author: ORFINGER, Judge. COWART, Judge,

text:
    STATE of Florida, Appellant, v. Leonard James TOMBLIN, Appellee.
    No. 80-241.
    District Court of Appeal of Florida, Fifth District.
    June 25, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellant.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief Asst. Appellate Division, Asst. Public Defender, Daytona Beach, for appellee.
   ORFINGER, Judge.

Appellant was charged with first degree arson under section 806.01(l)(b), Florida Statutes (1979). The trial court granted a motion to dismiss the information under Florida Rule of Criminal Procedure 3.190(c)(4), and the State appeals. We reverse.

The record indicates that while confined to the Orange County Jail, appellee removed his jail issue clothes, placed them in a pile on the floor of his cell, and set them on fire. A corrections officer used a fire extinguisher to put out the fire, but not before the clothes were almost completely burned. It was alleged in the motion, and the State apparently agrees, that there was no damage to the jail structure itself, but the State traversed the motion on the ground that the jail clothing constituted “contents,” the burning of which is also proscribed by the statute.

The trial court granted the “G-4” motion on the ground that there was no damage to the jail structure and the prisoner’s clothing did not constitute “contents” of the jail within the meaning of the statute.

The State argues that the obvious intent of the Legislature in adopting this revised arson statute in 1979 was to broaden the definition of the crime and to bring more activities within its ambit. Prior to 1979, the statute was more limited in its application; it did not include the burning of contents of a structure, and required proof of malice, a requirement not found in the new statute.

Appellee argues only that there is a distinction between items which are the means of setting a fire and items which are the contents of a structure and are damaged by the fire. To read the statute, he says, to include within the definition of “contents” items used as a means to set a fire is to violate rules of statutory construction. Here, appellee is not charged with lighting the match, he is charged with burning the clothing, the result of the fire and not the means, and we must determine if that result is proscribed by the statute.

In attempting to determine what the Legislature intended when it adopted a statute, we may look to the evil intended to be corrected, the language of the act, including its title and the history of its enactment and the state of the law already in existence bearing on the subject. A review of the legislative history of Florida’s arson law, section 806.01, Florida Statutes (1979), shows that the statute is a significant and deliberate departure from common law and from its predecessor statutes.

The bill as originally introduced in the Senate used the phrase “or to the furnishings [or] fixtures . . . thereof.” The committee substitute which was ultimately adopted with some additional amendments substituted the word “contents.” Unlike the dissenting judge, this writer believes that the change from “furnishings and fixtures” to “contents” was not meaningless, but was intended to broaden the types of material, the burning of which was proscribed. Had the Legislature intended to restrict the statute to only furnishings and fixtures, there would have been no need to change the language.

Reviewing the current statute in the light of the former provision, it is evident that the Legislature intended to identify “high risk” buildings, such as jails, hospitals, nursing homes, and the like, where fire poses an enormous risk to human life and safety. Panic caused by fire or injury from smoke inhalation can be as harmful to occupants of structures as direct burning caused by the fire itself. No doubt all would agree that if appellee had burned his mattress in the center of his cell without causing any structural damage to the cell itself, he would have violated the statute because the mattress is part of the “contents.” We fail to find a distinction between the mattress and the Clothing. It is obvious that the Legislature intended to try to curtail unlawful fires in jails and other buildings because of their potentially disastrous effect on people, not because of the effect of the fire on the item burned.

Any potential absurdity in result based on this view would come not from a proper application of the statute, but only from an absurd application of the statute. It is illogical to believe that this statute, as worded, applies or was intended to apply, or could be properly construed to apply, to citizens lighting their own matches, lighters, cigars, cigarettes and tobacco pipes in offices and stores where persons are normally present or to the lighting and burning of candles in church. These activities, at least in the example cited are lawful, as is the example of burning one’s [I suppose old] socks in one’s own furnace, and the trial court thus incorrectly interpreted the statute and should not have dismissed the information. The order of dismissal is reversed, and the cause is remanded to the trial court for further proceedings consistent herewith.

REVERSED and REMANDED.

DAUKSCH, C. J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The question presented is the meaning of the word “contents” in section 806.01(l)(b), Florida Statutes (1979) (set forth in footnote 1 of the majority opinion), which makes it illegal to willfully cause damage by fire to “any structure, or contents thereof... .” The word “contents” must be construed either literally to mean any and everything brought within and, therefore, contained within the structure or it must be construed more narrowly. The majority construes the word literally; I find a more narrow construction is necessary.

Besides jails and prisons, this statute relates to churches, department stores, office buildings, business establishments and other similar structures where persons are normally present. Since the word “contents” is not limited as to ownership or otherwise, a literal reading will lead to absolutely absurd results, such as its application to citizens lighting their own matches, lighters, cigars, cigarettes, and tobacco pipes in offices and stores where persons are normally present, the lighting and burning of candles in churches, etc. The rationale of the majority opinion would likewise require upholding the conviction under this statute of one who burns his own socks in the furnace of his own office building. Such an absurd result suggests that some more restrictive meaning of the word “contents” must have been intended by the legislature.

An inflexible and distinguishing trait of every sound principle of law is that it results in a reasonable conclusion when applied to every situation within its terms. The converse is also true — an absurdity in conclusion indicates a fallacy in principle. Therefore the invalidity of a proposition can be demonstrated by showing an absurdity to which it leads when carried to its logical conclusion (reductio ad absurdum). The above examples are not given to ridicule or for humor but as a serious test of the validity of the statute as construed by the majority and for contrast with the result of the construction I propose.

Because this case involves a jail and jail-issued clothing it is a good case in which to make bad law. Appellant obviously, willfully and maliciously, damaged personal property belonging to the county, a misdemeanor under section 806.13(1), Florida Statutes (1979). The question presented by this case is whether he is also an arsonist. In this first case construing this statute a construction should be made which will result in reasonable conclusions when applied to the facts of cases to come. A construction which is reasonable only as to the facts of this case, however, will necessitate torturing that construction to avoid unreasonable results in future cases. Since the wisdom or absurdity of a statute’s application is a result of its construction, the fact that the statute prohibits only “unlawful” fires cannot be relied upon to prevent its application in absurd instances because the statute itself defines what is “unlawful.” Such reasoning begs the question. Under it the majority construes the statute to prohibit all fires but say that when that construction leads to an unreasonable or absurd result, that particular fire is “lawful.”

The legislative history of this statute (Senate Bill 25 and Senate Bill 68 of the 1979 Legislative Session) reveals that the word “contents” was substituted for the words “furnishings and fixtures” of prisons, jails, detention centers and other correctional facilities. Therefore, the logical conclusion is that the Legislature’s substitution of the word “contents” was intended to expand the definition of items, the burning of which constitutes arson, while still requiring them to bear some reasonable relationship to a structure, such as to mean furniture, furnishings, fixtures and equipment in or appurtenant to a structure. I would so construe it and hold that it does not apply here.

      . 806.01(1) (1979): Any person who willfully and unlawfully, by fire or explosion, damages or causes to be damaged: (a) Any dwelling, whether occupied or not, or its contents; (b) Any structure, or contents thereof, where persons are normally present, such as: Jails, prisons, or detention centers; hospitals, nursing homes, or other health care facilities; department stores, office buildings, business establishments, churches, or educational institutions during normal hours of occupancy; or other similar structures; or (c) Any other structure that he knew or had reasonable grounds to believe was occupied by a human being, is guilty of arson in the first degree, which constitutes a felony of the first degree ...

      . Fla.R.App.P. 9.140(c)(1)(A) allows the State to appeal an order dismissing an indictment or information or any count thereof.

      .Section 806.01, Florida Statutes (1977), in its entirety, read:
      (1) Any person who willfully and maliciously, by fire or explosive, damages any structure, whether the property of himself or another, knowing, or with reasonable grounds to believe, that a human being is in the structure, shall be guilty of arson in the first degree, which constitutes a felony of the first degree ...
      (2) Any person who willfully and maliciously, by fire or explosive, damages any structure, whether the property of himself or another, under any circumstances not referred to in subsection (1), shall be guilty of arson in the second degree, which constitutes a felony of the second degree ...
      (3)“Structure” means any building of any kind, any enclosed area with a roof over it, and any vehicle, vessel, or aircraft.

      . Foley v. State ex rel. Gordon, 50 So.2d 179 (Fla.1951); Singleton v. Larson, 46 So.2d 186 (Fla.1950).

      . The changes appear designed to strengthen statutory arson law to eliminate certain problems which have made conviction of suspected arsonists difficult in the past. The new law appears to be a reflection of the Legislature’s concern over the dramatic increase of arson in recent years and the resultant loss of life and property. Fla.Stat. Sec. 806.01: Florida Arson Law — the Evolution of the 1979 Amendments, 8 F.S.U.L.Rev. 81 (1980).

      . E. g., if we follow appellee’s logic, there would be no violation of the statute if someone else had set fire to appellee’s clothing while he was wearing them, if no damage to the cell block occurred.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Earl SANDERS, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-1891, 80-1968.
    District Court of Appeal of Florida, Second District.
    June 26, 1981.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant pled guilty to robbery with a weapon and robbery with a firearm. Adjudication of guilt on both charges was withheld, and appellant was placed on fifteen years probation on each charge, to run concurrently.

Subsequently, appellant admitted violating the terms and conditions of his probation at a revocation of probation hearing. The trial judge adjudicated appellant guilty on both charges and sentenced him to serve ninety-nine years in prison on each, to run concurrently. The court retained jurisdiction over one third of appellant’s sentences.

Robbery with a weapon is a first degree felony, § 812.13(2Xb), Fla.Stat. (1979), punishable by a maximum sentence of thirty years. § 775.082(3)(b), Fla.Stat. (1979). The information for this robbery did not allege the use of a firearm or deadly weapon, which would have made a life sentence permissible under section 812.13(2Xa), Florida Statutes (1979). Miller v. State, 370 So.2d 73 (Fla.2d DCA 1979).

Also the sentencing order stated that “Judge Coe retains jurisdiction for one third of sentence” pursuant to section 947.-16(3), Florida Statutes (1979). However, this statute requires the trial judge to state with individual particularity justification for such retention on the record before such a retention can be made. See LaChance v. State, 396 So.2d 1234 (Fla.2d DCA 1981); Hicks v. State, 388 So.2d 357 (Fla.2d DCA 1980). Here the trial judge failed to note any justification for his retention of jurisdiction on the sentencing order. The transcript of the sentencing hearing also provides us with no help.

Accordingly, we remand the case with instructions to reduce appellant’s sentence to thirty years for his conviction of robbery with a weapon. The sentence of ninety-nine years on the charge of robbery with a firearm is affirmed; however, it is remanded to the lower court with instructions to either relinquish the retention of jurisdiction over the one third of appellant’s sentence or to make findings of fact and justification, with individual particularity, as is required by section 947.16(3)(a), Florida Statutes (1979), to justify the retention of jurisdiction.

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


text:
    TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER and Corporate Group Service, Inc., Appellants, v. Eloise SNEAD, Appellee.
    No. WW-271.
    District Court of Appeal of Florida, First District.
    June 26, 1981.
    James N. McConnaughhay of McCon-naughhay & Roland, P. A., Tallahassee, for appellants.
    Jon D. Caminez, Tallahassee, for appellee.
   PER CURIAM.

Appellants seek review of a workers’ compensation modification order awarding Snead an additional five percent (5%) in loss of wage earning capacity benefits. Among other points, appellants challenge the sufficiency of the evidence and the deputy commissioner’s determination that the American Medical Association’s Guides to the Evaluation of Permanent Impairment (1977) (Guides) does not apply. Although we find the Guides should apply, the deputy’s failure to apply the Guides does not constitute reversible error because the evidence is sufficient to support modification based on loss of wage earning capacity.

Snead was injured on July 21, 1978. Dr. Smith, an orthopedist, testified at the initial hearing that Snead suffered a five percent (5%) permanent partial disability. On September 6,1979, the deputy entered an order awarding Snead ten percent (10%) permanent partial disability benefits based on loss of wage earning capacity. Although she subsequently found work as a counselor, Snead continued to suffer severe pain and, as a result, was often absent from work. She then returned to Dr. Smith, who, based on a reasonable degree of medical probability, found Snead’s condition had worsened and reassessed her anatomical impairment rating increasing it to ten percent (10%) permanent partial disability.

Snead then applied for a modification pursuant to § 440.28, Florida Statutes (1979). On deposition, Dr. Smith testified he did not use the Guides. The deputy determined the Guides did not apply and modified the award increasing her impairment rating to fifteen percent (15%) permanent partial disability based on loss of wage earning capacity.

Section 440.15(3)(a)(3) 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 the purposes hereof. (Emphasis supplied).

The emphasized portion demonstrates the legislative intent to establish more uniformity in the assessment of permanent impairment ratings. Since the division has not adopted a permanent schedule, the Guides to the Evaluation of Permanent Impairment applies. The statutory language requires application of the Guides in all hearings commenced after August 1, 1979. Since the hearings occurred after the effective date, the deputy commissioner erred in failing to apply the schedule. That failure, however, does not constitute reversible error because the deputy’s award was based on loss of wage earning capacity, not measured simply by anatomical impairment. In measuring loss of wage earning capacity, no single factor is conclusive. Walker v. Electronic Products and Engineering Co., 248 So.2d 161 (Fla.1971). The existence of some permanent anatomic impairment was, of course, essential as a basis for both the initial and modified award of earning capacity loss benefits in this case. Agrico Chemical Co. v. Laws, 384 So.2d 722 (Fla. 1st DCA 1980). But a questionable measurement of the degree of impairment (or in some circumstances a finding of such impairment without quantitative determination) does not constitute reversible error when the award is otherwise supported by the record. See Everglades Hotel v. Rodriguez, IRC Order 2-3152 (April 29, 1977), cert. denied 354 So.2d 980 (Fla.1977). In addition, modification based on proof of change of condition by increased earning capacity loss, independent of any increased impairment, has been upheld. Dupont Plaza Hotel v. Schiffman, 8 FCR 78 (Sept. 24, 1973), cert. denied, 291 So.2d 5 (Fla.1974).

The evidence in this case demonstrates that Snead’s condition had worsened, that she is continuously in pain, and that she is often absent from work due to pain. Accordingly, we find sufficient evidence to sustain the modification.

The order is affirmed.

MILLS, C. J., WENTWORTH, J., and VIRGINIA Q. BEVERLY, Associate Judge, concur.


author: PER CURIAM. BOOTH, Judge,

text:
    Gary W. FLORENCE, Appellant, v. Barbara J. FLORENCE, Appellee.
    No. XX-24.
    District Court of Appeal of Florida, First District.
    June 26, 1981.
    Allen W. Lindsay, Jr., of Lindsay & Andrews, Milton, and James P. Judkins of Davis & Judkins, Tallahassee, for appellant.
    Louis F. Ray, Pensacola, for appellee.
   PER CURIAM.

The husband appeals that portion of the final judgment of dissolution awarding to the wife as lump sum alimony the marital home titled in his name. He contends the wife did not prove her need for alimony and the husband’s ability to pay it, and alternatively, he urges the trial court abused its discretion in the amount of alimony awarded. We agree the award was not justified under the facts of this case and reverse.

The husband purchased the marital home for $28,000.00 approximately six months before his October 9, 1976 marriage to appel-lee. The home is currently valued at $35,-000.00 and the mortgage amount owed is $27,160.00. While they were married, both parties worked and deposited their money in a joint checking account from which they paid their expenses. One child, a girl, was born during the parties three year marriage. At the time of the final hearing, the wife, a bookkeeper, was earning a net income of $577.28 monthly. The husband, a helicopter pilot flying supplies to offshore oil rigs in the Gulf of Mexico, was making a net income of $1,858.00 per month.

In the final judgment, the trial court awarded the wife custody of the minor child, $50.00 per week child support, and the husband was ordered to pay all medical and dental expenses for the child. The wife was awarded title to a 1978 Dodge Challenger and the husband required to make the monthly payments which amounted to $207.00 per month for 30 months. As lump sum alimony, the wife was awarded the marital home and the husband was ordered to make the mortgage payments in the amount of $243.00 monthly. The parties joint funds were split equally and the furniture and furnishings in the marital home divided with the wife receiving the bulk of the personal property.

We recognize the restraints placed upon our review of lump sum alimony awards by the Supreme Court in Canakaris v. Cana-karis, 382 So.2d 1197 (Fla. 1980). Nevertheless, we find that under the facts and circumstances of this case, the award of the marital home to the wife as lump sum alimony was inequitable and unjustified and constituted an abuse of discretion. The wife is 31 years old, in excellent health, and this was a marriage of short duration. There are no other equitable factors which must be considered. Therefore we conclude that an award of exclusive use and possession of the marital home until the wife remarries or the child reaches eighteen or otherwise becomes emancipated will satisfy the need for maintenance and support and will constitute a more equitable solution in this case.

As the home will remain titled in the husband’s name, he will continue to be solely responsible for the mortgage payments. Under this arrangement, the wife will be able to maintain the standard of living she had during the marriage and her financial needs will be met. Further, the inequitable result of the trial court’s order, of transferring the parties only asset to the wife thereby substantially enhancing her net worth while requiring her husband to pay for the home and leaving him with a liability of $27,000.00 (the amount of the mortgage) will be avoided. See Parham v. Parham, 385 So.2d 107 (Fla. 3rd DCA 1980).

Accordingly, the award of lump sum alimony is reversed and the trial court is directed to enter an order consistent with this opinion.

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

BOOTH, J., concurs in part, dissents in part.

BOOTH, Judge,

concurring in part, dissenting in part:

The order of the trial court should be affirmed in its entirety . In awarding the house as alimony, the court considered the needs of the wife/mother and of the very young child born of the marriage and their entitlement to the continued security of their home. The long period of minority and dependence of the child in the custody of the mother, the transitory nature of the father’s employment in another state, making him unavailable for ownership decisions and immediate financial expenditures related to the home, and the practical need for sole ownership in the mother are factors supporting the trial court’s decision in this regard.

I concur with the majority’s affirmance of the remainder of the order; but, as to the reversal of the award of lump sum alimony, I respectfully dissent.


text:
    ORANGE COUNTY SCHOOL BOARD and the Hartford Accident and Indemnity Company, Appellants, v. Dorothy VAN ZANT, Appellee.
    No. XX-224.
    District Court of Appeal of Florida, First District.
    June 26, 1981.

      Richard H. Weisberg of Cooper & Riss-man, Orlando, for appellants.
    Irvin A. Meyers of Meyers, Mooney & Adler, Orlando, for appellee.
   PEARSON, TILLMAN (Retired), Associate Judge.

The single question presented on this appeal is whether a fee for a claimant’s attorney allowed in a workers’ compensation proceeding is reasonable and supported by competent, substantial evidence. The right to a fee for claimant’s attorney arose out of an order of June 20, 1978. The June 20th order determined that the claimant was not required to purchase her prescriptions from a particular pharmacy selected by the carrier and directed the payment of a bill in the amount of $49.75. The fee allowed was in the amount of $4,000.00.

The parties agree that the evaluation of services for the purpose of setting a fee is to be governed by the factors set forth in Lee Engineering and Construction Company v. Fellows, 209 So.2d 454 (Fla.1968). They are as follows:

In determining the amount of the fee, it is proper to consider: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause; (2) whether the acceptance of employment in the particular case will preclude the lawyer’s appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of other employment while employed in the particular case or antagonisms, with other clients; (3) the customary charges of the Bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the services; (5) the contingency or the certainty of the compensation; and (6) the character of the employment, whether casual or for an established and constant client. No one of these considerations in itself is controlling. They are mere guides in ascertaining the real value of the service. Lee Engineering at 458 — 459.

Neither the record nor the deputy commissioner’s order provide a basis for the allowance of the fee assessed upon a consideration of the factors set forth in Lee Engineering, supra. Since the benefits obtained from the original claim were negligible, one of the primary factors relied upon to determine the fee award was the amount of time expended in preparation of the case. In this regard, the deputy’s determination of 26 hours is not supported by the record. Initially, the testimony of claimant’s counsel as to the number of hours he expended was merely an estimate. Counsel did not keep time records and he arbitrarily assigned ten minutes to every activity connected with the file. The estimate also included approximately four hours of conference with the claimant and four hours of hearing and preparation time, together with three hours preparing the deputy commissioner’s order. In Brevard County School Board v. Walters, 396 So.2d 1197 (Fla. 1st DCA 1981), this Court admonished counsel for failure to keep time records and noted that the “absence of reliable time and work records makes it impossible to identify any extraordinary personal counseling and to differentiate between that and necessary legal services.” Similarly, in this case it appears that the number of hours expended in conferences with the claimant included a good portion of “handholding”, which the Walters court held was not compensable. In addition, the evidence also indicates that the 26 hour figure erroneously included time which was unrelated to the issue of who was responsible for selection of and payments to the pharmacy. See, e. g. Burk Construction Co. v. Terribile, IRC Order 2-3132 (April 11, 1977), cert. denied 353 So.2d 680 (Fla.1977).

Of the remaining Lee Engineering factors that were applicable to this case, evidence introduced regarding the novelty and difficulty of the issue, the customary charges for services, the amount involved in the controversy, and the contingency of compensation was not sufficient to explain the great divergence between the proved time expended on the case and the amount of the fee.

It is our conclusion that the deputy commissioner has misapplied the factors considered and that the order allowing the fee must be reversed and the matter remanded for a further consideration. Reconsideration is to be limited to the actual hours proved to have been expended on the case and the expert testimony received is to be directed only to the factors here held applicable.

REVERSED and REMANDED for reconsideration consistent with this opinion.

MILLS, C. J., and SHAW, J., concur.

      . The order of June 20, 1978, was appealed and affirmed but appellate fees are not a part of the consideration for the fees allowed in the order now appealed.

      . Factors (2) and (6) of Lee Engineering do not appear to be applicable in this case.


author:
THOMPSON, Judge.
      LARRY G. SMITH, Judge,

text:
    PUREX CORPORATION and Utica Mutual Insurance Company, Appellants, v. Darlene FAY, Appellee.
    No. XX-318.
    District Court of Appeal of Florida, First District.
    June 26, 1981.

      David J. Williams of Lane, Trohn, Bertrand, Williams & Smith, Lakeland, for appellants.
    R. W. Simmermon, Orlando, for appellee.
   THOMPSON, Judge.

The appellants challenge a worker’s compensation Order, contending that the Deputy erroneously ordered them to provide the appellee (“the claimant”) with palliative medical treatment. We agree and reverse.

The claimant was injured in a compensa-ble accident in April 1979. From May to July 1979, she was treated by two orthopedic physicians, who could find no objective basis for her complaints. During this time, she was also examined by a urologist, whose examination was negative. In July 1979, one of the orthopedic physicians reported that the claimant was quite dissatisfied with the fact that he could find no reason for her pain or her professed inability to work. Accordingly, he recommended further consultation.

The claimant filed a claim for further medical treatment, after which she stipulated that the appellants had provided her with the services of two orthopedic physicians. At a hearing in August 1980, the claimant testified that she had been on welfare and had not worked nor sought further medical care for more than one year prior to the hearing. She complained of pain, and she stated that she would like to see another doctor. The Deputy subsequently entered his Order, directing the appellants to provide palliative care to the claimant by a general practitioner, in addition to paying taxable costs and attorney’s fees.

Before the appellants can be ordered to provide medical treatment, there must be a causal relationship between the claimant’s compensable accident and the condition for which medical treatment is ordered. See Govin’s, Inc. v. Carpenter, IRC Order 2-3305 (Dec. 30,1977). In this instance, there is a complete lack of competent substantial evidence as to such a causal relationship.

The Deputy ordered treatment for pain, but there was no evidence that the claimant’s pain was causally related to her accident. Two orthopedic surgeons and a urologist were unable to find any objective cause for the claimant’s complaints, and a further consultation was recommended only because the claimant was dissatisfied with the medical reports herein. Additionally, the claimant’s testimony was wholly inadequate to establish a causal connection between her accident and her later complaints of pain. This inadequacy is underscored by the facts of this case, where, by the time of the hearing, more than 15 months had passed since the claimant’s accident, and more than 12 months had passed since her last medical examination. Under these circumstances, there is no competent substantial evidence to support an award of medical treatment based solely on the fact that a claimant testifies that she has various pains that “just come and go.” Therefore, the Deputy’s Order is reversed, including the award of costs and attorney’s fees.

BOOTH, J., concurs.

LARRY G. SMITH, J., dissents.

LARRY G. SMITH, Judge,

dissenting with opinion.

I do not think “causal relationship” was ever an issue in the proceeding below. Consequently, I disagree with the majority’s decision, which is based upon the majority’s conclusion that “there is a complete lack of competent substantial evidence as to ... a causal relationship” between the accident and the condition for which treatment was ordered. I think the testimony of the claimant shows that she still has the symptoms she experienced after being struck in the back by a forklift over a year prior to the hearing, specifically, pains in the low back area. Her testimony alone is sufficient basis for a finding of causal connection. See Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980). The connection between her symptoms as described at the hearing and the prior accident was never questioned by counsel for the employer/carrier below. The Deputy Commissioner, who heard and evaluated the claimant’s testimony, and evaluated the medical reports introduced into evidence, determined the causal relationship issue in favor of the claimant, in absence of any contrary evidence. It is noted, however, that the Deputy Commissioner specifically determined that recent problems the claimant was having with her neck were not causally related to her accident.

Although the E/C argues here that there was no medical evidence to support the order for further palliative care, the claim was not defended below on lack of causal relation, and I fail to find any reference to lack of causal relation in the E/C’s brief before this court. The claim was controverted below for the reasons stated in the pretrial stipulation: That all benefits due had been timely paid or provided by the E/C; the employee had reached MMI; and the E/C had provided two orthopedic evaluations.

There is nothing in the claimant’s claim suggesting that she was merely seeking an “evaluation.” At the commencement of the hearing below, claimant’s attorney stated that she continued to have symptoms, could not afford to go to a doctor, and wanted to see “another doctor of the Court’s choice.” He further stated: “We don’t really have . . . any idea about who you might want her to see. We don’t even care. Let’s just see if we can get this lady some treatment.”

The primary thrust of the E/C’s argument in this court is that because the claim for “further medical treatment” specified, parenthetically, “(orthopedic, neurologic, chiropractic),” the E/C was not adequately notified of and should not have been required to defend a claim for “palliative” care by a “general practitioner” as ordered by the Deputy Commissioner. If this position is accepted as meritorious by this court, then this cause should be reversed and remanded to the Deputy Commissioner for another hearing, not merely reversed. I conclude, however, that the notice was adequate. No contention was made below nor here that the E/C was prejudiced in any manner or misled by the stipulated issue, nor that its position would have been any different under a differently worded claim. No objection was voiced below when the claimant’s attorney made it clear that “we don’t even care” what doctor the Deputy Commissioner might provide for the claimant. It is clear, of course, that the claimant did not wish to return to either of the two orthopedics who had evaluated her. She was obviously dissatisfied, and her dissatisfaction had in fact been noted by one of the doctors, who for that reason recommended further consultation with another doctor. It should be noted that the position of the E/C was, as expressed by their attorney at the hearing, simply that “we’ve done all that we’re required to do.”

It appears to me that the majority’s decision overlooks the posture of the case as presented to the Deputy Commissioner. At one point the Deputy Commissioner stated (in response to the E/C's attorney’s statement that the claimant had never asked to return to either of the two orthopedic physicians who had seen her): “Well, she is entitled to palliative treatment.” In response, the E/C’s attorney said: “There’s ... no one’s denied it to her.” On appeal, however, we find the E/C taking just the opposite stance. That is, they are denying the claimant’s right to and resisting the order for palliative care. Thus, even though the claimant’s right to palliative care was in effect conceded by counsel for the E/C at the hearing, this court is now announcing its own decision to the contrary.

The claim for “further medical treatment” seems to me to be sufficient as a claim for medical treatment of whatever nature of the claimant might be entitled to receive. The order for palliative care, in my opinion, is based upon a correct interpretation of the facts and the applicable law.

The question whether medical benefits extend to palliative measures useful only to prevent pain and discomfort after all hope of cure is gone has produced a split of opinion. A substantial majority of jurisdictions allows such benefits, .... (Larson’s Workmen’s Compensation Law, § 61.14)

Florida is among the jurisdictions following the “majority” view. See DiGeorgio Fruit Corp. v. Pittman, 49 So.2d 200 (Fla.1950); Section 440.13, Florida Statutes (1977).

The claimant in the present case had not seen a physician for more than a year prior to the hearing. The medical reports demonstrate conclusively that the claimant received certain treatments more than a year prior to the hearing with results which were unsatisfactory to her, and there was uncon-tradicted testimony at the hearing that she still continues to suffer the same symptoms. These circumstances, together with the fact that she did not seek and the order did not provide simply for another “evaluation,” distinguishes this case from K-Mart Corporation v. Nasoni, 377 So.2d 821 (Fla. 1st DCA 1979), and Cardinal Industries Inc. v. Dawkins, 392 So.2d 368 (Fla. 1st DCA 1981).

I do not think this is an instance m which the court should allow two “no help” visits to physicians to override a finding by the Deputy Commissioner that the claimant is entitled to and should receive further medical assistance. Compare Barnett v. EMR Telemetry, et al., 396 So.2d 791 (Fla. 1st DCA 1981).

I would affirm the order of the Deputy Commissioner.

      . Appellants’ brief states, in part: “When the D.C. misapprehends the issue before him as he clearly did in this case, it is necessary that his decision be reversed for a determination of the issue that was really before him,” citing Herder v. School Board of Palm Beach County, 388 So.2d 626 (Fla. 1st DCA 1980).


text:
    Gerald Wayne CROSBY, Appellant, v. REGIONAL UTILITY BOARD, CITY OF GAINESVILLE, Appellee.
    No. YY-59.
    District Court of Appeal of Florida, First District.
    June 26, 1981.

      Eilon Krugman-Kadi, Gainesville, for appellant.
    Jack A. Langdon and Terrence J. Kann, Gainesville, for appellee.
    Larry Klein, West Palm Beach, for ami-cus curiae, The Academy of Florida Trial Lawyers.
    Rodney W. Smith, Gainesville, for amicus curiae, Communications Workers of America, Local 3170.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

The issue in this case is whether an employee engaged in a hazardous occupation as defined by Chapter 769, Florida Statutes, injured in the course and scope of such employment through the negligence of his employer (for which a right of action is granted by Section 769.02, Florida Statutes) is nonetheless limited to the remedies of the Workers’ Compensation Act, Chapter 440, Florida Statutes, where the employer has secured to and for its employees the benefits of such Act. We answer this question in the affirmative and affirm the judgment of the trial court.

The facts are neither complex nor in dispute. Appellee, City of Gainesville, is in the business of generating and selling electricity, an occupation defined as hazardous by Chapter 769, Florida Statutes. Appellant, Crosby, was employed by the City of Gainesville as an electrical lineman and while in the course and scope of such employment on July 6, 1979, sustained severe burns and permanent disability as a result of the City’s alleged negligence. At that time the City of Gainesville was an employer within the definition of the Workers’ Compensation Act, Chapter 440, Florida Statutes, and had secured to and for its employees, including Crosby, the benefits of that Act. As a result of the industrial accident, Crosby received benefits provided under the Workers’ Compensation Act.

In July, 1980, Crosby filed a negligence action against the City under the provisions of the Hazardous Occupations Act, Chapter 769, Florida Statutes. On the City’s motion to dismiss, the court ordered the complaint dismissed with prejudice holding that by virtue of Section 440.11, Florida Statutes, the employer’s liability to the employee was limited to the statutory benefits of the Workers’ Compensation Act.

The Hazardous Occupations Act, enacted as Chapter 6521, Acts of 1913, first defines those occupations designated as hazardous (of which generating and selling electricity is one), and then provides, in Section 769.02, Florida Statutes, a right of action on behalf of employees against employers injured through the latter’s negligence, in the following language:

“769.02 The persons mentioned in s. 769.01 shall be liable in damages for injuries inflicted upon their agents and employees, and for the death of their agents and employees caused by the negligence of such persons, their agents and servants, unless such persons shall make it appear that they, their agents and servants have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against such persons.

In 1935 the Workmen’s Compensation Act (now called Workers’ Compensation Act) was initially enacted, which through the years subsequent thereto has included, in one form or another, a provision limiting the employer’s liability to an employee exclusively to that provided in the Workers’ Compensation Act. That part of the statute applicable to this case provides, in relevant part, as follows:

“440.11 Exclusiveness of liability.—
(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death....”

Recently, the Supreme Court, in discussing the constitutionality of Section 440.11, Florida Statutes, in a different context, stated in Seaboard Coast Line Railroad Company v. Smith, 359 So.2d 427 (Fla.1978), at page 428:

“The sole and total liability of such employer is that defined in the Act itself. Moreover, we find no constitutional infirmity because of the grant of immunity to such employer under Section 440.11, supra.”

Further, in the same case, the Court stated, at page 429:

“The Workmen’s Compensation Act, by its express terms, replaces tort liability of the employer with strict liability for payment of the statutory benefits without regard to fault. An employer under this Act is not liable in tort to employees by virtue of the express language of the Act. Such immunity is the heart and soul of this legislation which has, over the years been of highly significant social and economic benefit to the working man, the employer and the State. And, whether the injury to the employee is caused by ‘gross negligence’, ‘wanton negligence’, ‘simple negligence’ passive or active, or no negligence at all of the employer, is of no consequence.”

Notwithstanding the clear language of Section 440.11, Florida Statutes, and of the numerous Florida cases which have recognized that the exclusive liability of the employer is limited to that set forth in the Workers’ Compensation Act, appellant contends that the Hazardous Occupations Act is an exception to the employer’s exclusive liability provision of Section 440.11, Florida Statutes. In support of that position appellant argues, not without some degree of persuasiveness, that the fact that the Florida legislature has not seen fit to repeal the Hazardous Occupations Act during the more than forty-five years that the employer’s exclusive liability provision of the Workers’ Compensation Act (in one form or another) has been a part of the statutory law of Florida indicates a legislative intent that the Hazardous Occupations Act has not been supplanted by the Workers’ Compensation Act, but instead remains an alternative remedy available for workers in hazardous occupations who sustain injury in the course and scope of their employment through the negligence of their employers. This argument loses force, however, in view of the frequency with which the legislature has seen fit to amend the Workers’ Compensation Act, yet has always retained the exclusive liability provision knowing the construction consistently placed upon that provision by the courts. A more likely reason for the legislature not repealing the Hazardous Occupations Act is a legislative intent that the Act not be supplanted in those instances where the employer’s liability does not, for one reason or another, enjoy Section 440.11 limitation.

We have been unable to find any reported decision of an appellate court of this state which has expressly held that the Hazardous Occupations Act is not an exception to the employer's exclusive liability provision of Section 440.11, Florida Statutes, although two reported decisions have so held by implication.

Somewhat analogous to the instant case, an attempt was made in Mullarkey v. Florida Feed Mills, Inc., 268 So.2d 363 (Fla.1972), to avoid the exclusive liability clause of the Workers’ Compensation Act. There the non-dependent parent and personal representative of a deceased minor employee sought to bring against the employer a cause of action under the Survival Statute and the Wrongful Death Statute. The court held that the deceased minor employee, having brought himself within the benefits of the Workmen’s Compensation Act, bound himself as well as his representative and survivors to the employer’s exclusive liability provision of the Act. In reaching that decision, the court quoted from its earlier decision, Howze v. Lykes Bros., Inc., 64 So.2d 277 (Fla.1953), as follows:

“Appellant contends that it was not the purpose of the Workmen’s Compensation Act to exclude the father from recovering damages for mental pain and suffering in a case like this, but we think Section 440.11, F.S.A. [the exclusiveness of liability section] is a complete answer to this contention. The philosophy of workman’s compensation is that when employer and employee accept the terms of the act their relations become contractual and other statutes authorizing recovery for negligent death become ineffective, [citations omitted]”

Appellant also argues that workers engaged in hazardous occupations are not only more likely to be seriously injured in their employment, but generally, in recognition of the added hazard, receive significantly higher pay, and thus, if limited to the provisions of the Workers’ Compensation Act when injured on the job, the hazardous occupation worker is unfairly discriminated against because of the limited benefits available under workers’ compensation. That sociological argument is better addressed to the legislature. In any event, a somewhat similar argument, although not directly involving the Hazardous Occupations Act, was rejected in Matthews v. G.S.P. Corp., 354 So.2d 1243 (Fla. 1st DCA 1978), where a worker unsuccessfully sought to avoid the exclusive liability provision of the Workers’ Compensation Act because of the dangerous conditions under which he worked and the alleged willful and wanton negligence of the employer.

Despite the absence of reported decisions of Florida appellate courts on the issue, the identical issue has been determined adversely to appellant’s position by the federal courts. In Macarages v. Raymond Concrete Pile Company, 220 F.2d 891 (5th Cir. 1955), the court held that the exclusive liability provision of Section 440.11, Florida Statutes, was not the type of “contract, contrivance or device” prohibited in Section 769.06, Florida Statutes. In reaching this decision, the court quoted language from the case of Winn-Lovett Tampa, Inc. v. Murphree, 73 So.2d 287 (Fla.1954), stating (under a different context from that involved in this case) that the Workmen’s Compensation Act is implicit in every employer-employee relationship irrespective of the nature of the employment. While not binding, the federal court decision is at least persuasive authority.

AFFIRMED.

ERVIN, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.

      . The complaint did not on its face assert that the employer had secured workers’ compensation benefits for the injuries sustained by plaintiff. Furthermore, the unverified motion to dismiss does not allege that benefits were secured to plaintiff under the Workers’ Compensation Act, although it implies as much by asserting that plaintiffs exclusive remedy is under the Workers’ Compensation Act. Normally, affirmative defenses, unless appearing on the face of a prior pleading, are not asserted as grounds for a motion to dismiss but are pleaded affirmatively in the appropriate responsive pleading. See Rule 1.110(d), Fla.R.Civ.P. The parties, in their respective briefs, state as a fact that the plaintiff was covered under the provisions of the Florida Workers’ Compensation Act and did in fact receive benefits under that Act. Furthermore, they make no complaint as to the procedural manner in which this substantive issue was presented to the court for a ruling.

      . Jones v. Seminole Rock Products, Inc., 295 So.2d 655 (Fla. 3d DCA 1974), and Dotson v. Container Corp. of America, 254 So.2d 863 (Fla. 1st DCA 1971), each affirmed, without opinion, the judgment appealed, citing as authority Macarages v. Raymond Concrete Tile Company, 220 F.2d 891 (5th Cir. 1955), discussed infra.

      . “Any contract, contrivance or device whatever, having the effect to relieve or exempt the persons mentioned in s. 769.01 from the liability prescribed by this chapter shall be illegal and void.”


author: GRIMES, Judge.

text:
    PINELLAS COUNTY, Appellant, v. Roger R. MAAS and Paul C. Scherer, Appellees.
    No. 80-1941.
    District Court of Appeal of Florida, Second District.
    July 1, 1981.
    Jean H. Kwall, Asst. County Atty., Clear-water, for appellant.
    Philip J. Padovano, Tallahassee, for ap-pellees.
    Howard B. Eisenberg, Washington, D.C., for National Legal Aid and Defender Association as amicus curiae.
   GRIMES, Judge.

This is an appeal from an order declaring sections 27.53 and 925.036, Florida Statutes (1979), unconstitutional to the extent that they attempt to limit a court’s award of reasonable attorney’s fees for the services of appointed counsel in representing indigent criminal defendants.

The state charged Michael Gross with first degree murder, and the trial court appointed a public defender to represent him. After a conflict developed, a private attorney was appointed to represent Gross. This attorney then had to withdraw, and the court appointed Paul Scherer in his place. At Mr. Scherer’s request, the court also appointed Roger Maas as co-counsel, and they represented Gross during the trial at which the jury returned a guilty verdict. The court then sentenced Gross to life imprisonment pursuant to the jury’s recommendation.

Mr. Scherer and Mr. Maas moved for attorney’s fees and to establish the value of their services. Following a hearing, the court declared sections 27.53 and 925.036 unconstitutional and awarded them a $25,-000 attorney’s fee. In reaching its conclusion, the court stated:

12. The Court further finds that if Florida Statute 925.036 is applied, that the respective attorneys would be paid at an approximate hourly rate of $6.25 for their representation of this Defendant for his first degree murder trial which the Court finds highly unreasonable for competent trial counsel. The Court finds defense counsel in this cause are highly qualified and competent. The Court finds that $75 per hour out of Court and $100 per hour in Court is the prevailing rate in this community.
13. This Court is concerned that Florida Statute 925.036 and 27.53 as applied in this case operates as an unfair restraint of trade, constitutes unfair price setting, unjustly enriches the state, deprives counsel of a property right without due process of law, and effects future defendants in that it will deny them effective and competent counsel.
14. This Court finds that this case constitutes an “extraordinary case” as per the situation in Rose v. Palm Beach County, 361 So.2d 135 (Fla.1978) and Florida Statutes 925.036 and 27.53 are an unconstitutional infringement on a Court prerogative and the separate power of the judiciary.

Pinellas County, which will be obligated to pay the fees, appeals from the court’s order.

The county does not question the determination of the reasonable value of the attorneys’ services. The dispute arises because of the limitations on fees for appointed counsel prescribed by section 925.036 which reads:

An attorney appointed pursuant to s. 925.035 or s. 27.53 shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit. Such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the court. The compensation for representation shall not exceed the following per case per defendant:
(1) For misdemeanors and juveniles represented at the trial level: $500.
(2) For noncapital, nonlife felonies represented at the trial level: $1,500.
(3) For life felonies represented at the trial level: $2,000.
(4) For capital cases represented at the trial level: $2,500.
(5) For representation on appeal: $1,000.

There have been frequent confrontations of this nature around the country. In most jurisdictions an appointed attorney is entitled to no fee whatsoever in the absence of statutory authorization. Annot., 21 A.L. R.3d 819 (1968). Where the legislatures have authorized a fee, several courts have upheld the statutory máximums. E. g., Daines v. Markoff, 92 Nev. 582, 555 P.2d 490 (1976); State v. Apodaca, 252 Or. 345, 449 P.2d 445 (1969). Nevertheless, under the increased demand for appointed counsel in the wake of the United States Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), some courts have held that the judiciary has an inherent right to award a reasonable attorney’s fee in the absence of statute or without regard to statutory maximums. E. g., Smith v. State, 118 N.H. 764, 394 A.2d 834 (1978); State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966).

The question has not been ignored in Florida. In Mackenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973), an attorney attacked as unconstitutional the statute which then established a maximum of $750 compensation for the defense of an indigent in a capital case. The supreme court specifically held that the statute “both on its face and as applied” comported with the due process and equal protection clauses of the-state and federal constitutions. The later case of Rose v. Palm Beach County, 361 So.2d 135 (Fla.1978), cited by the court below, came about as the result of a change in venue of a criminal trial which made it necessary for witnesses, many of whom were indigent, to travel long distances to testify. The court affirmatively answered the certified question which asked: “Does a trial court have inherent power to order pre-payment of traveling and lodging expenses to ensure a fair trial to a criminal defendant and the state in excess of the statutory maximum of $5 a day and $.06 a mile when the witnesses are indigent?” 361 So.2d at 136. Justices England and Sund-berg argued in dissent that the decision was inconsistent with Mackenzie v. Hillsborough County.

Two of our sister courts have also spoken on the subject. In County of Seminole v. Waddell, 382 So.2d 357, 358 (Fla. 5th DCA 1980), the court concluded that in view of Mackenzie v. Hillsborough County the constitutional attack on section 925.036(4) was “merely colorable, rather than substantial.” The court acknowledged the lack of harmony between Rose and Mackenzie but pointed out that Mackenzie dealt directly and explicitly with the issue at hand. Two months later the court in Dade County v. Goldstein, 384 So.2d 183 (Fla.3d DCA 1980), also reversed an order which awarded attorney’s fees in excess of the maximum prescribed by section 925.036.

Appellees and amicus curiae argue that courts may award reasonable attorney’s fees to appointed counsel under their inherent right to control the conduct of the judicial system. Certainly, this was the basis upon which the court in Rose permitted the payment of witness fees in excess of the statutory maximum. But the case at hand is unlike Rose. There, the court held that the expenditure of public funds was required to protect the rights of the defendant and that the action taken was necessary to enable the court to perform one of its essential judicial functions. Here, no such considerations were present. Mr. Scherer •and Mr. Maas never suggested the hardship of their appointment or even asserted that they were entitled to be paid more than the statute allowed until they had concluded their work. There was nothing in the record to show that the statutory máximums, albeit unrealistic by today’s standards, were precluding indigent defendants from obtaining the benefit of competent counsel. Simply put, there were no extraordinary circumstances which might call for the application of the inherency doctrine. Cf. People v. Randolph, 35 Ill.2d 24, 219 N.E.2d 337 (1966), in which the court approved fees in excess of a $250 statutory maximum where a trial in a changed venue had already run two months and was expected to take several more and the appointed attorneys were asking to withdraw on a hardship basis.

We hold that sections 27.53 and 925.-036 are constitutional. Since the state charged defendant Gross with only one count of murder, the maximum fee which the two lawyers could receive together was $2,500. County of Seminole v. Waddell.

REVERSED.

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


author: PER CURIAM. COWART, Judge, dissenting:

text:
    Harvey PIXLEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1139.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Appellant’s split sentence is reversed for resentencing in conformity with Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) [1981 F.L.W. 313], a decision which was not available to the trial judge because it issued after the sentencing in this case.

REVERSED.

ORFINGER and SHARP, JJ., concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I dissent for the reasons expressed in the dissent to Wesley v. State, 400 So.2d 175 (Fla. 5th DCA 1981).


text:
    J. E. McCLUSKEY and Harry G. May, Appellant, v. Nancy Kelley WITTENBERG, Secretary of the Florida Department of Professional Regulation, Appellee.
    No. 80-496.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    Richard J. R. Parkinson, of Parkinson & Pyle, Orlando, for appellants.
    Deborah J. Miller, Staff Atty. Dept, of Professional Regulation, Tallahassee, for appellee.
   PER CURIAM.

On the basis of Starchk v. Wittenberg, 392 So.2d 1007 (Fla. 5th DCA 1981), the order denying dismissal of the petition is reversed, the injunction is dissolved, and the petition is dismissed.

ORFINGER, COBB and SHARP, JJ., concur.


author: HURLEY, Judge.

text:
    BROWARD COUNTY, Appellant/Cross-Appellee, v. George SATTLER, Appellee/Cross-Appellant.
    No. 78-2570.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.

      Harry A. Stewart, Gen. Counsel, and Harry M. Hipler and Allen S. Parish, Asst. Gen. Counsels, Fort Lauderdale, for appellant/cross-appellee.
    H. C. Feige of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for appel-lee/cross-appellant.
   HURLEY, Judge.

George Sattler, a former director of the Broward County Transportation Authority, filed suit against Broward County following his termination from that position without notice. In a two-count complaint filed September 17, 1976, Sattler sought 90-day termination pay and payment for the use of his automobile for official business over a 17-month period. Based on a jury verdict which allowed the termination pay but denied transportation expenses, the trial court entered a final judgment against Broward County which judgment included an assessment for prejudgment interest. Broward County unsuccessfully challenged this assessment by a motion to amend the judgment and now seeks review on appeal. We uphold the assessment.

Broward County alleged three separate bases for its assertion that the trial court erred in assessing prejudgment interest against it: (1) there is no statute or express contract authorizing assessment of interest; (2) interest must be determined by the jury as part of damages; and (3) the claim was unliquidated. We will treat each contention in turn.

Guidelines for the assessment of interest against the state were set out in Treadway v. Terrell, 117 Fla. 838, 158 So. 512 (1935), and the principles expressed therein have since been held applicable to all political entities. Ed C. Wright & Co. v. Adkins, 152 Fla. 512, 12 So.2d 296 (1943). While the court in Treadway did maintain that the state is not liable to pay interest on its debts absent statute or lawful contract to the contrary, it went on to find that:

The Constitution (article 3, § 22) authorizes the enactment of general laws “for bringing suit against the State as to all liabilities now existing or hereafter originating.” Such laws may authorize suits against the state on any or all liabilities that may arise against the state, and may by intendment authorize an adjudication of claims of liability of the state for interest as a legal incident or a part of claims against the state such as those arising under contract for work done, even though the payment of interest by the state is not expressly provided for by statute or in the contract; and the liability of the state for such interest may in proper cases be adjudicated under implied statutory authority, when such adjudication would be legal and just as between private parties, and it is necessary to complete compensation or to the administration of justice under contracts with the state.
Where statutory authority to sue a state is given, the implied immunity of the state from payment of interest upon obligations of the sovereign state may be waived or the payment of such interest may be impliedly authorized or assented to by the statute; and interest may be awarded on such implied statutory authority when the nature of claims on which suits may be maintained and the object designed in permitting suits against the state or its agencies warrant it.

158 So. at 518.

Relying on the principle that liability for interest may be implied from statutory authorization to sue a governmental entity, we find that despite the absence of a specific authorizing statute or contract, the assessment of prejudgment interest herein may be upheld as being implicitly provided for in the statutory authority to sue the Browárd County Transportation Authority (Chapter 69-907, § 6, Laws of Florida, as amended by Chapter 71 — 561, § 6, Laws of Florida, repealed by Chapter 77-515, Laws of Florida).

As to assessment of interest in a jury trial, we acknowledge the case law which holds that while it is proper to allow recovery of prejudgment interest as part of the damages in a breach of contract action, a judge has no authority to assess such interest when the case was tried by jury and the verdict failed to allow or indicate the desire to allow interest. See, e. g., Aetna Insurance Co. v. Settembrino, 369 So.2d 954 (Fla. 3d DCA 1978); Newcombe v. South Florida Business Negotiators, Inc., 340 So.2d 1192 (Fla. 2d DCA 1976). However, we find that there is no need to submit the question of interest to the jury where the amount of damages is liquidated and the assessment merely requires calculation. See, Plantation Key Developers, Inc. v. Colonial Mortgage Company of Indiana, Inc., 589 F.2d 164 (5th Cir. 1979). Moreover, we note that a claim is only unliqui-dated for purposes or prejudgment interest when the amount of damages cannot be computed except on conflicting evidence, inferences, and interpretations. Town of Longboat Key v. Carl E. Widell & Son, 362 So.2d 719 (Fla. 2d DCA 1978).

In the instant case, the right to recovery was contested but there was no dispute as to the amount of the compensation sought. Thus, the claim was liquidated and, in contract actions, it is proper to allow interest at the legal rate from the date the debt was due despite an honest and bona fide dispute as to the debt. English and American Ins. Co. v. Swain Groves, Inc., 218 So.2d 453 (Fla. 4th DCA 1969). Consequently, we find no error was committed in assessing prejudgment interest against Bro-ward County.

On cross appeal, Sattler argues that he was entitled, as a matter of law, to compensation for his travel expenses. It is not the function of an appellate court to reevaluate evidence and substitute its judgment for that of a jury; rather, if there is any competent evidence to support a verdict, that verdict must be sustained regardless of the opinion on appeal as to its appropriateness. Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977). Since there was conflicting evidence on this issue, the jury’s resolution should not be disturbed.

Accordingly, the judgment appealed from is affirmed in all respects.

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


author: PER CURIAM. NESBITT, Judge

text:
    Frankie Lee AARON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1581.
    District Court of Appeal of Florida, Third District.
    July 1, 1981.

      Bennett H. Brummer, Public Defender and Charles Wender, Sp. Asst. Public Defender, Boca Raton, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   REVISED OPINION

PER CURIAM.

This is an appeal from a judgment of conviction and sentence of five years less credit for time served, entered after the trial court found the defendant in violation of probation. The defendant has timely filed a notice of appeal to review an “order revoking and/or modifying the defendant’s probation.”

Though the notice of appeal is not from the entry of judgment and the imposition of sentence as it properly should be filed, it is abundantly clear from the record that the appellant intended to have the judgment and five-year sentence (less credit for time served) reviewed on the basis of the alleged error in the revocation proceeding. Additionally, the notice of appeal properly identifies the litigation and the state has not complained of its form. Moreover, the record presented will sustain such an appeal and there is an absence of any record basis for genuine prejudice as a result of the defective notice. Milar Galleries, Inc. v. Miller, 349 So.2d 170 (Fla.1977); State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967); Robbins v. Cipes, 181 So.2d 521 (Fla.1966). Contra, Recht v. State, 344 So.2d 885 (Fla.4th DCA 1977), but see, Byrd v. State, 353 So.2d 1228 (Fla.4th DCA 1978) (not following Recht “since the error arose from state action.”)

Following his conviction for the crime of aggravated battery, the defendant was initially placed on eighteen months probation, subject to the usual general conditions and a special condition of probation that restitution for medical expenses be made to the victim. An affidavit of violation of probation was later filed and, as indicated by the transcript of the probation revocation hearing, the defendant’s probation was revoked on one or all of the following grounds:

(1) failure to pay medical expenses incurred by the victim;
(2) failure to pay the costs of probation supervision;
(3) failure to notify his probation officer of a change in his employment; and
(4) failure to file monthly reports.

The probation revocation proceeding reflects that the state did not offer any proof and the record does not support any finding that the defendant had the ability to pay the victim’s medical costs or the costs of probation supervision. A showing of solvency must precede revocation for non-payment of restitution, Peterson v. State, 384 So.2d 965 (Fla.1st DCA 1980), and for failure to pay the costs of probation supervision, Sampson v. State, 375 So.2d 325 (Fla.2d DCA 1979). Consequently, revoking the defendant’s probation for these two grounds was error.

The record reflects that the defendant did not notify his probation officer regarding the change in his employment status. The defendant testified that he had been discharged by two employers. Relying upon Kotowski v. State, 344 So.2d 602 (Fla.3d DCA 1977), the defendant argues that this was sufficient legal justification to excuse his failure to notify his probation officer. In Kotowski, the defendant had been evicted from his residence and consequently we found that his failure to have notified his probation officer regarding his change in address would have been a useless act. Here, the defendant’s discharge by two separate employers may afford him legal justification or excuse for failing to maintain constant employment but it does not justify his failure to notify his probation supervisor of the name of his current employer or, at the very least, that he no longer had employment.

The transcript further reflects that the defendant had failed to timely file monthly probation reports which, standing alone, would support revocation of his probation. Page v. State, 363 So.2d 621 (Fla.1st DCA 1978). Therefore, as we have indicated, the record reflects two grounds upon which the court properly may have revoked the defendant’s probation. We will not disturb an order revoking probation where it is supported by a legally sufficient basis in the record. Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979); Franklin v. State, 226 So.2d 461 (Fla.2d DCA 1969).

In this case, the grounds upon which the defendant’s revocation of probation could properly have been based may be regarded as more technical than substantive in nature. Our review of the record discloses that the trial court’s primary concern in revoking the defendant’s probation was his failure to pay the medical costs incurred by the victim. Since this was not a legally sufficient basis upon which to revoke the defendant’s probation; and since we do not know whether the trial court would have revoked his probation under the remaining grounds or whether the trial court would have imposed the remaining portion of the term of imprisonment; we reverse the judgment and sentence and remand the cause to the trial court, as we did in Jess v. State, 384 So.2d 328 (Fla.3d DCA 1980), to make such findings and determinations and then to re-sentence the defendant as it is so advised.

Reversed and remanded with directions.

NESBITT, Judge

(dissenting):

Following our unanimous decision to reverse and remand to the trial court for reconsideration of its sentence, our opinion was met by a motion for rehearing by the state which supplemented the record by the filing of a certified copy of the order of revocation, which order expressly revoked the defendant’s probation upon all of the grounds cited in the majority opinion. In my view, the written order of revocation now lodged before this court should change the result.

When we initially decided the appeal without a written order of revocation, we necessarily had to resort to the record to find support for the order of revocation. At that point, we had no way of knowing the grounds on which the trial judge actually revoked the defendant’s probation. In that ambiguous state, it was perfectly proper to apply Jess v. State, 384 So.2d 328 (Fla.3d DCA 1980) and return the cause to the trial court to reconsider the sentence imposed upon the defendant.

The evidence was insufficient to warrant revocation of the defendant’s probation because of his impecuniosity. However, the record does support, and we now know, that the trial judge additionally revoked the defendant’s probation for his failure to: (1) notify his probation officer as to the change in his employment status; and (b) file monthly reports.

It is appellate doctrine that an order of the trial court will not be disturbed when it is supportable by any legally sufficient basis. Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979) is very much in point because there the only ground for revocation was the failure to file monthly reports. To the same effect are the decisions of Page v. State, 363 So.2d 621 (Fla.1st DCA 1978) and Franklin v. State, 226 So.2d 461 (Fla.2d DCA 1969).

The majority considers the failure of the probationer to communicate with his probation officer, in whatever manner required, as being “technical” in nature. Other courts of appeal disagree with that view as I do. If a probationer is to be superintended, some form of communication between him and his supervisor is required. It is the very essence of probation. Without any means of communication between the two, no guidance, supervision, or protective correction can be expected. Of course, the failure of a probationer to communicate with his probation officer is not as serious as the commission of a substantive crime. Likewise, failure to communicate within the time and manner required is technical. However, the failure to report at all is a serious matter. A probationer’s respect for the law is hopefully engendered by the probationer remaining in contact with his probation officer who symbolizes the authority by which the court’s grace is extended. In this case, it may be reasonably inferred that had the probationer remained in contact with his probation officer, he might not have gone from job to job and hopefully would have accumulated enough earnings to have made restitution to the victim for medical expenses incurred after his teeth were knocked out by the probationer.

An indirect effect of the majority opinion is to now require trial judges sentencing defendants to probation to set forth with specificity their intent with respect to the individual grounds of revocation or hazard reversal. While this may be the better practice, I know of no such requirement to be imposed upon trial courts.

Because we are now aware of the actual grounds upon which the trial court revoked the defendant’s probation, which are substantial, I would vacate only that portion of the order that required the defendant to make restitution and would otherwise affirm the order of revocation of probation as well as the defendant’s sentence.


text:
    The STATE of Florida, Appellant, v. Rupert Valentine SENIOR, Appellee.
    No. 81-329.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Jim Smith, Atty. Gen., for appellant.
    James Ryan, North Miami, for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The trial court suppressed the product of a warrantless United States Customs search on the ground that it was not supported by reasonable suspicion. The defendant has now confessed error in the light of our subsequent decision in State v. Smith, 399 So.2d 22 (Fla.3d DCA 1981) that there is no such requirement. Accord, United States v. Sandler, 644 F.2d 1163 (5th Cir. 1981). Accordingly, the order under review is

Reversed.


text:
    Tommy Joe JUSTICE, Appellant, v. STATE of Florida, Appellee.
    No. VV-292.
    District Court of Appeal of Florida, First District.
    July 9, 1981.
    W. Paul Thompson of Thompson, Adkin-son & Beasley, DeFuniak Springs, for appellant.
    No appearance for appellee.
   PER CURIAM.

Justice appeals the trial judge’s order finding him guilty of indirect criminal contempt. The State of Florida has not filed an answer brief. We reverse.

In February, 1979, Justice purchased an advertisement in the Banner, a newspaper which circulated in Washington County. The ad consisted of a letter, addressed to the Chief Judge of the Fourteenth Judicial Circuit, containing a reference to alleged extra-judicial activities of another judge within the circuit. While we do not condone scurrilous allegations regarding a judge’s private life, under the facts of this case we must agree with Justice that publishing the letter did not constitute indirect criminal contempt.

A criminal contempt is conduct that is directed against the authority and dignity of a court or of a judge acting judicially. Ex Parte Earman, 85 Fla. 297, 95 So. 755 (1923). A publication may constitute contempt if it tends to intimidate, influence, impede, embarrass, or obstruct courts in the administration of justice in matters pending before them. State ex rel Giblin v. Sullivan, 157 Fla. 496, 26 So.2d 509 (1946). See also Vines v. Vines, 357 So.2d 243 (Fla. 2nd DCA 1978). Although the publication in question may have been personally embarrassing to the offended judge, there is no evidence that it was directed against his judicial authority or dignity or that it tended to obstruct the administration of justice.

In an earlier contempt proceeding, stemming from the appellant’s 1977 publication of an identical letter, Justice had been admonished against “further publication of matters which in the court’s eyes tends to influence a case presently under consideration by the court.” However, the record does not indicate that the second publication of the letter tended to influence any case under consideration. Therefore, the February, 1979, publication could not constitute a contemptuous violation of the earlier order.

Accordingly, judgment is REVERSED for proceedings not inconsistent with this opinion.

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


author: McCORD, Judge. ERVIN, Judge,

text:
    BAIRD-RAY DATSUN and Lynn Underwriting Company, Appellants, v. Lloyd BUTLER, Appellee.
    No. XX-440.
    District Court of Appeal of Florida, First District.
    July 9, 1981.

      Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    David M. Hammond of Meyers, Mooney & Adler, Orlando, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from a deputy commissioner’s order awarding appellee workers’ compensation benefits based on a 50% permanent partial disability and awarding attorney’s fees. We reverse.

On March 26, 1979, appellee injured his right knee in a work-related accident while employed by appellant Baird-Ray Datsun as an auto body repairman. Appellee had to undergo knee surgery to repair a tear in the medial meniscus. He testified that, during his hospitalization for that surgery, he began to suffer low back pain. His treating physician attributed the back pain to a preexisting arthritic condition. He was of the opinion that appellee had sustained a 15% impairment of his knee. Employer/carrier accepted the 15% permanent partial disability rating.

Employer’s physician, Dr. Shea, testified by deposition after examining appellee in January 1980. He concurred with the treating physician’s 15% permanent partial impairment rating of the knee. He was of the opinion that the lower back arthritis pre-existed the industrial accident and was aggravated as a secondary consequence of the abnormal gait caused by the knee condition. He testified that the back condition was strictly temporary in nature and had caused no permanent impairment; that as soon as appellee stopped limping, the back condition would clear up.

At the time of the April 1980 hearing, appellee was still limping and still suffered back pain. The deputy commissioner found that the initial injury to the right knee led to an altered gait, which resulted in a development of lower back difficulties which he found to permanent in nature and which he found to have affected appellee’s ability to compete in the open labor market. He concluded that appellee had made a diligent job search and found that appellee had sustained a 50% permanent partial disability of the body as a whole based on loss of wage-earning capacity. He stated that he did not find appellee permanently totally disabled because of the testimony of Rehabilitation Counselor Deutsch, who testified that ap-pellee had not made an adequate job search and, though severely restricted, appellee is employable. The DC awarded an attorney’s fee of $3,200.

Appellants assert that the deputy commissioner erred in awarding disability benefits based on the body as a whole where there was no finding and no substantial competent evidence to support a finding of a permanent impairment to an unscheduled part of the body. We agree. The record contains no evidence of permanent impairment to the back. In the absence of medical evidence as to any permanent impairment to the back, the deputy commissioner is precluded from finding such an impairment. Section 440.25(3)(b), Florida Statutes. If the evidence had supported a finding that appellant did suffer a permanent impairment to his back due to the industrial accident, then his recovery would not be limited to the scheduled benefits determined pursuant to § 440.15, Florida Statutes (1977), and loss of wage-earning capacity would have been an appropriate factor to consider in determining his permanent disability rating. Compare Dade Federal Savings & Loan v. Doris Smith, 403 So.2d 995 (Fla. 1st DCA 1981).

Further, in determining loss of wage-earning capacity, the extent of permanent impairment to the unscheduled portion of the body is a major factor which must be determined by the deputy commissioner, according to Kashin v. Food Fair, 97 So.2d 609 (Fla.1957). Because, in this case, the evidence does not support any finding of permanent impairment to appellee’s back and because the deputy commissioner was therefore unable to make a determination as to the extent of permanent impairment to appellee’s back, he erred in going beyond the scheduled injury rating to determine loss of wage-earning capacity. The deputy commissioner should have limited recovery of benefits to the 15% permanent partial disability rating already accepted by the employer/carrier.

Appellants’ contention that appellee’s work search was inadequate has merit but has been rendered moot. Because employer/carrier had accepted the 15% permanent partial disability rating and in light of the disposition of this case the award of attorney’s fees is also reversed.

ROBERT P. SMITH, Jr., C. J., concurs.

ERVIN, J., concurs in part and dissents in part.

ERVIN, Judge,

concurring in part and dissenting in part.

I concur with the majority’s view that the deputy erred in finding that the claimant was not PPD to the body as a whole. As Judge Wentworth noted in her specially concurring opinion in Jones v. Plantation Foods, 388 So.2d 590, 592 (Fla. 1st DCA 1980), the amendments in Chapters 78-300, 79 — 40 and 79-312, Laws of Florida, to Section 440.25(3)(b) have modified the rule in Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959). Yet, Section 440.-25(3)(b) has not completely overruled Magic City. See Kennedy v. Tyson, 382 So.2d 820 (Fla. 1st DCA 1980). The result is that Magic City is modified as follows: If a disability rating is based solely on an anatomical basis, Section 440.25(3)(b) controls completely, i. e., the deputy commissioner may not arrive at a higher disability rating than the highest impairment rating given by a physician at the hearing. See Colonial and Semoran Shell Service v. Grisson, 389 So.2d 1219 (Fla. 1st DCA 1980). However, if permanent disability is arrived at by employing the wage-loss method, there is a threshold requirement that a permanent anatomical impairment be established. As to this threshold requirement, Section 440.-25(3)(b) again controls completely, but, once the threshold requirement is established, the deputy may consider other evidence, such as lay testimony, including the claimant’s as well as demonstrative evidence. See Kennedy v. Tyson, supra; Colonial and Semoran Shell Service v. Grisson, supra. This interpretation should apply to the theory of recovery established in Kashin v. Food Fair, Inc., 97 So.2d 607 (Fla.1957), and advanced here. That is, the threshold requirement of permanent anatomical impairment should apply to a finding of permanent disability to the body as a whole. Here, such a finding was impossible because there was no medical testimony to support it.

The problem I have with the majority opinion, however, is that although no physician testified that the claimant was permanently disabled to the body as a whole, Dr. Shea acknowledged that the claimant had a temporary back problem which would no longer affect appellee once he stopped limping. Yet, at the time of the final hearing, appellee’s limp continued, and the majority has sustained the physician’s opinion which rates the knee 15% permanently partially impaired. Thus, I am left with the question, in view of Dr. Shea’s testimony, as to whether the claimant had in fact reached MMI and whether he remained temporarily disabled at the time of the hearing. Cf. Eques v. Best Knit Textile Corp., 382 So.2d 736 (Fla. 1st DCA 1980). Therefore, I feel that the majority’s opinion which limits the claimant to PPD on the scheduled injury is premature.

Although the parties stipulated that the claimant had already reached MMI before the hearing, the deputy commissioner is not bound by a stipulation which is at variance with the facts before him, so that he may, under such circumstances, disregard the stipulation. See Delta Drilling Co., Inc. v. Wells, IRC Order 2-3708 (February 22, 1979). Thus, if appellee’s gait proves to be permanently affected by the knee injury, the stipulation of the parties as to MMI could no doubt be discountenanced.

In conclusion, I would remand in order for the deputy to make further findings as to whether the claimant has as yet reached MMI to the body as a whole. If it were determined that claimant is either temporarily totally or partially disabled, then the deputy should be permitted to enter an order which is consistent with such facts.


text:
    Daniel Lee LAGEMANN, Appellant, v. STATE of Florida, Appellee.
    No. 80-2251.
    District Court of Appeal of Florida, Second District.
    July 10, 1981.
    Lawrence D. Martin of Vega, Brown, Nichols, Stanley & Martin, P.A., Naples, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant raises two issues in his appeal from the judgment and sentence entered by the court below. The only issue which warrants action by this court is that involving the sentence of the court. Though the court adjudicated appellant guilty of seven counts, it imposed a general sentence of three years together with a $5,000 fine without specifying a sentence for each offense for which the appellant was found guilty. A general sentence in such a situation violates section 775.021, Florida Statutes (1979). Therefore, the judgments of guilt as to each charge are affirmed, but the case is remanded for the entry of a separate judgment and sentence on each conviction. See Fundak v. State, 362 So.2d 295 (Fla.2d DCA 1978).

HOBSON, Acting C. J., and DANAHY and CAMPBELL, JJ., concur.


author: JOANOS, Judge.

text:
    Charles Benjamin DEDMON, Appellant, v. STATE of Florida, Appellee.
    No. WW-51.
    District Court of Appeal of Florida, First District.
    July 10, 1981.
    Michael E. Allen, Public Defender, David J. Busch, Asst. Public Defender, and David U. Tumin, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   JOANOS, Judge.

Appellant appeals his convictions and sentences for attempted first degree murder with a firearm and possession of a firearm by a convicted felon. He raises four points for review. We disagree with appellant’s arguments and affirm as to all four points.

First, appellant argues that the trial court abused its discretion when it denied appellant’s motion to sever the second count, possession of a firearm by a convicted felon, from the first count, attempted first degree murder with a firearm. He urges that the trial judge was required to grant the severance under Florida Rule of Criminal Procedure 3.152(a)(2)(i) which provides that a severance of related offenses should be granted “.. . upon a showing that such severance is appropriate to promote a fair determination of a defendant’s guilt or innocence of each offense . . .. ” This argument is without merit. In Panzavecchia v. State, 311 So.2d 782 (Fla.3d DCA 1975), that court refused to find that the trial court had abused its discretion in denying a motion to sever a murder count from a count for possession of a firearm by a convicted felon. The court reasoned that if the argument that severance was required was accepted, severance would be required any time a convicted felon is charged with possession of a firearm and some other crime. Refusing to go that far, the court looked at the circumstances of the particular case and ruled that no prejudice had resulted from the denial of severance. The Florida Supreme Court in Menendez v. State, 368 So.2d 1278, 1280 (Fla.1979) also subscribed to the “abuse of discretion” standard in considering a trial judge’s refusal to sever the trial of co-defendants. The point is that the trial judge has discretion in matters of this kind. In the case before us, consolidation of the two counts presented the most practical and efficient method of processing the case because the evidence of possession was intertwined and a part of the evidence of the act of shooting. There was no reason to have duplicative proceedings. Further, the potential for prejudice was minimized by the stipulation entered into by the parties in which the jury was told that the appellant had been previously convicted of a felony insofar as it related to the possession count but the prior crime was not named. In addition, when we consider the eyewitness testimony, appellant’s admissions, and the evidence connecting appellant with the weapon used in the crime, we can see no prejudicial effect on the jury with regard to the attempted murder count in having the matters tried together.

Appellant’s second argument is that a handgun should have been suppressed because of an unlawful search in violation of the fourth and fourteenth amendments of the United States Constitution and Article I, Section 12, Florida Constitution (1979). Although he makes no challenge to the probable cause for his arrest, he urges that the search in connection with his arrest was invalid under the recent decision in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) in which the United States Supreme Court held that absent exigent circumstances, the police may not make a warrantless, non-consensual entry into a suspect’s home in order to make a routine felony arrest. The Payton decision was issued after the activity at issue here had occurred. Therefore, appellee raised a question as to the retroactive application of Payton. Whether retroactive or not, the Payton case does not control the outcome in this case.

The evidence before the trial judge on the motion to suppress included the following. On the morning following the shooting, Officer Estraviz received a call from the headquarters dispatcher that an informant had called and said that the appellant had been involved in a shooting on the north side of town the previous day and that he was staying at a particular house. The officer was given Dedmon’s full name, a description of what had occurred at the shooting, and that Dedmon was probably armed and dangerous. Estraviz and several other officers went to the house where Es-traviz knocked on the door loudly for about five minutes calling appellant’s name. Es-traviz heard noises but no voices. After he used the megaphone to call for Dedmon to come out, he was surprised to see two crouched shadows through the window. Dedmon and the second person thereafter came out of the house and were arrested. Two other police officers then immediately entered the house with guns drawn to make sure that there were no other persons in the house who could harm the officers outside. Both of the other officers testifying and Estraviz stated that they had only been informed of one suspect at that address and were surprised when they became aware of two men. According to all three, the search of the house for persons was solely for their own protection. Inside the house, the officers saw the handgun sought to be suppressed on the bedroom dresser and another gun sticking out from under the sofa cushions.

Although the Payton holding was limited to a determination of the validity of an entry into the home to effect a routine arrest, the rationale requiring exigent circumstances in the absence of a warrant would apply equally to any warrantless entry into the home. Such a requirement does not spring from the Payton case alone. Even before Payton, both Florida and federal courts have held that the post-arrest search of a house cannot be justified as a standard “protective sweep” in order to determine if other persons or weapons are present. According to Newton v. State, 378 So.2d 297 (4th DCA 1980), police officers must have reasonable grounds to believe their security may be jeopardized by others on the premises. In Newton, the police officers testified that the search was “standard procedure;” they could offer no “ar-ticulable facts” on which to base a conclusion that there might be other persons present in the house. Because of that the court held the search to be invalid. However, in McNair v. State, 354 So.2d 473 (Fla.3d DCA 1978), because the officer saw the defendant’s wife toss a gun inside, the search of an apartment after an arrest was made outside the residence was upheld. The possibility that someone inside could have access to the pistol “... constituted sufficient evidence of exigent circumstances.” See also Grant v. State, 374 So.2d 630 (Fla.3d DCA 1979).

Both Newton and McNair cited United States v. Bowdach, 414 F.Supp. 1346 (S.D. Fla.1976) affirmed 561 F.2d 1160 (5th Cir. 1977). In Bowdach as in the case before us, the defendant was arrested outside a house. Nonetheless, the court held that the police had a right “to conduct a quick and cursory check of a residence when they have reasonable grounds to believe that there are other persons present inside the residence who might present a security risk.” The officers believed that they were in jeopardy because of information that the defendant was a member of a “gang” which was under investigation. The reasonableness of the officers’ belief should be measured by their perceptions prior to entry, and the scope of the search should be limited to what is minimally necessary to protect the officers from the perceived dangers. The seizure of evidence seen in plain view after entering the premises was held valid in Bowdach. Other federal cases upholding a “protective sweep” search and seizure of criminal evidence in plain view on the basis of exigent circumstances include United States v. Baker, 577 F.2d 1147, 1152 (4th Cir. 1978) and McGeehan v. Wainwright, 526 F.2d 397 (5th Cir. 1976).

At the hearing on the motion to suppress, the trial judge heard argument concerning the applicability of the exigency standard espoused in Newton and Bowdach. After hearing the evidence, the judge concluded that under the circumstances the officers had “reasonable grounds” to enter the house. Giving deference to the trial judge’s interpretation of the facts, we agree. The officers were told only of the presence of the appellant. They were informed that he was probably armed and dangerous and that he had been involved in a shooting incident. Aware of the possibly dangerous situation, the several officers met a block away from the house before surrounding the home and spent fifteen minutes in talking appellant into coming outside. When one officer saw two shadowy figures inside, he relayed the information. The testimony consistently shows the officers’ surprise in learning that more than one person occupied the house. Considering the gravity of the crime, the probability of weapons inside the house, and the surprise on learning that at least two people were inside, the officers acted reasonably to insure their safety by entering the home immediately after the arrest of appellant.

Appellant’s third argument is that he was denied a speedy trial within the meaning of Florida Rule of Criminal Procedure 3.191 when his trial commenced more than 180 days after his arrest following an extension of the applicable time period on motion of the State.

In his order extending the time for trial the trial judge specifically found that a witness’ testimony was uniquely necessary to the State and that her absence was unforeseeable and not due to any lack of diligence by the State. The granting of an extension of speedy trial for exceptional circumstances is a matter for the discretion of the trial judge. See, e. g., Talton v. State, 362 So.2d 686 (4th DCA 1978). Appellant has not shown an abuse of discretion in this case. The record reflects that the witness in question was under subpoena and in regular contact with the State Attorney but did not make her intended absence known until the night before trial. The record supports a determination that the State made diligent efforts to secure her presence. Further, the finding of the uniqueness of her testimony was appropriate in that her expected testimony included a statement that appellant had made an admission to her shortly after the alleged crime and she could place appellant in the same room where the weapon was located. Based upon the circumstances, the trial judge could extend the time for trial for a reasonable period of time.

Appellant’s final argument is an attack upon the constitutionality of Florida Statutes section 947.16(3). That provision of the law has been upheld in the recent opinion of this court in Arnett v. State, 397 So.2d 330, (Fla. 1st DCA 1981).

Accordingly, the convictions and sentences of the trial court are AFFIRMED.

ROBERT P. SMITH, C. J., and LARRY G. SMITH, J., concur.