author: THOMPSON, Judge.

text:
    STATE of Florida, Appellant, v. Daniel Vernon PALMER, Appellee.
    No. AC-39.
    District Court of Appeal of Florida, First District.
    March 4, 1982.
    Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellant.
    Margaret Kathleen Wright, Asst. Public Defender, Gainesville, for appellee.
   THOMPSON, Judge.

The state appeals an order of the trial court granting the defendant’s motion to suppress. The trial court reasoned that the seizure of 30 to 40 growing cannabis plants from defendant’s property occurred in an area clothed by defendant’s reasonable expectation of privacy. We find that the search and seizure of the growing plants took place in an open field where, under the facts of this case, defendant had no reasonable expectation, of privacy. Accordingly, we reverse that portion of the trial court’s order suppressing the growing cannabis plants seized from defendant’s property.

Two deputies were assigned to investigate a confidential informant’s tip that cannabis was being grown on defendant’s property. Defendant’s 10 acre tract of land was bordered on two sides by pine trees. There was a path which led into this stand of pine trees. The deputies proceeded down this path until they came within approximately 40 feet of an old dilapidated hog wire fence surrounding the back of defendant’s property. At this point they saw a number of large cannabis plants growing in the field on the other side of the fence.

As the deputies surveyed the plants, they saw defendant and another person walking through the field, tending to the plants. After several minutes, the deputies crossed the old dilapidated hog wire fence and arrested defendant and the other person. Subsequently, all of the cannabis plants were seized without a warrant.

The record does not indicate that the search and seizure occurred within the cur-tilage of defendant’s house. Instead, the search and seizure occurred in an open field where, applying the rationale recently enunciated in DeMontmorency v. State, 401 So.2d 858 (Fla. 1st DCA 1981), defendant had no reasonable expectation of privacy. The cannabis plants were visible from the adjoining property and were protected only by a fence in an advanced state of disrepair. These circumstances do not indicate that defendant had a reasonable expectation of privacy in the area where the cannabis plants were growing. Under these circumstances the trial court should have applied the “open fields” doctrine. Accordingly, we reverse that portion of the order suppressing the growing cannabis plants seized from defendant’s property.

BOOTH and SHAW, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph RICHARDSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AD-217.
    District Court of Appeal of Florida, First District.
    March 4, 1982.
    David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The appellant raises three points: the first is affirmed on the authority of Dedmon v. State, 400 So.2d 1042 (Fla. 1st DCA 1981); the second is without merit; and the third is affirmed on the authority of Richardson v. State, 246 So.2d 771 (Fla.1971).

AFFIRMED.

MILLS, WENTWORTH and THOMPSON, JJ., concur.


author: WIGGINTON, Judge.

text:
    SAVEWAY BARBER & BEAUTY SUPPLIES and Kent Insurance Company, Appellants, v. Miklos GULYAS, Appellee.
    No. AD-253.
    District Court of Appeal of Florida, First District.
    March 4, 1982.

      Donald D. Gillis of Underwood, Gillis, Karcher, Reinert & Valle, Miami, for appellants.
    Stuart F. Suskin of Abrams & Suskin, North Miami Beach, for appellee.
   WIGGINTON, Judge.

The carrier appeals a workers’ compensation order: finding claimant had sustained a 5% “permanent partial disability”; excusing the hospital and doctors from Chapter 440 reporting requirements; making the carrier responsible for the payment of hospital, doctor bills and a fee for claimant’s attorney; but failing to rule on the issues of wage loss and permanent total disability.

Gulyas, while performing his duties as a maintenance supervisor on January 8, 1980, suffered shortness of breath, chest pains, and a choking sensation. He was hospitalized and diagnosed as having experienced angina pectoris due to arteriosclerotic heart disease. Gulyas returned to work with the usual admonishment restricting lifting, pushing or pulling. Claimant adduced no medical testimony indicating any permanent disability but only that he had suffered a pain—precipitated by unusual exertion at work—associated with severe narrowing of the arteries.

We find that the deputy commissioner erred in finding claimant had sustained permanent partial disability of 5% to the body as a whole. Our review of the record reveals no evidence that Gulyas has suffered a work related permanent impairment. The cardiologist concluded that although the accident may have caused angina, any permanent impairment would be a result of the arteriosclerosis. Therefore, the work related activity merely caused pain, it did not cause any permanent aggravation of Gulyas’ condition. The pain was deemed to be temporary and not permanent. Any ambiguity or confusion in the deputy’s order relating to applicable statutory support for the deputy’s position is laid to rest due to the lack of relevant medical evidence. Accordingly, the deputy’s finding of a permanent impairment is reversed.

The issue of wage loss/permanent total disability was before the deputy and ripe for adjudication. Despite the fact that at the time of the final hearing Gulyas had returned to gainful employment, the deputy is required to resolve such issue and failing to do so is reversible error. Deauville Hotel v. Weaver, 8 FCR 87, cert. denied 283 So.2d 565 (Fla.1973).

We affirm the deputy in finding the hospital and doctors to be excused from Chapter 440 reporting requirements as the carrier failed to preserve this issue for appeal by raising it below. Further, it was the conduct on the part of the employer in giving group insurance forms to Gulyas, who in turn arranged for payment of the bills through the group carrier, that may have misled the hospital and doctors not to feel obliged to honor the Chapter 440 filing requirements. In this case, the employer/carrier never challenged the propriety of the medical treatment but relied solely upon the general defense that the claim was not compensable. This Court has held that once the issue of compensability has been decided in favor of the claimant and the medical bills have not been controverted, those bills are the responsibility of the carrier. Garitson v. Rifenburg, 380 So.2d 1311 (Fla. 1st DCA 1980).

We affirm the deputy’s order and claimant’s position that the employer/carrier have not been directed to pay claimant a double recovery. The deputy’s language on this issue amounts to a finding of liability and not an order to pay money, directly to Gulyas, for services previously paid by the group insurer.

We affirm the deputy’s order awarding a fee to Gulyas’ attorney as there is no showing that the deputy abused his discretion.

Accordingly, the deputy’s order is affirmed in part, reversed in part and remanded to the deputy with instructions that he enter an order denying the claim for wage loss/permanent total disability.

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


text:
    MILKY WAY FARMS and Florida Farm Bureau Insurance Companies, Appellants, v. Alan Curtis STITT, Appellee.
    No. AD-281.
    District Court of Appeal of Florida, First District.
    March 4, 1982.
    Keith A. Mann of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellants.
    Alex P. Lancaster, Sarasota, for appellee.
   WIGGINTON, Judge.

This is a workers’ compensation appeal from an order of the deputy commissioner awarding claimant “temporary partial or wage-loss” benefits from April 18, 1980, through August 1, 1980, and temporary total disability benefits for one day, February 12, 1981. We affirm as to the award of TTD benefits but reverse as to the award of “temporary partial or wage-loss” benefits.

Under either Section 440.15(3)(b) or 440.-15(4)(a), Florida Statutes (1979), benefits are determined on the basis of actual wage loss. Both sections place the burden on the employee to establish that any wage loss benefit claimed is a result of the compensa-ble injury. See, §§ 440.15(3)(b)2 & 440.-15(4)(b).

In the instant case, the evidence is insufficient to prove that claimant’s work search during the period, April 18, 1980, through August 1, 1980, was unsuccessful due to his disability and that he was entitled to wage loss benefits. Claimant’s testimony that he was unable to perform these jobs is not sufficient in view of the medical testimony that he was not permanently disabled and was able to work during that period of time without limitation. Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982); Burger King Corp. v. Stark, 401 So.2d 1173 (Fla. 1st DCA 1981).

Accordingly, the order of the deputy commissioner is: Affirmed in part and Reversed in part.

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


text:
    Otis James THOMAS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AE-441.
    District Court of Appeal of Florida, First District.
    March 4, 1982.
    Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Otis James Thomas appeals his convictions of attempted aggravated assault, shooting at a motor vehicle and possession of a firearm by a convicted felon. We find no abuse of discretion in the trial court’s denial of severance of the firearm possession count and in the admission of evidence revealing the nature of the prior felony conviction. See Dedmon v. State, 400 So.2d 1042 (Fla. 1st DCA 1981); Parker v. State, 408 So.2d 1037 (Fla.S.Ct.1982).

Accordingly, the judgment and sentences entered below are AFFIRMED.

BOOTH, SHIVERS and JOANOS, JJ., concur.


text:
    Allen EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. AI-112.
    District Court of Appeal of Florida, First District.
    March 4, 1982.
    Allen Edwards, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Allen Edwards appeals from an order denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of CriminaL Procedure. While the trial court found in its order that Edwards was not advised of the time limits relating to his right to appeal nor of his right to counsel on appeal, the denial of Rule 3.850 relief was proper because this error does not affect the validity of the conviction and sentence. We note that the trial court correctly appointed counsel for the purpose of seeking permission from this court to bring an untimely appeal pursuant to Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967). Accordingly, the denial of post-conviction relief is AFFIRMED without prejudice to Edwards’ right to seek belated appellate review through his court-appointed counsel.

BOOTH, SHIVERS and JOANOS, JJ., concur.


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Walker Franklin IVEY, Appellee.
    No. 81-1374.
    District Court of Appeal of Florida, Second District.
    March 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Samuel R. Mandelbaum and James S. Purdy, Asst. Attys. Gen., Tampa, for appellant.
    Richard D. Mars, Lakeland, for appellee.
   RYDER, Judge.

The state appeals from the order granting discharge to appellee under the speedy trial provisions of the interstate agreement on detainers compact. We hold that the lower court erred in finding appellee to have been able to stand trial, and we reverse.

The state charged appellee with failure to appear after being released on bond for a controlled substance charge. Since appellee was imprisoned in the Federal Correctional Institution in Miami, the state on December 16,1981 filed with that institution a request for temporary custody to obtain the presence of appellee. Appellee also signed a request for disposition of the same charges on December 16, 1980.

Appellee was placed in custody of the state on January 13, 1981. On March 19, 1981, a U. S. Magistrate in the Southern District of Florida issued a writ of habeas corpus ad testificandum directing that ap-pellee be taken to Ft. Lauderdale to testify before a federal grand jury by March 30. Although the writ directed the return of appellee with all convenient speed to the Polk County authorities on completion of the testimony, federal marshals instead transported appellee back to the Federal Correctional Institution in Miami. The state issued a writ of habeas corpus ad prosequendum on April 24 to obtain the return of appellee, and set trial for June 4. Appellee’s motion for discharge was filed and granted on June 1, the court finding that he had been in custody for more than 120 days.

Because the state initiated the procedure against appellee by transmitting to the Federal Institution a request for custody pursuant to section 941.45(4)(a), Florida Statutes (1979), the state was required to commence trial within 120 days after arrival of the prisoner. Section 941.45(4)(c), Florida Statutes (1979). This period expired on May 13, 1981, and appellee would ordinarily be entitled to discharge after that date if trial had not commenced.

We hold that the lower court erred in finding that appellee was able to stand trial for the entire 120-day period. Section 941.-45(6)(a), Florida Statutes (1979) provides:

In determining the duration and expiration dates of the time periods provided in subsections (3) and (4), the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.

During the time period when appel-lee was required by federal authorities to return to give testimony and the later delay when federal marshals transported appellee back to the Federal Correctional Institution, appellee was unable to stand trial in the Tenth Judicial Circuit Court. Thus, the tolling provisions of section 941.45(6)(a) came into effect, and the 120-day period specified, by section 941.45(4)(c) was extended. It appears from the record before us that federal marshals took appellee from Polk authorities on March 27, 1981, and returned him on May 5, 1981, a period of thirty-nine days. The 120-day period was thus extended until June 21, 1981. Appel-lee’s motion for discharge filed on June 1, 1981 should have been denied by the court below.

The order below is REVERSED and the case REMANDED for further proceedings.

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


author: DANAHY, Judge.

text:
    John Anthony MIDULLA, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1438 and 81-1439.
    District Court of Appeal of Florida, Second District.
    March 5, 1982.

      Jerry Hill, Public Defender, Bartow, and Samuel R. Mandelbaum, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant challenges the revocation of his probation on the ground that the court failed to adequately afford him the opportunity to call witnesses in his own behalf.

Appellant’s probation officer filed an affidavit charging him with violation of three conditions of his probation which required him to (1) file monthly reports, (2) pay a monthly fee for supervision, and (3) remain at liberty without violating any law. Regarding the third condition, the affidavit alleged that appellant committed battery upon a police officer and resisted arrest with violence. Appellant pled not guilty to all charges.

When the time came for appellant to present his case at the revocation hearing, the three witnesses he had subpoenaed failed to appear. Appellant’s counsel requested the court to enforce the subpoenas. The trial judge declined to do so and, instead, asked appellant’s counsel to tell him what the witnesses would say. Counsel initially responded that he was unable to speculate as to the witnesses’ testimony because he had not spoken to them. When the judge repeated his request, counsel asserted that one witness would testify that appellant had filed his monthly report and the other witnesses would testify that no battery had occurred. The judge accepted counsel’s statement as though the witnesses were present and gave testimony as stated by counsel. The judge then went on to find that appellant had violated the conditions which required him to file monthly reports and live and remain at liberty without violating any law. The judge revoked appellant’s probation and sentenced him to two consecutive sentences on the two offenses for which he had been placed on probation.

Appellant contends that the trial judge violated appellant’s due process rights when he denied appellant the opportunity to present witnesses at the revocation hearing. We agree. A probationer has the right to a revocation hearing which affords minimal due process, including an opportunity for the probationer to have the compulsory process of the law to secure witnesses for his defense. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In this case appellant’s counsel requested the presence of the subpoenaed witnesses. Counsel also asserted that he was unprepared to proffer their testimony in their absence. Despite counsel’s request, the trial judge proceeded to a determination without affording the defendant an opportunity to fully present his defense to the charges. The judge’s failure to enforce the subpoenas deprived appellant of his due process right to have the compulsory process of the law to secure his witnesses.

We reverse the revocation of appellant’s probation and remand the case for further proceedings consistent with this opinion.

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


author: WENTWORTH, Judge.

text:
    James B. ROSS, Appellant, v. J. E. HILL CONTRACTORS, Appellee.
    No. AB-193.
    District Court of Appeal of Florida, First District.
    March 8, 1982.

      Terence J. Kann of Barton, Cox & Davis, Gainesville, for appellant.
    B. R. Raster of McClellan, Raster & Vos-trejs, Ocala, for appellee.
   WENTWORTH, Judge.

Appellant was injured in a compensable accident which resulted in a 5% permanent physical impairment rating by his treating physician. However, appellant testified to continuing disabling pain and the doctor indicated that such pain was not inconsistent with the injury in question. A claim was filed for permanent total disability, and after a hearing the deputy found that claimant suffered a 50% permanent disability based on loss of wage earning capacity.

In denying appellant’s claim for permanent total disability benefits the deputy commissioner made the following finding:

7. I find that the claimant has sustained a 50% diminution of wage earning capacity. I make this finding from the testimony of Murray Zolt, James Mack, Fred Collins, and John Green, rehabilitative experts, who even though they testified that they had been unable to obtain the claimant employment, they were of the opinion that there was employment available that the claimant could do in his present physical condition. I further make this finding from the fact that the claimant is employed with Goodwill Industries where he makes thirty five dollars a week and I realize that this is a sheltered employment situation, (e.s.)

A review of the record shows that the testimony of the specified witnesses was contrary to that stated in the order. Without exception they testified that claimant was not employable in the current market in the area based on their observation of his physical and mental limitations.

The employer/carriers’ position is that the denial of permanent total disability should be affirmed because we must assume that the deputy commissioner did not believe that appellant’s pain rendered him totally disabled. Therefore, they assert, the award is supported by competent substantial evidence.

The credibility of subjective complaints may of course affect a deputy’s determination of disability based on a claimant’s loss of earning capacity. Thus, the denial of permanent total disability compensation in this case might be affirmed if the order were so premised instead of being based on an erroneous finding as to the rehabilitation experts’ deposition testimony.

Since credibility determinations are beyond our appellate functions, the erroneous decretal portion of the order is vacated and the cause is remanded for redetermination consistent with this opinion on the existing record of claimant’s permanent disability. As to all other points raised in the appeal and cross-appeal the order is affirmed.

MILLS and THOMPSON, JJ., concur.


text:
    Harold E. HUNT, Appellant, v. INTERNATIONAL MINERALS AND CHEMICAL CORPORATION, Appellee.
    No. AB-408.
    District Court of Appeal of Florida, First District.
    March 8, 1982.
    Susan R. Whaley of MacFarlane, Ferguson, Allison & Kelly, Tampa, and W. James Kelly, Lakeland, for appellant.
    Charles E. Bentley and C. Kenneth Stuart, Jr., of Holland & Knight, Bartow, for appellee.
   WENTWORTH, Judge.

Claimant/appellant in this workers’ compensation case appeals an order of February 4, 1981, dismissing a claim for temporary disability compensation on the ground that it covered disability antedating an order of October 31, 1980, and was necessarily determined by that order. We affirm.

Claimant suffered a compensable accident on January 20, 1976. On October 5, 1976, he filed a claim for temporary total, temporary partial, permanent partial and permanent total disability as well as medical benefits, rehabilitation benefits, etc. No hearing was held on the claim until August 22, 1980. This hearing was pursuant to an application for hearing filed by the employer/carrier stating that the reason for requesting a hearing was “Final hearing to conclude this matter.” The notice of hearing was sent on July 9, 1980, stating that the object of the hearing was “Final hearing to determine merits of the claim.” The pre-trial stipulation sheet stated that the claim to be heard was for permanent partial disability (PPD) benefits. On October 31, 1980, an order was entered by Deputy Commissioner Blankner. That order stated that the claim was for PPD of the arm in excess of the 25% previously accepted; loss of wage earning capacity in excess of anatomical rating; costs, interest and attorney’s fees. PPD benefits were awarded and the order stated a reservation of jurisdiction to determine attorney’s fees “as well as other issues as they may arise.”

In November 1980 claimant filed an application for hearing on the issue of temporary benefits. The employer/carrier filed a motion to dismiss on the grounds that the August 22, 1980 hearing was final and that if claimant disagreed with the resulting order his remedy was to appeal. A hearing was held on the motion on January 1, 1981, before Deputy Commissioner Fontaine, who agreed with the employer/carrier and dismissed the claim by order dated February 4, 1981. That order is now appealed.

Appellant argues that the October 1980 order was limited to a determination of permanent benefits because of the pretrial stipulation, but that the stipulation did not waive his right to other benefits. In addition, appellant points to the piecemeal nature which is inherent in, and unique to, workers’ compensation proceedings. The comment following Fla.W.C.R.P. 16 treats that doctrine:

Workers’ compensation cases, of necessity, are taken up piecemeal. A workers’ compensation case requires this treatment because the various entitlements of the claimant (which generate potential issues to be heard by the Deputy Commissioner) mature at different times as the course of the claimant’s physical recovery progresses. A workers’ compensation case, unlike other personal injury litigation, can engender successive issues as to medical treatment, the entitlement to temporary disability benefits, the entitlement to permanent disability benefits, as well as ancillary issues of penalties, costs, attorney’s fees and some other rather exotic issues. These can result in successive hearings and successive orders which are all equally final, and all equally appeala-ble. This is not only necessitated by the nature of a workers’ compensation case but also is required by the Statute and the existing rules which allow claims and trials of only the matured issues. (See in this regard F.S. 440.25 and existing Workers’ Compensation Rule of Procedure 7.) This of course is different from other sorts of personal injury litigation in which the matter is tried at one time, and all issues are presented. For other sorts of litigation, the notice of appeal currently found in Rule 16 is sufficient. The parties know what is being appealed, and,even if they don’t, it makes little difference since no additional trials are contemplated. [emphasis supplied]

The clear import of these principles is that claims for various benefits may be treated as they mature, while determination of immature claims is necessarily postponed until they are ripe. This procedure neither requires nor permits piecemeal litigation of claims after maturity.

In Green Thumb Corp. v. Britten, 393 So.2d 613 (Fla. 1st DCA 1981), we held that an order, which did not grant a claim for medical mileage then due, should be regarded as dispositive of that claim when no evidence was presented on the issue. In that case no reference was made to any claim of waiver or estoppel against employer/carrier.

Here there is presented the additional point that the claim for temporary benefits, which was mature at the time of the 1980 hearing, was not expressly determined because the parties had stipulated that the hearing would be limited to the issue of entitlement to permanent benefits. Claimant was, however, provided notice that the 1980 hearing was final in nature, and if other benefits were then due, as to which he did not wish to rely on voluntary compliance, he should not have stipulated to limiting the hearing to permanent benefits. If, as claimant suggests, evidence was submitted showing his entitlement to temporary benefits in 1980, he might then have argued the stipulation was thereby amended or abandoned and that the deputy commissioner erred in declining to determine that issue. Pratt and Whitney Aircraft v. Golas, 192 So.2d 759 (Fla.1966); Maffitt v. Henderson’s Portion-Pak, Inc., 132 So.2d 410, at 412 (Fla.1961). However, the proper occasion for that argument was on appeal of that order, the time for which is, of course, long past.

The order dismissing appellant’s claim for temporary benefits is therefore affirmed.

MILLS and THOMPSON, JJ., concur.

      . The current order states:
      “In considering Deputy Commissioner Blank-ner’s Order of October 31, 1980,1 find that he made certain findings relating to temporary compensation. He found, ‘the claimant missed little time from work but it was a long period of time before he returned to his regular job activity and when he did it was at a reduced capacity.’ He further found that ‘the employer was willing to provide essentially sheltered employment immediately after the accident and injury. The claimant was doing very little except reporting to work everyday. Had it not been for this arrangement the claimant obviously would have been entitled to a substantial period of temporary total disability compensation.”


text:
    C. E. MILLER, Appellant, v. ECONOMICS LABORATORY, INC., Appellee.
    No. AD-227.
    District Court of Appeal of Florida, First District.
    March 8, 1982.
    Van P. Russell, Watkins & Watkins, Apalachicola, for appellant.
    Charles W. Dodson, Holland & Knight, Tallahassee, for appellee.
   PER CURIAM.

This cause is before us on appeal from an order granting a summary judgment and dismissing with prejudice appellant’s counterclaim against appellee. Appellant contends that the dismissal was erroneous because a genuine issue of material fact existed as to whether Miller was entitled to a statutory or equitable lien against a shipment of appellee’s goods for unpaid freight charges incurred in three prior shipments.

The Uniform Commercial Code, Section 7-307(1), unambiguously limits a private carrier’s statutory lien to charges incurred subsequent to the date of the carrier’s receipt of the goods for storage or transportation. Florida Statutes, Section 677.307(1); British West Indies Produce, Inc. v. Ohio Eastern Express, Inc., 11 UCC Rep.Serv. 1234 (NY Cir.Ct.1973). Section 7-307(1) applies in the absence of an agreement of the parties to the contrary and does not prohibit an agreement for a lien to cover prior charges. Florida Statutes, Section 671.-102(3); White and Summers, Uniform Commercial Code § 2 (1980). In the instant case, however, no such agreement between appellant and appellee was pleaded or argued to the trial court. Similarly, appellant’s claim to an equitable lien was not properly before the trial court. Dober v. Worrell, 401 So.2d 1322 (Fla.1981).

AFFIRMED.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    WAREHOUSE APPLIANCE OUTLET, and Liberty Mutual Insurance Company, Appellants, v. William ROUGE, Appellee.
    No. AD-328.
    District Court of Appeal of Florida, First District.
    March 8, 1982.
    C. Randal Morcroft of Anthony J. Beisler, P. A., Fort Lauderdale, for appellants.
    Richard L. Wagenheim of Golding & Wagenheim, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See: Sam Rogers Enterprises v. Williams, 401 So.2d 1388 (Fla. 1st DCA 1981).

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WIGGINTON, JJ., concur.


text:
    Leon JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AF-135.
    District Court of Appeal of Florida, First District.
    March 8, 1982.
    Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is remanded to the trial court with directions to specify the period of credit time allowed as required by Section 921.-161(1), Florida Statutes. Macks v. State, 405 So.2d 260 (Fla. 1st DCA 1981). In all other respects, the sentence under review is affirmed.

BOOTH, SHIVERS and JOANOS, JJ., concur.


text:
    Richard Leroy KERNS, Appellant, v. STATE of Florida, Appellee.
    No. AF-448.
    District Court of Appeal of Florida, First District.
    March 8, 1982.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974).

BOOTH, SHIVERS and JOANOS, JJ., concur.


text:
    Robert Ray PHILLIPS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-221.
    District Court of Appeal of Florida, First District.
    March 8, 1982.
    Robert Ray Phillips, pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Com’n, for appellee.
   PER CURIAM.

The petition for writ of mandamus has been treated as a notice of appeal. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). The action of the Florida Parole and Probation Commission is affirmed.

BOOTH, SHIVERS and JOANOS, JJ., concur.


author: PER CURIAM

text:
    David Patrick WILLIAMS, and Michael F. Gatz, Bobby L. Peppers, and all similarly situated members of the class, Appellants, v. Barbara A. GREADINGTON, Chairperson of the Florida Department of the Parole & Probation Commission, and Malcolm S. Greenfield, General Counsel, Florida Department of the Parole and Probation Commission, Appellees.
    No. AI-322.
    District Court of Appeal of Florida, First District.
    March 8, 1982.

      David Patrick Williams, pro se, for appellants.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellees.
   PER CURIAM

This petition for writ of mandamus is brought as a class action, asking this Court to order respondent Florida Parole and Probation Commission (Commission) to send its notices and orders by U. S. Mail, because some prisoners allegedly do not receive notification of final agency action until the time for filing a notice of appeal has passed. We deny that request, finding that notices and orders of Commission action are sent by U. S. Mail and that, absent exceptional circumstances, Commission mail is received by inmates in sufficient time to file a notice of appeal in this Court.

It is not the function of this Court to instruct the Commission on how to handle mail service, but we will be vigilant to insure that prisoners’ basic right to appeal is not infringed by failure of the prison system to deliver mail. No substantial deprivation of this right occurred in the examples presented in this case. Petitioner has not alleged facts indicating any relief is due; therefore, the petition for writ of mandamus is DENIED.

BOOTH, SHIVERS and JOANOS, JJ., concur.

      . Fla.R.App.P. 9.110(b) and (c) allows 30 days from the date of final agency action to file a notice of appeal in this Court and with the agency. Timely filing with either the agency or this Court vests jurisdiction in this Court.

      . In two other cases, Friel v. Florida Parole and Probation Commission, Case No. AE-353 (petition for belated appeal and petition for writ of mandamus habeas corpus, both denied October 16, 1981), and Johnson v. Florida Parole and Probation Commission, Case No. AF-393 (motion to dismiss as untimely granted January 29, 1982), this Court sought information from the Commission concerning its mail service to inmates. Due to the high cost of mailing individual letters and the fact, that as many as 600 notices are mailed weekly, the Commission is financially precluded from sending each notice individually. Instead, the letters and notices for all inmates at a particular institution are sent to the prison in a large brown envelope, via U. S. Mail, bulk rate. The letters and notices are then dispensed to the individual inmates after being sorted by workers under the supervision of the Department of Corrections.

      . Exceptional circumstances may include: delivery to the wrong institution, to the wrong inmate, or transfer of an inmate to another institution. In the event of the occurrence of an exceptional circumstance, the inmate should return the letter with an explanation of the circumstances requiring the action to counsel for the Florida Parole and Probation Commission where the agency letter will be recertified and sent to the proper institution and inmate. Inability to meet time limits for any other filings, aside from notices of appeal, may be rectified by filing a motion for extension, pursuant to Fla.R.App.P. 9.300(a). Prisoners need not consult opposing counsel but must only certify a copy to be sent to counsel for the Commission.

      . If a certificate of service appears on the orders, that is the date of final agency action. If the order is without a certificate of service, the date of the accompanying letter is the date of final agency action. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). Further, the drafting and mailing of a notice of appeal can be a quick procedure; sample notices of appeal are provided in the appendix of Daniels, supra, and in Fla.R.App.P. 9.900(a).

      . Petitioner enclosed examples of orders from the Commission that were in unsealed envelopes, bearing no stamp. Fla.R.App.P. 9.420(c) does not require that a stamp be present on the envelope; counsel for the Commission’s certificate of service is prima facie proof that the orders were sent by U. S. Mail. This method of delivery appears to be adequate in the vast majority of cases and of the examples submitted by petitioner, no notices were received by the inmates more than seven days after the dates appearing on the certificates of service of the orders.


text:
    Kenneth HUNTER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1750.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Flowers v. State, 353 So.2d 1259 (Fla. 3d DCA 1978); Girtman v. State, 270 So.2d 380 (Fla. 3d DCA 1972).


text:
    David Reginald DUBOIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1068.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Chason v. State, 148 Fla. 540, 4 So.2d 691 (1941); Martin v. State, 323 So.2d 666 (Fla. 3d DCA 1975); Brown v. State, 391 So.2d 729 (Fla. 3d DCA 1980); Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981); Bolen v. State, 375 So.2d 891 (Fla. 4th DCA 1979).


author: SCHWARTZ, Judge.

text:
    Robert C. PIPER, M.D., Appellant, v. Richard MOORE, as Personal Representative of the Estate of Harriet J. Moore, deceased and Richard Moore, individually, Appellee.
    No. 80-1647.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.

      Stephens, Lynn, Chernay & Klein and Robert M. Klein, Miami, for appellant.
    Cohen & Cohen, Miami Beach, Greene & Cooper and Joan M. Bolotin, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   SCHWARTZ, Judge.

The jury found that the appellant-physician had negligently and improperly diagnosed and treated the plaintiff’s wife, resulting in her death. At the trial, the defendant contended that the decedent had been guilty of comparative negligence in not seeking medical attention at an earlier state of her illness. After the verdict, the trial court set aside a finding of 25% comparative negligence and entered judgment for the full amount of the damages assessed on the ground that, as a matter of law, the “decedent was not negligent and that even if she were negligent, her negligence was not a legal cause of her death.” Rejecting the defendant’s sole point on appeal, we agree with this determination. Whitehead v. Linkous, 404 So.2d 377 (Fla. 1st DCA 1981); Matthews v. Williford, 318 So.2d 480 (Fla. 2d DCA 1975); see, Borenstein v. Raskin, 401 So.2d 884 (Fla. 3d DCA 1981), and cases cited.

Affirmed.

      . The trial judge announced beforehand that he would take this course if the jury made a finding of comparative negligence. Once again, we heartily endorse this efficient practice. E.g., Dysart v. Hunt, 383 So.2d 259 (Fla. 3d DCA 1980), review denied, 392 So.2d 1373 (Fla.1980).


text:
    Thomas P. POMEROY, Appellant, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, a foreign corporation, and Joel D. Ware, Appellees.
    No. 80-1809.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Bailey & Dawes and Jesse C. Jones, Miami, for appellant.
    Shutts & Bowen and Phillip G. Newcomm and William J. Gallwey, III and Sally M. Richardson, Miami, for appellees.

      Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   SCHWARTZ, Judge.

Stung by successive recommendations by a Dade County evaluation team headed by Thomas Pomeroy against the company’s bids on various projects, Joel Ware, a Southern Bell vice-president, wrote to Pom-eroy’s superior — with copies to the county manager and another county official— which, in essence, complained that he had “grossly biased” the evaluations against Southern Bell. The trial court dismissed Pomeroy’s complaint against Ware and Southern Bell, based on the letter, with prejudice. In our view, the allegedly defamatory statements sued upon were no more than expressions of opinion and were therefore properly determined to be non-actionable as a matter of law. From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla.1st DCA 1981); Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50 (Fla.4th DCA 1976), appeal dismissed, cert. denied, 354 So.2d 351 (Fla.1977), cert. denied, 439 U.S. 910, 99 S.Ct. 277, 58 L.Ed.2d 255 (1978).

Affirmed.

      . In its entirety, the letter stated:
      Dear Roger:
      I have previously expressed to you that the evaluations by the County Communications Evaluation Committee are being grossly biased against Southern Bell by Tom Pomeroy. I have personally reviewed the details of some of these evaluations and formed this opinion.
      I was shocked today to find an additional impact his evaluations are having on Southern Bell. The attached County evaluation sheet was attached to a proposal on a competitive case with one of our business customers.
      Roger, I don’t believe that you condone this practice of allowing Southern Bell management to be put in embarrassing situations as a result of apparent unobjectivity on the part of staff.


author: DANIEL S. PEARSON, Judge.

text:
    CORAL REEF NURSERIES, INC. and Santana Groves, Inc., Petitioners, Cross-Respondents, v. The BABCOCK COMPANY, a Florida corporation, et al., Respondents, Cross-Petitioners, v. DADE COUNTY, FLORIDA, a political subdivision, Respondent.
    No. 80-1979.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.

      Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for Coral Reef Nurseries, Inc., and Santana Groves, Inc.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Alan C. Gold and Clifford A. Schulman, Miami, for The Bab-cock Company.
    Robert A. Ginsburg, County Atty. and Stanley B. Price, Asst. County Atty., for Dade County, Florida.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Coral Reef Nurseries, Inc. and Santana Groves, Inc. are owners of agricultural property adjacent to and in the vicinity of two large tracts of land owned by The Babcock Company.

On July 20, 1977, Babcock filed an application requesting a zoning change for the entirety of the property to EU-M (half-acre estates) from the existing GU (interim use) classification. In January 1978, the Board of County Commissioners of Dade County denied the application, finding, inter alia, that the subject property was viable for use as agricultural land and that the application failed to adequately address the economic impact which the loss of agricultural land would have on the community. Babcock petitioned the Circuit Court, Appellate Division, for certiorari review of the Commission’s action.

While that proceeding was pending, Bab-cock filed two new rezoning applications. These applications (one for each tract) substantially differed from the preceding application in that they addressed the concerns raised by the Commission at the earlier hearing and sought to minimize the impact on the area’s future growth and development. Among other things, the new applications (1) were accompanied by a Restrictive Covenant which called for park and school dedications and for the construction of new roadways; (2) provided for rainbow zoning with low density on the western and southern borders (adjacent to agricultural land) and higher density on the eastern fringe (adjacent to residential land); (3) called for no roadways on the western and southern boundaries; (4) provided for sewer mains to be brought only to the northeastern portion of the tracts with the western and southern borders to be serviced solely by septic tanks. Each of these new elements was calculated to discourage future growth beyond that envisioned by the county planners in the 1985 Master Plan development area.

In July 1979, a year and a half after the denial of Babcock’s initial application, the Board of County Commissioners, finding that there were changes in the area of the subject property and in the requests, justifying a decision favorable to Babcock, approved the new applications. This time, Coral Reef and Santana, the opponents of the zoning change, appealed to the Appellate Division of the Circuit Court. Bab-cock’s petition for certiorari and the appeals of Coral Reef and Santana were consolidated for decision.

In July 1980, the Circuit Court, deciding, inter alia, that (1) both the 1978 action of the Commission denying Babcock’s rezoning application and the 1979 action of the Commission granting Babcock’s rezoning application were fairly debatable; and (2) the Commission action in 1979 was not barred by the doctrine of administrative res judica-ta, because (a) zoning actions are “legislative” in nature, and (b) the County’s zoning code permits refiling after a prescribed time; upheld the 1979 zoning change.

Coral Reef and Santana petitioned us to review the Circuit Court’s ruling by certio-rari. Asserting that certiorari was not the proper method of review, Babcock moved to dismiss the petition, cross-appealed, but as a safety measure, cross-petitioned for a writ of certiorari. Dade County, designating itself as cross-appellee or cross-respondent, answered. We have jurisdiction to entertain the petition and cross-petition for cer-tiorari. See Fla.R.App.P. 9.030(b)(2)(B); O'Connor v. Dade County, 410 So.2d 605 (Fla. 3d DCA 1982); City of Deerfield Beach v. Vaillant, 399 So.2d 1045 (Fla. 4th DCA 1981); Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197 (Fla.3d DCA 1981).

Coral Reef and Santana contend that the Circuit Court was correct in holding that the Commission’s 1978 decision denying rezoning was fairly debatable, but incorrect in holding that administrative res judicata did not bar the Commission’s approval of rezoning in July 1979. Simply stated, they say that only the 1978 denial of rezoning should stand affirmed.

Babcock contends that the Circuit Court was correct in holding that administrative res judicata did not bar the Commission from taking its subsequent action, and that, therefore, the 1979 approval of rezoning should stand affirmed. But if administrative res judicata is held to apply to this zoning matter, then, says Babcock, the doctrine does not act as a bar here because of the substantial and material changes in the application and circumstances after the 1978 denial of rezoning. Babcock’s fallback position is that if no such changes are found to exist and administrative res judicata bars the 1979 rezoning, then the 1978 denial of rezoning was not fairly debatable and should be reversed.

The County in some respects disagrees with Coral Reef and Santana; in other respects, with Babcock. It says (disagreeing with Babcock) that the Circuit Court was correct in holding that both the 1978 and 1979 actions of the Commission were fairly debatable, and incorrect in holding that administrative res judicata does not apply to zoning matters. But (disagreeing with Coral Reef and Santana) the County says that substantial and material changes in the application and circumstances prevent . the doctrine of administrative res judicata from acting as a bar in this case, and the 1979 rezoning should be affirmed. Thus, the County suggests that we affirm the ruling of the Circuit Court, but not entirely for the reasons given by that court. Since we agree that both the 1978 and 1979 actions of the Commission were fairly debatable and, absent other considerations, must be upheld, our discussion will be limited to the applicability of administrative res judicata to the 1979 action of the Commission.

I

A.

The doctrine of administrative res judicata is firmly entrenched as part of the decisional law of the State of Florida in relation to zoning cases. See Wager v. City of Green Cove Springs, 261 So.2d 827 (Fla.1972); City of Miami Beach v. Prevatt, 97 So.2d 473 (Fla.1957); Burger King Corporation v. Metropolitan Dade County, 349 So.2d 210 (Fla.3d DCA 1977); Taub v. Metropolitan Dade County, 296 So.2d 566 (Fla.3d DCA 1974); Baker v. Metropolitan Dade County, 296 So.2d 544 (Fla.3d DCA 1974); Metropolitan Dade County v. Crowe, 296 So.2d 532 (Fla.3d DCA 1974); Metropolitan Dade County Board of County Commissioners v. Rockmatt Corporation, 231 So.2d 41 (Fla.3d DCA 1970). The doctrine

“... is applicable to rulings or decisions of administrative bodies (citation omitted), and to rulings of such bodies dealing with zoning regulations unless it can be shown that since the earlier ruling thereon there has been a substantial change of circumstances relating to the subject matter with which the ruling was concerned, sufficient to prompt a different or contrary determination Metropolitan Dade County Board of County Commissioners v. Rockmatt Corporation, supra, 231 So.2d at 44.

Babcock argues that the applicability of the doctrine to zoning cases depends on whether the action of the administrative body is legislative or quasi-judicial in nature, and that only in the latter instance does the doctrine apply. According to Babcock, since applications for zoning district boundary changes in Florida have traditionally and uniformly been said to be “legislative” actions of the zoning body identical in legal force and effect to the original legislative action in enacting the zoning ordinance sought to be changed, and only applications for special exceptions or variances are said to be “quasi-judicial” in nature, administrative res judicata should not apply to the zoning change here.

We reject Babcock’s argument for two reasons. First, its contention that administrative res judicata does not apply to “legislative” zoning changes, as distinguished from “quasi-judicial” special exceptions or variances, is belied by abundant case law to the contrary. See Wager v. City of Green Cove Springs, supra; Burger King Corporation v. Metropolitan Dade County, supra; Taub v. Metropolitan Dade County, supra; Baker v. Metropolitan Dade County, supra; Metropolitan Dade County v. Crowe, supra; Aronovitz v. Metropolitan Dade County, 290 So.2d 536 (Fla.3d DCA 1974); Metropolitan Dade County v. Jennings, 196 So.2d 33 (Fla.3d DCA 1967). See also Jet Air Freight v. Jet Air Freight Delivery, Inc., 264 So.2d 35 (Fla.3d DCA 1972); Rubin v. Sanford, 168 So.2d 774 (Fla.3d DCA 1964); Carol City Utilities, Inc. v. Miami Gardens Shopping Plaza, Inc., 165 So.2d 199 (Fla.3d DCA 1964).

Second, and far more important, it is the character of the administrative hearing leading to the action of the administrative body that determines the label to be attached to the action and, in turn, determines the applicability of the doctrine of administrative res judicata. The procedural due process which is afforded to the interested parties in a hearing on an application for rezoning is identical to that afforded in a hearing on variances or special exceptions. See Section 33-36, Code of Metropolitan Dade County. Each contains the safeguards of due notice, a fair opportunity to be heard in person and through counsel, the right to present evidence, and the right to cross-examine adverse witnesses; and it is the existence of these safeguards which makes the hearing quasi-judicial in character and distinguishes it from one which is purely legislative. See Harris v. Goff, 151 So.2d 642 (Fla.1st DCA 1963). The procedure utilized by Dade County in zoning matters such as that involved in the present case has quite clearly been recognized as quasi-judicial. Centex Homes Corp. v. Metropolitan Dade County, 318 So.2d 149 (Fla.3d DCA 1975); Baker v. Metropolitan Dade County, supra; Dade County v. Carmichael, 165 So.2d 227 (Fla.3d DCA 1964). That being the case, the doctrine of administrative res judicata applies.

B.

The Circuit Court ruled that the doctrine of administrative res judicata was inapplicable on the separate ground that Section 33-304(a), Code of Metropolitan Dade County, specifically provides for the filing of a subsequent application after the lapse of one year from the denial of the first. The Code provision in pertinent part reads:

"... Upon the withdrawal or final denial of an application in whole or in part, for either a district boundary change, a . use variance, a use special exception, an unusual use or a new use, a period of one year must run prior to the filing of subsequent application for any of the above types of use changes affecting the same property or any portion thereof . .. . ” (emphasis supplied).

Contrary to Babcock’s contention and the Circuit Court’s ruling, Section 33-304(a) does not provide relief from the doctrine of administrative res judicata. Instead, the provision is one which assures the County that it need not process, entertain, or be beleaguered by reapplications until and unless the waiting period has passed and assures opponents of the application that at least for some fixed period of time they may rest easy. While the reapplication must be received and heard when made more than a year after denial, whether it may then be rejected by the application of administrative res judicata is an entirely separate issue to be determined by the Commission after evaluating the substan-tiality of the changes, if any, in the application and circumstances.

Neither Matthews v. State ex rel. St. Andrews Bay Transportation Company, 111 Fla. 587, 149 So. 648 (1933), nor Dade County v. Mitchell, 188 So.2d 359 (Fla.3d DCA 1966), upon which Babcock relies, compels a different conclusion. In Matthews, a statute prevented the Railroad Commission from entertaining a once-denied application for a certificate of public convenience and necessity “until the expiration of six months from the date of such denial.” While the court held that an amended application showing a substantial change, and therefore not otherwise barred by res judi-cata, could be entertained within the six-month period, it did not hold that administrative res judicata could not be applied to defeat a second application made after the six months elapsed. In Dade County v. Mitchell, supra, this court, holding only that the County Commission’s denial of rezoning was fairly debatable, reversed a decision of the trial court overturning the Commission’s ruling. The opinion contains the trial court’s conclusion, totally irrelevant to the holding and the subject of no discussion whatever, that “[t]he inclusion of the six month limitation in Section 33-304 of the Code of Metropolitan Dade County would seem to preclude the defense of res judicata in this case.” 188 So.2d at 361. To the extent that we failed in the Mitchell case to at least footnote our disagreement with this conclusion of the trial court, we correct that failure now by stating that the trial court was wrong.

II

Having concluded that the doctrine of res judicata is applicable to the zoning matters under consideration, we observe the caveat that the doctrine “should be applied in zoning cases with great caution.” City of Miami Beach v. Prevatt, supra.

“In fast growing areas, ... changes occur with great rapidity; it cannot, therefore, be said that even where the same parties are involved, an adjudication of the reasonableness of a zoning ordinance at any given time is necessarily res judi-cata or constitutes an estoppel by judgment in subsequent litigation between the same or different parties.” Id. at 477.

Otherwise stated, in applying the doctrine of res judicata in zoning matters, the requirements thereof must be “liberally construed in favor of the applicant ... to provide the necessary flexibility to the zoning ordinance.” Russell v. Board of Adjustment of Borough of Tenafly, 31 N.J. 58, 155 A.2d 83, 88 (1959). Where, then, there are changed conditions and new facts which did not exist at the time of the prior judgment of the Commission denying Babcock’s rezoning application, administrative res judicata will not act as a bar to prevent the Commission from its later action.

In the present case, the Commission specifically found that subsequent to its earlier denial, there was a substantial change in circumstances and in the surrounding neighborhood which removed Babcock’s applications from the bar of administrative res judicata. As we have noted, the 1979 applications differed substantially from the 1977 application in that, inter alia, they provided for larger lots (EU-1 and EU-S) in the south parcel to buffer the agricultural interest in the area; transferred units from the south parcel to the north parcel in order to graduate the degree of residential uses to the south; provided a buffer of large lots (EU-1) along the western boundary of the north parcel; and dispensed with the construction of roads on S. W. 168th Street and S. W. 157th Avenue, which (if constructed) could, in the future, lead to the urbanization of the agricultural and open area to the south and west. Additionally, the record before the Commission shows, for example, that since Babcock's 1977 application, (a) the Commission had rezoned 347 acres of proximately located land utilized for the production of winter vegetables from GU to RU-1 and RU-TH (permitting approximately 1,904 units); (b) there was an intensification of residential use on the property directly to the north of the Babcock property, for an additional 191 single-family units; (c) an increased need for single-family residential units within the area had occürred since 1978; and (d) there was further evidence of industrialization and commercialization of the area.

The determination of the applicability of the res judicata doctrine is primarily within the province of the administrative body considering the matter in question, and that body’s determination may only be overturned upon a showing of a complete absence of any justification therefor. Thus, a Board of Zoning Appeals has been held to be “undoubtedly invested with a liberal discretion in deciding whether to reverse one of its former decisions.” Fiorilla v. Board of Appeals on Zoning of Town of Norwalk, 144 Conn. 275, 129 A.2d 619 (1957); Sipper-ley v. Board of Appeals on Zoning of Town of Westport, 140 Conn. 164, 98 A.2d 907 (1953). Indeed, one court has stated:

“Whether an application is to be rejected on the grounds of res judicata is in the first instance for the Board to determine. Even if the application is closely similar to a previous one, or identical with it but it is alleged that surrounding circumstances have changed or that experience has shown that prior denial was error ..., it is within the discretion of the Board whether to reject the application on the ground of res judicata, and the exercise of that discretion may not be overturned on appeal in the absence of a showing of unreasonableness. Mazza v. Board of Adjustment of the City of Linden, 83 N.J.Super. 494, 200 A.2d 505, appeal dismissed, 47 N.J. 161, 219 A.2d 615 (1964) (emphasis supplied).

Thus, an administrative body’s determination that res judicata does not apply cannot be reversed unless that body has acted with “manifest” and “flagrant” abuse of discretion or by “arbitrary impulse, whim or caprice.” Woodland Civic Association v. Brick Homes, Inc., 144 N.J.Super. 78, 364 A.2d 574 (1976); Application of American Seminary of The Bible, Inc., 104 N.Y.S.2d 660 (Sup.Ct.N.Y.), modified on other grounds, 280 App.Div. 792, 112 N.Y.S.2d 904 (1951). Here, the Commission found, and could reasonably so find, that changes in the application and in the surrounding area, see Baker v. Metropolitan Dade County, supra, had occurred between 1978 and 1979. We certainly cannot say that the Commission’s determination in the present case constituted a manifest or flagrant abuse of discretion, and we will not, therefore, disturb that determination.

Accordingly, the petition and cross petition for certiorari are denied.

      . Babcock’s property consists of two non-contiguous parcels of land in Dade County, Florida, separated by approximately 835 feet, comprising 384.58 acres. The northernmost parcel lies between S. W. 152nd Street and S. W. 160th Street and is bounded on the east by S. W. 147th Avenue and on the west by S. W. 157th Avenue. The southernmost parcel lies between S. W. 164th Street and S. W. 168th Street and is bounded on the east by S. W. 147th Avenue and on the west by S. W. 154th Avenue.

      . Babcock simultaneously brought an independent action in the Circuit Court seeking to declare the Commission's action confiscatory. We are not informed of the current status of that action.

      . Babcock took the position in the Circuit Court that Coral Reef and Santana had limited their appeal to the rezoning of the northern parcel. As did the Circuit Court, we reject this contention.

      . The judgment of a legislative body contained in a zoning resolution is fairly debatable, and therefore is not to be disturbed by a court when the question whether the resolution serves the health, safety, morals or general welfare of the public is open to dispute on grounds that make sense supported by competent substantial evidence. See Dade County v. United Resources, Inc., 374 So.2d 1046 (Fla. 3d DCA 1979).

      .One member of the three-judge Circuit Court panel dissented, expressing the view that the doctrine of administrative res judicata does apply to zoning decisions and barred the Commission’s 1979 action. As will be seen, infra, we agree with the dissenter’s view that administrative res judicata applies to this zoning decision, but disagree that the doctrine served to bar the subsequent rezoning.

      .We note that Babcock’s petition to the Florida Supreme Court to prohibit us from exercising jurisdiction was denied without opinion. The Babcock Company v. District Court of Appeal of Florida, Third District, 399 So.2d 1140 (Fla.1981). Since we cannot conclude that the sole possible ground of the denial was the lack of merit of Babcock’s jurisdictional contention, we give the denial no res judicata effect. Compare, e.g., Public Employees’ Relations Commission v. District School Board of De Soto County, 374 So.2d 1005 (Fla.2d DCA 1979), with Hicks v. State, 156 So.2d 22 (Fla. 1st DCA 1963). See generally Annot., Judgment Granting or Denying Writ of Mandamus or Prohibition as Res Judicata, 21 A.L.R.3d'206 (1968).

      . Since Coral Reef and Santana contend that the January 1978 decision was fairly debatable, they obviously do not contend that the July 1979 decision was not fairly debatable.

      . While Babcock says that it was absolutely entitled to rezoning in both 1978 and 1979, if administrative res judicata is no bar, the rezoning it obtained in 1979 will give it complete relief here, since Babcock has stipulated to be bound by its 1979 applications.

      . Babcock concedes that there is abundant case law contrary to its position. It says, however, that all of the included cases overlook Matthews v. State ex rel. St. Andrews Bay Transportation Company, 111 Fla. 587, 149 So. 648 (1933), which, Babcock suggests, announces the rule that res judicata does not bar identical subsequent applications to administrative bodies. In our view, Matthews announces no such rule and indeed stands for the opposite proposition. In Matthews, the Union Bus Company’s application for a certificate of public convenience and necessity was denied by the Rail- . road Commission on the ground that it did not appear to be exclusively interstate. A statute prevented the Commission from entertaining within six months any further application “covering the identical or similar routes.” The Commission allowed Union to amend the application showing that it would not participate in any intrastate business. Its competitor, St. Andrews, obtained a writ of prohibition preventing the Commission from entertaining the application on the basis of the statute. The court held that the change in the application made the statute inapplicable and that “the Commission has the power to modify, and indeed, it is its duty to modify, its pre-existing orders, when new evidence is presented which warrants a change.” (emphasis supplied). While the court stated that the first order of the Railroad Commission “is not res adjudicata of another application of exactly the same nature subsequently filed,” the court’s later declaration that a subsequent application “of the same character and substance” would be within the purview of the statute, compels us to read “same nature” as not meaning a substantially identical application, but only one generally pertaining to the application first denied.

      . Where zoning hearings are not conducted with these due process guarantees, then the hearing can quite properly be called legislative, and the administrative decision is without res judicata effect.
      “The common-law doctrine of res judicata, including the subsidiary doctrine of collateral estoppel, is designed to prevent the relitigation by the same parties of the same claims or issues. The reasons behind the doctrine as developed in the court system are fully applicable to some administrative proceedings, partially applicable to some, and not at all applicable to others. As a matter of principle, therefore, the doctrine should be applied to some administrative proceedings, modified for some, and rejected for others. “The Supreme Court has essentially agreed with this statement of principle in declaring that res judicata may apply ‘[wjhen an administrative agency is acting in a judicial capacity and resolves disputed issues' of fact properly before it which the parties have had an adequate opportunity to litigate.’ The prospect is that other courts will gradually conform to the basic principle thus enunciated.” K. Davis, Administrative Law, § 18.10, at 371 (3d ed. 1972).
      Thus, the enactment of comprehensive zoning plans, see, e.g., Central Bank & Trust Company v. Board of County Commissioners of Dade County, 340 So.2d 503 (Fla.3d DCA 1977), and amendments thereto to accommodate the confiscatory impact of the plan on a particular piece of property, see Oka v. Cole, 145 So.2d 233 (Fla.1962), while accomplished pursuant to public hearing after published notice, are not accomplished pursuant to a hearing containing the full panoply of procedural due process rights and, therefore, are legislative in character, Harris v. Goff, 151 So.2d 642 (Fla. 1st DCA 1963), and res judicata neither prevents the enactment nor amendment.

      . If the application were considered as “new” rather than “amended,” this holding would appear to give the Commission the unilateral right to entertain the new application within the six-month period, despite the protest of the application’s opponent. Such a holding may be warranted where it is the responsibility of the administrative body to assure that appropriate transportation be expeditiously established for the public. The statute, however, would certainly allow the Commission to reject out of hand “promiscuous successive applications of the same character and substance.”


text:
    GARDEN STATE PROPERTIES, INC., Petitioner, v. DADE COUNTY, FLORIDA, a political subdivision of the State of Florida, and Board of County Commissioners of Metropolitan Dade County, Florida, Respondents.
    No. 81-2297.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.

      Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for petitioner.
    Robert A. Ginsburg, County Atty. and Eileen Ball Mehta, Asst. County Atty., for respondents.
    Before HENDRY, DANIEL S. PEARSON and BASKIN, JJ.
   PER CURIAM.

We deny the petition for writ of certiorari filed by Garden State Properties, Inc. upon a holding that (1) the County Commission was amply justified in finding that there was no change of circumstances which would avoid the application of administrative res judicata as a bar to petitioner’s application for rezoning, Coral Reef Nurseries, Inc. v. The Babcock Company, 410 So.2d 648 (Fla.3d DCA (1982); (2) even if, arguendo, the Commission had found a change of circumstances, the Commission’s denial of the petitioner’s application was supported by substantial competent evidence, and the decision of the Commission fairly debatable, Coral Reef Nurseries, Inc. v. The Babcock Company, supra; Dade County v. Inversiones Rafamar, S.A., 360 So.2d 1130 (Fla.3d DCA 1978); Movie-matic Industries Corp. v. Board of County Commissioners of Metropolitan Dade County, 349 So.2d 667 (Fla.3d DCA 1977); Dade County v. Yumbo, S.A., 348 So.2d 392 (Fla.3d DCA 1977); County of Brevard v. Woodham, 223 So.2d 344 (Fla. 4th DCA 1969); (3) nor does the existing zoning on the property deprive the petitioner of its beneficial use so as to be confiscatory, notwithstanding that the petitioner may be prevented from using such property in a manner which is economically most advantageous to it, City of Miami v. Zorovich, 195 So.2d 31 (Fla.3d DCA 1967); Waring v. Peterson, 137 So.2d 268 (Fla.2d DCA 1962).

Certiorari denied.


text:
    Earl BUGGS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2092.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Bennett H. Brummer, Public Defender and James H. Greason, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Homer v. State, 358 So.2d 1176 (Fla. 3d DCA 1978), cert. denied, 364 So.2d 886 (Fla.1978); see, Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).


text:
    Rafael GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2364.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Pollack, Komorowski & Headley and John Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

There is no merit in any of the defendant’s claims of error in his multiple convictions. The trial court, however, should have given Gonzalez credit for time served in the county jail from the date of his initial arrest until July 7, 1977, when he was committed to the state hospital as incompetent to stand trial. Cf. Dalton v. State, 362 So.2d 457 (Fla. 4th DCA 1978), followed in Wallace v. State, 397 So.2d 1175 (Fla. 3d DCA 1981) (defendant not entitled to credit for time in state hospital). After remand, the first of his consecutive sentences shall be amended to so provide. The defendant need not be present when this is accomplished.

Affirmed as modified.


text:
    The STATE of Florida, Appellant, v. George GOLDEN, Appellee.
    No. 80-2483.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellant.
    James C. Burke, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The order discharging the defendant for violation of the speedy trial rule is reversed on the authority of Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), and State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971).

Reversed.


text:
    D. C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2490.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Bennett H. Brummer, Public Defender and Steven Silverman, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.

      Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

We reverse the order of adjudication and remand with directions to discharge the appellant. There is no showing on this record that D. C. was not continuously available for trial, nor was there a timely written order entered pursuant to Fla.R.Juv.P. 8.180(c). M. M. v. State, 407 So.2d 262 (Fla.3d DCA 1981); L. G. v. State, 405 So.2d 252 (Fla.3d DCA 1981).

Reversed and remanded with directions.


text:
    Peter Joseph FITSCHEN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-391.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State v. Hegstrom, 401 So.2d 1343 (Fla.1981); Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980), pet. for rev. denied, 397 So.2d 778 (Fla.1981); Mathis v. State, 348 So.2d 1221 (Fla. 3d DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978).


text:
    Irene BARRETT, Appellant, v. FLEXMASTER INDUSTRIES, INC., Sheldon Collins and Marcia Collins, his wife, Appellees.
    No. 81-637.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Michael J. Garavaglia, Vero Beach, for appellant.
    Emanuel Sponder, Miramar, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The trial judge granted the defendants’ motion to dismiss on res judicata grounds. We reverse because it did not appear on the face of the complaint, see Brackett v. Usdan, 382 So.2d 105 (Fla. 3d DCA 1980), nor, even considering the motion as one for summary judgment, from the attachments to the motion in the form of portions of earlier proceedings, that the issues asserted had previously been adjudicated adversely to the plaintiff so as to invoke the doctrine on its merits. See, Gordon v. Gordon, 160 Fla. 838, 36 So.2d 774 (1948); Crump v. Gold House Restaurants, Inc., 96 So.2d 215 (Fla.1957).


text:
    G. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-657.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Bennett H. Brummer, Public Defender and Deborah Whisnant and Elliot H. Scherker, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellees.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M., (Ret.), Associate Judge.
   PER CURIAM.

Section 812.025, Florida Statutes (1979) permits a finding of guilt of either theft or dealing in stolen property in connection with one scheme or course of conduct, but not both. Hudson v. State, 408 So.2d 224 (Fla. 4th DCA 1981); Kelly v. State, 397 So.2d 709 (Fla. 5th DCA 1981). We reject as totally without merit the state’s contention that a juvenile, unlike an adult, may in the same circumstances be adjudicated delinquent on both charges.

The adjudications of delinquency as to dealing in stolen property is AFFIRMED and as to theft is REVERSED.


text:
    Gayle Zubek STOCK, Appellant, v. Brian STOCK, Appellee.
    No. 81-1052.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Gayle Zubek Stock, in pro per.
    Neil Chonin and Marilyn Sher, Coral Gables, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The appellant was served by constructive service of process by publication in a marriage dissolution proceeding. She filed certain defensive motions, including a motion for extension of time to respond to the original petition. All motions were denied, except she was granted 30 additional days to respond. She failed to file a response or answer or secure another extension in the additional thirty-day period. A default was duly entered, followed by final judgment of dissolution that only dissolved the marriage and fixed no property rights or alimony, etc.

We find no error and affirm. Gelkop v. Gelkop, 384 So.2d 195 (Fla.3d DCA 1980); Stevenson v. Arnold, 250 So.2d 270 (Fla.1971).

Affirmed.


text:
    ELECTRON TUBES INTERNATIONAL, INC., Appellant, v. SHELL CONTAINERS, INC., (N.Y.), Appellee.
    No. 81-1192.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Young, Stern & Tannenbaum and Lee Milich, North Miami Beach, for appellant. Neil J. Berman, Miami, for appellee.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.) Associate Judge.
   PER CURIAM.

The final judgment under review is affirmed in all respects, Helman v. Seaboard Coastline Railroad Co., 349 So.2d 1187, 1189 (Fla.1977); § 672.607(1), Fla.Stat. (1979); 3 Fla.Jur. “Appellate Review” § 292 (1978), except insofar as it denies pre-judgment interest in this action. As to the latter, the final judgment is reversed and the cause is remanded to the trial court with directions to add pre-judgment interest to the final judgment in this case in the amount of $2,226.75. Parker v. Brinson Construction Co., 78 So.2d 873 (Fla.1955); § 687.01, Fla. Stat. (1979).

Affirmed in part; reversed in part and remanded.


text:
    John NUCKOLS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1720.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Mitchell Denker, Key West, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. See Miranda v. State, 354 So.2d 411 (Fla.3d DCA), cert. denied, 364 So.2d 888 (Fla.1978); Dixon v. State, 343 So.2d 1345 (Fla.2d DCA 1977); Porter v. State, 302 So.2d 481 (Fla.3d DCA 1974).


text:
    Harold CURINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1909.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Harold Curington, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

Petitioner Harold Curington, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Friedrich HONSBERG and Margarete Honsberg, his wife, Appellants, v. Richard J. LYSTRA, Jr., and Ray Trudelle, Appellees.
    No. 80-1648.
    District Court of Appeal of Florida, Fourth District.
    March 10, 1982.
    N. Richard Schopp, Port St. Lucie, for appellants.
    Ben L. Bryan, Jr., Fort Pierce, for appel-lee, Richard J. Lystra, Jr.
   PER CURIAM.

In an action for declaratory and other relief Friedrich and Margarete Honsberg sought return of an earnest money deposit which they had paid to Richard Lystra toward the purchase of a mobile home. They appeal the final judgment which determined that they had breached the purchase and sale agreement and which permitted Lystra to retain a portion of the earnest money deposit on account of certain enumerated damages together with an additional amount resulting from the application of a theory of equitable distribution. We reverse that aspect of the final judgment which credited Lystra with $2,586.87 as an equitable distribution.

The parties entered into a contract for the purchase and sale of a mobile home on August 22, 1979. The agreement provided for a sales price of $28,000, of which $1,000 was to be paid to Lystra on execution, an additional $9,000 within six days thereafter, and the “remainder on closing when Honsberg house is sold.” It is undisputed that the Honsberg house was placed on the market and that it had not been sold at the time this action was commenced. The parties’ interpretation of the contract as it relates to these facts is divergent, but there is nothing in the agreement or on the record that would justify reversal of the trial court’s conclusion that the house could have been sold by November 25, 1979, thus establishing the date on which damages began .to accrue. The implied holding that sale of the house was not a necessary condition precedent to closing on the sale of the mobile home is sustainable under several alternative theories, and therefore will not be disturbed on appeal.

We come, then, to the issue of damages. The final judgment first concluded that the earnest money deposit constituted liquidated damages, noted that a provision for liquidated damages is “subject to the rule of conscionability” and proceeded to calculate the parties’ respective rights in the $10,000 deposit, applying those principles.

The agreement of the parties provided with respect to damages and the earnest money deposit:

5. Upon failure or the refusal of the purchaser to complete said purchase within 80 days of contract date, or an agreed extension therefor for any reason (other than cancellation on account of increase in price) the cash deposit may have such portion of it retained as will reimburse the dealer for expenses and other losses including attorney fees occasioned by purchaser’s failure to complete said purchase. In the event a used car, trailer or mobilehome has been taken in trade, the purchaser hereby authorizes the dealer to sell said property, at public or private sale, and to deduct from the proceeds thereof a sum equal to the expenses and losses incurred, or suffered, by the dealer by reason of purchaser’s failure to complete the transaction. Dealer shall have all the rights of a seller, upon breach of contract, under the Uniform Commercial Code 2-708, 2-710, 2-718, of the Uniform Sales Act (as applicable).

This is not a provision for liquidated damages. It is, in fact, exactly the opposite. Simply put, paragraph 5 says that the deposit shall constitute a fund securing to the seller the actual amount of damages he sustains by reason of buyers’ failure or refusal to complete the purchase. The trial court correctly determined that the amount of actual damages proven by the seller was $4,826.26, leaving a deposit balance of $5,173.74. Applying a theory of equitable distribution this amount was to be divided between the parties. The net result is that Lystra retains $7,413.13 and $2,586.87 is returned to the Honsbergs. Neither the parties’ agreement nor any statute to which our attention has been directed permits this result.

Appellants breached the purchase and sale agreement entitling appellee to retain from the earnest money deposit his actual damages in the amount of $4,826.26. The balance, $5,173.74, is to be refunded to appellants. The trial court is instructed to modify the final judgment to give effect to the foregoing determination. As so modified, the final judgment is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


author: BERANEK, Judge.

text:
    CITY OF POMPANO BEACH and John H. Schoeberlein, Appellants, v. Harley J. MEIROFF and Broward County Police Benevolent Association, Inc., a Florida corporation, Appellees.
    No. 81-475.
    District Court of Appeal of Florida, Fourth District.
    March 10, 1982.
    Marion J. Radson and Donald C. Roberge, Pompano Beach, for appellants.
    William Rodriguez of Panza & O’Donnell, Fort Lauderdale, for appellees.
   BERANEK, Judge.

This is an appeal by defendant, a municipality, from an order compelling arbitration under a collective bargaining agreement. This order also dismissed the complaint against the City without prejudice. The parties to the agreement are the City of Pompano Beach, on one side, and the appel-lees, a city police officer and his bargaining agent, the Broward County Police Benevolent Association, on the other. The plaintiff was a police officer employed by the City of Pompano Beach. After trying unsuccessfully to settle a wage dispute between the Police Benevolent Association and the City Manager, appellee filed a complaint in the Circuit Court against the City seeking (1) to compel arbitration; (2) damages for breach of contract; (3) specific performance; (4) a declaratory decree; and (5) a writ of mandamus.

The City filed a motion to dismiss asserting the complaint showed the police officer had failed to follow the required steps under the collective bargaining procedures. The agreement required initially discussing the problem with an immediate supervisor and then following several other intermediary steps before arbitration. The motion to dismiss asserted that plaintiff’s noncompliance with the steps required by the contract appeared from the face of the complaint. Without the filing of further pleadings the trial court issued what purports to be a final judgment dated February 24, 1981. The judgment ordered that the parties proceed with arbitration and dismissed the complaint “without prejudice.” The judgment recites that the basic question being considered was whether a particular municipal ordinance on police wages had retrospective effect. The judgment makes no finding as to plaintiff’s alleged noncompliance with the contractual steps leading up to arbitration.

We conclude that error occurred regarding the procedures below. This is clearly a situation where the trial court proceeded too far on the basis of a request for arbitration and a motion to dismiss. The court should not have considered the merits of a legal issue (retrospective effect of the ordinance) which was nowhere raised in the pleadings. In doing so, error occurred. With deference to the trial judge, this may have resulted from counsels’ having filed five separate memoranda and counter-memoranda of law. The Directions to the Clerk contained in the record on appeal note the existence of these memo-randa but none of the documents are actually contained in the record on appeal. We can only surmise that this is where the court found the issues which were ruled upon. Apparently, the court did not file these documents with the clerk. We suggest that if a document is to be relied upon by the court and is tendered by counsel, it should be incorporated into the file. We do not wish to infer that thé result would be different if the record were more complete. The issues in a lawsuit are to be made by the pleadings rather than memoranda of law which may well discuss extraneous legal issues not raised in the pleadings. Further, the court was only at the preliminary point of compelling arbitration rather than consideration of the merits.

Appellees assert that the trial court did not actually decide the legal issue of the application of the ordinance and instead merely recognized it as an issue to be initially considered in arbitration-. Our construction of the judgment is to the contrary. We, therefore, conclude error has occurred requiring that the judgment below be vacated insofar as it ruled upon issues which should have been before the arbitrators. There was a clear demonstration of a valid agreement to arbitrate and the existence of an arbitrable issue. Thus the matter should initially proceed in arbitration and the court’s conclusion to this effect is affirmed.

The defendant’s motion to dismiss attempts to raise plaintiff’s alleged noncompliance with the contract as a legal issue for determination solely upon the pleadings. The decision in Passalacqua Builders, Inc. v. Mayfair House Ass’n, Inc., 395 So.2d 1171 (Fla. 4th DCA 1981), is urged as support of consideration of this issue initially by the court rather than the arbitrator. The Pas-salacqua decision should not be construed to remove questions of this sort from initial consideration in arbitration. The plaintiff’s alleged breach of contract is, in our opinion, a factual issue which should be initially considered by the arbitrator. See Gersh v. Concept House, Inc., 291 So.2d 258 (Fla. 3d DCA 1974). Certain waiver issues, such as waiver based upon participation in litigation, should obviously be presented and decided in the litigation rather than in arbitration. This is not the case here and this ruling is in accord with the Passalacqua case. Also see Chatham Shipping Co. v. Fertex Steamship Corp., 352 F.2d 291 (2d Cir. 1965). The judgment compelling the parties to proceed with arbitration is affirmed but in all other respects same is reversed and vacated.

AFFIRMED AND REVERSED in part, REMANDED.

LETTS, C. J., and DOWNEY, J., concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Dale RADANDT, Appellee.
    No. 81-1115.
    District Court of Appeal of Florida, Fourth District.
    March 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Kenneth E. Delegal, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

The State seeks reversal of an order dismissing an information pursuant to a motion to dismiss based upon Florida Rule of Criminal Procedure 3.190(c)(4).

Appellee, Dale Radandt, was charged with unlawful possession of cannabis in excess of 20 grams. In due course he filed a sworn motion to dismiss, in which it was stated that there were no material disputed facts and that the undisputed facts did not establish a prima facie case against him. The motion further stated that appellee: was a passenger in an automobile with a codefendant, Kelly; did not know of the presence of any drug and in particular of any quantity of marijuana; and did not have any drugs in his possession nor could he have exercised any control over any drugs in the automobile.

The. State filed a sworn traverse denying there were no material disputed facts or that the undisputed facts failed to establish a prima facie case against appellee. The traverse also stated that the State intended to prove that appellee was a passenger in Kelly’s car and that Kelly had been arrested for DUI. The traverse also asserted the following things: marijuana was found on the floor of the front seat near the driver’s side of the car and Kelly told the arresting officer that he had just smoked some of the marijuana; appellee was on the passenger’s side of the front seat and directly in front of him were a folded towel and a bag of marijuana; and appellee’s eyes were glassy and his pupils dilated. Finally, the traverse asserted that the State intended to prove that appellee “was aware of the presence of marijuana in the vehicle[;] he was in fact in possession of said marijuana, and that he could, at any time have exercised control over the marijuana.”

A hearing was held at which some testimony of the arresting officer was taken. That testimony did not deny or repudiate the allegations of the traverse. However, the trial judge ruled that the traverse was insufficient and granted the motion to dismiss.

The cases are almost legion which hold that when the State files a sworn traverse denying material facts alleged in the motion to dismiss, the motion must be denied. See, e.g., State v. Williams, 400 So.2d 1326 (Fla. 4th DCA 1981); State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980). Denial of a motion to dismiss under these circumstances has been characterized as automatic. State v. J. T. S., 373 So.2d 418 (Fla. 2d DCA 1979). Appellee’s motion to dismiss and the State’s traverse in this case demonstrated there was an issue of fact involved as to whether appellee had possession, actual or constructive, of the marijuana involved; and thus it was error to grant the motion to dismiss.

Accordingly, the order appealed from is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED with directions.

LETTS, C. J., and BERANEK, J., concur.


text:
    STATE of Florida, Appellant, v. Jimmie Lee JAMES, Appellee.
    No. 81-1359.
    District Court of Appeal of Florida, Fourth District.
    March 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Mark Horn and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for appellant.
    Thomas E. Cazel and C. William Lay-strom, Jr., of Allsworth, Doumar, Padula, Cazel, & Curtis, Fort Lauderdale, for appel-lee.
   BERANEK, Judge.

The State appeals the granting of defendant’s motion to discharge on speedy trial grounds. Defendant was arrested on November 8, 1980, on the charge of bookmaking. The State filed an information charging defendant with promoting a lottery on February 4, 1981, and arraignment was set for February 26, 1981. The record shows that defendant’s counsel was aware of the scheduled arraignment but instead filed a written plea of not guilty and waived the formal arraignment by a pleading filed February 23, 1981. A motion to dismiss the information was also filed on that date. For some inexplicable reason, defendant was thereafter “arraigned” on April 3, 1981. Defense Counsel asserted he then received the information on April 7, 1981, and the next day filed for discovery which the state responded to on April 27, 1981. Trial had been previously set for May 4, 1981, at which time defense counsel moved for a continuance to be charged to the State, alleging:

Apparently, the defendant in this matter was arraigned on April 3rd, and I received the Information on the 7th. I filed my discovery on the 8th. I didn’t receive my discovery until four working days ago, last Monday.... As a result of receiving it on that day, I had approximately four working days to subpoena, depose and serve the witnesses. I haven’t even had an opportunity to file a motion to suppress and motion to dismiss, which the case will require.

The trial court granted the continuance and charged it to the State because “the defendant moved along as quickly as he could under the circumstances.” Prior to the second trial date of July 10, 1981, defendant made a motion for discharge on speedy trial grounds which was granted.

We reverse. It is clear that the trial court was not aware of the written plea of not guilty and the waiver of formal arraignment which were filed on February 23, 1981. Moreover, the court was unaware that defense counsel had filed what he referred to as a “form” motion to dismiss on the same date. Counsel waited a month and a half after filing these documents to file his discovery demand. Further, it is clear that the information was in defense counsel’s hands as early as February 23, 1981. The defendant should not be allowed to plead to an information, waive arraignment and file defensive motions and later obtain a continuance charged against the state on the unexplained ground that he had not received the information until substantially later. We find that counsel’s own delay necessitated the continuance; it should have been charged to the defendant, not the State. The order granting discharge is therefore reversed.

REVERSED AND REMANDED.

LETTS, C. J., and ANSTEAD, J., concur.


author: SCHOONOVER, Judge.

text:
    Walter J. BLANFORD and Annie Ruth Blanford, his wife, Appellants, v. POLK COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 81-1637.
    District Court of Appeal of Florida, Second District.
    March 10, 1982.

      Herbert H. Hall, Jr. and James H. Webb, Jr. of Maher, Overchuck, Langa & Cate, P. A., Orlando, for appéllants.
    Mark F. Carpanini, Irvin S. Cowie, Monte J. Tillis, Jr., and Carolyn K. Fulmer, Asst. County Atty., Bartow, for appellee.
   SCHOONOVER, Judge.

This is an appeal from a final judgment entered in a personal injury action. Jury verdicts of zero damages were awarded to both of the appellants. We reverse.

Mr. Blanford, one of the appellants, was involved in an automobile accident with a road grader owned by the appellee and operated by its employee. His wife was not involved in the accident but joined in the suit because of her derivative claim for loss of consortium.

Prior to filing suit, the appellant executed a general release in exchange for the exact amount of property damage. It was undisputed at trial that both parties were only considering property damage at the time the release was executed. The jury was instructed not to consider it as a release of Mr. Blanford’s personal injury claim.

The appellant also signed an accident report stating that he did not sustain any injuries as a result of the accident. The report was submitted to the jury. During the trial, the appellant testified that he did not remember indicating in the report that he had not sustained any injury. He testified that he was injured as a result of the accident and furthermore that the injuries affected his marital relationship. Mrs. Blanford also testified that the parties’ marital relationship was affected as a result of the accident.

In addition to the appellants’ testimony, an orthopedic surgeon expressed his opinion within a reasonable degree of medical probability that the appellant had sustained an injury as a result of the accident. He stated further that the treatment rendered to Mr. Blanford was necessitated by the automobile accident in question and that at least a portion of his bill in the approximate amount of $167 was attributable to diagnostic testing.

.The court directed a verdict against the appellee on the question of liability. The amount of damages, if any, sustained as a result of the accident was the only issue submitted to the jury.

The appellants contend that they are entitled to a new trial on the question of damages. We agree.

It is true that the matter of the amount of damages is normally for the jury, and it is not the province of the court to substitute its judgment for that of the trier of the facts. A jury’s verdict will not be disturbed in the absence of a clear showing that error was committed in the proceedings below or that the evidence demonstrated that the conclusions reached were clearly erroneous. World Insurance Co. v. Wright, 308 So.2d 612 (Fla. 1st DCA 1975).

However, a jury’s verdict cannot rest on a mere probability or a guess, and we cannot affirm a verdict where there is no rational predicate for it in the evidence. Food Fair Stores of Florida, Inc. v. Sommer, 111 So.2d 743 (Fla. 3d DCA 1959).

Based upon the appellant’s written statement that he was not injured as a result of the accident, the jury could have found that he did not sustain any injuries. However,, it was undisputed that a portion of the medical expenses were incurred for diagnostic testing which was reasonably necessary to determine whether or not the accident caused the appellant’s injuries, and therefore, at least that amount had to be awarded to the appellant. Ridenour v. Sharek, 388 So.2d 222 (Fla. 5th DCA 1980).

Additionally, since it was also undisputed that the parties’ marital relationship was affected as a result of the accident, and we have determined that the jury verdict as to Mr. Blanford must be reversed, we also assume that the jury was misled or failed to understand their duty as a jury in respect to Mrs. Blanford’s claim. Webber v. Jordan, 366 So.2d 51 (Fla. 2d DCA 1978).

We accordingly reverse and remand for a new trial on the question of damages incurred by the appellants.

SCHEB, C. J., and RYDER, J., concur.