author: HURLEY, Judge.

text:
    Shirley Tillman DYER, Appellant, v. Vaughn DYER, Appellee.
    No. 82-1919.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    Penny D. Mangus, of McDonough & Beyer, Coral Springs, for appellant.
    Philip Michael Cullen, III, Chartered, Fort Lauderdale, for appellee.
   HURLEY, Judge.

The question is whether an attorney’s charging lien may be enforced against an award of permanent periodic alimony. We decline to formulate a broad rule, but hold, under the facts of this case, that the trial court abused its discretion by permitting an attorney’s charging lien to be impressed upon a permanent periodic alimony award of $250.00 per month.

Shirley Dyer retained attorney James McCauley to represent her in a dissolution action. Subsequently, Mrs. Dyer indicated that she wished to obtain other counsel and, therefore, Mr. McCauley withdrew and filed a claim for an attorney’s charging lien in the sum of $5,217.35. Thereafter, Mr. and Mrs. Dyer, both represented by counsel, appeared at the final hearing in the dissolution action and stipulated to a property settlement agreement which divided the parties’ real property and other assets. The agreement provided for an award of permanent periodic alimony to Mrs. Dyer in the sum of $250.00 per month and specified that each party would be responsible for his or her own attorney’s fees and costs. Since the agreement did not provide for disposition of the charging lien, the trial court retained jurisdiction to determine it at a future date. Later, after a separate hearing, the trial court granted the attorney’s request to impress a charging lien on all of the wife’s proceeds of the dissolution action. As a result, the wife’s real and personal property plus the alimony award were made subject to the lien.

The wife has raised several issues on appeal, most of which cannot be considered due to her failure to provide a transcript of the “lien hearing.” See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979). Her threshold contention, however, is that there cannot be a lien because the final judgment of dissolution did not generate any proceeds. She argues that as a result of the property settlement agreement which was incorporated into the final judgment of dissolution, the parties merely divided their jointly-held assets and, therefore, neither party gained anything new. This analysis is too facile. It overlooks the fact that a fundamental purpose of dissolution actions is to achieve an equitable distribution of the parties’ assets. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Assuming that all of the requirements for an attorney’s charging lien have been alleged and proved, see, e.g., Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik v. Baucom, 428 So.2d 1383 (Fla.1983), we can perceive no logical justification for declining to enforce such liens in dissolution actions. Indeed, Sinclair expressly holds that a charging lien may be pursued in a dissolution action.

The question still remains, however, whether an attorney’s charging lien may be enforced against an award of permanent periodic alimony. The parties have not cited, nor have we been able to locate any Florida case law on this point. Moreover, other state authorities are split. See McDonald v. Johnson, 229 Minn. 119, 38 N.W.2d 196 (1949) and the cases cited therein. Some courts have refused to impress charging liens against periodic alimony on the theory that the alimony

is intended for the support of a party to whom it is awarded, its amount is fixed with reference to her necessities, and the courts will not countenance its appropriation to any other purpose.

In re Brown, 178 A.D. 558, 165 N.Y.S. 736, 742 (1917) (quoting Mooney v. Mooney, 29 Misc. 707, 62 N.Y.S. 769 (1899)). The opposite view is exemplified by Hampton v. Hampton, 85 Utah 338, 39 P.2d 703 (1935), where the court held that

[t]o say ... that the lien attaches when the alimony is payable in a lump sum or when specific real or personal property is awarded, but not when alimony is payable in monthly or other designated periods, is to make a judicial distinction without a substantial difference, influenced .perhaps by notions of the common law, or by ‘fireside justice’ in the particular case

39 P.2d at 706.

We believe that the New York decision expresses the better view. It ensures that a court’s carefully crafted formula to maintain a former spouse will not be subverted by subsequent action. Also, it accords with the public policy of Florida as announced for other related areas of the law. E.g., Garnishment, Section 222.11, Florida Statutes (1981); Maryl v. Hernandez, 254 So.2d 47 (Fla. 3d DCA 1971); First Prudential Bank v. Rolle, 45 Fla.Supp. 128 (Fla.Palm Beach Cty.Ct.1976). It is important to remember, however, that a Florida award of periodic alimony can fulfill multiple purposes. Therefore, we must qualify our holding. The usual purpose of permanent periodic alimony is “to provide the needs and the necessities of life to a former spouse....” Canakaris v. Canakaris, supra at 1201. But in Florida it is also permissible to use permanent periodic alimony as a vehicle “to do equity between the parties .... ” Id. at 1202. Consequently, we do not believe that it is either appropriate or possible to formulate a rule which depends upon the label attached to a specified form of alimony. Rather, courts should be governed by the principle that “[ejquity, which creates the [alimony] fund, will not suffer its purpose to be nullified.” Turner v. Woolworth, 221 N.Y. 425, 430, 117 N.E. 814, 816 (1917); cf. Fuqua v. Fuqua, 88 Wash.2d 100, 558 P.2d 801, 805 (1977). Thus, an attorney’s charging lien should not be enforced against an award of permanent periodic alimony if to do so would deprive a former spouse of daily sustenance or the minimal necessities of life.

In the case at bar, the former wife earns $52.34 per week. She has custody of two minor children for which she receives $400.00 per month in child support. Obviously, the permanent periodic alimony award of $250.00 per month is aimed at insuring basic survival. Any diminution would upset an already precarious balance. Furthermore, the facts reveal that the wife has other assets which can be utilized to satisfy the attorney’s lien. Therefore, under these facts, we hold that the trial court abused its discretion by subjecting the monthly periodic alimony award to a charging lien. Accordingly, that provision is reversed; the final judgment is

AFFIRMED IN PART AND REVERSED IN PART.

ANSTEAD, C.J., and DELL, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Manuel RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-2139.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

REVERSED on the authority of Carter v. State, 432 So.2d 797 (Fla. 2d DCA 1983).

DOWNEY, LETTS and HERSEY, JJ., concur.


text:
    Kenneth LITTLE, Christine Little and Kenneth Ray Little, Appellants, v. Mary L. KNIGHT, Judith Alvarez, et al., Appellees.
    No. 82-2417.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    Roger G. Stanway, Hollywood, for appellants.
    Thomas J. Morgan of Gilmour, Morgan & Rosenblatt, Miami, for appellees.
   PER CURIAM.

Affirmed. See, Seibels, Bruce & Company v. Giddings, 264 So.2d 103 (Fla. 3d DCA 1972), cert. denied, 269 So.2d 370 (Fla.1972).

ANSTEAD, C.J., and BERANEK and DELL, JJ., concur.


author: BERANEK, Judge.

text:
    Raymond GRANT, Appellant, v. STATE of Florida and Cleve A. Mobley, Appellees.
    No. 83-274.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    Sara Bresky Blumberg and Michael Du-biner of Dubiner & Blumberg, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee, State.
   BERANEK, Judge.

This appeal grows out of a criminal contempt proceeding against appellant. No written order or judgment has ever been entered in the trial court and there is thus nothing from which appellant can appeal. The appeal is dismissed. See State v. Wells, 326 So.2d 175 (Fla.1976), and Downey v. State, 409 So.2d 133 (Fla. 5th DCA 1982).

In the event a written judgment is ever entered, appellant may then seek appellate review.

APPEAL DISMISSED.

LETTS and DELL, JJ., concur.


text:
    Clark WHITWORTH, Appellant, v. Wilma WHITWORTH, Appellee.
    No. 83-364.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    Arthur F. McCormick, South Miami, for appellant.
    Wynne M. Casteel, Jr., of Cabot Wenkst-ern & Casteel, Fort Lauderdale, for appel-lee.
   PER CURIAM.

AFFIRMED. See Canakaris v. Canakar-382 So.2d 1197 (Fla.1980).

ANSTEAD, C.J., and BERANEK and DELL, JJ., concur.


text:
    BROADFIRE CORPORATION, a Florida corporation; Eugene A. Broadbent, Sr. and Betty B. Broadbent, husband and wife; and Broadfire International, Inc., a Florida corporation, Appellants, v. John E. TURREGANO and Betty M. Turregano, husband and wife, Appellees.
    No. 83-551.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1983.
    Stephen M. Maher, Fort Myers, for appellants.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   PER CURIAM.

After careful review of the record, we conclude that the trial court entered a temporary restraining order on February 25, 1983, which expired by its own terms on March 7, 1983, ten days after its entry. Fla.R.Civ.P. 1.610(b). There being no valid court order extending the expiration period beyond the March 7 deadline, we dismiss this appeal as moot. See Dehoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1943); Auffant v. Shoultz, 388 So.2d 41 (Fla. 5th DCA 1980).

The record shows that appellants removed. the vessel, the object of the temporary restraining order, from its designated location on March 29, 1983, twenty-two days after the temporary restraining order’s expiration. Consequently, it cannot be said that appellants violated an existing court order by removing the vessel on March 29, 1983.

Appeal DISMISSED.

BOARDMAN, A.C.J., SCHEB and CAMPBELL, JJ., concur.


author: RYDER, Judge.

text:
    Schuyler R. CROWELL and Selma R. Crowell, his wife, Appellants, v. FLORIDA POWER CORPORATION, a Florida corporation, Appellee.
    No. 83-585.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1983.
    Steven C. Sweet and Dale A. Johnson of Fisher & Sauls, P.A., Seminole, for appellants.
    Phillip D. Havens, St. Petersburg, for ap-pellee.
   RYDER, Judge.

Schuyler and Selma Crowell (Crowells), plaintiffs below in a trespass action, appeal from a final summary judgment order rendered in favor of Florida Power Corporation (FPC). We reverse and remand.

In their amended complaint, the Crowells alleged FPC committed a trespass upon their property when FPC’s agents came onto their property and “radically” and “improperly” trimmed two of their trees situated near the utility’s power lines. It was further alleged that as a direct and proximate result of FPC’s trespass, one of the trees fell onto their house and caused the Crowells to incur damages in excess of $5,000.00.

FPC filed its answer in which it set forth the following affirmative defenses: (1) the Crowells either expressly or impliedly consented to the trespass; (2) FPC, as a matter of law, was a licensee or an invitee upon the property for purposes of trimming branches encroaching upon the power lines; (3) the Crowells had no property rights in the branches extending beyond their property; and (4) the Crowells’ damages were caused either wholly or in part by their own negligence.

Subsequently, FPC moved for a summary judgment on the grounds that no genuine issues of material fact existed with respect to the first and second affirmative defenses. After a hearing on the motion, the trial court ruled that the Crowells knowingly consented to FPC’s conduct with respect to its trimming the trees and that “such consent is a defense as a matter of law to a cause of action in trespass.” The trial court then entered an order granting summary judgment in favor of FPC.

On appeal, the Crowells contend there are genuine issues of material fact regarding whether they in fact consented to the trespass, and, even if they did consent, whether FPC’s agents exceeded the boundaries of that alleged consent.

First, the record is clear that the Crowells did not expressly consent to the particular action taken by FPC’s agents. Furthermore, upon reviewing the pleadings and depositions in a light most favorable to the nonmoving party, we hold that, assuming arguendo FPC had implied consent to act, a genuine issue of material fact exists as to whether FPC’s agents violated the boundaries of that consent by trimming the Crowells’ trees in the manner alleged. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); Cf. Sacco v. Eagle Finance Corporation of North Miami Beach, 234 So.2d 406 (Fla. 3d DCA 1970) (the trial court erred in directing verdict where evidence revealed the existence of a jury question as to whether the “boundaries of consent were overreached by any unreasonable conduct of [defendant’s] agent”). Although consent or license is generally a defense to an action in trespass, Prior v. White, 132 Fla. 1, 180 So. 347 (1938), consent or license implied from custom, usage, or conduct is “necessarily limited, however, to those acts that are within a fair and reasonable interpretation of the terms of the grant.” Boston Manufacturers’ Mutual Insurance Co. v. Fornalski, 234 So.2d 386 (Fla. 4th DCA), cert. denied, 238 So.2d 476 (Fla.1970). Accord, Sacco; Quest v. Barnett Bank of Pensacola, 397 So.2d 1020 (Fla. 1st DCA 1981). See generally 32 FlaJur. Trespass § 9.

Accordingly, we reverse the final summary judgment order because a genuine issue of material fact exists as to whether FPC exceeded the grant of any implied consent or license.

REVERSED and REMANDED for proceedings consistent herewith.

OTT, C.J., and DANAHY, J., concur.


text:
    Terry MADDOX, Appellant, v. STATE of Florida, Appellee.
    No. 83-588.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1983.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Defendant was sentenced to two concurrent terms of thirty years for attempted murder and robbery and a concurrent term of five years for grand theft. The court retained jurisdiction over the first half of both thirty-year sentences. Section 947.-16(3), Florida Statutes (Supp.1982), provides that when an individual is convicted of two or more felonies and concurrent sentences are imposed, jurisdiction of the trial court shall apply only to the first half of the maximum sentence imposed for the highest felony charged and proven. Accordingly, this cause is remanded with instructions that the court strike the reservation of jurisdiction from one of the thirty-year sentences. Otherwise, the judgments and sentences are affirmed.

GRIMES, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.

      . While section 947.16(3) does not contemplate the retention of jurisdiction over a sentence for attempted murder, as such, see Crotzer v. State, 425 So.2d 159 (Fla. 2d DCA 1983), the reservation here was appropriate under that portion of the statute which refers to the commission of any felony involving the use of a firearm or other deadly weapon.


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

text:
    Jimmy Louis McNEIL, Appellant, v. STATE of Florida, Appellee.
    No. AO-378.
    District Court of Appeal of Florida, First District.
    Oct. 5, 1983.

      Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

McNeil appeals from his convictions, after a jury trial, for grand theft, sec. 812.-014(2)(b)l, Fla.Stat. (1981), and tampering with evidence, sec. 918.13(l)(a), Fla.Stat. (1981). We find no infirmity in the former conviction, see sec. 812.012(9)(a)l, Fla.Stat. (1981), but find that the latter conviction cannot be sustained.

On September 23, 1981, McNeil came to the Panama City police department at the request of Detective Michael Jones, who was investigating the theft of two automobile tires from Sylvester Stewart the month before. McNeil was advised of his Miranda rights and signed a rights waiver form in the presence of Jones and a second officer. In response to questioning, McNeil then stated that he had bought the two tires found on his car, which were in fact the stolen tires, from a fellow named Smith some two months earlier.

Suspending the interrogation, Detective Jones stepped out of the interview room to discuss the case with another officer. He left on the desk both the signed Miranda rights waiver form and the victim’s purchase receipt for the tires, showing the amount and date of purchase. While Jones was out, Officer Winterman, who was watching McNeil, saw him throw something in the trash can. That something turned out to be the signed rights waiver form, torn into pieces. That act of shredding the form is the basis for charging that McNeil violated section 918.13(l)(a), Florida Statutes (1981):

No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting attorney (or) law enforcement agency ... is pending or is about to be instituted, shall:
(a) Alter (or) destroy ... any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation.

As the statute makes clear, “tampering with evidence” is a specific intent crime. See Rader v. State, 420 So.2d 110 (Fla. 4th DCA 1982); State v. News-Press Publishing Company, 338 So.2d 1313 (Fla. 2d DCA 1976). The Florida statute was adopted verbatim from the American Law Institute’s MODEL PENAL CODE AND COMMENTARIES, section 241.7 (1980), which explains:

The limiting factor in Paragraph (a) is the requirement of specific intent. The statute punishes any kind of tampering with any document or thing but only if the defendant acts “with purpose to impair its verity or availability” in an official proceeding or investigation. This designation of specific purpose identifies the ultimate evil as obstruction of justice rather than destruction of property and restricts the scope of the offense to persons who consciously intend to commit the forbidden harm.

Thus, McNeil cannot be convicted of this offense unless it is proved beyond a reasonable doubt that he committed the act with the requisite specific intent “to impair its verity or availability” in a “criminal trial or proceeding or an investigation.” The shredding of the form does not of itself raise a presumption that it was done with such a purpose. See Simpson v. State, 81 Fla. 292, 87 So. 920 (1921); Richard v. State, 181 So.2d 677 (Fla. 3d DCA 1966); Newman v. State, 174 So.2d 479 (Fla. 2d DCA 1965).

The statute is designedly broad in reach. Its principal limitation upon that reach is a requirement that the proscribed act or acts be done with the specified purpose. The statute cannot be extended in application to persons, things or acts not within its descriptive terms. Earnest v. State, 351 So.2d 957 (Fla.1977). The question, then, is whether the evidence of McNeil’s purpose was susceptible of being regarded by a jury as proof of the forbidden purpose beyond a reasonable doubt. Here there is that reasonable doubt.

Signing a document such as this is generally deemed sufficient evidence of a voluntary and intelligent waiver of one’s constitutional right not to be questioned, or not questioned without a lawyer present, concerning one’s guilt of the offense suspected. See Witt v. State, 342 So.2d 497 (Fla.1977); Battle v. State, 338 So.2d 1107 (Fla. 3d DCA 1976); Dixon v. State, 305 So.2d 250 (Fla. 2d DCA 1974). Yet the act of signing a rights waiver form is not irrevocable; signing does not require the signer against his will to submit to questions. If a defendant at any time or in any manner indicates to the interrogating officers that he wishes to remain silent despite his prior waiver, interrogation must cease. Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694, 723 (1966). “The critical safeguard identified in (Miranda) is a person’s ‘right to cut off questioning.’ ” Michigan v. Moseley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975).

The constitutional privilege against self-incrimination therefore includes a privilege to revoke its prior waiver. Revocation is not, of course, abrogation; to revoke a prior waiver, after answering interrogation, does not retrieve the answers again into a protected status. But the question is not what effect the shredding in law had upon McNeil’s prior answers, but what McNeil in fact intended by the act, either insightfully or futilely.

On the critical issue we have both McNeil’s testimony and circumstantial evidence. McNeil declared that his shredding of the paper was, he thought, the rough equivalent of revoking, or indeed abrogating, the waiver previously given. McNeil’s act is commensurate with such a purpose, as his testimony reflects:

Well, I thought by signing the form that maybe I could give a statement of where I really got the stuff from and explain to him, you know, that I’m not guilty. I didn’t know by me signing the form I was, you know, admitting guilt or anything....
When (Detective Jones) left the room after Detective Slusser said lock his — excuse it — lock him up, I felt like I had been done wrong, because I did not steal the tires. I felt like that I might have, you know, committed myself, you know, to be incarcerated. So the first thing came to my mind — I was wrong for tearing it up — the first thing that came to my mind was: Before I signed this Waiver of Rights form everything was alright, but as soon as I sign this form they want to lock me up. I said, what I do, I just tear it up.

In effect, McNeil thus admitted that he intended to “impair” the “verity” of his prior waiver in the sense of abrogating that waiver. But as we have seen, McNeil was constitutionally privileged to revoke his waiver, and could have done so either by a verbal declaration or, we may assume, by writing “revoked” on the paper itself. As the statute cannot constitutionally be read as making a criminal offense of “impairing” the “verity” of a signed waiver form in this sense, it would be strange indeed to acquit McNeil if he had written “revoked” but convict him if he had written, instead, “null and void.” The fault of such a conviction would be its attributing to McNeil knowledge of the difference between “revoked” and “null and void,” so differentiating a purpose of reasserting his constitutional privilege from a purpose of “impairing” the “verity” of a waiver previously given and exploited.

The thoroughness of McNeil’s tearing of the document, and the consequent smallness of the fragments retrieved from the waste can, could of course bé considered as evidencing a purpose not only (ineffectually) to nullify his prior consent but also to “impair” the document’s “availability in such proceeding or investigation.” Yet that is an uncertain inference, because it cannot be assumed that McNeil knew the evidentiary value of the document as do law enforcement officers and prosecutors. Nothing in the record is persuasive that McNeil, thinking at the time that what he said might be used against him as evidence, pondered also that the document by which he submitted to questioning was in fact evidentiary material in a prosecution for theft. If McNeil thought to destroy evidence, he did a poor job of it; the shredded paper, retrieved from the trash can, is of course now in evidence.

Other circumstantial evidence in the record persuades us that the jury could not properly have found beyond a reasonable doubt that McNeil’s specific purpose in shredding the waiver form was to “impair” its “availability” as proof in “such proceeding or investigation.” For when the interrogator left McNeil alone in the room, the interrogator left on the table not only the executed waiver form but also the sales receipt for the tires, showing the victim’s true ownership, which would more obviously seem to undiscriminating eyes to be evi-dentiary material important to the substantive investigation at hand. McNeil declared on the witness stand that “If I wanted to destroy evidence, I would have destroyed the receipt instead of the Waiver of Rights.” We credit that assertion not because McNeil so testified but because, circumstantially, it seems obviously true.

Considering that McNeil’s destruction of the waiver form is inextricably entwined with his right by more appropriate means to end his consent to interrogation, and with his right ineffectually to wish he had not consented in the first place, we thus find It necessary to parse the evidence carefully. In order to punish McNeil for an act thus associated with his constitutional right not to bear witness against himself, proof beyond a reasonable doubt is required that McNeil harbored the proscribed intent. We find all the evidence consistent with a reasonable hypothesis of innocence, and so reverse McNeil’s conviction for tampering with evidence. See, e.g., Driggers v. State, 164 So.2d 200 (Fla.1964); A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982); Green v. State, 408 So.2d 1086 (Fla. 4th DCA 1982).

AFFIRMED in part, REVERSED in part.

WENTWORTH and ZEHMER, JJ., concur.

       Officer Jones testified, “We have to advise them of their rights. And we advise them of their rights and they sign that form. That’s the proof that I have to show here in this courtroom that he was advised .... ”


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

text:
    Ilfautga GENELUS, Appellant, v. BORAN, CRAIG, SCHRECK CONSTRUCTION CO. and R.P. Hewitt & Associates, Appellees.
    Nos. AQ-70, AQ-323.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1983.

      L. Barry Keyfetz, of Keyfetz, Poses & Halpern, Miami, for appellant.
    Edward Almeyda, of Cornell & Almeyda, Miami, for appellees.
   SHIVERS, Judge.

In this workers’ compensation case Gene-lus appeals two orders of the deputy commissioner. The first order awards Genelus penalties and interest on wage loss benefits paid for the month of December 1981, but denies Genelus’ other claims for wage loss benefits. The second order awards an attorney’s fee of 25% of the benefits awarded under the first order and finds that the employer/carrier did not act in bad faith. We affirm in part, reverse in part, and remand.

Genelus is a forty-five-year-old, illiterate, Haitian male who has been in the United States for approximately three years. Although Genelus apparently speaks and understands some English, he is not fluent, and he required the use of an interpreter to testify at the hearing in this case. Claimant was a farmer in Haiti. Since coming to this country he worked as a door-to-door grass cutter and painter before his employment with appellee, Boran, Craig, Schreck Construction Co. (Boran, Craig). On March 25, 1981, while in the course and scope of his employment with Boran, Craig in Naples, Florida, claimant was injured when a big cement holder hit his head and arm. The employer furnished claimant with medical care in Naples immediately after the accident. Several weeks after the accident, claimant tried to speak with someone at Boran, Craig about compensation. That conversation resulted in the non-Haitian speaking person responding with a shake of the head and a shrug of the shoulders. Sometime shortly after this, claimant was picked up by one of his relatives and taken to the Miami area.

In Miami, claimant came under the care of Dr. Turke, a general surgeon, on April 21, 1981. Dr. Turke treated claimant primarily for the neck, back and headaches. Claimant was referred to Dr. Angelides, an orthopedic surgeon, for the injury to his hand. Dr. Angelides treated'claimant from June 11, 1981, through April 27, 1982. Claimant’s right thumb was operated upon on August 5, 1981, and a prosthetic joint was inserted. On November 1, 1981, Dr. Angelides felt that the claimant could return to work, performing light duties, and reported this to the carrier. The claimant was scheduled by Dr. Angelides for a second operation on March 3, 1982, but the claimant failed to keep the surgical appointment. The proposed surgery was to be a bone fusion which would have alleviated claimant’s pain but would have impaired the mobility of the thumb. Dr. Angelides saw claimant again on April 27, 1982, but did not see him again thereafter. Dr. An-gelides testified that claimant had a permanent impairment in accordance with the AMA Guides, but he could not state a specific percentage of impairment. He estimated the impairment at approximately 50% of the thumb. Dr. Turke reexamined claimant in September 1982. He rated claimant with a 40% disability of the right thumb in accordance with the AMA Guides and a 5% disability of the body as a whole. Dr. Turke pointed out that the prosthetic joint in claimant’s thumb would eventually break down with use, and both doctors felt that activities which put direct pressure on the thumb would not be beneficial.

Claimant testified that prior to March 5, 1982, he had tried a painting job but could not finish it. On March 5, 1982, claimant went to the Florida Employment Service. After that, claimant applied for work at several restaurants where he applied for jobs as dishwasher or cleaner. He also applied at a roofing company, a construction company, a manufacturing company, and approximately twenty gas stations. In August, 1982, claimant found work as a truck driver for three weeks, but he testified he could not continue because of trouble holding the wheel. Claimant admitted that during his work search he often had a problem communicating with the prospective employers. Claimant testified that he had not tried to work cutting lawns, as he had in the past, because of his hand. Claimant confined his work search to the Miami/Fort Lauderdale area, and he made no effort to return to work for Boran, Craig in Naples or to look for other work in the Naples area.

The first order of the deputy commissioner, dated September 13, 1982, and rendered following the compensation hearing, finds that claimant has a permanent impairment under the AMA Guides as a result of his industrial accident. Concerning claimant’s work search, the deputy commissioner made the following findings:

7. The Claimant has inquired of a number of employers as to the possibility of work but has not found work except for a three week trucking job most recently. He worked for three weeks and testified that he was unable to operate the truck satisfactorily with his impaired hand. An examination of the Claimant’s hands shows that the Claimant’s right hand is heavily calloused which I find to be inconsistent with the claim that the man has not worked this year.
8. The Claimant has not attempted to return to work for this Employer and has looked for only industrial employment. Based on the medical evidence before me and my observation of the Claimant I believe that the Claimant is capable of doing some work and has a wage earning capacity in spite of his impairment. I must conclude that the Claimant has voluntarily limited his employment or, in the alternative, has in fact been working. I note that the Claimant’s signature on the wage loss request forms heretofore submitted to the Carrier appears to be unimpaired, neat and legible. ■

Thus, it appears that the deputy commissioner relied upon two findings in determining that claimant “voluntarily limited his employment.” First, claimant did not attempt to return to work for Boran, Craig. Second, claimant looked only for “industrial” employment.

The fact that claimant did not seek reemployment with Boran, Craig cannot support a conclusion of voluntary limitation of income under the circumstances of this case. At the time of his work search claimant no longer resided within commuting distance of his former employer. There is no requirement that a claimant relocate in order to have his work search deemed adequate. McMannis v. Mad-Ray Modulars, Inc., 289 So.2d 715 (Fla.1974). As noted in McMannis, any such requirement would be constitutionally suspect. Although McMannis involved a case where claimant refused to leave the community where he was injured, the result should not be different where a claimant relocates after the injury and does not return to the community where he was injured. Sub judice, there is no evidence that claimant’s relocation following his injury was motivated by a desire to avoid work, nor is there evidence that jobs were more plentiful in the Naples area than in the Miami/Fort Lauderdale area. Furthermore, there is no evidence that Boran, Craig would have offered claimant reemployment had he applied for it. On these facts there is no reason to require claimant to return to Naples in order to receive workers’ compensation benefits.

The deputy commissioner’s reference to “industrial” employment is somewhat ambiguous. It is not clear from the record or otherwise why the claimant should be penalized for seeking industrial employment. Seeking industrial employment should not be a bar to an award of wage loss benefits unless that employment was outside of claimant’s limitations or abilities.

Although the two facts articulated by the deputy commissioner do not lead to a conclusion that claimant “voluntarily limited his employment,” there may be other reasons why the deputy commissioner found claimant’s work search inadequate. Therefore, we remand this cause for further factual findings. On remand, the deputy commissioner should make specific findings concerning the date of maximum medical improvement, claimant’s physical limitations relative to employment, and the adequacy of claimant’s work search.

We further note that the fact that the claimant has been working does not automatically mean that claimant is ineligible for wage loss benefits. The wage loss statute contemplates awards to claimants who are able to work or who are working. If the evidence shows that a claimant is able to work or working, the deputy commissioner must determine the “salary, wages, and other remuneration the employee is able to earn after reaching maximum medical improvement .... ” This amount “shall in no case be less than the sum actually being earned by the employee .... ” Section 440.15(3)(b), Florida Statutes (1981).

The deputy commissioner’s order of December 28, 1982, awarding attorney’s fees, must also be remanded. That order awards an attorney’s fee of “an amount equal to 25% of the benefits heretofore warranted under my order.” Since the amount of benefits warranted under the order of September 13, 1982, is unclear, the amount of the attorney’s fee is also ambiguous. Certainty in the amount of attorney’s fees awarded is essential in workers’ compensation cases since it is a crime to accept fees which have not been approved by the deputy commissioner. Section 440.34(6), Florida Statutes (1981). Therefore, it is error for a deputy commissioner to award an ambiguous amount of attorney’s fees. On remand, the deputy commissioner should state the amount of fees awarded as a specific dollar amount. Since the amount of benefits awarded to claimant may change after the deputy commissioner’s determinations upon remand, the amount of attorney’s fees awarded may also, of course, be redetermined.

We find that the record contains competent substantial evidence to support the finding of the deputy commissioner that the carrier did not act in bad faith. The December 28, 1982, order is, therefore, affirmed on the issue of bad faith. That portion of the September 13, 1982, order which awards claimant penalties and interest on wage loss benefits paid for the month of December 1981, is not in issue and is also affirmed.

Accordingly, the orders of September 13, 1982, and December 28, 1982, are AFFIRMED in part and REVERSED in part. The cause is remanded for further consistent proceedings.

NIMMONS, J., concurs.

ROBERT P. SMITH, Jr., J., concurs and dissents, with opinion.

ROBERT P. SMITH, Jr., Judge,

concurring and dissenting:

On the other issues I concur in the court’s judgment and in Judge Shivers’ opinion, but I dissent from the court’s reversal and remand on the question of whether claimant is entitled to wage loss benefits beyond December 1981. I would affirm the deputy’s order in this respect.

In my opinion the deputy’s findings as stated in paragraphs 7 and 8 of the order, quoted in the majority opinion, support the deputy’s denial of wage loss benefits. Those findings are that claimant either searched exclusively for work he said he could not do, and so “voluntarily limited his employment,” or he was able, despite his denial, to do work of that character. Countless times we have deferred to a deputy’s observations of a claimant, present before the deputy, in crediting evidence received concerning claimant’s disability. Here, then, is a case in which the deputy, observing claimant and his “heavily calloused” right hand, which was mentioned also in claimant’s testimony, doubted alternatively that claimant had sought work he could do or that he could not do the work he sought. Were this a jury verdict to the same effect, in a common law case, no appellate court would presume to overturn it. That same deference is due the verdicts, or fact-findings, of deputy commissioners. Beyond that, I see no need to remand for further factual findings. If those we have are not sufficient, I am unable to conceive of what other reasons for denying benefits could be judged sufficient.

      . The MacMannis court stated:
      Further, employer-carrier’s somewhat bizarre argument adopted sub judice by the Commission, i.e., that claimant should have moved in an attempt to find work, appears to be supported neither by case nor statutory law. In fact, if such a rule of law were to be established, it would appear to be repugnant to both Federal and State Constitutions.
      289 So.2d at 718.


author: JOANOS, Judge.

text:
    WILBRO DAIRIES and Florida Farm Bureau Insurance Companies, Appellants, v. Leonard HESCH, Appellee.
    No. AO-432.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1983.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellants.
    O. John Alpizar, Palm Bay, for appellee.
   ON MOTION FOR REHEARING

JOANOS, Judge.

Having considered appellants’ motion for rehearing, we grant the motion in part and withdraw the decision and opinion filed August 10, 1983, substituting the following decision and opinion in lieu thereof.

In this workers’ compensation case, the employer/carrier (“E/C”) appeal an order awarding temporary total disability (“TTD”) benefits from October 1, 1981, through October 22, 1981; wage loss benefits from October 22, 1981, to March 2, 1982; and assessing a penalty on unpaid benefits. We reverse in part and affirm in part.

The deputy awarded TTD benefits from October 1, 1981, through October 22, 1981, based on a finding that claimant’s condition improved during that period of treatment with Dr. Hooshmand. E/C contends there was no medical evidence of inability to work during that time period and no evidence of a good faith employment search, thus the award of TTD was error. We agree. Dr. Hooshmand saw claimant for the first time on October 1, 1981, and again on October 22,1981. At no time did Dr. Hooshmand place any restrictions on claimant or state that he was unable to work during this time period. In fact, Dr. Hooshmand told claimant to try to return to work when he first saw him on October 1, 1981. In addition, claimant’s testimony that he looked for work before November 5, 1981 (when he began keeping a list), but did not know how many places he may have gone to before that date, together with the failure to offer the names of any businesses where he inquired did not establish an adequate good faith employment search. See Conshor, Inc. v. Barnhart, 422 So.2d 946 (Fla. 1st DCA 1982); Southern Medical, Inc. v. Osuna, IRC Order 2-3763 (April 12, 1979). Absent medical evidence of inability to work or a conscientious effort to return to work, the award of TTD benefits was erroneous. See Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). Due to the absence of an adequate employment search for the calendar month of October, we also reverse the award of wage loss benefits from October 22 to October 31, 1981.

E/C next argues that there is no competent substantial evidence that claimant sustained a permanent impairment within the AMA Guides because, although Dr. Hooshmand stated he applied the Guides in determining a permanent impairment, his testimony showed that he actually did not apply the Guides. At no time was this argument raised before the deputy commissioner, therefore the issue has been waived. See Sunland Hospital v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

We reject E/C’s argument that the issue of penalties was not raised in accordance with the requirements of Section 440.-20(7), Florida Statutes. Entitlement to penalties was raised in the claim for benefits and in the pretrial stipulation. We hold that this satisfied the requirements of the statute.

REVERSED in part and AFFIRMED in part.

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


author: LEHAN, Judge.

text:
    George William WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 83-51.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1983.

      Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., for appellee.
   LEHAN, Judge.

Defendant appeals his convictions and sentences for kidnapping and sexual battery. We reverse.

Defendant’s contention on appeal is that the trial court erred in not permitting his presence during the exercise of peremptory challenges despite his requests to be present and his objections to being excluded.

Voir dire questioning of prospective jurors was conducted in open court in defendant’s presence. However, the trial judge, assistant state attorney, and defense counsel retired to another room, out of the jury’s presence, for the exercise of peremptory challenges. Defense counsel conveyed defendant’s request that defendant be present at that time. The judge, after ascertaining from defense counsel that defendant had been consulted concerning the subject of peremptory challenges, denied the request.

Rule 3.180(a)(4), Florida Rules of Criminal Procedure, provides that “[Djefendant shall be present ... during the ... challenging ... of the jury.” The state nonetheless argues that defendant was not entitled to be present at the “mechanical function” of exercising challenges and that that function is not a “critical stage of the proceedings,” citing Hall v. State, 420 So.2d 872 (Fla.1982). The state also argues that Francis v. State, 413 So.2d 1175 (Fla.1982), which found the exclusion of a defendant from the jury selection process to be reversible error, is distinguishable because in Francis defendant was not present during jury selection procedures conducted in the presence of the jury.

However, the exercise of challenges by a defendant is not necessarily a mere “mechanical function.” It may involve the formulation of on-the-spot strategy decisions which may be influenced by the actions of the state at the time. In Hall defendant was absent only from the roll call or general qualifications of the jurors. On the other hand, the exercise of peremptory challenges is “essential to the fairness of a trial by jury,” and we cannot approve the erroneous exclusion of defendant unless we are satisfied beyond a reasonable doubt that the error was harmless. Francis at 1178.

Our position is substantially the same as that of the Florida Supreme Court in Francis where it was said that “[W]e are unable to assess the extent of prejudice, if any, Francis sustained by not being present to consult with his counsel during the time his peremptory challenges were exercised. Accordingly, we conclude that his involuntary absence without waiver by consent or subsequent ratification was reversible error and that Francis is entitled to a new trial.” Id. at 1179.

The trial court’s offer, which was not accepted by defense counsel, to permit defendant’s presence under guard and in handcuffs during the exercise of challenges was not made until after defendant had already been excluded, over his objections, from a portion of the challenge procedures.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


author: BOARDMAN, Acting Chief Judge.

text:
    Ronald Edward HILL, Appellant, v. STATE of Florida, Appellee.
    No. 83-152.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant Ronald Edward Hill contends that the trial court erred in denying his motion for discharge under the speedy trial rule. We disagree and therefore affirm.

Appellant and five other inmates escaped from Polk Correctional Institution on June 9,1982, assaulting a correctional officer and driving a dump truck through the compound fence in the process. Appellant was recaptured the next day, placed in administrative confinement, advised of his Miranda rights, and questioned. While the record presents conflicting testimony as to whether appellant was formally arrested or apprised of the charges against him after his recapture, a prison official present during questioning concluded that appellant clearly “knew that he was charged with escape” during this administrative detention and interrogation. Under these circumstances, the state concedes that the 180-day speedy trial period commenced on June 10, 1982, when appellant was taken into custody as a result of the criminal episode giving rise to the crimes charged. Like his cohorts, appellant was charged by information with escape, assault by a prisoner, and criminal mischief on August 17, 1982, and assigned to receive representation by the public defender’s office on September 9, 1982.

At a pretrial conference on November 2, 1982, Assistant Public Defender Robert An-tonello moved to withdraw as defense counsel for all six inmates on the basis of a conflict created by the prisoners’ differing degrees of involvement in the escape and diverse defense strategies. Antonello explained that his withdrawal came at this juncture of the proceedings — nearly two months after his appointment and one week before trial — because his initial hope of resolving all six cases by pleas had been thwarted by four inmates’ recent decisions to go to trial. Antonello further stated that it was the policy of his office to “stay with the case until a real conflict [arose].” The court granted Antonello’s motion, informed each defendant that substitute counsel would be appointed, and continued each case until November 23,1982, the next pretrial date. The court did not enter any order extending the original speedy trial period, nor did the parties stipulate to such an extension.

On November. 5,1982, the court appointed attorney Dan Brawley to represent appellant. Brawley moved for appellant’s discharge on December 7, 1982, alleging that appellant had been taken into custody on June 10,1982, and held in custody, continuously available for trial, for more than 180 days.

The trial court held an evidentiary hearing on appellant’s motion for discharge on December 8, 1982, and ultimately denied it after finding that it had been “imminently necessary” to reschedule appellant’s trial and that appellant could not “possibly have gone to trial as scheduled.” Had this been a “gross case,” however, where the delay in bringing appellant to trial “was grossly over the limits,” the court stated that it would have granted appellant’s motion. Having previously accepted appellant’s nolo contendere plea contingent upon the denial of his motion for discharge, the trial court adjudicated appellant guilty of escape and the reduced charge of aggravated assault and sentenced him to concurrent terms of ten years and five years imprisonment. This appeal timely followed.

The issue presented in this case is whether the failure to hold appellant’s trial within the speedy trial period was attributable to appellant or his defense counsel under rule 3.191(d) (3)(ii).

Appellant directs this court’s attention to the Fifth District’s decision in Ehn v. State, 426 So.2d 570 (Fla. 5th DCA 1983), in support of his assertion that the failure to hold trial within the applicable 180-day period cannot be attributed to the defense. In Ehn, the Fifth District found that court-appointed counsel’s withdrawal and immediate replacement seven weeks before expiration of the speedy trial period, at a time when no trial date had been set, had not caused the state’s failure to try Ehn within the speedy trial period. Conversely, delays attributable to the “roll-over period for docketing” resulted in the case being set for trial — for the first time and only time — on a date well beyond the speedy trial period. Because defense counsel’s withdrawal did not account for the state’s failure to schedule Ehn’s trial within the remaining seven weeks of the speedy trial period, the Fifth District was unwilling to attribute the resulting trial delay to the defense.

In the case sub judice, however, appellant’s trial date had been set at the time of the public defender’s withdrawal. Defense counsel’s abrupt departure from the case not only lead to a redocketing of the pretrial conference, but also to a continuance of appellant’s trial to facilitate appointment of substitute counsel and his preparation for trial. Under these circumstances, we believe the failure to hold trial within the speedy trial period must be attributed to defense counsel’s eleventh hour withdrawal and the resulting continuance necessitated by it. Having waived the protection of the 180-day speedy trial rule as a result of this continuance, appellant was not entitled to discharge under constitutional speedy trial principles on December 7, 1982. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971).

Appellant attributes some significance to the trial court’s statement that it would have granted his motion for discharge had the delay in bringing him to trial been “grossly over the limits.” While there is no question whatsoever that a defendant protected by the procedural speedy trial rule is entitled to discharge upon a 1-day violation of the 180-day period, we need not speculate as to the meaning of the trial court’s statement. The trial court reached the correct result notwithstanding this statement. Trenary v. State, 423 So.2d 458 (Fla. 2d DCA 1982).

We therefore AFFIRM appellant’s judgments and sentences.

SCHEB and SCHOONOVER, JJ., concur.

      . Fla.R.Crim.P. 3.191.

      . Fla.R.Crim.P. 3.191(a)(1), (a)(4); State v. N.B., 360 So.2d 162 (Fla. 1st DCA 1978), cert. dismissed, 365 So.2d 713 (Fla.1978), cert. denied, 383 So.2d 1199 (Fla.1980). Cf. Snow v. State, 399 So.2d 466 (Fla. 2d DCA 1981) (incarcerated appellants’ relocation to administrative holding cell and interrogation after Miranda warnings did not place them “in custody” within the meaning of rule 3.191(a)(1) where they were not formally arrested or advised that they would be prosecuted on subject charges).

      . Although neither party’s brief addresses whether appellant’s case had been scheduled for trial at the time of the public defender’s withdrawal, our review of the record discloses the following colloquy, from which we conclude that the public defender withdrew one week before appellant’s trial.
      THE COURT: All right. Of course, the only other bothering aspect of the matter is here we are up a week before trial and you’re asking to withdraw from all these cases and certainly new counsel is not going to be prepared to try this case next week.
      MR. ANTONELLO: That is correct, your Honor. And again — and my clients were gone for me to confer with.
      (Emphasis added.)
      While this discussion admittedly occurred in conjunction with Antonello’s motion to withdraw from a codefendant’s case, the parties’ references to the defendants collectively convinces us that the specified trial date applied equally to appellant.

      . The state agreed to nolle prosequi appellant’s criminal mischief charge in exchange for his nolo contendere plea on the charges of escape and aggravated assault, a stipulated lesser included offense of the charged offense of assault by a prisoner.

      . Indeed, in light of the public defender’s admitted concentration on negotiating pleas for the six defendants, the trial court easily could have concluded that the substitute' counsel could not be prepared to try appellant’s case by its scheduled trial date and that good cause thus existed for entering a continuance upon the court’s own motion. See Fla.R.Crim.P. 3.190(g).


author: CAMPBELL, Judge.

text:
    Billy James DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-454.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

On March 24, 1982, Ms. Tami Armstrong was working as a drive-in teller for the First National Bank of Ft. Myers when a blue Chevrolet Chevette drove up to her window. She noticed that there were three black men inside the car; she also saw the man in the back seat hand a check and a driver’s license to the driver. The driver then handed her these two items. The check was drawn on the Lee County Bank and named Billy James Davis as the payee and Mr. Pat Dickmon as signatory. The driver’s license was issued to appellant. Armstrong delayed conducting the transaction because she was suspicious of the three men, and after a few minutes, the men in the car drove off. They left the driver’s license and the check with Ms. Armstrong. She testified that the endorsement on the check and the signature on the driver’s license were not a total match.

Appellant, Billy James Davis, was arrested and later charged with uttering a forged instrument in violation of section 831.02, Florida Statutes (1981). At trial, the state called Ms. Armstrong who testified that she saw only the profile of the man in the back seat and that she could not tell whether he was the same man whose picture appeared on the driver’s license. She identified appellant in court as the man whose face appeared on the driver’s license. However, the state presented no further testimony, either identifying appellant as the perpetrator of the crime or otherwise placing him at the scene of the crime. Appellant testified that his driver’s license had been stolen. The jury found appellant guilty as charged, but we find that we now must reverse because the evidence presented by the state was insufficient as a matter of law.

It is well established in Florida that the state must prove the identity of the accused as the perpetrator beyond a reasonable doubt. Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Ponsell v. State, 393 So.2d 635 (Fla. 4th DCA 1981). See Williams v. State, 68 Fla. 239, 67 So. 43 (1914). Here, the state did not produce one scintilla of evidence that appellant was the man in the back seat who handed the license and check to the driver, who, in turn, handed these items to Ms. Armstrong. Although the driver’s license was appellant’s, that circumstance was not enough to convict him once he took the stand and testified that his driver’s license had been stolen.

Because the state failed to prove this essential element of its case beyond a reasonable doubt, we REVERSE appellant’s conviction and order his discharge.

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


author: DÁNAHY, Judge.

text:
    Norman Woodrow CRAWFORD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-1503.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1983.
   DÁNAHY, Judge.

Norman Woodrow Crawford, Jr., seeks review of the trial court order which summarily denied his motion for postconviction relief. Crawford contends that the trial court erred in retaining jurisdiction over a part of his sentence. We agree and reverse on the authority of State v. Green, 421 So.2d 508 (Fla.1982), wherein our supreme court opined that “if a judge wishes to retain jurisdiction, a defendant must be advised, prior to pleading guilty or nolo con-tendere, that the court can retain jurisdiction over a part of the sentence.”

An examination of the transcript of the change of plea hearing conclusively shows that Crawford was never informed by the trial court of the possibility that it would or could retain jurisdiction over part of his sentence. Rather, the record reflects that Crawford was first apprised at his sentencing hearing, nearly seven weeks after he had pled guilty, that the trial court would retain jurisdiction over one-third of his sentence.

Since Crawford was not fully informed of the consequences of his plea and the imposition of retention was not made a part of his plea bargain agreement, we reverse the trial court’s denial of Crawford’s motion.

Accordingly, we reverse and remand this cause to the trial court with directions to choose to either strike the retention of jurisdiction, letting the original pleas stand, or allow Crawford to withdraw his guilty pleas.

REVERSED and REMANDED.

OTT, C.J., and RYDER, J., concur.


text:
    FLORIDA POWER & LIGHT COMPANY, Appellant, v. Emery F. HOGUE, Appellee.
    No. 82-1537.
    District Court of Appeal of Florida, Fourth District.
    Oct. 7, 1983.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellant.
    Thomas A. Hoadley of Law Offices of Hoadley & Gavigan, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Florida Power & Light Company attempts to appeal a non-final order which finds that they are liable to Hogue for insurance coverage. The company asserts that this court has jurisdiction to review such an order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) and Gallahad Associates v. Rose, 392 So.2d 44 (Fla. 4th DCA 1980). In Travelers Insurance Co. v. Bruns, 429 So.2d 317 (Fla. 4th DCA 1983), this court distinguished Rose and held that, under Rule 9.130(a)(3)(C)(iv), this court does not have jurisdiction to review these orders. We also decline to review. this order through certiorari. We acknowledge that this opinion and Brans are in direct conflict with Alamo Rent-a-Car, Inc. v. Summers, 404 So.2d 131 (Fla. 2d DCA 1981), and P. & H. Vehicle Rental and Leasing Corp. v. Garner, 416 So.2d 503 (Fla. 5th DCA 1982).

Accordingly, this appeal is hereby dismissed for lack of jurisdiction.

ANSTEAD, C.J., and HERSEY and DELL, JJ., concur.


text:
    Eva RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-857.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Entin, Schwartz, Dion & Sclafani, Miami, and Spencer D. Levine, North Miami Beach, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

We affirm defendant Eva Ramirez’s convictions and the sentences entered thereon upon a holding that a defendant who voluntarily absents herself during the course of the trial proceedings cannot later be heard to complain, without a proper and timely objection during the course of the proceedings, of procedural irregularity. See Clark v. State, 363 So.2d 331 (Fla.1978); State v. Melendez, 244 So.2d 137 (Fla.1971); Fla.R. Crim.P. 3.180(a), (b).

Affirmed.


author: FERGUSON, Judge.

text:
    Larry James BARBER, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1139.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Richard Do-ran, Asst. Atty., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   FERGUSON, Judge.

The single issue in this appeal is whether an unexplained ten-month delay between the commission of the offense with which appellant was charged, and his arrest for that offense, was so prejudicial as to require dismissal of the information.

On January 11,1981, two men robbed the proprietor of a northwest Dade restaurant. One of the men was arrested at the scene and was tried and convicted of the robbery and the rape of a waitress. On October 26, 1981, appellant was arrested as the co-perpetrator of the robbery. The information was filed on November 16, 1981.

Prior to trial, appellant’s counsel filed an unsworn motion to dismiss the information which alleged that appellant (1) had been in the county jail in connection with other charges from February 7, 1981 until his arrest in October, (2) had no recollection as to his whereabouts on the date of the subject offense, and (3) was unable to find witnesses who could help him recall where he was on January 11, 1981. The delay was, by admission, the result of an administrative oversight. Nevertheless, argued the state, appellant was required to show that the delay caused actual prejudice to his preparation for trial. The trial court agreed. We affirm the conviction.

At trial the single issue was one of physical identification. The restaurant owner and waitress made positive identifications of appellant as the second man in the robbery. They recognized him as a patron who had attempted to leave the premises without paying for food, over their noisy protests, a few days preceding the robbery.

In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) the United States Supreme Court held that the due process clause protects against an oppressive delay between the time of the offense and the arrest or indictment. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) reemphasized that holding but made it clear that proof of actual prejudice is a necessary element of a due process claim and, even where presented, is not dispositive but merely makes such a claim ripe for adjudication. The second step in the due process inquiry is a consideration of the reasons for delay. Lovasco, 431 U.S. at 789-790, 97 S.Ct. at 2048-2049. As noted in Howell v. State, 418 So.2d 1164 (Fla. 1st DCA 1982), the standards set forth in State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), cert. dismissed, 358 So.2d 134 (Fla.1978) (a case heavily relied upon by appellant) for determining whether an arrest delay results in a due process deprivation are somewhat vague. Howell recognizes that the prior uncertainty, within the Court of Appeals for the Fifth Circuit, as to what is the proper test has been significantly clarified in United States v. Townley, 665 F.2d 579 (5th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982).

Howell adopts the Townley two-tier test. First, the defendant has the burden of proving actual prejudice. If that burden cannot be met, the inquiry stops there. If, however, the defendant does present evidence tending to show actual prejudice, the burden shifts to the government to show why the delay was necessary. At that point the court must balance the government’s need for an investigative delay against the prejudice shown by the defendant in order to determine whether a due process violation has occurred. Howell, 418 So.2d at 1170, citing Townley, 665 F.2d at 581-582.

Our inquiry, however, begins and ends with the first prong of the test. At the outset the court must be satisfied that the defendant has demonstrated actual prejudice by competent, substantial evidence. State v. Griffin, 347 So.2d at 696. In this case, unlike State v. Griffin, there were allegations of prejudice, in the form of an unsworn motion to dismiss the information, filed over the signature of appellant’s counsel. The court then conducted a hearing on the motion. At the hearing neither appellant nor anyone else testified as to the truth of matters asserted in the motion. As “evidence” of prejudice there was no more than the argument of appellant’s counsel which merely amplified the allegations of the unsworn motion. On the record before it the trial court correctly determined that actual prejudice was not proven by competent, substantial evidence. State v. Ochran, 429 So.2d 77 (Fla. 4th DCA 1983); State v. Newman, 367 So.2d 251 (Fla. 4th DCA 1979).

Affirmed.

      . It is insufficient to merely generally allege loss of witnesses and failure of memories resulting from pre-arrest delay. United States v. Avalos, 541 F.2d 1100, 1108 (5th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977). To show a due process violation with respect to missing witnesses, an accused must offer some explanation as to how their testimony would have been favorable and material. Marrero v. State, 428 So.2d 304 (Fla.2d DCA 1983) citing United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982).
      In United States v. Medina-Arellano, 569 F.2d 349 (5th Cir.1978), the appellant contended that the government’s delay in returning an indictment four years after the occurrence of the alleged offense deprived him of “a possible alibi defense.” In its consideration of whether a due process violation had occurred, the court found the allegation too speculative and entitled to little weight.


text:
    FLORIDA EAST COAST RAILWAY COMPANY, a Florida corporation, and Seaboard Coast Line Railroad Company, a Virginia corporation, Appellants, v. METROPOLITAN DADE COUNTY, Miami Shores Village, City of Hialeah, and City of Miami Springs, Appellees.
    No. 82-1732.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.

      Goodwin, Ryskamp, Welcher & Carrier and Arthur M. Simon, Miami, for appellants.
    Robert A. Ginsburg, County Atty., and Peter S. Tell, Asst. County Atty., William F. Fann, Jr., Richard W. Gross, Weintraub, Weintraub, Seiden, Dudley & Press and Robert D. Orshan, Miami, for appellees.
    Jack R. Rice, Jr., Miami, for The Dade County League of Cities, Inc., as amicus curiae.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Appellants Florida East Coast Railway Company and Seaboard Coast Line Railroad Company seek review of an adverse summary final judgment entered in an action filed by them against Metropolitan Dade County seeking injunctive relief against the enforcement of Metropolitan Dade County Ordinances Nos. 81-56 and 82-18, which prohibit railroads from blowing, activating or permitting to be blown any horn or whistle from their trains during the hours of 7:00 p.m. to 7:00 a.m. at nine designated railroad grade crossings.

The appellants alleged in their complaint that the ordinances create an unreasonable burden on interstate commerce, are viola-tive of due process and equal protection of law, and are in conflict with sections 316.-1575 and 338.21, Florida Statutes (1981), and Chapter 350, Florida Statutes (1981).

The County filed an answer and a motion for summary judgment. Numerous affidavits were filed. Upon consideration of the pleadings and affidavits the trial court entered summary final judgment in favor of the County.

Appellants urge reversal of the summary judgment on the ground that the trial court erred in entering such judgment because there were genuine issues of material fact to be tried regarding the legality and constitutionality of the ordinances. We agree and reverse.

It is a well settled rule that a summary judgment should only be granted in the complete absence of any genuine issues of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966). The burden of the movant for summary judgment is not simply to show that the facts support its own theory of the case, but rather to demonstrate that the facts show that the party moved against cannot prevail. Burkett v. Parker, 410 So.2d 947 (Fla. 1st DCA 1982); Mejiah v. Rodriguez, 342 So.2d 1066 (Fla. 3d DCA 1977). The moving party has the burden of conclusively showing the absence of genuine issues of material fact. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Seinfeld v. Commercial Bank & Trust Co., 405 So.2d 1039 (Fla. 3d DCA 1981). If the existence of such issues or the possibility of their existence is reflected in the record, or the record raises even the slightest doubt in this respect the judgment must be reversed. Snyder v. Cheezem Development Corp., 373 So.2d 719 (Fla. 2d DCA 1979); Mejiah v. Rodriguez, supra.

The record on appeal discloses that there are genuine issues of material fact which have not been eliminated by the mov-ants for summary judgment. Accordingly, the judgment appealed is reversed.

Reversed.

      . Sec. 21-27.3, Code of Metropolitan Dade County, Florida.

      . Also challenged by appellants was Ordinance No. 82-23, which amended sec. 21-27.3 of the Code by permitting the Board of County Commissioners to apply the provisions of 21-27.3 to railroad grade crossings “by resolution, after public hearing” rather than by ordinance.


text:
    Manuel SANTANA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2218.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Max B. Kogen and Loren H. Cohen, Miami, for appellant.
    Jim Smith, Atty. Gen., and Marti A. Rothenberg, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Spenkelink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied mem., 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied mem., - U.S. -, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); Adams v. State, 412 So.2d 850 (Fla.), cert. denied mem., - U.S. -, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982); Steinhorst v. State, 412 So.2d 332 (Fla.1982); Riley v. State, 366 So.2d 19 (Fla.1978), cert. denied mem.,-U.S. -, 103 S.Ct. 317, 74 L.Ed.2d 294 (1982); Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982); Mainor v. State, 415 So.2d 827 (Fla. 3d DCA 1982); Hicks v. State, 414 So.2d 1137 (Fla. 3d DCA 1982); Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982); Fields v. State, 379 So.2d 408 (Fla. 3d DCA 1980); Mahone v. State, 222 So.2d 769 (Fla. 3d DCA 1969).


author: PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    Santiago COSTALES, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2451.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Bennett Brummer, Public Defender and Stuart Mishkin, Sp. Asst. Public Defender, John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Michael T. Neimand, Asst. Atty. Gen., for appellee.
    Before BARKDULL and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Costales appeals his convictions and sentences entered pursuant to a jury verdict finding him guilty of three counts of robbery and burglary of a structure.

At trial, Detective Smith testified, regarding a photo lineup, that upon receiving a description of the perpetrator of the crime from the victim, he investigated other cases and put together the photographic lineup from which the victim identified the defendant. The defendant moved for a mistrial on the basis that said testimony implies the defendant has a criminal background and as such was inadmissible, improper and constituted reversible error. On appeal the sole point raised was error in denial of the motion for mistrial.

This appeal is without merit and the order of the trial court is affirmed on the authority of Williams v. State, 438 So.2d 152 (Fla. 3d DCA 1983); Evans v. State, 422 So.2d 60 (Fla. 3d DCA 1982); Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982); Willis v. State, 208 So.2d 458 (Fla. 1st DCA 1968).

Affirmed.

DANIEL S. PEARSON, Judge,

concurring.

I think it is time to make clear that the probative value, if any, of testimony concerning the source of a defendant’s picture in a photographic lineup is always outweighed by its potential for prejudice when that testimony reveals the source to be another investigation, Williams v. State, 438 So.2d 152 (Fla. 3d DCA 1983); mug shots, Evans v. State, 422 So.2d 60 (Fla. 3d DCA 1982); police files, Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982); or, as here, the investigation of other cases. Such testimony is therefore inadmissible. Neither this decision nor our cited recent decisions holding that any error in admitting such testimony can be cured by an appropriate instruction or, as in Williams, by explanatory testimony, are to be construed by prosecutors as invitations to commit the error or as affecting the prosecutor’s obligation to avoid deliberately eliciting such testimony so as to tip the scales against a defendant. See Molina v. State (Fla. 3d DCA 1983) (Case No. 82-870, opinion filed October 4, 1983) (Pearson, J., concurring).

JORGENSON, J., concurs with DANIEL S. PEARSON, J.

      . In the present case, the defendant did not object to the testimony when it was adduced. Much later when he moved for a mistrial, the trial court told him that had he timely objected, the court would have sustained the objection and given a curative instruction to the jury. The court then offered to give a belated curative instruction, and the defendant, persisting in his motion for mistrial, rejected the offer. I fully agree with the majority that the defendant was not entitled to a mistrial.


text:
    Charles WEBER, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2566.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    See also, 411 So.2d 315.
    Bennett H. Brummer, Public Defender and William A. Cain, Sp. Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

This case, before us for a second time, appeals an order denying post-conviction relief. We set aside the conviction.

Significant to the decision in this case are the following facts. Appellant was tried by jury on charges of attempt to commit second-degree murder and use of a firearm in the commission of a felony. Prior to trial the court ordered that he be psychiat-rically evaluated. The two psychiatrists who first examined defendant, William Cor-win and Albert Jaslow, expressed opinions by written reports that defendant needed psychiatric treatment but was otherwise competent to stand trial. Dr. Jaslow first saw the defendant on January 28,1981. By letter addressed to the court dated February 12, 1981, Dr. Jaslow wrote:

Since my contact with this defendant on January 28, 1981, I have received a few phone calls and several letters that indicate that he has deteriorated additionally, and he seems to be sufficiently disturbed so that he needs active treatment. His letters express loose, disorganized, delusional ideas that indicate his reality testing has deteriorated, and he appears to be actively psychotic. Hospitalization and concerted treatments would be recommended to enable him to reintegrate once more.

The psychiatrist who last examined the defendant, Dr. Lloyd Miller, presented a report to the court which expressed a strong opinion that defendant was mentally ill and incompetent to stand trial.

Appellant’s first attorney withdrew from representation because appellant refused to cooperate and persisted in filing pro se motions. The court-appointed succeeding counsel filed no motion for a competency hearing and the trial court did not grant one on its own motion. Defendant was convicted in May, 1981 of attempted second-degree murder and sentenced to ninety-nine years, and the court retained jurisdiction to review any parole release order issued within the first thirty-three years.

There certainly were reasonable grounds to believe that the defendant was not competent to stand trial which imposed an obligation upon the trial court to conduct a competency hearing. Lane v. State, 388 So.2d 1022 (Fla.1980) citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Fowler v. State, 255 So.2d 513 (Fla.1971); Fla.R.Crim.P. 3.210(b). The failure to conduct a formal competency hearing, on this record, constituted a denial of due process.

The second question is whether appellant’s due process rights would be adequately protected by simply remanding for an evidentiary hearing as to whether he was competent to stand trial in May, 1981. Although earlier Florida Supreme Court decisions have temporarily remanded the case to the trial court for a hearing on the incompetency claim, e.g., Fowler v. State, 255 So.2d at 515, the United States Supreme Court has consistently held the procedure inadequate. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). By its disposition of the case and express adoption of Dusky as a constitutional mandate in Lane v. State, we think the Florida Supreme Court would now hold that a remand to conduct a competency hearing two years later is an inadequate remedy.

The judgment and sentence are vacated. Upon his being found competent to stand trial the defendant may be retried.

      . In Weber v. State, 411 So.2d 315 (Fla. 3d DCA 1982), where appellant on direct appeal raised the issues of ineffectiveness of counsel and illegal sentence, we affirmed the conviction without prejudice to appellant raising these issues initially in the trial court.

      . It is not clear from the record what prompted the court to order the psychiatric examination.

      . It is not clear whether the trial judge and appellant’s new attorney read Dr. Jaslow’s follow-up letter.

      . Dr. Miller’s conclusions were explicit:
      My psychiatric impression of Mr. Weber is that he suffers from a psychotic disorder resulting from alcohol abuse of many years. His mental condition warrants referral for psychiatric hospitalization and treatment with anti-psychotic medications.
      In my opinion Mr. Weber’s present mental condition precludes him from a rational understanding and consideration of the charges against him. His mental condition deprives him of the ability to communicate with his defense counsel with a rational degree of understanding. His mental condition prevents him from using rational defense tactics and theories to avoid criminal prosecution.
      In my opinion, Mr. Weber is mentally ill, mentally incompetent to stand trial, and his mental condition warrants referral to the North Florida Evaluation and Treatment Center in Gainesville.... [e.s.]

      . It is not possible to blame the error squarely upon either the trial court or counsel. The trial judge who ordered the evaluations was not the same judge who tried the case. The attorney who tried the case was not the same attorney who represented the defendant during most of the pretrial proceedings. Nonetheless, the circumstances in combination resulted in a grave omission which prejudiced appellant.

      . Since the sentence, which exceeded that permitted by law, was not challenged in the trial court, it was not considered on the first appeal. Weber v. State, supra note 1. After a hearing on the motion for post-conviction relief the sentence was corrected.


text:
    Rafael LOPEZ, Appellant, v. Addys LOPEZ, Appellee.
    Nos. 83-70, 83-640.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Reasbeck, Fegers, Hess & Weinstein and Louis J. Weinstein, Hollywood, for appellant.
    Richard E. Doherty, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

The appellant husband seeks review of a final judgment of dissolution of marriage contending first, that the trial court erred in awarding the wife of a nineteen-year marriage his one-half interest in the equity in the home of the parties as lump-sum alimony, this being the only substantial asset of the parties. Although we might not have made such an award if we were making the initial determination, we cannot say on this record that the trial court erred in this particular. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Brown v. Brown, 424 So.2d 845 (Fla. 4th DCA 1982); Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980).

The husband also questions the appropriateness of an order requiring him to pay $3,000 as attorney’s fees. We think this point is well taken and do hereby reverse this award. Poppe v. Poppe, 412 So.2d 38 (Fla. 3d DCA 1982); Golden v. Golden, 410 So.2d 945 (Fla. 3d DCA 1982); Bullard v. Bullard, 380 So.2d 1090 (Fla. 3d DCA 1980).

Affirmed in part, reversed in part.


text:
    Maurice SIRANTOINE and Pierette Sirantoine, individually and as husband and wife, Appellants, v. ILLINOIS EMPLOYERS INSURANCE OF WAUSAU, Appellee.
    No. 83-474.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Wolfson & Diamond, P.A., Miami Beach, and Robert Polsky, Miami, for appellants.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, P.A., and John W. Wylie, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

We reverse and remand with directions to enter judgment for the Sirantoines upon a holding that an excess insurer must offer uninsured motorist coverage equal to the excess limits of bodily injury liability, notwithstanding a rejection of uninsured motorist coverage in the primary policy. See First State Insurance Co. v. Stubbs, 418 So.2d 1114 (Fla. 4th DCA 1982), review denied, 426 So.2d 26 (Fla.1983); § 627.-727(1), Fla.Stat. (1981).

Reversed and remanded with directions to enter judgment for the defendants below.


text:
    Jeanette THORNEY, Appellant, v. Richard CLOUGH, Appellee.
    No. 83-521.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.

      Redlich & Moldof, Fort Lauderdale, for appellant.
    Anthony J. Scremin, Miami, and Richard G. Bartmon, North Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

On September 5,1978, appellant, plaintiff in the trial court, suffered personal injuries as the result of a collision while a passenger in an automobile owned and operated by the defendant/appellee. An action to recover damages for the injuries sustained was commenced with the filing of a complaint on Tuesday, September 7, 1982, which alleged negligence on the part of appellee. On appellee’s motion, the trial court dismissed the complaint holding “that said suit was filed after the time had run for filing of a negligence action under Florida Statutes governing limitations of actions in the State of Florida.”

Appellant challenges this ruling contending that since the last day of the four-year period fell on a Saturday, and the first Monday thereafter was a legal holiday, the filing of the complaint on the following Tuesday was timely. Appellant cites Florida Rule of Civil Procedure 1.090(a) and Florida Rule of Appellate Procedure 9.420(e) in support of this contention. Ap-pellee’s reply is that the statute of limitations is jurisdictional, thus it is not extended automatically if the last day of the period happens to fall on a Saturday, Sunday or legal holiday, relying on Ludwig v. Glover, 357 So.2d 233 (Fla. 1st DCA), cert. denied, 362 So.2d 1053 (Fla.1978). We reject the argument of appellee.

First, we hold that the statute of limitations is not jurisdictional, but is instead a period of limitation. As the first district noted in Mullin v. State, 354 So.2d 1216 (Fla. 1st DCA), cert. denied, 359 So.2d 1217 (Fla.1978), Florida Rule of Civil Procedure 1.110(d) specifically lists the statute of limitations as an affirmative defense which is waived if not timely raised. See Hood v. Hood, 392 So.2d 924 (Fla. 2d DCA 1980). Lack of jurisdiction over the subject matter, however, is not waivable and may be raised at any time. Mendez v. Ortega, 134 So.2d 247 (Fla. 3d DCA 1961); Fla.R.Civ.P. 1.140(h)(2). Thus, Ludwig is inapplicable to the case at bar, since that decision refused to extend a jurisdictional period and did not decide whether a period of limitation could be so extended.

Contrary to appellee’s assertion, then, Ludwig is consistent with Herrero v. Black & Decker Manufacturing Co., 275 So.2d 54 (Fla. 3d DCA), approved and cert. discharged, 281 So.2d 18 (Fla.1973), which is controlling. Herrero holds:

[I]f the last day of a period of limitation for commencing an action falls on a Sunday or on a legal holiday, the period is extended and the action may be commenced on the following secular or business day. 275 So.2d at 55.

Accord Stockslager v. Daly Aluminum Products, Inc., 246 So.2d 97 (Fla.1971); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2d DCA 1976) (where last day of limitations period for wrongful death action fell on a Saturday, amended complaint was timely filed on the following Monday). See also Middleton v. Silverman, 430 So.2d 981 (Fla. 3d DCA 1983) (on last day for filing a civil action, court closed at 2:00 p.m. due to civil disturbance, therefore, complaint was timely filed the next day).

Reversed and remanded.

      . See § 95.11, Fla.Stat. (1981):
      Limitations other than for the recovery of real property. — Actions other than for the recovery of real property shall be commenced as follows:
      (3) WITHIN FOUR YEARS.—
      (a) An action founded on negligence.

      . Florida Rule of Civil Procedure 1.090(a), on Computation of Time, provides:
      In computing any period of time prescribed or allowed by these rules, by order of court or by any applicable statute, ... [t]he last day of the period so computed shall be included unless it is a Saturday, Sunday or legal holiday in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. [e.s.]
      Florida Rule of Appellate Procedure 9.420(e) is almost identical in language to Florida Rule of Civil Procedure 1.090(a).

      .Factually, the Ludwig court was faced with a situation involving both a jurisdictional period and a period of limitation. The statute in question, Section 768.133(3), called for jurisdiction of a medical mediation panel to terminate if no hearing on the merits of a malpractice claim was commenced within ten months of the filing of the claim. After expiration of the ten-month period, a claimant had sixty days in which to commence a circuit court action. The ten-month period was purely jurisdictional in that the failure to receive a hearing, a matter over which claimant might have little or no control, did not bar recovery on a claim but simply shifted the forum from the mediation panel to the circuit court. The sixty-day period was a period of limitation requiring the doing or the attempted doing of an act within the time frame in order to avoid a barring of the claim.
      The issue in Ludwig was whether the ten-month jurisdictional period would be extended to a Monday when the last day of the period fell on a Saturday. In holding that it would not, the court first distinguished prior cases which had extended periods of limitation when the last day of the period fell on a Saturday, Sunday or legal holiday. Further, it stated that even assuming, arguendo, that a jurisdictional period is similarly extended, this would make no difference in that case. The court noted that Florida Rule of Civil Procedure 1.090, dealing with computation of time, relates only to a period in which some act must be performed. Under the facts presented in Ludwig, the ten-month jurisdictional period (within which no act need be performed) was significant only because its expiration triggered the running of the sixty-day period of limitation. This reasoning is inapplicable to a period of limitation, which invariably requires the performance of some act prior to the expiration of the period.

      . While the Herrero court did not expressly include Saturday in its holding that a period of limitation may be extended if the last day falls on a Sunday or legal holiday, it is evident from the court’s discussion that this omission was unintentional. In fact, when certifying the issue to the Florida Supreme Court, the Herrero court did include Saturday in its query as to whether its method of computing time was proper. 275 So.2d at 55. Further, in approving the Herrero decision, the Florida Supreme Court did not distinguish between Saturdays, Sundays, or legal holidays. 281 So.2d at 18.


text:
    Barbara L. KESSLER, Appellant, v. Helen E. RAY, Appellee.
    No. 83-780.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Isenberg & Schlesser, Fort Lauderdale, for appellant.
    Steven L.J. Lederer and Paul R. Lipton, North Miami Beach, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

Affirmed. See In re Estate of Kant, 272 So.2d 153 (Fla.1972); Gaylord v. Gaylord, 45 So.2d 507 (Fla.1950); deMarigny v. deMarigny, 43 So.2d 442 (Fla.1949); Coltun v. Coltun, 167 So.2d 336 (Fla. 3d DCA 1964).


text:
    J.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-905.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Billb-rough, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

We affirm the adjudication of delinquency based upon the findings that the respondent was guilty of burglary and theft. The determination of grand theft is reduced to petit theft because the evidence was insufficient to establish that the value of the property stolen was over $100.00 at the time of the incident. Beasley v. State, 305 So.2d 285 (Fla. 3d DCA 1974), cert. denied, 315 So.2d 180 (Fla.1975).

Affirmed as modified.


text:
    HEMISPHERE WAREHOUSES, INC., Appellant, v. CAYHOLD LTD., Appellee.
    No. 83-999.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Therrel, Baisden, Stanton, Wood & Setlin and Julian R. Benjamin, Miami Beach, for appellant.
    Smith & Mandler and Steven L. Schwarz-berg, Miami Beach, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

We agree that the complaint herein was properly dismissed for failure to state a cause of action but think that leave to amend should have been granted as it appears that the deficiency is curable by amendment. Leave to amend a complaint should be freely given when justice so requires. Fla.R.Civ.P. 1.190(a). But cf. De-Maris v. Asti, 426 So.2d 1153 (Fla. 3d DCA 1983) (leave to amend need not be granted when it is clear that the pleading deficiency is one which cannot be cured by amendment).

Reversed and remanded.


text:
    OUTDOOR CONCERTS, INC., a Florida corporation, Appellant, v. Malcolm H. FRIEDMAN, Appellee.
    No. 83-1115.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Frank M. Marks, Miami, for appellant.
    John S. Lloyd, Miami, for appellee.

      Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

We reverse the award of attorney’s fees entered pursuant to section 57.105, Florida Statutes (1981), upon a holding that, because no adverse final judgment has been entered, the fee award was premature.

Reversed.


author: MILLS, Judge.

text:
    Floyd Steve HUSK, Appellant, v. STATE of Florida, Appellee.
    No. AP-293.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1983.
    Quentin T. Till, P.A., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Husk appeals the trial court’s order finding him in need of further involuntary hospitalization pursuant to Section 394.-467(l)(a), Florida Statutes (Supp.1982). We affirm.

Husk was charged with the offenses of sexual battery and attempted first degree murder but was found not guilty by reason of insanity. Following that verdict, the trial court committed Husk to the Department of Health and Rehabilitative Services (HRS) pursuant to Rule 3.217, Florida Rules of Criminal Procedure.

Some months thereafter, HRS reported to Duval County Circuit Court that Husk no longer met the criteria for involuntary hospitalization, and he was then returned to Duval County for further proceedings pursuant to Rule 3.218, Florida Rules of Criminal Procedure. Following a hearing, the trial court found that Husk was still in need of involuntary hospitalization and remanded him to the custody of HRS until further order of the court.

Husk contends on appeal that the evidence was insufficient to support the trial court’s findings. We disagree.

The evidence clearly shows that Husk is still mentally ill and, because of his illness, is manifestly dangerous to himself or others. Section 916.15(1), Florida Statutes (1981).

He further contends that the trial court erred in appointing Doctors Sail and Larson to conduct a psychiatric evaluation of him. However, this objection was not raised below, and he therefore may not raise it now. Williams v. State, 414 So.2d 509 (Fla.1982).

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    DADE COUNTY SCHOOL BOARD and Gallagher Bassett Insurance Service, Appellants, v. James ALBERT, Appellee.
    No. AQ-447.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1983.
    Rehearing Denied Nov. 3, 1983.
    Steven Kronenberg of Adams, Kelley, Kronenberg & Rutledge, Miami, for appellants.
    Jay M. Levy of Hershoff & Levy, Miami, for appellee.
   PER CURIAM.

In his order dated January 17, 1983, the deputy commissioner found that claimant’s claim was compensable and, among other things, awarded penalties and past and future medical benefits. That order was entered one year and four months following the date of hearing before the deputy commissioner. We reverse in part and affirm in part.

We do not condone the lapse of time between the hearing in this matter and the entry of the order appealed; however, we find that the delay in the context of this case was not prejudicial under the “staleness” concept enunciated by Justice England in his concurring opinion in Scottie-Croft Boat Corporation v. Smith, 336 So.2d 1150 (Fla.1976).

Although we recognize that the order entered by the deputy commissioner is not a model of clarity as pertains to the basis upon which he found the claim com-pensable, we have reviewed the record on appeal and find that there is competent, substantial evidence to support the deputy’s determination of compensability under the exposure theory of accident discussed in Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980). The materials to which claimant was exposed either caused or, at the least, aggravated his condition. Accordingly, the determination of compensa-bility is affirmed.

Two contentions raised by appellants require reversal. First, appellee has conceded on appeal that the award of penalties was error; thus, that award is hereby reversed. Second, that portion of the order requiring the employer/carrier to reimburse the claimant for past medical bills is not supported by competent, substantial evidence because claimant failed to submit medical bills into evidence, apparently due to a misunderstanding between all concerned as to the scope of the hearing. The cause is accordingly remanded to the deputy commissioner to accord the claimant the opportunity to do so. In all other respects, the order appealed is affirmed,

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON JJ. concur

      . The deputy commissioner found, in pertinent part, as follows:
      I find that the claimant has a permanent partial disability of the body as a whole of fifteen percent attributable only to the aggravation of his pulmonary condition caused by his job. I further find that the claimant, in his job of asbestos installer with the Dade County School Board, was subject to an exposure greater than that to which the ordinary public is subjected and, therefore, he has suffered an occupational disease and is entitled to workers’ compensation benefits. The deputy commissioner ordered, adjudged
      and decreed, in pertinent part, that:
      The claimant sustained an occupational disease exposure and said last injurious exposure was in July, 1979 with the Dade County School Board and was in the course and scope of employment and is compensable under the law.

      . The deputy commissioner ordered the employer/carrier, among other things, to pay the claimant reimbursement for medical bills of Dr. Richard Goodman and Dr. Harvey Fleisher.

      . For a claimant to recover under the exposure theory of accident, he must show (1) a prolonged exposure, (2) the cumulative effect of which is injury or aggravation of a preexisting condition, and (3) that he has been subjected to a hazard greater than that to which the general public is exposed.


text:
    FAIRMONT RE-BAR FAB and Old Republic Insurance Company, Appellants/Cross-Appellees, v. Clarence WHITE, Appellee/Cross-Appellant.
    No. AR-74.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1983.
    Mary Ann Stiles of Stiles & Livingston, Tampa, and John F. McMath, Miami, for appellants/cross-appellees.
    Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellee/cross-appellant.
   PER CURIAM.

That part of the order of the deputy commissioner imposing upon the employer/carrier penalties for the period of August 1, 1981 through October 31, 1982 is reversed and the cause remanded to the deputy commissioner to permit him to set forth with specificity the basis for an award of penalties for the time period indicated. In all other respects, the order appealed is affirmed.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.