Exclusive Right of Sale Agreement between the Plaintiff and Defendants dated April 7, 1977, had expired, the evidence credibly established that the Plaintiff continued, even during the ninety day period after the expiration of said Exclusive Right of Sale Agreement, to further promote counteroffers between the Defendants as sellers and the buyers, that as late as March of 1978, the plaintiff showed the defendants’ home to a prospective purchaser, which efforts the defendants had opened their doors to receive and, accordingly, it cannot be said that the plaintiff abandoned its efforts to sell the defendants’ home.
2. That while the evidence is not sufficient to support fraud or conspiracy on the part of the defendants to cheat or deny the plaintiff of its commission, there was a showing sufficient to conclude that the defendants excluded the plaintiff from an opportunity to further negotiate any counteroffers or any contract between the defendants and the buyers, eventually leading up to the April 10, 1979, Deposit Receipt Contract executed by the same purchasers and the defendants.
3. That the evidence was clear and convincing that the plaintiff devoted substantial time, effort and money to promote the selling of the defendants’ home; however, this Court is mindful that such alone is not sufficient to justify a commission, but that the plaintiff’s efforts and the nature of the plaintiff’s relationship with the defendants and purchasers generated the cement that eventually sealed the final contract between the same buyers and the defendants which contract was substantially similar to the original offer obtained by the plaintiff from the same purchasers and accordingly, the efforts of the plaintiff satisfied the element of continuous negotiations as required by the procuring cause doctrine.

The basic issue raised by appellant is whether the trial judge correctly applied the procuring cause doctrine to the facts of this case, taking into consideration that the actual sale was consummated after the exclusive right of sale agreement had expired.

Although Florida courts have not explicitly ruled that the procuring cause doctrine applies after the expiration of an exclusive right of sale contract, they have applied the doctrine in ordinary broker-owner dealings. Scott v. Downey, 314 So.2d 16 (Fla.4th DCA 1975); National Airlines, Inc. v. Oscar E. Dooly Associates, Inc., 160 So.2d 53 (Fla.3d DCA 1964). The doctrine applies with equal, if not greater, logic to exclusive right of sale contracts. These contracts are frequently for short durations and require considerable commitment of time and effort by brokers. Common sense dictates that the intent of most parties to such contracts is to inferentially incorporate the doctrine into the contract; otherwise, a seller would have little motivation to close the sale prior to the expiration of the contract. Accordingly, we hold that the procuring cause doctrine applies to exclusive right of sale contracts regardless of whether sale is consummated before or after the expiration date.

This doctrine holds that in order to be the “procuring cause” of a sale of property, thus entitling a broker to a commission, the parties must have been brought together and the sale consummated as a result of continuous negotiations of the broker. National Airlines, Inc. v. Oscar E. Dooly Associates, Inc., supra.

Invariably whether this doctrine applies to a particular case turns on the facts and circumstances in each particular instance, and the broker must prove the essential elements by a preponderance of evidence. Mellet v. Henry, 108 So.2d 69 (Fla.3d DCA 1959).

The evidence in this case was in conflict, but there was substantial evidence in the record to support the trial court’s finding of fact and application of the law.

Accordingly, for the reasons stated the judgment is affirmed.

BERANEK, J., concurs.

MOORE, J., concurs in conclusion only.

      . In Scott v. Downey, supra, the court in reversing a judgment in favor of the broker observed that the broker did not have exclusive listing on the subject property.


author: M. DANIEL FUTCH, Jr., Associate Judge.

text:
    GREENTREE AMUSEMENT ARCADE, INCORPORATED, Appellant, v. GREENACRES DEVELOPMENT CORPORATION and Greenacres Management Corporation, Appellees.
    No. 79-2311.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.

      Lake Lytal, Jr., and Cynthia S. Pretty-man of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.
    Donald L. Brooks of L. M. Taylor, Lawyers, North Palm Beach, for appellees.
   M. DANIEL FUTCH, Jr., Associate Judge.

This is an appeal from a final judgment entered in a landlord-tenant dispute which found that the appellee/landlord was justified in terminating the lease and that the appellant/tenant was liable to the landlord for double rents. We affirm the former finding, but we reverse the latter.

The landlord leased certain commercial business property located in a shopping center. The lease was to expire on March 31, 1979 unless the tenant exercised its right to renew the lease for a five year period. On December 20,1978, the landlord notified the tenant that the lease would be terminated effective March 31, 1979 because of the tenant’s failure to abide by the lease provision that required the tenant to maintain the premises in an orderly fashion. Specifically, the landlord claimed that the youths who frequented the tenant’s business premises were rowdy, unruly, and generally disruptive. On January 16, 1979, the tenant advised the landlord by letter that there was no basis for the landlord’s termination of the tenant’s renewal option. In this same letter, the tenant advised the landlord that it was thereby exercising its option to renew the lease.

In anticipation of the landlord’s intention to terminate the lease on March 31, 1979, the tenant filed a complaint in which it sought specific performance of the renewal option and injunctive relief against any eviction action undertaken by the landlord. In its answer, the landlord filed a counterclaim seeking eviction and demanding double rent for the period between the termination of the original term of the lease on March 31, 1979 and the time at which the tenant vacated the premises. Prior to trial, the trial court granted the tenant’s request for a temporary injunction, which enjoined the landlord from evicting or dispossessing the tenant from the premises, pending the final resolution of the case. The tenant posted a bond in the amount of $1,000 as a condition of the temporary injunction and agreed to continue to pay the normal rent for the duration of the lawsuit.

After a non-jury trial, the trial court found that the landlord had been justified in terminating the lease, and that the lease was therefore rightfully terminated as of March 31, 1979. The trial court also awarded the landlord double rent for the period between the time that the landlord first demanded double rent in its counterclaim filed on April 20, 1979, and September 30, 1979, the time at which the premises were vacated.

Initially, the tenant contends that the trial court erred in finding that the lease was validly terminated because there was insufficient evidence to demonstrate a basis for termination under the provisions of the lease. Under the lease provisions, the landlord had the right to cancel the lease if the following criteria existed:

(a) The landlord receives numerous complaints from other tenants, their employees, shoppers or law enforcement authorities concerning the behavior of the arcade patrons while on the premises;

(b) That after reasonable notice to the tenant, such complaints are not rectified immediately by the tenant;

(c) That the continuing nature of the complaints are such as to be considered a nuisance to other tenants and/or shoppers; and,

(d) The landlord gives the tenant 90 days notice of the termination.

We summarily reject the tenant’s contention that the lease was invalidly terminated because our review of the record indicates that there was substantial competent evidence to support the trial court’s findings that each of these four conditions was in existence.

The tenant additionally asserts that double rents should not have been assessed against him since he was not a “holdover tenant”. The tenant urges that, since he remained on the leased premises under a bona fide claim of right, he could not be considered a tenant who held over in wilful derogation of the terms of the tenancy. Central Florida Oil Company v. Blue Flame, 87 So.2d 812 (Fla.1956); Painter v. Town of Groveland, 79 So.2d 765 (Fla.1965). The tenant insists that he held over under a bona fide claim of right since, (1) he had a renewal option that he believed had been validly exercised regardless of his prior receipt of the letter of the landlord terminating the lease, (2) his continued possession of the premises after March 31, 1979 was authorized by the.temporary injunction issued by the trial court, and (3) he continued to pay rent until he vacated the premises.

We find merit to the tenant’s argument that he was not a “holdover tenant” and hold that the trial court erred in assessing double rents against him. The tenant remained in possession of the premises under what he believed to be a valid exercise of the renewal option. Until such time as the respective rights and obligations of the parties were fully litigated, the tenant had a bona fide claim of possession which derived from the renewal option provision of the lease itself. The tenant’s basis for continued possession was arguably authentic and not merely a spurious assertion of a purported right lacking in any foundation. Therefore, despite the fact that the trial court correctly found that the landlord had validly terminated the lease option, the validity of that termination remained a genuine and justiciable issue up to the time that the final judgment was entered. Moreover, the tenant’s continued possession of the premises from March 31, 1979, the date upon which the lease expired, to October 12, 1979, the date upon which the trial court vacated its prior temporary injunction, was authorized by the trial court under the auspices of its temporary injunction. Certainly, the tenant’s continued possession of the premises under such authority constituted possession of the premises under a bona fide claim of right. Additionally, the fact that appellant continued to pay its monthly rent is indicative of its belief that it enjoyed a continuing right of possession in the premises. It is therefore abundantly clear that the appellant retained possession from March 31, 1979 through September 30, 1979 under a bona fide claim of right, and that the trial court’s award of double rents to the appellee for the period between April 20th, 1979 (the time at which the landlord first made its claim for double rent) and September 30th, 1979, was erroneous. Accordingly, we reverse that portion of the final judgment which awarded double rents.

AFFIRMED IN PART, REVERSED IN PART.

DOWNEY and GLICKSTEIN, JJ., concur.

      . The tenant’s premises consisted of an amusement arcade housing pinball machines and other recreational machines.


text:
    Gregg Andrew TATAR, Appellant, v. STATE of Florida, Appellee.
    No. 79-1616.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.
    Richard L. Jorandby, Public Defender, Robert C. Fallon and Jon May, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

On May 25,1979 appellant, a probationer, was found guilty of violation of probation on the basis of evidence obtained by a law enforcement official as the result of a war-rantless search and seizure. Appellant’s motion to suppress the evidence was denied on the grounds that the exclusionary rule was not applicable to probation revocation proceedings.

On July 26, 1979 the supreme court filed its opinion and decision in the ease of Grubbs v. State, 373 So.2d 905 (Fla.1979), holding that under certain circumstances the constitutional exclusionary rule set forth in article I, section 12, Florida Constitution, was applicable to probation revocation proceedings. We reverse the order revoking probation and remand this cause to the trial court for a new trial on the alleged violations of probation, conducted in light of Grubbs, supra, and Ray v. State, 387 So.2d 995 (Fla. 4th DCA 1980).

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Kenneth G. PARMALEE, Appellant, v. STATE of Florida, Appellee.
    No. 79-2477.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.
    Rehearing Denied Aug. 19, 1981.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The trial court assessed costs against appellant, who had been declared indigent. We vacate that portion of the judgment. No other reversible error has been demonstrated so the judgment and sentence appealed from are affirmed as modified.

DOWNEY, MOORE and HERSEY, JJ., concur.


text:
    Gene HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 80-789.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.

      Richard L. Jorandby, Public Defender, and John R. Cullom, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have considered the applicability of the Supreme Court’s recent holding in Estelle v. Smith, — U.S. -, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), to the proceedings below. We conclude that the error if any, in admitting a psychiatrist’s report and a transcript of a competency hearing into evidence at the sentencing phase of defendant’s trial was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Palmes v. State, 397 So.2d 648 (Fla.1981). Accordingly, the judgment is

AFFIRMED.

DOWNEY, MOORE and HURLEY, JJ., concur.


text:
    Chester FAIR, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-142.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.
    Chester Fair, Jr., pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant was charged with use of a firearm while committing a felony but the written judgment stated the crime to be possession of a firearm by a felon. The state agrees the judgment was entered through error. We note the judgment is also violative of State v. McArthur, 330 So.2d 548 (Fla. 1st DCA 1976). It is hereby ordered that defendant’s conviction on “Count III — Possession of a Firearm by a Felon” entered November 15,1979, is vacated and set aside.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. C. B., Jr., a child, Appellee. STATE of Florida, Appellant, v. D. D. L., a child, Appellee. STATE of Florida, Appellant, v. J. E. S., a child, Appellee.
    Nos. 79-2076, 79-2155 and 79-2156.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Channing E. Brackey, Asst. Public Defender, Fort Lauderdale, for appellees.
   KAPNER, LEWIS, Associate Judge.

This is a consolidated appeal by the State from orders dismissing petitions for delinquency in three juvenile cases. The petitions were filed from 50-52 days following the day the juveniles were taken into custody and released. The trial court dismissed the petitions on the grounds that Section 39.03(2), Florida Statutes (1979), requires the filing of a written report within three days of arrest, and Section 39.05(6), Florida Statutes (1979), requires the filing of a petition of delinquency within 45 days thereafter, or a total of 48 days from the time of arrest.

The pertinent parts of Chapter 39 are as follows:

39.01(33) “Taken into custody” means the status of a child immediately when temporary physical control over the child is attained by a person authorized by law, pending the child’s release, detention, placement or other disposition as authorized by law.
39.01(14) “Detention Care” means the temporary care of a child in a detention home or nonsecure detention program ... pending court disposition or execution of the court order.
39.03(2) . . . Unless otherwise accomplished pursuant to subsection (4), the person taking the child into custody and detaining the child shall, within 3 days, make a written report to the appropriate intake officer. (emphasis added.)
39.05(6) On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 45 days from the date the complaint was referred to the intake office.

When Section 39.03(2), Florida Statutes (1979), was amended in 1978, the phrase “and detaining the child” was added. This indicates a legislative intent to limit the 48-day period only to cases where the child is actually detained rather than being released. In this case, the juveniles were not detained, so the 48-day period does not control. Accordingly, the trial judge was in error in dismissing the petitions. The orders of dismissal are reversed and the cases are remanded to the trial court with directions to reinstate the petitions.

REVERSED AND REMANDED.

MOORE and BERANEK, JJ., concur.


text:
    Claire L. BURKE, Appellant, v. Robert E. BURKE, Appellee.
    No. 79-303.
    District Court of Appeal of Florida, Fifth District.
    July 29, 1981.
    William A. Greenberg, Fowler, Williams & Airth, P.A., Orlando, for appellant.
    Andrew Baron, Orlando, for appellee.
   SHARP, Judge.

The wife appeals from a final judgment of dissolution which awarded her custody of three minor children (ages nine (9), eleven (11), and thirteen (13)), child support of $100.00 per child per month, and rehabilitative alimony of $60.00 per month for a period of nine months. She contends the trial court erred in denying her request for lump sum alimony and/or permanent periodic alimony. We agree that under the circumstances established by this record, the trial court abused its discretion in failing to award the wife permanent periodic alimony.

The Burkes had been married thirteen (13) years at the time of the dissolution. The wife failed to complete her high school education due to the birth of the parties’ first child. In addition to providing the primary care of the three children and the household, the wife obtained a high school equivalency diploma, worked as a teacher’s aide at $90.00 per week, and became certified as a medical technician. She was employed in this profession until she severely injured her arm. Because of that injury, she could not work in this field. At the time of the dissolution, the wife was not employed, and her prospects for being able to support herself (particularly since she would also have the primary custody of the children for a substantial span of time) was not established. The husband was in good health and employed, earning $20,000.00 per year.

Rehabilitative alimony should be awarded only where the record shows the spouse has actual potential or actual capacity for self-support. Its award should be premised on evidence that the receiving spouse has the capacity to develop or acquire, in a short or measurable period of time, the ability to become self-supporting. Here, there is no basis to conclude th'e wife will be self-supporting within nine (9) months.

We reverse and remand this case to the trial court with directions to enter an award of permanent alimony based on the wife’s current needs and the husband’s ability to pay. The trial court may also revisit the child support provision since it was linked to the alimony award.

REVERSED AND REMANDED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . G’Sell v. G’Sell, 390 So.2d 1196 (Fla. 5th DCA 1980).

      . Reback v. Reback, 296 So.2d 541 (Fla.3d DCA 1974), cert. denied, 312 So.2d 737 (Fla.1975).

      . Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975).

      . Schwartz v. Schwartz, 297 So.2d 117 (Fla.3d DC A 1974); See Yoehm v. Yoehm, 324 So.2d 160 (Fla.4th DCA 1975).


text:
    Timothy J. BURSON, Appellant, v. GATE PETROLEUM COMPANY, et al., Appellees.
    No. 80-708.
    District Court of Appeal of Florida, Fifth District.
    July 29, 1981.
    Steven A. Werber of Commander Legler, Werber & Dawes, P. A., Jacksonville, for appellant.
    James 0. Driscoll of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appel-lees Gate Petroleum and Aetna.
   COWART, Judge.

Brian Evans, 17 years old, driving his father’s truck, with Michael Mott, a 16 year old friend, as passenger, bound for Daytona Beach from DeLand, stopped at a store owned and operated by Gate Petroleum Company, d/b/a Gate Fast Food Store. Mott entered the store, purchased two quarts of beer without being asked for proof of age, returned to the truck and gave Evans one of the quarts. The two minors consumed the beer before reaching Daytona Beach where Evans, driving the truck on the beach, ran over and injured the appellant, Timothy J. Burson, who sued Gate and Gate’s insurer, Aetna Insurer Company, on the theory that Gate, in making the beer sale to Mott, violated section 562.11, Florida Statutes (1979), which violation constituted negligence per se. The trial court granted a motion for summary judgment in favor of Gate and Aetna on the basis that Gate’s violation of the statute, as a matter of law, did not constitute a legal or proximate cause of Burson’s injuries, from which ruling Burson appeals. We affirm.

Appellant relies heavily on Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963). In that case, Davis, 16 years of age, was apparently driving a vehicle with two other minors as passengers when they stopped at the Estuary Bar where an employee, without inquiring about their ages (in violation of this statute) “delivered to them” a case of 24 cans of beer and one-half pint of whisky. After consuming the alcoholic beverages and after several other unrelated events, Davis lost control of his vehicle and was killed in the resulting wreck. The supreme court, analogizing to Tamiami Gun Shop v. Klein, 116 So.2d 421 (Fla.1959), held the owner of the bar responsible for Davis’ death. The court said the purpose of this statute was “to preclude the harm that can come to one of immaturity by imbibing such liquors” and reasoned that when delivering alcoholic beverages to immature boys seated in a motor vehicle it should have been foreseeable (should have been regarded as “probable”) “that trouble for someone was in the offing.” 155 So.2d at 367.

Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967), applied and extended Davis to allow recovery by a third party injured as the result of actions of minors who had consumed alcoholic beverages sold in violation of this statute.

However, negligence per se resulting from a violation of this statute does not always mean actionable negligence. In addition to showing a violation of the statute, (1) the plaintiff must be a member of the class the statute was intended to protect, (2) must have suffered the type of injury the statute was designed to prevent, and (3) the violation of the statute must be the proximate cause of the injury. In Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978), two minor members of a high school club purchased a case of rum in violation of this statute, which rum was used in an initiation ceremony wherein Bryant and others were required to consume large quantities of the rum. Bryant was injured when he, intoxicated, was “caused to fall, jump or dive, or was pushed or shoved by others of the intoxicated minor initiates.” Id. at 543. The court noted that, unlike Davis, the injuries to Bryant, who did not participate in the purchase, were remote in time and place from the illegal purchase and were not of the type foreseeable at the time of the sale and held that the complaint failed to state a cause of action because of the lack of foreseeability and probable cause. This court followed Bryant in Stanage v. Bilbo, 382 So.2d 423 (Fla. 5th DCA 1980), where a 13 year old girl purchased beer from the defendant while her two teenage male companions waited in a pickup truck behind the defendant’s store so they would not be seen. Later after consumption of some of the beer in a remote area one of the minor boys mishandled a firearm injuring the other. Summary judgment for the beer seller was upheld because the violation of the statute was not a proximate cause of the injury.

In this case, while the second amended complaint does allege that Evans was on a joint venture with Mott when Evans drove a motor vehicle to Gate Fast Food Store where Gate’s employee sold intoxicating beverages to Mott in violation of this statute, the complaint is careful to not allege that Gate’s employee knew that Mott was on a joint venture with Evans, that he knew facts from which he should have reasonably inferred that Mott was going to share the beer with Evans, that he knew that Mott was riding in a motor vehicle operated by Evans, or that he knew or should have ascertained that Evans was a minor.

In Davis, the minor to whom the alcoholic beverage was sold in violation of this statute and whom the seller could see was operating a motor vehicle, consumed the beverage and was killed as a result of his mismanagement of the vehicle resulting from his impaired condition. In Prevatt, the two minors who illegally sold beer consumed the intoxicating beverages on the seller’s premises and started shooting, causing the third party’s injuries. In contrast, the minors, in Bryant, to whom the rum was illegally sold, were not alleged to have consumed the alcoholic beverage, nor were facts alleged indicating that the seller had reason to believe that the rum was going to be consumed by Bryant or others, whose impairment of faculties resulting from consumption of alcoholic beverages caused Bryant’s injuries. Likewise, in Stanage there was no showing that the injuries resulted from the consumption by the purchasing minor of the illegally sold beer nor were facts alleged from which it could be said that the seller should have foreseen that the beer was likely to be consumed by the minors whose impaired condition might have caused the injuries in question.^ Similarly, in the instant case, Mott’s impaired ability to operate a motor vehicle resulting from consumption of alcoholic beverages illegally sold to him did not cause appellant’s injuries nor were facts alleged showing that it was reasonably foreseeable to Gate that the illegally sold beer was to be consumed by Evans, whose condition was relevant to his ability to operate the vehicle that caused appellant’s injuries. Accordingly the summary judgment for Gate and Aetna is

AFFIRMED.

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


author: OTT, Judge.

text:
    Leo GAINER, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 80-1036, 80-1618.
    District Court of Appeal of Florida, Second District.
    July 29, 1981.

      Jerry Hill, Public Defender, Bartow, and Karal Rushing, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant, a juvenile, was charged with burglaries. After the delinquency petitions were filed, the state attorney’s motions to transfer the cases to the adult division of the circuit court were granted. The order stated that the judge had considered the criteria for transfer specified by section 39.-09(2)(c), Florida Statutes (1979), but the findings of fact required by that statute were not set forth in the order. By petition for habeas corpus appellant challenged the sufficiency of that order.

During the pendency of the habeas corpus proceedings, appellant plead nolo con-tendere to the charges, reserving his right to appeal the certification order. He thereafter appealed his final adjudication and sentence and we granted his motion to consolidate the appeal with the habeas corpus proceeding.

Appellant also contends that the trial court further erred in sentencing him as an adult without the benefit of the predisposition report required by section 39.111(6)(a).

We agree that the trial court erred in both respects. Section 39.09(2)(c), requiring that specific findings of fact be set forth in the certification order, and section 39.111(6)(a), requiring a predisposition report prior to sentencing as an adult, are legislative mandates which must be obeyed. Since the trial court failed to made the required findings in the certification order, it and all proceedings taken thereafter are null and void. G.D.W. v. State, 395 So.2d 638 (Fla.2d DCA 1981).

Accordingly, we vacate the transfer order, the judgment of guilt and the sentence. This case is remanded to the juvenile division for such further proceedings as the court deems necessary to properly address the petition for transfer to the adult division.

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

      . We have treated appellant’s argument concerning transfer as an additional point on appeal from the final judgment and sentence.

      . We find appellant’s other point on appeal to be without merit.