author: HENDRY, Judge.

text:
    Jerrold YOUNG, M.D., Appellant, v. Fern ALTENHAUS, Appellee.
    No. 82-1761.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Pelzner, Schwedock, Finkelstein & Klausner and Peter S. Schwedock, for ap-pellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

Appellant appeals from a final judgment taxing the plaintiff/appellee's attorney’s fees in the amount of $10,000 against appellant and another defendant doctor in appellee’s action for medical malpractice, in accordance with section 768.56, Florida Statutes (1981). The jury found each of the two doctors fifty percent negligent and awarded plaintiff damages of $70,000. After the jury had rendered its verdict, but prior to entry of the final judgment thereon, appellee moved the court for an award of attorney’s fees and costs, pursuant to section 768.56. Appellee sought rulings as to her entitlement to such fees and costs and as to the amount thereof. Final judgment subsequently entered on the jury verdict provided that plaintiff recover from the .two defendant doctors the sum of $70,-000, “with costs to be hereinafter taxed, for all of which let execution issue.” Thereafter, a hearing was held on attorney’s fees and costs and other post-trial motions. At the conclusion of the hearing appellee’s attorney indicated he would submit to the court an order on attorney’s fees in the amount of $10,000, together with the costs to be taxed, which he would compute. The final judgment on attorney’s fees was subsequently entered and this appeal followed.

On appeal, as well as in the trial court, appellant has challenged the constitutionality of section 768.56. The constitutionality of this section, as well as other portions of the medical malpractice statute, §§ 768.40 —768.56, Florida Statutes (1981), was recently decided by the fourth district court of appeal in the consolidated case of Florida Medical Center, Inc. v. Von Stetina, 436 So.2d 1022 (Fla. 4th DCA 1983).

In Florida Medical Center, Inc., the court considered and held unconstitutional various portions of the act, i.e., § 768.54(2)(b), (limiting liability of health care provider to $100,000 per claim), § 768.-54(3)(e)3, (limiting payout of an award to $100,000 per year), and § 768.51(l)(b)l, (requiring that future periodic payments be structured upon future damages computed “before any reduction to present value.”) The court additionally considered whether section 7Ó8.56, the attorney’s fee provision, is constitutional, and determined that it is. The amount of the fee awarded was, however, reduced to a “reasonable” figure. The court employed a “rational basis” test which it found applicable in medical malpractice actions by virtue of Pinillos v. Cedars of Lebanon Hospital Corp., 403 So.2d 365 (Fla.1981). In Pinillos, the Florida Supreme Court acknowledged the “legitimate state interests” expressed in the preamble to the statute, and held that the section there under consideration, § 768.50, bore a “reasonable relationship to the legitimate state interest of protecting the public health by ensuring available adequate medical care.” Id. at 368.

The fourth district court in Florida Medical Center, Inc., similarly stated the constitutional inquiry: “As we see it, the only question before this court is whether Section 768.56 creates a reasonable classification which bears a reasonable relationship to a permissible legislative objective.” 436 So.2d at 1026. Additional authority for the test employed was found in the older Florida Supreme Court case of Hunter v. Flowers, 43 So.2d 435, 436 (Fla.1949), which applied essentially the same test in determining the constitutional validity of a statute awarding attorney’s fees to successful claimants in summary proceedings to enforce laborers’ liens. It was further recognized in Florida Medical Center, Inc., that the legislative intent expressed in the act’s preamble applied equally to the section under consideration, section 768.56.

We agree with the fourth district court’s reasoning, based on the authorities cited therein, and we adopt the holding of Florida Medical Center, Inc., that section 768.-56 does not violate the constitutional guarantees of equal protection and due process of law.

We next briefly address appellant’s additional argument that the trial court was without jurisdiction to enter a separate judgment on attorney’s fees because the judgment entered on the jury verdict did not specifically reserve jurisdiction to award attorney’s fees. We find this argument to be without merit, for the following reasons. First, the language of section 768.56(1) is mandatory: “... the court shall award a reasonable attorney’s fee to the prevailing party...” Second, application for attorney’s fees was timely, having been made even before entry of the final judgment, and necessitated a hearing both to determine the amount of the fees and to allow appellants to argue the unconstitutionality of the statute. Third, the language in the final judgment stating that the court reserved jurisdiction to tax costs indicates, in the context in which the order was entered, the court’s recognition of the pending motion for attorney’s fees and costs and the need for a ruling thereon. Finally, “the purpose of the statute [is] remedial and ... it should be construed liberally to effectuate that purpose.” TheodoroU v. Burling, 438 So.2d 400 (Fla. 4th DCA 1983). We conclude, therefore, that the jurisdiction of the trial court continued until the determination of the motion for attorney’s fees by entry of the final judgment awarding such fees to ap-pellee.

Accordingly, the judgment appealed is affirmed.

Affirmed.

      . This other defendant, Fred T. Chamuel, M.D., is not a party to this appeal.

      . Section 768.56(1), Florida Statutes (1981), provides, in pertinent part, as follows:
      Except as otherwise provided by law, the court shall award a reasonable attorney’s fee to the prevailing party in any civil action which involves a claim for damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization; however, attorney's fees shall not be awarded against a party who is insolvent or poverty-stricken_

      .An earlier-filed appeal by Dr. Chamuel from the final judgment on the jury verdict, Chamuel v. Altenhaus, 421 So.2d 527 (Fla.App. 3d DCA 1982), was ordered dismissed upon the filing by the appellant of a notice of voluntary dismissal.

      . See, e.g., Granada v. Martinez, 414 So.2d 624 (Fla. 3d DCA 1982), directing the award of attorney’s fees and costs upon remand of a medical malpractice action after appeal reversing new trial order and directing reinstatement of jury verdict.


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    Lawrence Wayne ARNEY, Appellant, v. DEPARTMENT OF NATURAL RESOURCES, et al., Appellees.
    No. AQ-276.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1983.
    As Corrected on Rehearing April 11, 1984.

      Donald M. Hinkle of Green & Fonvielle, Tallahassee, for appellant.
    W. Crit Smith and Thomas A. Waddell of Boyd & Smith, Tallahassee, for appellees.
   MILLS, Judge.

This case presents the question of whether the trial court erred when it granted final summary judgment for the defendants in a civil suit for false arrest, false imprisonment, malicious prosecution, and civil rights violations. We are also asked to decide whether dismissal of an executive agency of the State of Florida from one count of the complaint was error. We reverse in part and affirm in part.

Arney was operations manager for Seminole Refining, Inc. (Seminole) at Seminole’s petroleum refinery near the St. Marks River. Kinnard, another Seminole employee, was terminal manager and in charge of terminal facilities. On 9 March 1980, oil from holding ponds at the refinery had overflowed into a ditch and may have been escaping into the river. Whatever the case, there was oil on the river near the refinery.

Meanwhile, someone at a municipal power plant near the river notified the Department of Natural Resources (DNR) that oil was on the river. DNR dispatched Florida Marine Patrol Officer Stevens to investigate. Arney was at the refinery when Stevens arrived. Stevens talked with Kin-nard, and he then talked with Arney. Whether either Arney or Kinnard made it clear to Stevens that Arney was not in charge of the terminal facility is a disputed matter.

Two days later, on 11 March 1980, Stevens was summoned to a meeting in Tallahassee with DNR Executive Director Gis-sendanner, DNR Division of Law Enforcement Director Brown, DNR Attorney Zaiser, and Assistant Department Secretary Walker. The purpose of the meeting was to decide what to do about the oil on the St. Marks River.

What actually happened at the meeting is not clear, but later that day Stevens arrested Arney. Arney was charged with failing to report an oil spill, a violation of Section 376.12(7), Florida Statutes (1981), and a third degree felony. DNR officials made statements to the public and the press that there had been an oil spill and that Arney had been arrested in connection with the spill.

Section 376.12(7) provides in part:

In addition to the civil penalty, the pilot and the master of any vessel or person in charge of any terminal facility who fails to give immediate notification of a discharge to the department or the nearest Coast Guard station shall be guilty of a felony in the third degree_ The department shall, by rules and regulations, require that the registrant designate a person at the terminal facility who shall be the person in charge of that facility for the purposes specified by this section.

At the time of Arney’s arrest, DNR had not adopted rules or regulations requiring designation of persons in charge of terminal facilities for the purposes of Section 376.12(7). For that reason, the case against Arney was nolle prosequi.

After the charges were dropped, Arney filed suit against DNR, Gissendanner, Brown, and Stevens. Count I of the complaint alleged false arrest and false imprisonment; Count II alleged malicious prosecution; Count III sought declaratory relief under 42 U.S.C. § 1983; and Count IV sought damages under 42 U.S.C. § 1983. Each count was against all defendants.

The defendants moved to dismiss Counts III and IV of the complaint. The trial court partially granted the motion dismissing DNR with prejudice as to Count IV. One year later, the trial court granted final summary judgment for all defendants on all counts. Arney appeals from the summary judgment and from the dismissal of DNR as to Count IV.

The crucial inquiry in determining if summary judgment for the individual defendants on Counts I and II was proper is whether, as a matter of law, there was probable cause to arrest Arney. If it was reasonable to believe that Arney had committed a crime, all necessary elements of false arrest, false imprisonment, or malicious prosecution simply could not be proven. Furthermore, if the uncontroverted facts show probable cause existed, summary judgment was proper. But if the facts indicating probable cause are disputed, the question is for the trier of fact and should not be resolved summarily.

Arney contends that the individual defendants knew or should have known he was not in charge of the terminal facility and not on duty at the time of the spill and, therefore, that he was not the proper person to charge under Section 376.12(7). Whether Kinnard told Stevens before Ar-ney’s arrest that Kinnard and not Arney was in charge of the terminal facility is disputed. There is also dispute as to whether Arney told Stevens before his arrest that he was not the terminal manager. In addition, there is evidence that Stevens had previously prepared a report for other purposes designating Kinnard as the person in charge of the terminal facility. These are factual issues that must be resolved before probable cause is determined.

The defendants assert that DNR Attorney Zaiser advised Stevens to arrest Ar-ney. Advice of counsel is a valid defense if counsel is aware of the relevant facts and if the arrest is made pursuant to counsel’s advice. Applestein v. Preston, 335 So.2d 604 (Fla. 3d DCA 1976).

However, it is not clear that Zaiser advised Stevens to arrest Arney. Nor is it clear that Zaiser was aware of the relevant facts. Zaiser stated in his deposition that he was not aware of all the facts and had not been to the scene of the spill. Here, the applicability of the advice of counsel defense is also a question for the trier of fact.

Having determined that the trial court erred in granting summary judgment for the individual defendants as to Counts I and II, we now turn to the question of whether the trial court erred in granting summary judgment for DNR as to those counts.

Section 768.28(9)(a), Florida Statutes (Supp.1980), precludes civil suits against a governmental entity when the plaintiff alleges that a government employee acted in a wanton, willful, or malicious manner. Defense counsel contended that Rupp v. Bryant, 417 So.2d 658 (Fla.1982), held that any suit filed after the effective date of Section 768.28(9)(a) was subject to that provision. The trial court apparently agreed and granted summary judgment for DNR on Counts I and II based on Rupp v. Bryant. The trial court, however, did not have the benefit of Stillwell v. Thigpen, 426 So.2d 1267 (Fla. 1st DCA 1983), decided after summary judgment was granted in this case.

In Stillwell, we held, based on due process considerations, that Section 768.-28(9)(a) does not apply to causes of action accruing before the effective date of that provision. Rupp v. Bryant held that a vested right cannot be abolished retroactively. Stillwell addressed the question of when those rights vest. In light of Still-well, it was error for the trial court to grant summary judgment for DNR on Counts I and II.

The trial court also granted summary judgment for the individual defendants on Count IV. This too was error. In a 42 U.S.C. § 1983 action, state officials acting in their executive capacity to enforce the law have qualified immunity. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Penthouse, Inc. v. Saba, 399 So.2d 456 (Fla. 2d DCA 1981). Such officials are immune from liability if they reasonably believed they acted lawfully.

In this case, the reasonableness of the defendants’ actions depends upon whether there was probable cause to arrest Arney. If the individual defendants reasonably believed Arney had violated the law, they acted in good faith and are immune. As we have already determined, there is a factual dispute as to the existence of this reasonable belief. Consequently, summary judgment for the individual defendants on Count IV was improper.

Not only was summary judgment on Count IV improper as to Stevens who actually made the arrest, but it was also improper as to Gissendanner and Brown. The assertion that these defendants acted only in a ministerial capacity is disputed. Arney contends that either or both of these defendants initiated his arrest. If so, they may also be liable.

Arney contends dismissal of DNR as to Count IV was improper. We disagree. Section 1983 only provides for suits against “persons.” Florida is not a person within the meaning of § 1983 and, therefore, is not subject to a § 1983 claim for damages by way of a suit against DNR, an arm of state government. Cheramie v. Tucker, 493 F.2d 586 (5th Cir.1974), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L,Ed.2d 107 (1974); Florida Businessmen for Free Enterprise v. Florida, 499 F.Supp. 346 (N.D.Fla.1980).

The trial court granted summary judgment for the defendants as to Count III which sought a declaratory judgment. This was proper because Arney sought a determination of purely factual issues. Food Fair Stores, Inc. v. Vanguard Inv. Co. LTD, 298 So.2d 515 (Fla. 3d DCA 1974).

Affirmed in part, reversed in part, and remanded for proceedings consistent with this decision.

THOMPSON and WIGGINTON, JJ., concur.


author: THOMPSON, Judge.

text:
    AIRCRAFT SERVICES, INC. and Greyhound Corporation, Appellants, v. Frazier Bernhardt BRADLEY, as Personal Representative of the Estate of Frazier Bradley, deceased, Appellee.
    No. AR-454.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1984.

      Mark L. Zientz of Williams- & Zientz, Coral Gables, for appellants.
    Edward Schroll, Miami, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) - appeal a workers’ compensation order awarding permanent total disability (PTD) benefits and payment of medical bills, and raise numerous issues, including the propriety of the finding by the deputy commissioner (deputy) that claimant’s heart attack was causally related to his industrial accident. We agree there was no competent substantial evidence of a causal relationship between the heart attack and the accident, and reverse as to this point.

The claimant, a “sky cap” at the Miami International Airport, sustained a compen-sable back injury on January 25, 1978, when he attempted to lift a duffle bag containing heavy scuba diving gear. Claimant came under the care of Dr. Johns, a neurosurgeon who performed surgery on the claimant’s back on May 5, 1978. While under Dr. Johns’s care for his accident related injuries, the claimant remained under the care of Dr. Goldberg, an internist who had been treating claimant for a number of years for preexisting medical problems including intermittent hypertension and chest pains. Although claimant initially did well following the May 1978 surgery, his condition deteriorated during the late summer and fall, and on November 28, 1978, Dr. Johns performed a second myelo-gram which indicated that claimant might benefit from a second back operation. Because the claimant was not sure he wished to undergo a second surgical procedure, and because Dr. Johns was not entirely certain that additional surgery would benefit claimant, nothing was done for the next several months.

On April 14,1979, tests performed by Dr. Goldberg revealed that claimant had suffered a very mild heart attack sometime during late 1978 or early 1979. Shortly thereafter, Dr. Johns concluded that claimant would benefit from additional surgery, but because claimant’s heart attack had left him in a weakened condition, the second surgery was delayed until December 13, 1979. Claimant did not reach maximum medical improvement following the second surgery until December 17, 1980, at which time he was left with a residual anatomic permanent impairment of 22 percent of the body as a whole, based on his orthopedic problems alone.

The evidence adduced at the several hearings conducted in this case showed that claimant had significant limitations resulting from both his orthopedic injuries and his poor cardiovascular status. Dr. Johns testified that from an orthopedic standpoint, and based upon objective findings alone, the claimant was capable of working. However, Dr. Johns further testified that he had never told claimant he was capable of working or .hould return to work, and that he had no reason to disbelieve the claimant’s reports of inability to perform even the simple day-to-day chores of living. Dr. Goldberg, testifying in deposition, opined that claimant had a total impairment of 80 to 90 percent based on both his back problems and his heart problem. Dr. Goldberg indicated that both the orthopedic problems and the cardiovascular problems were severe, and that claimant was “disabled” and could “barely get around.” In response to questioning concerning a possible causal relationship between claimant’s industrial accident and his heart attack, Dr. Goldberg testified:

I believe that stress can have a result on heart disease. I think you can say the two are a result through that.
Well, as I said, I’m a believer that stress is a factor in coronary artery disease.
This man was quite stressed by the accident.

The above quoted testimony is insufficient to establish a causal relationship between the industrial accident and the heart attack claimant suffered some 10 to 16 months later. The sum and substance of Dr. Goldberg’s testimony was that he thought and he believed that stress is a factor in heart disease and that claimant was subjected to stress as a result of his industrial accident. This was not the equivalent of testimony that there was a reasonable medical probability that stress caused by, or resulting from, the industrial accident was the cause of claimant’s heart attack. Such a nebulous and speculative conclusion as to the causal relationship between the accident and the heart attack does not constitute competent substantial evidence that the industrial accident caused the attack. See Kashin v. Food Fair, 97 So.2d 609 (Fla.1957); Newman Heating & Boiler Repair, Inc. v. Newman, 418 So.2d 1008 (Fla. 1st DCA 1982), pet. for rev. den., 429 So.2d 7 (Fla.1983). Because there was an absence of competent substantial evidence to support the deputy’s conclusion that a causal relationship existed between the compensable accident and the heart attack, the award of the costs of medical care rendered in connection with claimant’s heart attack is reversed.

Even if claimant had adduced competent substantial evidence demonstrating a causal relationship between his accident and his heart attack, we would nonetheless be obliged to reverse the award of the medical bills for the treatment of the heart condition. Neither the claimant nor Dr. Goldberg ever requested that the E/C authorize Goldberg’s treatment. In addition, Dr. Goldberg failed to file reports with the E/C as required by § 440.13(1), Fla.Stat. The deputy made no finding, and the record includes no evidence which could have supported a finding that the doctor’s failure to obtain authorization and to submit reports was excusable. Therefore, the award of the costs of Goldberg’s medical treatment was erroneous. Section 440.13(1), Fla. Stat.; Friendly Ford v. Hurrell, 427 So.2d 207 (Fla. 1st DCA 1983); City of Fort Lauderdale v. Flanders, 416 So.2d 1234 (Fla. 1st DCA 1982).

Because the deputy expressly based his award of PTD benefits on both the orthopedic injuries and the claimant’s heart condition, we find it necessary to remand this case for a determination, to be made on the existing record, whether claimant was rendered PTD as a result of his orthopedic injuries alone. In all other respects, the order on appeal is affirmed. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

SHIVERS and JOANOS, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Ronald Gene TIMMONS and Michael Wilbur Sneeringer, Appellants, v. STATE of Florida, Appellee.
    No. AR-123.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.
    Rehearings Denied March 29, 1984.
    Paul E. Risner, Laws Offices of J. Victor Africano, Live Oak, for appellant Timmons.
    Patrick H. Perry and William H. Avera, Gainesville, for appellant Sneeringer.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Chief Judge.

Appellants contend, inter alia, that the trial court erred in refusing to instruct the jury that the state was required to prove beyond a reasonable doubt that appellants were not entrapped as their affirmative defense suggested. The record shows that the trial court gave standard jury instructions on entrapment, reasonable doubt, the state’s burden of proof and the fact that defendants were not required to prove anything. As this court recently recognized in Rotenberry v. State, 429 So.2d 378 (Fla. 1st DCA 1983) (discretionary review accepted and currently pending), the totality of those instructions is sufficient to satisfy prior case law requiring that the state disprove entrapment beyond a reasonable doubt.

Appellants contend Rotenberry is inapplicable to the case at bar because the trial court, in giving the standard jury instruction on entrapment, inadvertently substituted the word “weren’t” for “were”. Such error, they contend, is fundamental and requires reversal. We disagree.

The record shows no contemporaneous objection to the misstated instruction at the time it was given or at the close of the jury charge. In fact, it appears that defense counsel failed to even discover the discrepancy until they were preparing their reply briefs for submission to this court. “At trial, objecting to erroneous instructions is the responsibility of a defendant’s attorney, and the attorney’s failure to object to such instructions can properly constitute a waiver of any defects.” Ray v. State, 403 So.2d 956, 961 (Fla.1981). An exception exists where it is shown that the error complained of is fundamental, i.e., “error which goes to the foundation of the case or goes to the merits of the cause of action.” Id. at 960. This is not such error.

As was done in Rotenberry, we again certify the following question to the Supreme Court of Florida as being of great public importance:

IF THE STATE HAS THE BURDEN TO PROVE BEYOND A REASONABLE DOUBT THAT A DEFENDANT WAS NOT ENTRAPPED WHEN THAT DEFENSE HAS BEEN RAISED, IS THE GIVING OF THE PRESENT ENTRAPMENT INSTRUCTION AS SET FORTH IN STANDARD JURY INSTRUCTION 3.04(c) ALONG WITH THE GENERAL REASONABLE DOUBT INSTRUCTION SUFFICIENT, NOTWITHSTANDING THE DEFENDANT HAVING SPECIFICALLY REQUESTED THE COURT TO INSTRUCT THE JURY THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS NOT THE VICTIM
OF ENTRAPMENT BY LAW ENFORCEMENT OFFICERS?

Accord McCray v. State, 433 So.2d 5 (Fla. 4th DCA 1983).

Having fully considered all other issues relating to appellants’ theory of entrapment and finding them to be without merit, we

AFFIRM.

BOOTH and ZEHMER, JJ., concur.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Harold Bennon CARTWRIGHT, Appellee.
    Nos. 83-614, 83-615.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Leon St. John of Powell, Tennyson & St. John, P.A., West Palm Beach, for appellee.
   OPINION ON REHEARING

HERSEY, Judge.

We originally affirmed the orders of the trial court suppressing inculpatory statements confessing involvement in two separate robberies, 447 So.2d 1368. The first order, in our case number 83-615, involved a robbery on April 14, 1982, and as to that order and our affirmance without opinion, we deny rehearing.

With reference to the second order involving a robbery which occurred on April 16, 1982, (our case number 83-614), the trial court based suppression on violations of Section 39.03, Florida Statutes (1981) and Rule 8.290(d)(4), Florida Rules of Juvenile Procedure.

The statute in question provides, in pertinent part:

(3) If the person taking the child into custody determines, pursuant to s. 39.-032(2), that the child should be detained or released to a crisis home, that person shall make a reasonable effort to notify immediately the parents or legal custodians of the child and shall, without unreasonable delay, deliver the child to the appropriate intake officer or, if the court has so ordered, to a detention home or crisis home. Upon delivery of the child to such place, the person taking the child into custody shall make a report in writing to the appropriate intake officer. ...

§ 39.03(3), Fla.Stat. (1981). It has been established that this statute does not render the confession of a juvenile, where notice has not been given as provided, inadmissible per se. Doerr v. State, 383 So.2d 905 (Fla.1980); Batch v. State, 405 So.2d 302 (Fla. 4th DCA 1981). The juvenile in this case was arrested together with his stepfather and his mother did not live in the city. Both these factors must be considered by the trial court in making a determination that the confession was rendered inadmissible by violation of the statute. The trial court’s application of a per se inadmissible rule in light of the foregoing was error.

Rule 8.290(d)(4) of the Florida Rules of Juvenile Procedure provides:

A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than two attesting witnesses. Said witnesses shall attest the voluntary execution thereof.

Again the trial court applied an inadmissible per se standard, ruling the confession involuntary. The state argues that the rule is invalid as applied to the actions of police officers who obtain a confession from a juvenile where counsel has not been waived in a writing attested by two witnesses. The reasons given are that the rules of juvenile procedure govern only procedures in the circuit court (Rule 8.010, Florida Rules of Juvenile Procedure) and that imposition of a rule governing the conduct of law enforcement personnel constitutes a constitutionally impermissible encroachment upon the legislative and/or executive branches by the judiciary. Both reasons are compelling in the posture in which they are presented. However, it seems reasonably clear that the judicial branch does have the constitutional authority to impose a rule of evidence rendering a waiver of counsel invalid or a confession inadmissible for violation of court imposed rules. From that aspect the state’s position loses much of its potency.

Regardless, we are of the view that such a rule of inadmissibility per se should emanate from the supreme court rather than from a district court of appeal. This seems particularly appropriate in view of the 1982 amendment to Article I, Section 12 of the Florida Constitution, by the citizens of Florida, which provides that Florida’s exclusionary rule be interpreted in conformity with the United State’s Supreme Court’s interpretation of the Fourth Amendment to the United States Constitution.

Accordingly, we grant rehearing as to the order in appeal number 83-614 and reverse the ruling that the confession was involuntary for technical violations and therefore inadmissible. Violation of the notice requirement does not render a confession inadmissible per se. Doerr, 383 So.2d at 905. Neither does violation of the rule requiring two witnesses attesting to a waiver of counsel (in an out-of-court context). Jordan v. State, 334 So.2d 589 (Fla.1976); In re H.D., 443 So.2d 410 (Fla. 4th DCA 1984). Our determination based on Jordan and In re H.D., creates a direct (hereby made express) conflict with S.L. W v. State, 445 So.2d 586 (Fla. 1st DCA 1983).

If the objectionable confession is to be offered into evidence in a trial of the juvenile, it will be incumbent upon the trial court to make an independent inquiry into the voluntariness of the confession prior to such admission. B.M. V. v. State, 362 So.2d 483 (Fla. 3d DCA 1978). See M.A. v. State, 384 So.2d 740 (Fla. 2d DCA 1980) which discusses the advantages of a separate hearing on the issue of voluntariness. That determination is to be based upon the totality of the circumstances surrounding the taking of the confession followed by a specific finding on the record as to whether or not it was voluntarily given. Jordan, 334 So.2d at 589; and see Villar v. State, 441 So.2d 1181 (Fla. 4th DCA 1983).

We deny rehearing in case number 83-615. We grant rehearing in case number 83-614 and reverse the order suppressing the confession as to the robbery of April 16, 1982, and remand for further proceedings.

BERANEK and DELL, JJ., concur.


text:
    Victor L. PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. AW-311.
    District Court of Appeal of Florida, First District.
    March 6, 1984.
    Rehearing Denied April 16, 1984.
    Victor L. Perez, pro se.
    No Appearance for appellee.
   MILLS, Judge.

Contending he was misinformed of the consequences of his guilty plea to a charge of burglary, Perez appeals from the trial court’s order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief.

The transcript of the plea dialogue between Perez and the trial judge conclusively shows Perez understood the consequences of his guilty plea and that he knowingly and intelligently pled guilty. Scott v. State, 423 So.2d 978 (Fla. 1st DCA 1982).

AFFIRMED.

WENTWORTH, J., and McCORD,' GUYTE P., Jr., (Ret.), Associate Judge, concur.


author: ZEHMER, Judge.

text:
    BEST WESTERN TIVOLI INN and Simms Enterprises, Inc., Appellants, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. AQ-209.
    District Court of Appeal of Florida, First District.
    March 13, 1984.

      Gerald Holley, Chipley, for appellants.
    Margaret-Ray Kemper, Charles G. Gardner, and John H. Beck, Tallahassee, for appellee.
   ZEHMER, Judge.

In September 1981, appellants, Best Western Tivoli Inn and Simms Enterprises, Inc., applied to appellee, the Florida Department of Transportation (DOT), to receive permits for billboards located within one mile of the intersection of Interstate 10 and State Road 79 in Holmes County. Section 479.11, Florida Statutes (1981), generally prohibits billboards within the area in which appellants’ billboards are located; however, since the area in question is zoned commercial by Holmes County, appellants relied upon the statutory exception for billboards located within commercially zoned areas. DOT, finding that the Holmes County commercial zoning was “created primarily to permit outdoor advertising structures,” denied the permits to appellants on the authority of rule 14-10.-05(6), Florida Administrative Code, which reads as follows:

State and local zoning actions must be taken pursuant to the state’s zoning enabling Statute or Constitutional authority and in accordance therewith. Action which is not a part of comprehensive zoning and is created primarily to permit outdoor advertising structures is not recognized as zoning for outdoor advertising control purposes and permits will not be issued for signs in those areas.

Appellants requested a section 120.57 administrative hearing to review the denial of their permits. At the hearing held on June 2, 1982, two issues were argued:

1. Does DOT have the authority to review and determine whether a validly adopted commercial zoning ordinance is sufficient to establish an exception to the general prohibition of signs along interstate highways?
2. If DOT has this authority, does the Holmes County zoning ordinance in question meet the requirements for an exception to the general sign prohibition?

At the hearing, Best Western and Simms took the position that rule 14-10.05(6) establishes a standard whereby DOT can only refuse to recognize local commercial zoning if such zoning is not a part of “comprehensive zoning” and such zoning is “created primarily to permit outdoor advertising structures.” They argued that the local zoning met the first part of this two-part test because the zoning ordinance was validly adopted by Holmes County pursuant to its comprehensive plan. Relying strictly upon their allegation that the commercial zoning met the first part of this test, neither Best Western nor Simms presented evidence regarding whether the zoning was “created primarily to permit outdoor advertising structures.”

DOT introduced a substantial amount of testimony in an attempt to show that the commercial zoning was created primarily to permit outdoor advertising. It took the legal position that rule 14-10.05(6) was intended to mean that zoning created primarily to permit outdoor advertising would not qualify as an exception pursuant to section 479.111, Florida Statutes, even if it was validly adopted as a part of comprehensive zoning.

The hearing officer issued a recommended order specifically finding that the zoning ordinance was validly adopted as a part of comprehensive zoning, thus satisfying the first part of the test in rule 14-10.-05(6). He then concluded that a plain reading of the rule indicated a two-part test whereby commercial zoning validly adopted as a part of comprehensive zoning would qualify for the statutory exception in section 479.111, even though created primarily to permit outdoor advertising. Without making a specific finding as to whether the zoning was created primarily to permit outdoor advertising, the hearing officer recommended that the licenses be issued.

Upon review of the recommended order, DOT accepted in full the hearing officer’s findings of fact, thereby accepting his finding that the zoning was validly adopted as a part of comprehensive zoning; but it rejected his conclusions of law, choosing instead to construe rule 14-10.05(6) as establishing an “either/or” test, i.e., if zoning is either not a part of comprehensive zoning or is created primarily to permit outdoor advertising, then it will not qualify as a valid exception to the general prohibition against signs. DOT then made its own finding that the evidence in the record proved that Holmes County's zoning ordinance was created primarily to permit outdoor advertising, and for this reason, it did not qualify as an exception pursuant to section 479.111. Accordingly, the permits were denied.

Best Western and Simms appealed DOT’s decision, and on July 13, 1983, this court reversed the decision and remanded for DOT to make further findings of fact and conclusions of law to support its decision. Best Western Tivoli Inn v. Department of Transportation, 435 So.2d 321 (Fla. 1st DCA 1983). We specifically rejected DOT’s interpretation of its rule as being an “either/or” rule because such an interpretation would impermissibly give DOT authority to review the validity of zoning action even if such action was not created primarily to permit outdoor advertising.

Upon remand, DOT entered a new final order in which it again accepted the hearing officer's findings of fact but rejected his interpretation of rule 14-10.05(6) and, accordingly, denied the permits. DOT did not attempt to construe its rule as meaning “either/or”; rather, it “refined and clarified” its policy by stating that “action which is a part of comprehensive zoning, but which is taken primarily to permit outdoor advertising structures, will not be recognized by the Department for outdoor advertising control purposes.”

Best Western and Simms have now appealed this new final order, arguing that DOT has misconstrued the meaning of its rule. They argue that the clear meaning and intent of the statute and rule is to provide a valid exception to the prohibition against billboards if the commercial zoning is validly adopted as a part of comprehensive zoning, whether or not it is primarily intended to permit outdoor advertising. On the other hand, DOT argues that its interpretation of the rule is clearly in accordance with the intent of state and federal law regarding outdoor advertising signs along interstate highways and, accordingly, should be upheld by this court.

As we stated in our previous opinion in this case, 435 So.2d at 323:

We are prepared to defer to any permissible interpretation an agency may place upon statutes in its charge, or upon its rules, though other interpretations may arguably be preferable. Dept. of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA 1981); Dept. of Administration v. Nelson, 424 So.2d 852, 858 (Fla. 1st DCA 1982).

In our previous opinion, we did not accept as permissible the department’s interpretation that its rule should be read in the disjunctive as creating two alternative tests. We do, however, accept the Department’s interpretation given in its corrected final order, which states that “action which is a part of comprehensive zoning, but which is taken primarily to permit outdoor advertising structures, will not be recognized by the Department for outdoor advertising control purposes.” We feel that DOT has amply supported its interpretation with citations to appropriate federal and state legislative history and case law from other states interpreting similar provisions. 111 Cong.Rec. 26863 (1965); 114 Cong.Rec. 23700 (1968); 40 Fed.Reg. 42843 (1975); 23 C.F.R. § 750.708(b) and (d); Rule 14-10.-05(6), F.A.C.; South Dakota v. Volpe, 353 F.Supp. 335 (D.S.D.1973); Alper v. State, 96 Nev. 925, 621 P.2d 492 (1980).

Although we accept DOT’s interpretation of its rule, we also recognize that this interpretation arguably conflicts with the plain, facial meaning of the rule. Best Western and Simms relied upon the plain meaning of the rule in presenting their case and, therefore, did not present evidence as to the second part of the test once they proved the first part. The hearing officer agreed with Best Western and Simms as to the plain meaning of the rule and did not make a finding of fact as to the second part of the test (whether the zoning was created primarily to permit advertising). Since DOT adopted an interpretation that significantly deviated from a plain reading of the rule and then proceeded to make a finding of fact consistent with that interpretation, despite the fact that such issue was not addressed by Best Western and Simms and was not decided by the hearing officer, fundamental concepts of due process require that Best Western and Simms be given the opportunity to participate in a fact finding proceeding conducted in light of DOT’s new interpretation of its rule and that the hearing officer have the opportunity to make a finding of fact as to whether the commercial zoning was created primarily to permit outdoor advertising.

We reverse DOT’s corrected final order and, pursuant to our authority under section 120.68(6), Florida Statutes, remand for a fact finding proceeding to determine whether the commercial zoning at issue was “created primarily to permit outdoor advertising structures.”

REVERSED and REMANDED.

WENTWORTH, J., and PEARSON, TILLMAN (Ret.), Associated Judge, concur.

      . Section 479.111, Florida Statutes (1981), which reads in part as follows:
      Only the following signs shall be permitted within controlled positions of the interstate and federal-aid primary systems:

      (2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by s. 479.02.

      . We note that all of the evidence presented by DOT regarding whether the zoning was created primarily to permit outdoor advertising was by way of expert testimony indicating deficiencies in Holmes County's act of zoning the area in question commercial. Evidence of the Board of County Commissioner’s intent in enacting the commercial zoning ordinance may be more properly proved by other methods.

      . This court’s decision in Manatee County v. Florida Public Employee Relations Commission, 387 So.2d 446 (Fla. 1st DCA 1980), is analagous to the instant case. In that case, the Manatee County Municipal Employees, Local 1584, AFSCME (union), filed a petition with PERC for certification as exclusive collective bargaining agent for a group of county employees excluding CETA employees. Manatee County specifically acquiesced in the exclusion of CETA employees, and an administrative hearing was held at which neither the union nor the county put on evidence to justify exclusion of the CETA employees. The hearing officer issued a report and then PERC issued a proposed order in which it held that CETA employees must be included in the union notwithstanding the agreement of the parties. The county petitioned PERC for a further fact finding hearing at which it could present evidence as to why CETA employees were excluded by the union, hut this petition was denied.
      On appeal, this court reversed and remanded, holding that the administrative proceedings were fatally defective because PERC rejected the agreement of the parties without providing them an opportunity to present additional evidence on the stipulated matter. Although technically agreeing with PERC’s argument that the parties were not actually prevented from putting on evidence at the original hearing, the court stated that "such a narrow review in this case would require us to overlook factors which to us have an important bearing upon the fairness and integrity of the decision-making process followed here.” Id., at 449. Although the court did not hold that the evidence was insufficient to support PERC’s finding that CETA employees should be included in the union, it did state that the evidence was insufficient to support PERC’s rejection of the stipulation "particularly in the absence of any explanation for doing so that is rooted in the language, intent, or policies expressed in chapter 447, part II, Florida Statutes." Id., at 452. Finally, the court held that "any party prejudiced by [rejection of a stipulation] should be given a reasonable opportunity to present the evidence or arguments it would have presented in the absence of such stipulation." Id., at 453.
      We also take note of the Third District Court’s language in Venetian Shores Home & Property Owners v. Ruzakawski, 336 So.2d 399, 401 (Fla. 3d DCA 1976):
      We believe the entire tenor of the provisions of the Administrative Procedure Act having to do with the functions of a Hearing Examiner leads to the inescapable conclusion that the action of the agency, after a full hearing, is in the nature of a procedural review. Extensive provisions are made for remand or correction where the hearing is not complete or in accordance with the rules of due process, but there is no provision which suggests that the agency should make a new judgment upon the evidence.

      . Kuster Enterprises, Inc. v. Dept. of Transportation, 347 So.2d 1092 (Fla. 1st DCA 1977); Postal Colony Co., Inc. v. Askew, 348 So.2d 338, 339 (Fla. 1st DCA 1977); Garrido v. Dept. of Health and Rehabilitative Services, 386 So.2d 811 (Fla. 1st DCA 1980); Florida Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 785 (Fla. 1st DCA 1981).


author: PER CURIAM.

text:
    Thomas JOHNSON and Shelley Preston Johnson, Appellants, v. AETNA CASUALTY & SURETY COMPANY and R.G. Bond & Associates, Ltd., Appellees.
    No. 82-2363.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.
    Rehearings Denied May 15, 1984.

      Charles T. Becker of Chidnese & Becker, Fort Lauderdale, for appellants.
    Richard A. Sherman of Law Offices of Richard A. Sherman, Fort Lauderdale, and Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for appel-lee Aetna Cas. & Sur. Co.
    Cathy Jackson Burris of Law Offices of Nancy Little Hoffmann, P.A., and Steven F. Billing of Hainline, Billing, Cochran & Heath, P.A., Fort Lauderdale, for appellee R.G. Bond & Associates, Ltd.
   PER CURIAM.

Appellants, Thomas and Shelley Johnson, seek review of a final judgment for appel-lees, Aetna Casualty and Surety Company and R.G. Bond & Associates, Ltd.

In 1977 Thomas Johnson obtained an Aetna automobile insurance policy through the Bond insurance agency. In 1978 Thomas married Shelley and changed his address. Bond was notified of the change of address and was instructed to add Shelley to the policy and increase the limits thereof. Thomas did not notify Aetna of the change of address but continued to receive renewal notices as they were forwarded by the post office, with whom a change of address notice had been filed. After one year, when the post office no longer forwarded mail, the renewal notices were returned to Aetna. In due course Aetna forwarded notice of cancellation to Bond, which failed to notify the Johnsons of the cancellation of their policy.

. In 1980 Shelley was injured in an automobile accident. Claim was made against Aetna and was denied due to cancellation of the policy. Ultimately, appellants sued Aetna and Bond. The trial resulted in a directed verdict for Bond at the close of the plaintiffs’ case and a subsequent jury verdict in favor of Aetna. Final judgment was entered accordingly and the Johnsons perfected this appeal.

During the course of the plaintiffs’ case, the Johnsons sought to introduce in evidence certain correspondence between Aetna and Shelley mailed to her at the new address. The correspondence dealt with a claim Shelley filed as a result of an accident that occurred prior to the cancellation of the subject policy. The purpose of this proffer was to show that the Aetna claims department was aware of the new Johnson address. However, the trial court refused to admit this evidence on the ground that such knowledge cannot be imputed from one separate and distinct department of an insurance company to another — in the present case the claims department and the billing and underwriting department. Both the trial court and appellees relied primarily upon Schrader v. Prudential Insurance Company of America, 280 F.2d 355 (5th Cir.1960), as authority for that ruling. However, Schrader is so imbued with the fraudulent conduct of the insured, its own agent, that it is hardly authority for the general proposition that knowledge received by a corporate employee while acting within the scope of his employment is not imputed to the corporation. It appears the converse is the rule in Florida. St. Petersburg Coca-Cola Bottling Co. v. Cuccinello, 44 So.2d 677 (Fla.1950). Therefore, under the circumstances of this case, we hold that the foregoing correspondence should have been admitted into evidence. The trier of fact could then have considered Johnson’s failure to send in the change of address form he received with each renewal notice in juxtaposition with the knowledge possessed by Aetna’s department regarding the new address.

The directed verdict in favor of Bond was also error. The trial court refused to admit into evidence the office files of Aetna and Bond, which would have allowed the trier of fact to determine the nature and quality of Bond’s agency. At the very least, there are some circumstances which would require an agent to advise an insured of a notice of cancellation by the insurer. As the court states in Cat’N Fiddle, Inc. v. Century Insurance Company, 200 So.2d 208 (Fla. 3d DCA 1967), rev’d in part 213 So.2d 701 (1968),

The agent owes a legal duty to obtain the insurance and, if he can not do so within a reasonable time, to notify the owner of his inability. Rovella v. Standard Acc. Ins. Co., 121 Conn. 134, 183 A. 377, 378; Gibbs v. Allstate Insurance Company, supra. Likewise, if the insurance is can-celled, the agent is under a duty to notify the insured of cancellation, and if he fails to do so, may be held to have breached such duty unless it is made to appear that the insured knew or reasonably should have known of the cancellation from sources other than by being informed by the agent. Rovella v. Standard Ace. Ins. Co., supra; Kamen Soap Co. v. Prusansky & Prusansky, Inc., supra. See Annot. 29 A.L.R.2d 171, 201. Cat’N Fiddle, supra, at 211.

That is not to say that in every situation an insurance agent is so obligated. Cf. Cat’N Fiddle v. Century Insurance Company, 213 So.2d 701 (Fla.1968). It depends upon the facts of each case.

Accordingly, we reverse the judgment appealed from and remand for a new trial against both appellees.

DOWNEY, LETTS and HERSEY, JJ., concur.


text:
    Thomas Franklin BROAD, Appellant, v. STATE of Florida, Appellee.
    No. 83-1792.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.
    Rehearing Denied May 16, 1984.
    James P. Ryan, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. In so concluding, we do not reach the constitutional issue as same was not ruled on by the trial court and the failure to so rule is not raised on appeal.

LETTS, BERANEK and HERSEY, JJ., concur.


text:
    Teodoro J. TORRES and Victor Torres, Appellants, v. Leroy W. NELSON and Louis J. Weinstein, Appellees.
    No. 83-1295.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Rehearing Denied May 9, 1984.

      Joe N. Unger, T. Patrick Ford, Jr., Miami, Yvette G. Murphy, Coral Gables, for appellants.
    •Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and A.H. Toothman and John Wylie, Miami, for appellees.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   PER CURIAM.

This is an appeal from a final summary judgment for the defendant attorneys in a legal malpractice action brought by their former clients, the plaintiffs herein. For the reasons which follow, we reverse.

The defendant attorneys previously represented the plaintiffs and their insurer [Lumbermens Mutual Casualty Company] as defendants in a personal injury action brought by William Thomas which resulted in an $810,000 adverse jury verdict and judgment against the plaintiffs — $800,000 over the $10,000 limits of the applicable Lumbermens liability insurance policy. The original plaintiff [William Thomas], as assignee of the plaintiffs’ cause of action, then brought a bad faith failure to settle action against Lumbermens and suffered an adverse jury verdict; on appeal, we affirmed. Thomas v. Lumbermens Mutual Casualty Co., 424 So.2d 36 (Fla. 3d DCA 1983). The plaintiffs herein then brought the present malpractice action alleging that the defendant attorneys negligently failed to settle Thomas’ personal injury action against the plaintiffs within policy limits. Summary judgment was thereafter entered for the defendant attorneys. The plaintiffs appeal.

The basis for the summary judgment entered below was the trial court’s determination that the present malpractice action was barred by the adverse judgment entered against the plaintiffs’ assignee and in favor of Lumbermens in the prior bad faith action — apparently on the theory that Lumbermens was the employer of the defendant attorneys herein as house counsel, that Lumbermens was sued and prevailed in the bad faith action which had been based on the negligence of its employees [defendant attorneys herein], and that a judgment against a vicariously liable employer precludes a subsequent action against the tortfeasor employee based on the same cause of action. See Akins v. Hudson Pulp & Paper Co., 330 So.2d 757 (Fla. 1st DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977) and authorities collected. We disagree with this analysis because a legal malpractice action is a fundamentally different cause of action than a bad faith failure to settle action. Indeed, in our decision affirming the judgment for Lumber-mens in the bad faith action, we stated:

“The standard for determining liability of an insurance carrier in excess judgment cases is bad faith, rather than negligence, although consideration may be given to the negligence of the insurer in determining whether it has breached its duty to negotiate in good faith, (citation omitted) To hold the insurer liable for breach of its duty to compromise, the insured (or his assignee) must establish that the insurer’s conduct amounted to either bad faith or fraud, (citations omitted) Each case is to be determined on its own facts, and the question of the insurer’s failure to act in good faith with due regard for the interests of the insured is for the jury, (citations omitted)
Applying these principles to the present case, we think that the jury properly weighed the evidence and concluded that Lumbermens’ conduct, while possibly somewhat less than diligent, did not rise to the level of bad faith or fraud.” 424 So.2d at 38.

When the jury found in favor of Lumbermens in the bad faith action, then, it did not determine, as urged, that Lum-bermens' house counsel employees, the defendant attorneys herein, were not guilty of negligence. The jury found only that Lumbermens through its employee attorneys was not guilty of a bad faith refusal to settle, which is not tantamount, as urged, to a finding of non-negligence. Indeed, the issue of professional legal malpractice was never before the jury and was never litigated. This being so, the plaintiffs are in no way barred from pursuing the instant legal malpractice action, as there has been no judicial determination as to whether the defendant attorneys were professionally negligent in this matter.

The final summary judgment under review is reversed and the cause is remanded to the trial court for further proceedings.


text:
    Sye Christopher JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 83-978.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1984.
    Rehearing Denied May 16, 1984.

      Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant seeks reversal of a judgment of guilty of robbery entered pursuant to a jury verdict, and from the portion of a 75 year sentence that (a) retained jurisdiction over appellant for the first third of the sentence and (b) required appellant to serve a minimum of three years.

Appellant, together with two other males, allegedly robbed a convenience store. One of the other individuals had a gun. After the jury found appellant guilty of robbery as charged in the information, the trial court reviewed a PSI report and sentenced appellant to 75 years in prison with a mandatory minimum of three years and retained jurisdiction over the first one-third of the sentence.

Appellant raises five points on appeal, four of which fail to demonstrate reversible error. Regarding those four, the evidence was adequate for the jury to find that appellant was a participant in the robbery. The fact that one other than appellant carried the gun does not preclude a finding that appellant was guilty of robbery with a firearm. Hillman v. State, 410 So.2d 180 (Fla. 2d DCA 1982). Finally, the court’s rulings in giving a flight instruction and refusing appellant’s requested instruction on identification were proper.

The remaining point has two aspects to it. It suggests first that the circuit court erred in retaining jurisdiction over the appellant for the first one-third of the sentence without stating the grounds therefor with the particularity required by Section 947.16(3), Florida Statutes (1981). The record shows that the circuit court failed to follow the statute; however, the point is not preserved for appellate purposes because appellant made no objection at the time, Whitehead, v. State, 446 So.2d 194 (Fla. 4th DCA 1984); Hernandez v. State, 425 So.2d 213 (Fla. 4th DCA 1983); McFadden v. State, 423 So.2d 456 (Fla. 4th DCA 1982), and because the error is not of fundamental proportions. Whitehead, supra. Accordingly, we do not disturb the sentence insofar as it maintains circuit court jurisdiction over the appellant for the first third of that sentence. This ruling is without prejudice to appellant’s initiating a Rule 3.850 proceeding to present this question to the circuit court.

The second aspect has to do with the imposition of a three year mandatory minimum term as part of the sentence. In order for a court to impose a term under Section 775.087(2), Florida Statutes (1981), the possession of the weapon may not be vicarious; it must be direct. The weapon must be possessed by the individual receiving the mandatory sentence. Hillman v. State, supra.

Accordingly, the judgment in this cause is affirmed. The sentence in this cause shall be modified so as to delete therefrom the imposition of a three year mandatory minimum and, as so modified, the sentence is affirmed.

AFFIRMED, as modified.

ANSTEAD, C.J., and DOWNEY and GLICKSTEIN, JJ., concur.


author: OTT, Chief Judge.

text:
    Marvin MULKEY and Lorraine Mulkey, Howard Wickman and Martha Wickman, and Munford, Inc., Appellants, v. DIVISION OF ADMINISTRATION, STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 82-2609.
    District Court of Appeal of Florida, Second District.
    March 21, 1984.
    Rehearing Denied April 30, 1984.

      Robert L. Donald and Frank A. Pavese of Pavese, Shields, Garner, Haverfield, Dalton & Cottrell, Fort Myers, for appellants.
    Alan E. DeSerio, John W. Scruggs, Jr., John H. Beck, Luther C. Smith, Tallahassee, for appellee.
   OTT, Chief Judge.

This is an appeal from the award of damages in a condemnation action. We reverse and remand for a new trial on severance and business damages.

At the time of the taking, appellants Marvin Mulkey, Lorraine Mulkey, Howard Wickman, and Martha Wickman (“Landowners”) owned a 75-foot by 130-foot rectangular parcel of property located on the southwest corner of the Edison Avenue and Fowler Street intersection in Fort Myers. The easterly 130-foot dimension of the parcel was immediately adjacent to Fowler Street, and the northerly 75-foot dimension was immediately adjacent to Edison Avenue. In 1964, the Landowners leased the entire northerly 63 feet of the parcel (being the part on the corner of Edison and Fowler) to Munford, Inc. The original lease term was twelve years. The lessee was given two five-year options to renew the lease, which it exercised in 1976 and 1982. In 1965, Munford completed construction of a Majik Market convenience store on the leased property and commenced operation. The southerly half of the parcel remained vacant, unimproved property, except for a small area where a billboard was erected and leased to a party not involved in the instant controversy.

In April, 1980, appellee commenced proceedings to take a strip of the entire parcel for the purpose of widening Fowler Street. The order of taking was issued in June, 1980. The road improvement project was completed in January, 1982. The actual taking consumed approximately twenty-six per cent of the parcel. Significantly, the taking eliminated five of the convenience store’s eight parking spots. The remaining three parking spots were rendered unusable because of the installation of curbing along Edison Avenue.

In answers to the declaration for taking, the Landowners sought full compensation for the actual taking and severance damages to the remainder. Munford sought full compensation and business damages. The case proceeded to trial for resolution of the question of damages. Trial occurred on September 28-30, 1982.

John Calhoun, a real estate appraiser, testified on behalf of appellee. He stated that the value of the Landowners’ property was $5.17 per square foot. Accordingly, he averred that the Landowners were due $13,100 for the property actually taken. As to severance damages, Calhoun opined that the highest and best use of the entire property before the taking was commercial. In order to continue this use, Calhoun concluded that it would be necessary to relocate parking for the convenience store on the vacant lot, i.e., the southerly half of the parcel. Based on the cost of paving the vacant lot, the cost of reorienting the convenience store toward the vacant lot, removal of the billboard and the concomitant loss of the billboard lease income, the cost of the vacant lot (valued at $5.17 per square foot), and other incidental costs, Calhoun calculated severance damages to be $36,300. This approach to computation of severance damages was characterized as a “cost-to-cure” method. Calhoun also noted that customers of the convenience store, including himself, had used the vacant lot for parking prior to the taking. For his purposes, Calhoun treated the entire tract as one on the theory of a unity of use— namely, the operation, including parking, of the convenience store.

F. James DeLozier, Jr., a civil engineer testifying on appellants’ behalf, noted that operation of the convenience store did not comply with local zoning ordinances after the taking, because it did not have the requisite minimum of five parking spaces. He also noted that local zoning ordinances permitted the erection of another commercial building on the vacant lot prior to the taking.

Larry Sewell, a real estate appraiser testifying on appellants’ behalf, treated the parcel leased to Munford and the vacant lot as separate parcels for purposes of calculating severance damages. Sewell valued the property in such a manner because he believed there was not a unity of use between the properties. He seemed to concede on cross-examination that a unity of use would have existed had the vacant lot been paved and devoted to parking for the convenience of the store’s patrons. Treating the parcels as separate, Sewell estimated the severance damages to the vacant lot at $14,000 and to the leased portion at $52,060.

Chris Holland, vice-president of Mun-ford’s Majik Market Division, testified that the convenience store’s profit and loss statements for 1976-1981 showed profits and losses of ($1,638), $1,979, $7,734, $19,-924, $22,658, $34,552, respectively. In the first eight months of 1982, the store éxperi-enced a profit of $6,824.

Based on an examination of the profit and loss statements, Basil J. Zaloom, a certified public accountant, calculated $186,994 in business damages for Munford.

In rebuttal, Certified Public Accountant Richard Davis presented three projections of business damages. The first option envisioned relocation of parking on a newly paved parking area on the vacant lot: $4,691. The second option foresaw relocation of parking on the unimproved, unpaved vacant lot: $14,798. The third option involved relocation of the store to another site and the loss of profits for six months: $12,856.

The jury awarded $36,300 in severance damages and $14,798 in business damages.

In their first point on appeal, appellants contend that the trial court erred in allowing the jury to consider appellee’s cost-to-cure method of calculating severance damages because the method treated the leased property and the southerly lot as one unit.

When the state, through the exercise of its power of eminent domain, takes private property for public use, the landowner must receive full compensation for his loss. Art. X, § 6, Fla. Const. A landowner must also be compensated for damage to his property when less than an entire parcel is taken. § 73.071(3)(b), Fla. Stat. (1981); Kendry v. Division of Administration, State Department of Transportation, 366 So.2d 391, 393 (Fla.1978); Lee County v. Exchange National Bank of Tampa, 417 So.2d 268, 269 (Fla. 2d DCA 1982), review denied, 426 So.2d 25 (Fla. 1983). These damages, so-called severance damages, are generally measured by the reduction in value of the remaining property. Kendry, supra, at 393. However, the courts have recognized that this general measurement of damages may be replaced by a cost-to-cure approach in instances where such cost is less than the decreased value of the remainder. See generally 4A P. NICHOLS, THE LAW OF EMINENT DOMAIN § 14.04 (Rev. 3d ed. 1981).

The parties agree that three factors must be established to treat adjoining properties as a single tract for purposes of computing severance damages: physical contiguity, unity of ownership, and unity of use. See County of Volusia v. Niles, 445 So.2d 1043 (Fla. 5th DCA 1984); DiVirgilio v. State Road Department, 205 So.2d 317, 319-320 (Fla. 4th DCA 1969). They also agree that the vacant lot and leased property share physical contiguity and unity of ownership, but disagree on the remaining factor of unity of use. Based on a lack of substantial evidence presented at trial that the leased property and vacant lot share a unity of use, appellants contend that the property was used as two distinct parcels as a matter of law. Appellee notes evidence that patrons of the convenience store have continuously parked in the vacant lot. Therefore, appellee asserts that a factual question on the unity of use was raised and that the jury ultimately decided the issue in the state’s favor.

We disagree with appellee’s position. The evidence presented at trial only indicated that patrons of the convenience store occasionally parked at will on the vacant lot. There is no indication that the southerly lot was intended to be used as a parking lot for the convenience store or that Munford held a legally recognized interest in the vacant lot. Based on these facts, the northerly and southerly parcels were not a single parcel for purposes of an award of severance damages as a matter of law. We also note that the trial court’s charge to the jury did not include an instruction directing the jury to resolve this claimed factual dispute. Thus, even if we agreed with appellee that a factual question existed as to the unity of use factor, the question was never properly submitted to the jury.

The admission of appellee’s expert testimony on severance damages was based on use of the property as a unified tract. The jury’s award was clearly based on the figures calculated on this basis. The admission of such testimony constitutes reversible error in this case and, accordingly, we vacate the severance damages award.

Appellants’ expert testimony on the question of severance damages remains as the only evidence on the issue. While we are tempted to enter an order awarding severance damages in an amount equal to his valuation, we note that the jury, as the ultimate trier of fact in this condemnation case, was not bound to accept the expert’s valuation. See Behrn v. Division of Administration, State Department of Transportation, 336 So.2d 579 (Fla.1976); Tuttle v. Division of Administration, State Department of Transportation, 336 So.2d 583 (Fla.1976). Indeed, the jury was authorized to return a verdict on the claim of severance damages in an amount less than the valuation offered by the condemnees’ appraiser, even without rebutting testimony. See Division of Administration, State Department of Transportation v. Decker, 408 So.2d 1056, 1059 (Fla. 2d DCA 1981), review denied, 415 So.2d 1361 (Fla.1982). Accordingly, we remand for a new trial on the question of severance damages.

In the second point on appeal, Munford contends that the trial court erroneously allowed the jury to consider portions of appellee’s expert testimony on business damages. Munford contends that such testimony was improper, as it was based on a theory of mitigation which involved use of the vacant lot for parking by Munford.

The allowance of business damages in condemnation cases is not constitutionally required, but rather is a matter of legislative grace. § 73.071(3)(b), Fla.Stat. (1981); Tampa-Hillsborough County Expressway Authority v. K.E. Morris Alignment Service, Inc., 444 So.2d 926 (Fla.1983). Business damages are in the nature of lost profits attributable to the reduced profit-making capacity of the business caused by the taking of a portion of the realty or improvements thereon. LeSuer v. State Road Department, 231 So.2d 265, 268 (Fla. 1st DCA 1970). In cases where an established business is totally destroyed by a taking of the business’s adjacent property, business damages may include lost profits, costs attached to moving and selling equipment, and loss of good will. See Matthews v. Division of Administration, State Department of Transportation, 324 So.2d 664 (Fla. 4th DCA 1975). However, where business damages are identical to severance damages, the condemnee may not receive double recovery. See Glessner v. Duval County, 203 So.2d 330, 335 (Fla. 1st DCA 1967).

Appellee presented expert testimony in rebuttal on the question of business damages. Two of the expert’s three options were based on a theory of mitigation which involved relocation of the business’s parking onto the vacant lot. While we agree that a condemnee has a duty to mitigate his losses, we find that the expert’s valuations involved a misconception of the law, as the two valuations were based on the ability of Munford to use a specific parcel of land outside the property over which it held a leasehold interest. See generally Nichols, su-pra, § 14.04 (cost of restoration to original condition not appropriate as mitigating factor of severance damages where restoration necessitates going outside the remaining portion of the tract). In addition, we note that the cost of effecting physical changes or modifications in the premises necessitated by a taking are in the nature of severance damages, not business damages. LeSuer, supra, at 267.

An expert’s opinion that is based on a misconception of the law should be stricken. Stubbs v. State Department of Transportation, 332 So.2d 155, 157 (Fla. 1st DCA 1976). Because the jury’s award of business damages was exactly the amount fixed by appellee’s expert under his second option, we find that admission of the expert’s testimony constituted prejudicial error requiring a new trial on the issue of business damages.

A new trial in this matter will occur years after the actual taking. As a result, many of the business damages figures that were estimated at trial have undoubtedly been realized. In an effort to award “full compensation,” we believe it is appropriate to consider actual loss and damage figures, if they exist, on retrial. See Malone v. Division of Administration, State Department of Transportation, 438 So.2d 857, 863-864 (Fla. 3d DCA 1983) (where the Third District Court of Appeal ordered consideration of actual costs in a retrial of compensation to be allotted to moving costs in an eminent domain action).

REVERSED and REMANDED for a new trial consistent with this opinion.

HOBSON and CAMPBELL, JJ., concur.

      . Lessees are considered owners of property in the constitutional sense for purposes of entitlement to full compensation in eminent domain cases. State Road Dep't v. White, 148 So.2d 32 (Fla. 2d DCA 1962), aff’d, 161 So.2d 829 (Fla.1964).


text:
    Frank J. BARANKO, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    Nos. AV-109, AV-110.
    District Court of Appeal of Florida, First District.
    March 21, 1984.
    Rehearing Denied May 3, 1984.

      Frank J. Baranko, petitioner pro se.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner filed a petition for writ of ha-beas corpus alleging that his gain-time had not been properly calculated in accordance with Section 944.275, Fla.Stat. (1983), and that, had it been properly calculated, he was entitled to immediate release. After issuing a show cause order and considering three supplemental responses, we agreed with petitioner and issued the writ, stating that this opinion would follow.

The new gain-time law, passed as part of the Correctional Reform Act of 1983, applies to all offenses committed on or after July 1, 1978. § 944.275(6)(a). The Department of Corrections (Department) is to establish for each prisoner a “maximum sentence expiration date” and a “tentative release date”. The initial tentative release date is determined by deducting from the maximum sentence expiration date 10 days for each month of each sentence imposed, §§ 944.275(3)(a), (4)(a) and, for prisoners incarcerated on the effective date of the act, deducting all additional gain-time previously awarded under former subsections (2) a.nd (3) and adding all forfeitures previously ordéred. § 944.275(6)(e). Thereafter, “[o]ther gain-time shall be applied when granted or restored to make the tentative release date proportionately earlier; and forfeitures of gain-time, when ordered, shall be applied to make the tentative release date proportionately later.” § 944.-275(3)(a). However, the tentative release date may not be later than the maximum sentence expiration date. § 944.275(3)(c).

Included with three of the four responses received by the court were affidavits executed by the Admission and Release Administrator of the Department which purported to calculate petitioner’s release date in accordance with the new gain-time law. However, none of the affidavits indicated petitioner’s maximum sentence expiration date, his initial tentative release date, or his current tentative release date. Further, included in the calculations were additions to and deductions from the release date which were not and could not be correlated to the mandates of the new gain-time law. Specifically, 310 days were added to petitioner’s release date because “Subject Forfeited the Right to Earn Basic Gaintime for 31 Months Prior to 6/15/83”, and 121 days were deducted for “Sentence Adjustment Due to Correctional Reform Act of 1983”.

Respondent explained the 121 day deduction by stating that it was an “internal procedure” adjustment due to the Department’s determination that certain inmates would be adversely affected by the new statute. Respondent recognized that the Department was not required to give petitioner this deduction, but apparently considered the grant of 121 days of gain-time to be discretionary.

We do not know of any statute giving the Department the authority to grant additional days of gain-time as a matter of grace. Certainly there is nothing in the Correctional Reform Act of 1983 which would permit such a sentence adjustment. Subsections 944.275(4)(b) and (c) authorize the Department to grant gain-time beyond the basic gain-time award for engaging in positive activities or for performing some outstanding deed. The Department had no authority to reduce a prisoner’s sentence by arbitrarily granting gain-time for reasons not specified by statute. “Gain-time is given to prisoners through the beneficence of the legislature, and the legislature has full authority to establish the terms and conditions thereof.” Kimmons v. Wainwright, 838 So.2d 239, 240 (Fla., 1st DCA 1976), cert. denied 346 So.2d 1249 (Fla.), cert. denied, 434 U.S. 843, 98 S.Ct. 142, 54 L.Ed.2d 107 (1977). We therefore hold that the deduction of 121 days from the release date as a sentence adjustment cannot be sustained.

For the same reason the addition of 310 days to petitioner’s release date due to “forfeiture” of the right to earn gain-time for 31 months is not permissible. Although Section 944.275(6)(c) authorizes the Department to add “forfeitures” previously ordered in determining the initial tentative release date, there had been no “forfeiture” of the right to earn either 310 days gain-time or 31 months of gain-time prior to the effective date of the Act. In the second supplemental response, respondent explained that this “forfeiture” resulted because petitioner lost the right to earn gain-time for 31 months due to disciplinary reports and being placed on close management. However, respondent confuses the failure to earn gain-time under the former gain-time law with the “forfeiture” of gain-time. Under the former law, the Department was to grant gain-time “on a monthly basis, as earned, from the sentence of every prisoner who has committed no infraction of the rules of the department or of the laws of the state and who has performed in a satisfactory and acceptable manner the work, duties, and tasks assigned _ § 944.275, Fla.Stat. (1981). Under the clear language of the statute a prisoner did not receive gain-time for any month in which he failed to comply with the statutory prerequisites. However, gain-time could not be “forfeited” unless the procedures for forfeiture of gain-time set forth in Section 944.28, Florida Statutes (1979), were followed.

Although the documents submitted by respondent support the forfeiture of 387 days of gain-time based on disciplinary reports, there is no documentary support indicating that the right to earn 310 days gain-time had been forfeited pursuant to Section 944.28. The new gain-time law specifies only that “forfeitures” ordered prior to the effective date of the act would be applied in calculating the initial tentative release date. Had the Legislature so desired, it could have provided that the initial tentative release date would be increased by 10 days per month for every month the prisoner failed to earn gain-time under the former statute. However, the Legislature did not so provide, and therefore the 310 days added to petitioner’s release date must be eliminated.

The net result of removing the unwarranted calculations is to deduct 189 days from the tentative release date. Removing 189 days from any of the three proposed release dates set forth in the Department’s affidavits required petitioner’s release from custody.

ERVIN, C.J., and THOMPSON and NIM-MONS, JJ., concur.

      . Petitioner also filed a petition for writ of mandamus alleging improper calculation of his release date which was consolidated with this petition for writ of habeas corpus.

      . The maximum sentence expiration date is determined by deducting jail time credit from the date the sentence or combined sentences would expire. § 944.275(2)(a), Fla.Stat. (1983).


author: ZEHMER, Judge. ZEHMER, Judge.

text:
    Preston Tyrone HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. AR-5.
    District Court of Appeal of Florida, First District.
    March 22, 1984.
    Rehearing Denied April 26, 1984.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Kathryn L. Sands, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

Holmes appeals the revocation of his probation, arguing that the lower court erred in finding him solvent without a hearing and in requiring him to represent himself at the probation revocation hearing and at sentencing. We reverse.

On September 25, 1979, Holmes pled guilty to vehicular homicide and was sentenced to five years imprisonment. All but three months were suspended, and he was placed on probation for the remaining four years and nine months. Holmes’ probation was subject to special, as well as the usual, conditions.

On November 2, 1982, an affidavit of violation of probation was prepared, alleging that Holmes had violated several conditions of his probation, including failure to pay the victim’s widow $100 per month and failure to comply with his probation officer’s instruction to> seek alcohol evaluation.

Following his arrest, Holmes appeared at a preliminary hearing in December, 1982, represented by a public defender. Prior to the hearing, the public defender filed a motion for a statement of particulars and a demand for discovery, but had received no response. At the hearing, Holmes indicated to the court that he wished to hire a private attorney. The court reset the violation of probation hearing for January 25, 1983, warning Holmes, “At the time of the hearing, I’m cautioning you now, don’t come in and say I can’t have a hearing because my private lawyer, I couldn’t afford one_ You will -be heard on January 25.” Holmes replied, “That’s more than enough time.”

Although the public defender moved to withdraw when Holmes requested private counsel, that office remained counsel of record for Holmes until the January hearing.

At the January hearing, Holmes advised the court that his wife had spoken with an attorney regarding Holmes’ representation and that the attorney declined employment until he learned more about the charges. It became apparent that, as a result of the hearing, Holmes might actually serve time; and when the court asked Holmes if he wished to proceed without an attorney, Holmes answered, “I’d like to go back to get a Public Defender, if I can, because what I violated, I have done, but — .”

An attorney from the public defender’s office other than the attorney who represented Holmes at the December hearing advised the court that although he was still representing Holmes, “My problem is I just never have spoken or seen Mr. Holmes. I was in my office, and available, but I had no contact with him.” Holmes then stated, “That was my problem with Ms. Adams. She was my Public Defender before I actually said I was going to get an attorney, but she knew nothing about the case.” The record indicates that the public defender’s office had failed to pursue its discovery requests filed prior to the December hearing.

After Holmes’ explanation for originally seeking a private attorney because of dissatisfaction due to the public defender’s lack of knowledge of the case, the court again asked Holmes if he could afford a private attorney. Holmes responded that he could as he had been working. The court established that Holmes had “about $500” but made no further inquiry into Holmes’ financial situation. The public defender commented to the court on Holmes’ apparent solvency and was discharged as Holmes’ attorney. The court then commenced the hearing on the revocation of probation and asked Holmes if he had any witnesses on his behalf. He had none.

The state contends that Holmes’ statement at the preliminary hearing that he had “about $500” triggered the presumption of solvency under section 27.52(2)(b)3, Florida Statutes (1981). The state noted that the court could glean from Holmes’ testimony that he was currently employed in construction, that his father would give him $300 toward his probation costs, and that he had the means to hire private counsel, and, therefore, the court was not required to inquire further into Holmes’ financial status.

Holmes argues on appeal that, in determining his financial status, the court failed to comply with the guidelines in section 27.52, Florida Statutes (1981), which provides:

(2)(a) A person is indigent for the purposes of this part if he is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to himself or his family.
(b) In determining whether a defendant is indigent, the court shall determine whether any of the following facts exist, and the existence of any such fact shall create a presumption that the defendant is not indigent:
1. The defendant has been released on bail in the amount’ of $5,000 or more.
2. The defendant has no dependents and his gross income exceeds $100 per week; or, if the defendant has dependents, his gross income exceeds $100 per week plus $20 per week for each of the first two dependents of the defendant and $10 per week for each additional dependent.
3. The defendant owns cash in excess of $500.
(c) The court shall also consider the following additional circumstances in determining whether a defendant is indigent:
1. The probable expense and burden of defending the case;
2. The ownership of, or equity in, any intangible or tangible personal property or real property or the expectancy of an interest in any such property by the defendant; and
3. The amount of debts owed by defendant or debts that might be incurred by the defendant because of illness or other misfortunes within his family.

The court, Holmes argues, did not consider his income, whether he had any dependents, whether he had any real property, or whether he had incurred any debts; it considered only the $500 Holmes believed he had in savings. We agree with appellant's contention.

An indigent probationer is entitled to counsel at a hearing on revocation of probation. Young v. State, 399 So.2d 1082 (Fla. 1st DCA 1981). The determination of nonindigency of a defendant prior to denying him appointment of counsel must be made on as complete a financial picture as possible. Enrique v. State, 408 So.2d 635, 638 (Fla. 3d DCA 1981). The court’s inquiry, limited to the single question, “How much savings do you have?”, fell far short of satisfying the guidelines for determining indigency found in section 27.52(2), Florida Statutes (1981). The record shows that the court failed to consider factors mandated by that section: Holmes’ gross income, whether he had family dependents, the probable cost of defending the case, his possible ownership in property, and the amount of debts he might have outstanding. The record also reflects that immediately after the court adjudged Holmes solvent for purposes of the revocation hearing, discharged the public defender as his counsel for that proceeding, and ordered his probation revoked, the court then adjudged Holmes insolvent for “the purpose of appealing this cause,” and appointed the same public defender to represent him in this appeal.

The obvious purpose of the statute is to effectuate the constitutional right to counsel. The cursory inquiry into Holmes’ financial picture failed to comply with section 27.52, Florida Statutes (1981), and thus failed to protect that right. Holmes is entitled to a new revocation hearing at which he can be represented by counsel. Whether such counsel shall be selected and reimbursed by Holmes or appointed by the court to serve at public expense shall be determined after a proper insolvency hearing conducted in accordance with the statute.

We need not comment on the evidence adduced to support the revocation. Although facially sufficient, it may well appear that revocation of probation does not necessarily serve the public interest and is not necessarily warranted if evidence of defenses and mitigating circumstances are properly presented by a competent attorney representing Holmes.

The order of revocation is reversed, the sentence is vacated, and the ease is remanded.

REVERSED and REMANDED.

MILLS and SHIVERS, JJ., concur.

ON MOTION FOR REHEARING OR CLARIFICATION

ZEHMER, Judge.

The state has moved for rehearing or clarification of our opinion on the ground that our reliance on Young v. State, 399 So.2d 1082 (Fla. 1st DCA 1981), for the proposition that appellant Holmes was entitled to counsel at the hearing on revocation of his probation is inconsistent with the recent decision of this court in Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA 1984) [9 FLW 575]. For the following reasons, we do not perceive any inconsistency between the two decisions.

In Sanderson v. State, supra, we stated that Young v. State should not be read as mandating the appointment of counsel at every probation revocation proceeding. Citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), we described the limits on the probationer’s constitutional right to counsel at such proceedings in the following language:

The Supreme Court in Gagnon stated that an indigent’s need for appointed counsel in probation revocation proceedings should be made on a case-by-case

basis. Certain factors guiding that determination are gleaned from the Gag-non opinion:

‘Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.’

411 U.S. 790, 93 S.Ct. at 1763.

447 So.2d 374, 9 FLW at 576. We noted in Sanderson that the petitioner had not requested appointment of counsel and been refused, but in fact had initiated a request to represent himself.

Some discussion of the rationale underlying the Supreme Court’s decision in Gag-non is appropriate for a fuller understanding of the reasons for our conclusion that Holmes was entitled to counsel at his probation revocation hearing. Justice Powell’s opinion in Gagnon characterizes the usual probation revocation proceeding as quasi-judicial in nature and observes that in many cases there is no need for counsel because the probationer has been convicted of committing another crime or admitted the charges, or evidence of mitigating circumstances explaining the violation is either unavailable or so simple as not to require investigation or exposition by counsel. Continuing, the court states:

The introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding. If counsel is provided for the probationer or parolee, the state in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients’ positions and to contest with vigor all adverse evidence and views. The role of the hearing body itself, aptly described in Morrissey as being ‘predictive and discretionary’ as well as fact-finding, may become more akin to that of a judge at a trial, and less attuned to the rehabilitative needs of the individual probationer or parolee. In the greater self-conciousness of its quasi-judicial role, the hearing body may be less tolerant of marginal deviant behavior and feel more pressure to reincarcerate rather than to continue nonpunitive rehabilitation.

411 U.S. at 787-88, 93 S.Ct. at 1762, 36 L.Ed.2d at 665.

Noting the substantial difference between a criminal trial and an ordinary probation revocation hearing, the Supreme Court elects to forego an arbitrary requirement that the state provide counsel for the probationer in every instance, preferring instead a ease-by-case approach to determining such need. Having characterized the purpose of probation as a means by which individuals may expeditiously be reintegrated into society as constructive persons, and having characterized the duty and attitude of a probation officer as principally concerned with the welfare of and reintegration into society of his client, as opposed to forceful conformance to a strict code of behavior, the court further observes:

In a revocation hearing ... the State is represented, not by a prosecutor, but by a parole officer with the orientation described above; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole. The need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular eases.
Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.

411 U.S. at 789-90, 93 S.Ct. 'at 1763, 36 L.Ed.2d at 665-66.

After stating the presumptive test we have quoted above, the court’s opinion concludes:

In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.

411 U.S. at 790-91, 93 S.Ct. at 1763-64, 36 L.Ed.2d at 666-67.

Holmes, unlike appellant in Sanderson, specifically requested that court-appointed counsel represent him in the probation revocation proceeding. The trial court denied that request upon the finding that Holmes was not indigent. No other ground for refusing counsel was stated in the record. The revocation charges were tried before the judge in open court, with the prosecuting attorney presenting testimony from four witnesses to support the charges. Nothing in the record shows that Holmes appeared to be capable of speaking effectively for himself, especially in this trial-like adversarial proceeding. On the contrary, Holmes, a construction worker with no apparent legal training, attempted to cross-examine the state’s witnesses on several occasions in a woefully inadequate manner. The record also indicates that Holmes professed in a rather inartful way to have a reasonable basis for contesting the alleged violations and for justifying or mitigating the same so as to make revocation of probation inappropriate. We pointed out at the end of our original opinion that such matters might well have altered the result if properly presented by competent counsel.

As clarified herein, we adhere to our original opinion and deny the motion for rehearing.

MILLS and SHIVERS, JJ., concur.