author: RYDER, Acting Chief Judge.

text:
    GULF SOLAR, INC. and James Bax, Appellants/Cross Appellees, v. Norman WESTFALL, Appellee/Cross Appellant.
    No. 83-84.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.

      Edward M. Chew of de la Parte & Gilbert, P.A., Tampa, for appellants/cross ap-pellees.
    Eddy R. Resnick of Gold & Resnick, P.A., Tampa, for appellee/cross appellant.
   RYDER, Acting Chief Judge.

Gulf Solar, Inc. and James Bax appeal from a final judgment, following a nonjury trial, awarding damages to Norman West-fall. The trial court found that the appellants had entered into a valid and enforceable agreement for the employment of Westfall. Westfall cross-appeals the trial court’s decision not to award to him attorney’s fees and prejudgment interest. We find no error on the points raised by appellants, but hold that the trial court erred in not awarding attorney’s fees to Westfall.

In September 1981, Westfall met with Bax, president of Gulf Solar. Westfall and Bax discussed a managerial position which was available at Gulf Solar. Compensation was one topic of discussion. Westfall testified that the compensation was to be $500.00 per week, plus an override of 2½ or 3%. The override is computed as commission on sales made by employees who are supervised by the sales manager. Bax testified he had told Westfall that $500.00 is approximately 2½ or 3% of retail sales, “[s]o let’s go on that basis, $500.00 a week.”

Westfall began working for Gulf Solar as sales manager on October 5, 1981. On a weekly basis, he received a company check in the amount of $500.00. Westfall stated that the override would be paid based on an accounting of orders installed and paid for during the prior month. Hence, on November 18, 1981, Westfall prepared an accounting which set forth an override of $1,255.83. This amount was based upon 3% of sales.

Bax testified he first realized that West-fall was claiming the override in addition to the weekly salary when Westfall presented the accounting report. Bax stated he discussed the apparent misunderstanding with Westfall. Bax testified that the agreed amount of compensation was solely $500.00 per week, but he paid the override “in an attempt to be fair, not because I owed it to him.” Bax further told Westfall that if Westfall did not soon prepare a sales plan, Westfall would be fired.

By early December 1981, Westfall had not presented the sales plan to Bax. West-fall’s employment was terminated.

Thereafter, Westfall prepared and submitted to Bax an accounting of sales made in November and December, up until the time Westfall left Gulf Solar. Westfall figured the override at 2½% of sales. He stated he did not req.uest 3% in order to avoid “hard feelings.”

In February 1982, after the override for November and December was not paid, Westfall initiated legal proceedings. Gulf Solar filed a motion to dismiss the action asserting that the statute of frauds barred the enforcement of an oral employment contract. Following denial of the motion, Gulf Solar filed an answer and the affirmative defenses of payment, breach of contract by Westfall, and the statute of frauds.

Subsequently, Gulf Solar filed a motion for summary judgment asserting that the statute of frauds entitled Gulf Solar to judgment as a matter of law. Part of the deposition of Westfall was presented to the court. Therein, Westfall was asked whether he intended his employment with Gulf Solar to go on for more than a year. West-fall responded in the affirmative. Later, Westfall filed an affidavit asserting that his services with Gulf Solar were capable of being performed within one year and, in fact, were so performed.

After the trial court denied the motion for summary judgment, the case proceeded to a nonjury trial. The statute of frauds was again argued by Gulf Solar as a defense.

The trial court found that there was an agreement to pay a commission, and entered judgment in favor of Westfall and against Gulf Solar for $6,171.45, plus $79.00 costs. The court denied Westfall’s requests for prejudgment interest and attorney’s fees. Concerning the latter, the court held that “commissions are not wages.” Westfall was to take nothing from Bax under another count which is not raised in this appeal. Notices of appeal and cross-appeal were timely filed.

The appellants have raised two points in their appeal. First, whether it was error for the trial court to deny the appellants’ motion for summary judgment; and second, whether the trial court properly found that the parties had a binding contract.

The arguments presented have failed to persuade us that the trial court committed reversible error on these points. Simply put, the -parties had a valid oral contract for employment. Although there was a question as to the exact percentage of sales which would constitute Westfall’s commission, there was no essential element missing from the agreement. That being the situation, the employment contract will not fail to bind the parties despite appellants’ protestations to the contrary. The trial court properly could and did resolve the compensation question. See Robinson v. Pinsker, 303 So.2d 706 (Fla. 3d DCA 1974); Holm v. Woodworth, 271 So.2d 167 (Fla. 4th DCA 1972).

Concerning the denial of appellants’ motion for summary judgment, the trial court acted properly as, under the situation presented here, the statute of frauds is not a bar to Westfall’s suit. Section 725.01, Florida Statutes (1981), provides in pertinent part:

No action shall be brought whereby ... to charge any person ... upon any agreement that is not to be performed within the space of one year from the making thereof, ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.

The appellants have argued that if from the object to be accomplished and the surrounding circumstances it clearly appears that the parties intended for performance to extend beyond one year, enforcement of the agreement is barred by the statute of frauds. Yates v. Ball, 132 Fla. 132, 181 So. 341 (1938), is cited as authority.

Appellee Westfall stated in deposition that it was his intention for the employment relationship with Gulf Solar to continue for more than one year. In affidavit, he stated that his services were capable of being performed and were performed within the space of one year. These statements form the basis of Westfall’s argument.

The trial court accurately stated that “all employees are hired probably indefinitely as long as they do the job. They go on forever, maybe twenty years, but that does not take it out of (sic) the statute of frauds.” The court then denied the motion for summary judgment.

No error was committed by the denial of the motion for summary judgment. While the parties may have expected Westfall to remain with Gulf Solar for some unknown period of time, Gulf Solar had no obligation to retain Westfall’s services and Westfall had no obligation to remain in Gulf Solar’s employment for any definite time period. Apparently, Westfall would be retained by Gulf Solar for as long as his performance merited his retention in the view of Gulf Solar.

The record reflects that Westfall’s termination was based upon his failure to timely prepare a sales plan. That plan was to be prepared by Westfall within some sixty days of his employment with Gulf Solar. There is nothing in the record which allows the conclusion that Westfall was hired for some particular task which required for its performance a period of time in excess of one year. While Westfall might have remained with Gulf Solar for an unknown time period less than, greater than, or equal to one year, there has been no showing that he could not have performed his duties completely within one year of his hiring. Although Westfall did not promptly prepare a sales plan as ordered, it is clear that he should have been able to do so within one year. In fact, it was expected that he would do so since his failure to prepare the plan within two months prompted his termination.

The oral agreement involved in this case is not barred by the statute of frauds. See Yates v. Ball, supra. See also Hiatt v. Vaughn, 430 So.2d 597 (Fla. 4th DCA 1983); Venditti-Siravo, Inc. v. City of Hollywood, Florida, 418 So.2d 1251 (Fla. 4th DCA 1982); Gerry v. Antonio, 409 So.2d 1181 (Fla. 4th DCA 1982); Monogram Products, Inc. v. Berkowitz, 392 So.2d 1353 (Fla. 2d DCA 1980); W.B.D., Inc. v. Howard Johnson Co., 382 So.2d 1323 (Fla. 1st DCA), petition for review denied, 388 So.2d 1114 (Fla.1980). We, therefore, affirm the decision below as to the issues raised by the appellants.

Westfall has raised two issues in the cross-appeal. We find no error in the trial court’s decision not to award prejudgment interest to Westfall. Federal Deposit Insurance Corp. v. Carre, 436 So.2d 227 (Fla. 2d DCA 1983); Town of Longboat Key v. Carl E. Widell & Son, 362 So.2d 719 (Fla. 2d DCA 1978). The cases cited to us by Westfall are not applicable to the present situation.

The remaining point raised in the cross-appeal concerns the trial court’s failure to award attorney’s fees to Westfall. Westfall sought attorney’s fees pursuant to section 448.08, Florida Statutes (1981), which provides: “The court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney’s fee.” The trial court denied attorney’s fees “on the basis the commissions are not wages.”

There appear to be only two Florida cases which discuss section 448.08. They are Doyal v. School Board of Liberty County, 415 So.2d 791 (Fla. 1st DCA 1982) and Metropolitan Dade County v. Stein, 384 So.2d 167 (Fla. 3d DCA 1980). Neither case is relevant to the case sub judice, and neither offers a definition of “wages.”

Westfall refers us to section 440.02(12), Florida Statutes (1981), and section 443.-036(31)(a), Florida Statutes (1981). Each section offers a definition of “wages”, but neither is controlling in the present case; the former is part of the worker’s compensation chapter and the latter is part of the unemployment compensation chapter of the Florida Statutes. Nevertheless, the definition given in section 443.036(31)(a) is helpful. The term “wages” is defined as “all remuneration for employment, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash.”

We also note the definition of “wages” given in Black's Law Dictionary 1416 (5th ed. 1979):

A compensation given to a hired person for his or her services. Compensation of employees based on time worked or output of production.
Every form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, dismissal wages, bonuses and reasonable value of board, rent, housing, lodging, payments in kind, tips, and any other similar advantage received from the individual’s employer or directly with respect to work for him .... Term should be broadly defined and includes not only periodic monetary earnings but all compensation for services rendered without regard to manner in which such compensation is computed, (citations omitted)

.The parties cite cases from various jurisdictions in support of their respective positions on this issue. See Affetto v. TRW, Inc., 691 F.2d 357 (7th Cir.1982); Crepeau v. Renewal Guaranty Corp., 29 Colo.App. 23, 478 P.2d 698 (1970); Hekker v. Sabre Construction Co., 262 Or. 552, 510 P.2d 347 (1973).

The definitions given in section 443.-036(31)(a) and in Black’s Law Dictionary seem to us to be the logical ones to utilize in construing whether commissions are wages as that word is used in section 448.-08. We disagree with the trial court and hold that the commissions (or override) which the trial court found owing by appellants to Westfall are wages within the meaning of section 448.08. This action, initiated by Westfall, is an action for the recovery of unpaid wages; therefore, the trial court may award to Westfall attorney’s fees pursuant to section 448.08. We thus remand this case to the trial court for the determination of the amount of attorney’s fees to be awarded Westfall.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

DANAHY and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: JOANOS, Judge.

license: Public Domain

text:
    BRICE SOUTHERN, INC. and American International Insurance Company, Appellants, v. Richard CANCINO, and Division of Workers’ Compensation, Appellees.
    No. AS-302.
    District Court of Appeal of Florida, First District.
    March 13, 1984.
    Donald D. Gillis of Underwood, Gillis, Karcher & Valle, P.A., Miami, for appellants.
    No appearance for appellees.
   JOANOS, Judge.

The employer/carrier (E/C) appeal from a workers’ compensation order in which the deputy commissioner awarded temporary partial disability (TPD) benefits, found the claimant, Richard Cancino (Cancino) to have a 10% permanent physical impairment, determined Cancino had conducted a good faith work search, with no self-limitation of income, ordered the payment of the authorized doctors and hospital bills, and imposed statutory interest on all benefits.

The evidence presented to the deputy commissioner at the hearings held below included the following. Cancino was injured on July 1, 1980 while performing his welding job at Brice Southern, Inc. (Brice) when he fell, striking his knee. E/C accepted the accident as compensable, paying temporary total disability benefits from July 24, 1980 to August 9, 1981. Following three operations and a program of therapy, Dr. Barry, orthopedist, released Cancino to work on August 10, 1981, with no limitations on his activities. Cancino testified that he sought light work.with Brice, but was told they had no work for him. Brice’s vice-president testified that Cancino’s former job was presently filled. There was no evidence that the job was open when Canci-no tried to return to work and Brice’s vice-president could not refute Cancino’s testimony that he had tried to return. Cancino sought work at Seven-Eleven, but no job was available. He found a stock clerk’s job at Food Spot on August 17, 1981. Finding the sixty-plus hours at Food Spot too long, Cancino left after three weeks, going to work for Seven-Eleven where he continued to work at the time of hearing. He had not attempted to return to welding work due to his loss of strength.

Cancino was examined by Dr. Holmes, an orthopedist, in March, 1981, who found that Cancino at that time could perform his duties at Brice. Dr. Holmes had no knowledge of Cancino’s condition after that examination. Dr. Barry saw Cancino on September 16, 1981, finding he had reached maximum medical improvement with a 10% disability based upon weakness in his leg. Dr. Barry felt that a proper exercise program would correct the weakness in Canci-no’s leg, but that Cancino would not commit himself to a program, precluding any further improvement.

When Cancino was released to work with no limitations on his activities, he was obligated to search for work. He did, securing a job with Food Spot. Cancino’s conscientous work search following his release to work would entitle him to TPD benefits. Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982). However, Cancino would not be entitled to TPD benefits after August 17, 1981, the date he began working at Food Spot, as his acceptance of a lower-paying job, not commensurate with his abilities, was not shown to be a result of his injury as required by section 440.15(4)(b).

There is no competent substantial evidence upon which the deputy commissioner could find a permanent impairment based upon the AMA Guides or any other lawful basis. Dr. Barry testified that Can-cino had a 10% disability due to muscle weakness, but that proper exercise would correct the problem. Dr. Holmes testified that Cancino had no limitations. There is no evidence of the existence, much less degree, of a permanent physical impairment.

Our determination of no permanent physical impairment precludes the award of wage loss benefits after Cancino reached maximum medical improvement.

There is competent substantial evidence that Cancino conducted a good faith work search, leading to his employment with Food Spot.

The deputy commissioner improperly adjudicated the payment of authorized medical bills as their payment was not in controversy. Sperry Remington Office Machines v. Stelling, 383 So.2d 1150 (Fla. 1st DCA 1980).

Accordingly, the deputy commissioner’s order is REVERSED, except as to the award of TPD from the date Cancino was released to work to August 17, 1981, and REMANDED for determination of the appropriate statutory interest on the TPD benefits awarded.

SHIVERS and THOMPSON, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Susie O’QUINN, Appellant, v. SEIBELS, BRUCE & COMPANY, a South Carolina corporation, Appellee.
    No. AT-328.
    District Court of Appeal of Florida, First District.
    March 13, 1984.
    Robert J. Denson of Stripling & Denson, P.A., Gainesville, for appellant.
    William T. Stone of Cowles, Coker, Myers, Schickel & Pierce, Jacksonville, for appellee.
   ERVIN, Chief Judge.

Appellant, O’Quinn, appeals a final summary judgment entered in favor of appel-lee, Seibels, Bruce & Company (Seibels), in an action for personal injury protection benefits filed against the insurer of the driver of an automobile in which appellant was a passenger at the time of her accidental injuries, contending summary judgment was improvidently granted where genuine issues of material fact remain in dispute. We agree and reverse.

The facts, considered as they must be in the light most favorable to O’Quinn, the non-moving party, see Megdell v. Wieder, 327 So.2d 781 (Fla. 3d DCA 1976), show that following the accident in February of 1981, O’Quinn was treated and released at St. Luke’s Hospital in Jacksonville. Emergency room records reflect that she suffered tenderness of the neck “in all directions.” (e.s.) When seen by Dr. Dyer in March of 1981, she complained of continuous neck pain in the right side of her neck. O’Quinn failed to return to Dr. Dyer for treatment until June of 1982 at which time she related symptoms of pain in her left neck and shoulder. Seibels, which paid personal injury protection benefits to O’Quinn in 1981 for injuries sustained in the accident, refused to pay for the later medical treatment, contending that O’Quinn’s complaints were unconnected with the accident. O’Quinn then filed a complaint seeking benefits under the insur-anee policy, and Seibels sought summary judgment on her claim. In support thereof, Seibels deposed Dr. Dyer who stated that on her first visit in March of 1981, O’Quinn reported “an aching pain at the base of the neck primarily on the right side.” Because her first complaint of pain in her left neck and shoulder occurred some fifteen months later, Dr. Dyer opined it was very unlikely that the later complaints were causally related to the accident of February, 1981.

In opposition to summary judgment, O’Quinn offered two affidavits, the first stating that she had experienced generalized neck and shoulder pain following the accident, including pain on the left side of her neck and shoulder. The second, that of a registered nurse and certified emergency medical technician, recited that the nurse had reviewed the emergency room records and, based on her experience in deciphering and interpreting hospital and physician’s reports, she opined that the report of neck tenderness in all directions supported O’Quinn’s claim that she had experienced left side pain following the accident in 1981. On that record the trial court granted Seibel’s motion for summary judgment.

In considering a motion for summary judgment, it is axiomatic that “every reasonable inference must be drawn in favor of the party against whom the motion is made.” Manucy v. Manucy, 362 So.2d 478, 479 (Fla. 1st DCA 1978). “Where the evidence before the trial court is susceptible of more than one inference, one of which will support the plaintiffs view of the facts, a summary judgment for the defendant should not be entered.” Burkett v. Parker, 410 So.2d 947, 948 (Fla. 1st DCA 1982). A summary judgment is appropriate only when “the facts are so crystallized that nothing remains but questions of law” and there is not the “slightest doubt” as to any issue of material fact. Harris v. Lewis State Bank, 436 So.2d 338, 340 (Fla. 1st DCA 1983). Here, a clear and material factual dispute remains as to whether O’Quinn suffered both right and left side neck pain following the accident of February 1981. Because summary judgment was therefore premature the judgment is

REVERSED.

BOOTH and ZEHMER, JJ., concur.

      . Appellant would appear to be an "omnibus insured" under the terms of the policy in that the policy agrees to pay personal injury protection benefits to any person occupying the insured vehicle who sustains accidental injury while within the vehicle. See Tracey v. Florida Insurance Guaranty Ass'n., 427 So.2d 194 (Fla.1983); Vaughan v. Progressive American Insurance Co., 435 So.2d 889 (Fla. 1st DCA 1983).

      . Seibels contends, for various reasons, that the affidavits submitted by O’Quinn were inadmissible, and therefore improperly considered by the trial court. As with other evidentiary matters, the admission and consideration of affidavits is a matter within the sound discretion of the trial court, and no error may be predicated on such admission absent a timely objection or motion to strike. See Section 90.104(l)(a), Florida Statutes. The failure to object contemporaneously to such admission constitutes "a waiver of the right to appellate review of the issue.” DeLuca v. State, 384 So.2d 212, 213 (Fla. 4th DCA 1980). Because the record in this case fails to show that Seibels made any attempt to strike the affidavits or to object to their admission and consideration, we decline to consider the propriety of their admissions.

      .During Dr. Dyer’s deposition he was asked whether O’Quinn had ever related a history of a work-related accident in August of 1981 in which she allegedly lifted a container of syrup and experienced additional left shoulder and neck pain for which she sought treatment from her family doctor on three or four occasions. Dr. Dyer responded that he specifically asked her if she had sustained any other injury or sought other treatment during the time between her first visit in March of 1981 and June of 1982, and that O'Quinn denied any such injury or treatment. Dr. Dyer was then asked to assume that such events had occurred and he replied that, given that assumption, the left side pain was caused by the work-related accident and not by the automobile accident. The difficulty with such assumption is that, other than unsubstantiated references by the attorneys during deposition to a prior statement given by O’Quinn, there is nothing in the record supporting the assumption and therefore it cannot serve as a basis for summary judgment.


text:
    R.J. NICOLLI PAINTING CO., INC., and CNA Insurance Group, Appellants, v. Edward POTTS, Appellee.
    No. AU-21.
    District Court of Appeal of Florida, First District.
    March 13, 1984.
    Bernard J. Zimmerman of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellants.
    W. Gregory Lockeby of Walker, Buck-master, Miller & Ketcham, Orlando, for appellee.
   JOANOS, Judge.

In this appeal from a workers’ compensation order, appellants argue that they should not be required to pay wage loss benefits when claimant restricts his work search to union jobs only. We agree and reverse the deputy commissioner’s order.

Claimant’s restriction of his work search to union jobs only precludes an award of wage loss benefits, as an award of compensation requires a claimant to show that he has tested his employability in the open labor market after reaching maximum medical improvement. Exxon Co. v. Alexis, 370 So.2d 1128, 1132 (Fla.1978). We are not persuaded by claimant’s argument that the limited work search be excused due to union threats of fines for acceptance of non-union jobs. Any infringement of claimant’s rights resulted from union action and claimant’s acceptance of its policy in refusing non-union employment commensurate with his abilities. Griffin v. Parrish Construction & Door Service, 409 So.2d 62 (Fla. 1st DCA 1982).

Accordingly, the deputy commissioner’s order is REVERSED.

SHIVERS and THOMPSON, JJ., concur.


author: PER CURIAM.

text:
    William HOGGARD, Appellant, v. STATE of Florida, Appellee.
    No. AU-144.
    District Court of Appeal of Florida, First District.
    March 13, 1984.
    William Stanley Hoggard, pro se, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We have reviewed the record and defendant’s brief in this case which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

MILLS, WENTWORTH and BAR-FIELD, JJ., concur.


author: SHIVERS, Judge.

text:
    SAM BLOOM PLUMBERS, INC., and Old Republic Insurance Company, Appellants, v. Solomon KNAPPER and Division of Workers’ Compensation, Appellees.
    No. AU-338.
    District Court of Appeal of Florida, First District.
    March 13, 1984.
    John F. McMath, Miami, for appellants.

      Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal, Susskind, Bloom & De Castro, Miami, for appellees.
   SHIVERS, Judge.

The employer/carrier appeal the deputy commissioner’s order awarding claimant wage-loss benefits for the period from July 28, 1982, through March 4, 1983. We affirm the award of wage-loss benefits from July 28, 1982, through the end of November of 1982, but reverse the award of wage-loss benefits as to the other months.

Claimant, a union plumber, injured his lower back and hand in a compensable accident on January 23, 1981. After his accident, claimant continued to perform light plumbing work for union employers until January of 1982. The employer/carrier thereafter voluntarily paid claimant temporary total disability benefits from January 28, 1982, through July 23,1982. As of July 28, 1982, claimant’s treating physician determined that claimant had reached maximum medical improvement. Subsequently, claimant filed requests for wage-loss benefits for the months of August through November of 1982. Attached to these requests were job search lists showing that claimant had contacted the Florida State Employment Service, rehabilitation personnel, the union, and several businesses in an effort to obtain employment. The employer/carrier controverted claimant’s request for wage-loss benefits on the basis that claimant’s job search lists did not demonstrate an adequate work search.

Hearings were held on claimant’s claim for wage-loss benefits, among other matters, on December 27, 1982, February 21, 1983, and March 4, 1983. At the first such hearing, the requests for wage-loss benefits for the months of August through November of 1982 were introduced into evidence. Claimant testified that the job search lists attached to these requests constituted all the places that claimant looked for work during the months of August through November. However, claimant did not testify, nor was any evidence introduced, as to claimant’s efforts to obtain employment in December. At the next hearing held on February 21, 1983, claimant testified that he had not gone to work at all since the last hearing and, in connection with a job search, that he had called up the union and they had nothing. At the final hearing held on March 4, 1983, no testimony or other evidence was introduced as to claimant’s job search. Based on the foregoing, the deputy commissioner awarded wage-loss benefits from July 28, 1982, through March 4, 1983.

We find and hold that there is competent, substantial evidence in the record to support the award of wage-loss benefits for the period July 28, 1982, through the end of November 1982. However, we find that claimant’s testimony at the February 21, 1983, hearing that he had contacted the union and they had nothing does not support an award of wage-loss benefits for the period of December through the date of the last hearing on March 4, 1983. See, e.g., Paul Lawhon Plumbing Company v. Cave, 427 So.2d 1093 (Fla. 1st DCA 1983); Griffin v. Parrish Const & Door Service, 409 So.2d 62 (Fla. 1st DCA 1982). Accordingly, the award of wage-loss benefits for the period December 1, 1982, through March 4, 1983, is reversed.

AFFIRMED in part, REVERSED in part.

JOANOS and THOMPSON, JJ., concur.


text:
    Heinz R. WEISS, Appellant, v. GARCIA & ORTIZ, P.A. and Ohio Casualty Insurance, Appellees.
    No. AU-478.
    District Court of Appeal of Florida, First District.
    March 13, 1984.

      Mary Ann Stiles of Stiles and Allen, P.A., Tampa, for appellant.
    Charles A. Zinn of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appel-lees.
   PER CURIAM.

AFFIRMED. See Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983).

SHIVERS, JOANOS and THOMPSON, JJ., concur.


author: NIMMONS, Judge.

text:
    Martin K. SANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. AV-248.
    District Court of Appeal of Florida, First District.
    March 13, 1984.
    Rehearing Denied April 4, 1984.
    Michael Allen, Public Defender; and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Sanderson appeals both the order revoking his probation and the sentence for burglary, the offense for which he had been placed on probation. Appellant, who was not represented by counsel in the revocation and sentencing proceedings, claims that he had a right to appointed counsel at such proceedings and that his purported waiver of counsel was insufficient. We affirm as to the revocation phase of the proceedings but reverse as to the sentencing phase.

In January, 1983, appellant was adjudged guilty of burglary of a conveyance and placed on probation for a period of one year. In June, 1983, after having been charged with a violation of probation, appellant’s probation was extended by an additional year and he was ordered to pay court costs.

On July 25,1983, another probation violation affidavit was filed charging appellant with having moved to Atlanta, Georgia, without obtaining permission from his probation officer in violation of the condition of the probation order prohibiting such action without express authorization.

Appellant appeared before the trial court on August 18, 1983, and was served with a copy of the affidavit which set forth the specifics of the alleged violation. In response to the court’s inquiry as to whether appellant wished to employ an attorney, appellant replied in the affirmative. The court then scheduled the case for September 8 and advised the appellant to have his attorney contact the court as soon as appellant had employed one.

On September 8, 1983, appellant’s case was called, and the following colloquy occurred:

THE COURT: Mr. Sanderson, you are before the Court today, the Court having instructed you to obtain the services of an attorney to represent you in this violation of probation.
Have you talked to an attorney?
THE DEFENDANT: No, sir. Is it possible for me to represent myself?
THE COURT: Yes, sir; certainly. I will ask you to sign a Waiver of Counsel.
(Defendant signing)

There was no dialogue between the court and appellant regarding his right to counsel. The form which the court requested appellant to sign appears in the record and is set forth as follows:

I,the undersigned, hereby state that the following facts are true:
1. I have been advised of my Constitutional right to be represented by an attorney;
2. I have been advised that if I am unable to employ an attorney that the Court will appoint an attorney to represent me in this case.
3. I understand the charge involving me in this case and that it could result in a fine or commitment to jail, or both, if I am found guilty.
4. No one representing the Court has offered me any promise or favor or reward, and I have not been in any manner threatened or made afraid.
5. I have read this paper and I understand its contents.
6. Of my own free will I do hereby waive any right to an attorney and elect to proceed without benefit of an attorney during the proceedings in Nassau County Circuit Court.

The form bears the signatures of appellant and a deputy clerk.

After the appellant acknowledged having previously received a copy of the violation affidavit, the court inquired as to whether he wished to plead guilty or not guilty. The appellant pled guilty. The court then invited appellant to present any mitigating statements and evidence which the appellant wished the court to hear. The appellant informed the court that his Atlanta employer was present to speak on his behalf. The court heard the testimony of the employer, a former high school classmate of appellant, who stated that the appellant, if allowed to remain on probation, could continue to work at his paint and body shop. The employer said that he had recently encountered appellant in Jacksonville and offered appellant a job and that appellant accepted and has been living with him in Georgia for a month. Appellant did not inform him that he was on probation.

As to the reason for appellant’s failure to contact the probation officer before leaving the state, appellant explained that the job was offered late on a Friday night, that he did not have time to call his probation officer and that he had to get a job to pay the court costs previously ordered by the court. The court then revoked the appellant’s probation and imposed a one-year sentence.

If the appellant were entitled to appointed counsel at his revocation hearing, we would be constrained to reverse the order revoking probation because of the insufficiency of the trial court’s inquiry regarding self-representation. The criteria necessary to a finding of a proper waiver of counsel are clearly absent in this case. See Swift v. State, 440 So.2d 655 (Fla. 2nd DCA 1983); Tucker v. State, 440 So.2d 60 (Fla. 1st DCA 1983); Keene v. State, 420 So.2d 908 (Fla. 1st DCA 1982), rev. denied 430 So.2d 452 (Fla.1983); Williams v. State, 427 So.2d 768 (Fla. 2nd DCA 1983); Smith v. State, 444 So.2d 542 (Fla. 1st DCA 1984); Fla.R.Cr.P. 3.111(d). However, we find that Sanderson was not entitled to appointed counsel at the revocation hearing.

Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), held that a defendant does not have a constitutional right to appointed counsel at a probation revocation proceeding absent special circumstances which require the appointment of counsel as a matter of fundamental fairness. Accord Grandin v. State, 421 So.2d 803 (Fla. 3rd DCA 1982); Woodard v. State, 351 So.2d 1096 (Fla. 3rd DCA 1977); but see Van Cleaf v. State, 328 So.2d 568 (Fla. 2nd DCA 1976); Swift v. State, supra; Smith v. State, 427 So.2d 773 (Fla. 2nd DCA 1983); Gargan v. State, 217 So.2d 578 (Fla. 4th DCA 1969).

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 Gagnon 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. at 790, 93 S.Ct. at 1763.

The case at bar is not one in which the probationer requested and was refused appointed counsel. In fact, Sanderson initiated the request to represent himself. Also, he readily admitted leaving the state without permission. Indeed, the only testimony that he was interested in offering was that of his Georgia employer as summarized above. The charge alleged in the affidavit was about as simple and straightforward a probation violation charge as there could be. If it is possible to have, a probation revocation case in which the defendant does not have the right to appointed counsel — and Gagnon teaches that it is possible — then the instant case is an obvious candidate.

We do not believe that this court’s previous opinion in Young v. State, 399 So.2d 1082 (Fla. 1st DCA 1981), requires a different result. Although the court stated that “an indigent probationer is entitled to counsel at a hearing on revocation of probation,” the circumstances there were significantly different. In Young, the defendant appealed from an order which denied his Rule 3.850 motion without hearing and which failed to attach any portion of the lower court record. The defendant’s motion alleged that he had been charged with a violation of probation by reason of his failure to make restitution to the victim and to pay the monthly cost of supervision; that he was indigent and without funds to make the payments; that although the court appointed the public defender to represent him at the revocation proceeding, the public defender neither contacted him nor appeared at the revocation hearing; and that the court made no finding as to his ability to make the required payments. Understandably, this court reversed the order denying the motion and remanded the case for hearing or for the entry of a denial order with copies of portions of the lower court record conclusively showing that the movant was entitled to no relief. The facts involved in Young are patently and materially different from those in the instant case. We are of the view that adoption of a per se rule for appointed counsel in probation revocation proceedings would be inappropriate. And we do not read Young as suggesting otherwise, especially in view of Gagnon.

We realize that the Second District has been reluctant to accord to Gagnon the full import of that decision:

Even though Gagnon tells us that for federal constitutional purposes our Herrington [v. State, 207 So.2d 323 (Fla. 2nd DCA 1968) ] construction of the language of Mempa v. Rhay was stricter than necessary, we are unwilling to recede from Herrington because we believe that counsel should be appointed to represent an indigent probationer faced with revocation proceedings.

Van Cleaf v. State, supra, 328. So.2d at 569. We are not so reluctant to embrace Gagnon and its rationale.

We, therefore, hold that the trial court’s probation revocation order need not be set aside. However, we reach a different conclusion with respect to.the lower court’s action in proceeding to sentence the defendant absent counsel or a sufficient waiver of counsel. As the Third District stated in Woodard v. State, supra:

The decision in [Mempa v. Rhay, 389 U.S. 128, 19 L.Ed.2d 336, 88 S.Ct. 254 (1967) ] mandates the presence of counsel at sentencing, whether or not this occurs at the same time as revocation of probation. Thus the sentencing procedure was constitutionally defective and must be reversed.

351 So.2d at 1098. Even if the trial court had, at the commencement of the probation revocation proceedings, conducted a self-representation inquiry of the kind mandated by the authorities as mentioned earlier herein, the court would have still been required to renew the offer of counsel for the sentencing phase of the proceedings. Fla. R.Cr.P. 3.111(d)(5); Woodard v. State, supra; Tucker v. State, supra; Baranko v. State, 406 So.2d 1271 (Fla. 1st DCA 1981); Billions v. State, 399 So.2d 1086 (Fla. 1st DCA 1981).

The order revoking appellant’s probation is Affirmed. However, the sentence is vacated, and this cause is remanded for further proceedings consistent with this opinion.

SMITH and WIGGINTON, JJ., concur.


author: HENDRY, Judge.

text:
    Herman EIG, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 83-54.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.

      K. Neil Glassford, South Miami, for appellant.
    Thomas, Kraft & Raab and Theodore M. Kraft, Miami, for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appellant Herman Eig, president of The Travel Counselor, Inc., appeals from a final judgment of the trial court finding him personally liable for the costs of indemnifying appellee insurance company which had to pay on a surety bond issued in the name of The Travel Counselor, Inc. when the corporation defaulted on payments for airline tickets. We reverse.

The undisputed facts are that Mr. Eig left Miami for an extended period of time to travel to New York to be with his daughter’s family during his son-in-law’s fatal illness. He testified that he returned to Miami each month to make certain that his travel agency business was being properly operated in his absence. However, in January and February, 1979, a number of things went wrong. One employee extended large grants of credit which were not repaid. Cash receipts were not properly credited to the corporation’s bank account. Blank tickets for air transportation were removed from the travel agency by persons unknown. As a result, when bills were presented for payment on the issued airline tickets, the corporation did not have sufficient funds to pay the claims. Appellee insurance company paid $10,000, the full amount of the surety bond, as partial reimbursement to the creditors. There is an outstanding judgment against the corporation, now insolvent, for the balance of the money due.

Appellee filed the instant suit against Mr. Eig individually, alleging in its complaint that he had signed a personal indemnification agreement promising to be personally liable on the bond in the event that the corporation defaulted and the surety had to pay. However, appellee has not been able to locate this alleged signed agreement. All appellee has introduced is an earlier personal indemnification agreement signed in 1972 for a surety bond issued to The Travel Counselor as a proprietorship in New York State. Appellee introduced the deposition of an employee who testified, pursuant to section 90.406, Florida Statutes (1981), that appellee’s routine practice was to require that both a corporate and a personal indemnification agreement be signed when a surety bond was issued to a corporation.

Where there is substantial competent evidence to support the findings of the trier of fact, an appellate court cannot disturb those findings. Mann v. Price, 434 So.2d 943 (Fla. 2d DCA 1983). However, if the trial court’s decision is manifestly against the weight of the evidence or is contrary to the legal effect of the evidence, it becomes the duty of the appellate court to reverse such a decision. Hull v. Miami Shores Village, 435 So.2d 868 (Fla. 3d DCA 1983). We find there is no competent substantial evidence to support the trial court’s finding that appellant signed a personal indemnification agreement as a portion of the application for a surety bond to be issued in the name of the corporation. The only testimony on this issue came from appellee’s employee who said that it was the routine practice of the company to require such an agreement. This was deposition testimony; answers were given over the objections of opposing counsel. Thus, the trial court had no opportunity to judge the demeanor of credibility of appellee’s witness. More importantly, the deponent was not employed by appellee at the time appellant applied for the surety bond. No other evidence was introduced to show that in similar cases both a corporate and a personal indemnity were required. While it is no longer necessary that a party claiming routine practice offer evidence that the routine practice was followed in the particular instance at issue, Lumbermens Mutual Casualty Co. v. Alvarez, 443 So.2d 279 (Fla. 3d DCA 1983); section 90.406, Florida Statutes (1981), the party does have to prove by competent evidence what its routine practice is. That is what is lacking here. Appellee’s witness could not say what the routine practice was in 1978 or 1979 because he had not yet started his employment with the company at that time. Therefore, there was no evidentiary basis for the trial court’s ruling that appellant signed a personal indemnity agreement.

As an alternative basis for its ruling, the trial court found that appellant’s negligence in not leaving a responsible person in charge of the travel agency during his absence should make appellant personally liable for the loss. This ruling is clearly erroneous. In AMC/Jeep of Vero Beach, Inc. v. Funston, 403 So.2d 602 (Fla. 4th DCA 1981), the court stated:

In Florida, personal liability can only be imposed upon a corporate officer who has signed a contract in his personal capacity or who has used the corporate entity for fraudulent purposes or where the corporation was merely the alter ego of the shareholders.

Id. at 605. In the case at bar there are no allegations or proof that the corporate form was a mere device or sham to accomplish some ulterior purpose. There are no allegations or proof that the corporation was organized or used to mislead creditors or to perpetuate a fraud upon them or to evade existing personal liability. There are no allegations or proof that the nature of the relationship between appellant and the corporation was so completely personalized that proof of actual fraud is unnecessary in order to hold him personally liable for indemnification of the surety. See Vantage View, Inc. v. Bali East Development Corp., 421 So.2d 728 (Fla. 4th DCA 1982) and cases cited therein. This is not a case involving tortious acts of a corporate officer resulting in personal injuries whereby the law will hold such a corporate officer personally liable for his actions. Orlovsky v. Solid Surf, Inc., 405 So.2d 1363 (Fla. 4th DCA 1981). In short, we conclude that there is no legal basis for “piercing the corporate veil” and the trial court’s ruling to the contrary was erroneous as a matter of law.

Reversed.


text:
    SUNSET ISLANDS NO. 3 AND 4 PROPERTIES OWNERS, INC., Appellant, v. MIAMI BEACH YACHT CLUB and City of Miami Beach, Appellees.
    Nos. 83-967, 83-1182.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied April 17, 1984.
    Lapidus & Stettin and Robert P. Frankel, Miami, for appellant.
    Greenberg, Traurig, Askew, Hoffman, Lipoff & Quentel and Thomas K. Equels, Miami, Lucia Allen Dougherty and Jean Kronheim, Miami Beach, for appellees.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the dismissal of the plaintiff property owners’ association’s amended complaint for declaratory relief, upon a holding that the defendant City of Miami Beach complied with the notice requirements imposed by its city charter and ordinances when it enacted a comprehensive zoning ordinance in 1971 to replace the then-existing comprehensive zoning ordinance. See Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (Fla.1978). The appellant’s contention that repeal and replacement of the ordinance in question required mail notice is erroneous.

The plain and obvious meaning of the repealed zoning ordinance, see Rinker Materials Corp. v. City of North Miami, 286 So.2d 552 (Fla.1973), as the trial court found, is that publication notice is all that is required in enacting a comprehensive zoning ordinance. The mailed notice provision of the repealed ordinance applies only to “site-specific” changes affecting only a limited area of property. Cf. Claremont Taxpayers Association v. City of Claremont, 223 Cal.App.2d 589, 35 Cal.Rptr. 907 (1963) (mailed notice requirements for changes to a limited area of property do not apply to the repeal and replacement of comprehensive zoning ordinance); Wanamaker v. City Council of El Monte, 200 Cal.App.2d 453, 19 Cal.Rptr. 554 (1962) (mailed notice requirement for amendment to zoning ordinance did not apply to enactment of new, complete and comprehensive plan which would affect all property within the city).

The order of the trial court is accordingly affirmed.

      . Section 21 of the repealed City of Miami Beach Ordinance 289 provides:
      Upon its own initiative, or upon the petition of the owners of a majority of frontage in any area, the City Council may after having held a public hearing following at least fifteen (15) days notice of the time, place and object of such hearing published in an official paper, or a place of general circulation in said City of Miami Beach, amend, supplement, change, modify or repeal the regulations and boundaries herein established, provided, however, that no amendment shall become effective except by the favorable vote of five-sevenths (½) of all the members of the City Council. And, provided further, that if the hearing is to be on a question of a change in the boundaries herein established, then such fifteen (15) days notice shall be given by mail to the owners of record of land lying within 375 feet of the land, the boundaries of which propose to be changed.


text:
    Fidel GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    Nos. 83-1068, 83-1164.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied April 18, 1984.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., and Lawrence Price, Certified Legal Intern, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Fidel Gonzalez entered a plea of nolo contendere to the charge of attempted first degree murder and kidnapping. A similar plea was entered for an affidavit of violation of probation alleging the foregoing substantive crimes. Gonzalez reserved his right to appeal the trial court’s denial of his motion for discharge under the speedy trial rule, Fla.R.Crim.P. 3.191. We affirm.

The record reflects that counsel representing a co-defendant appeared in court and requested a continuance stating that counsel for Gonzalez had no objection. The trial court granted the co-defendant’s motion for continuance and charged a continuance to all defendants. The record reflects that at the time the request for continuance was made by the co-defendant counsel for Gonzalez was not in court. During the course of the hearing on the motion for discharge counsel for Gonzalez observed,

I indicated to the court that it was no problem with a continuance at all since obviously I had just been appointed six days prior to that time and obviously it was literally impossible to depose twenty-four witnesses in a six-day period where two days of the six-day period were weekends. In my opinion at the most I acceded to [co-defendant's counsel’s] request for continuance not assuming the court charged that one to me as a result of my accession to [co-defendant's counsel’s] request for continuance.

The record is therefore clear that counsel for Gonzalez was aware of the continuance and acceded to it.

Under the foregoing facts we believe this case is controlled by Florida Rule of Criminal Procedure 3.191(d)(3)(H) which provides that a motion for discharge shall be granted unless it is shown that the failure to hold the trial is attributable to the accused, a co-defendant in the same trial, or their counsel. The delay in this case is attributable to the co-defendant’s need for further discovery. Gonzalez made no objection to the continuance of his co-defendant and did not move to sever; nor did he demand a speedy trial.

Acquiescence to a co-defendant’s motion for continuance operates as a waiver of speedy trial rights where, as here, counsel is apprised of a co-defendant’s motion for continuance, participates in subsequent discovery and takes no affirmative action that would put the trial court on notice of a desire to go to trial within the 180-day rule period. See Pieters v. State, 402 So.2d 531 (Fla.3d DCA 1981); State v. Kelley, 322 So.2d 581 (Fla. 1st DCA 1975). There is no claim that the defendant’s constitutional speedy trial rights were violated.

The speedy trial rule does not apply to a proceeding to revoke probation. Young v. State, 305 So.2d 307 (Fla. 3d DCA 1974). A probation revocation hearing is a sentencing function, not a trial. State v. Jones, 425 So.2d 178 (Fla. 1st DCA 1983). There is therefore no merit to the claim of speedy trial violations involving the revocation of probation.

Affirmed.


text:
    Carrie MASTRONARDI a/k/a Carrie Turino, Appellant, v. CHASE FEDERAL SAVINGS & LOAN ASSOCIATION, Aetna Casualty and Surety Company and Standard Fire Insurance Company, Appellees.
    No. 83-1215.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    McDermott, Will & Emery and J. Michael Fitzgerald, Miami, for appellant.
    Del Castillo & Knott, Coral Gables, for appellees.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

In view of the factual issues presented, and the possibility that different reasonable inferences might be drawn even from the undisputed facts, a summary judgment for the defendant was improper. Dawson v. Scheben, 351 So.2d 367 (Fla. 4th DCA 1977).

Reversed and remanded.


text:
    Arnold CLARK, Petitioner, v. The Honorable Edward N. MOORE, as Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Respondent.
    No. 84-118.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied April 10, 1984.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb and Bruce Rosen-thal, Asst. Public Defenders, for petitioner.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for respondent.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

Based on the controlling authority of Healey v. State, 389 So.2d 278 (Fla. 3d DCA 1980), we grant the petition for a writ of prohibition herein and direct that the respondent trial judge grant the petitioner’s motion for discharge filed below. As the respondent, through counsel, concedes, Healey is factually indistinguishable from the instant case and compels the result we reach today. We will withhold issuance of a formal writ of prohibition as we are confident that the respondent will discharge the petitioner upon receipt of this opinion.

Prohibition granted.


author: HERSEY, Judge.

text:
    William Michael THOMPSON, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent.
    No. 82-508.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.

      William Michael Thompson, pro se petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for respondent.
   HERSEY, Judge.

Thompson was found guilty of violating the terms of his probation. Failing to file a timely Notice of Appeal he petitioned for a writ of habeas corpus which we have granted for a belated appeal on the authority of Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882 (1968), and Baggett v. Wainwright, 229 So.2d 239 (Fla.1970). The public defender appointed to prosecute the appeal filed a motion to withdraw accompanied by a brief confessing no error pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We determined that most of appellant’s points on appeal either had not been preserved for review or lacked substantive merit. However appellant also raised the issue of ineffective assistance of trial counsel, an issue not cognizable upon direct appeal. State v. Barber, 301 So.2d 7 (Fla.1974). We relinquished jurisdiction and directed the public defender to assist in the preparation and processing of appellant’s motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure, and the trial court ultimately denied the motion after hearing. Thus we have for determination the correctness of the trial court’s ruling on the issue of ineffective assistance of trial counsel as well as the question of whether appellant received appropriate credit against his five year sentence for time spent incarcerated as a result of the accusation of violation of the terms of probation. The trial court did not entertain the latter issue.

Appellant originally was placed on probation as a result of a charge of grand theft. Subsequently he was charged with attempted murder. He was charged with a violation of his probation for this same act and spent seven months in jail. Upon being acquitted of the charge of attempted murder he was simultaneously found not guilty of violating the terms of his probation. At that time Judge Ferris allegedly told appellant that if he should ever come back for so much as spitting on the sidewalk he would get five years in Raiford.

On November 4, 1981, appellant was again charged with violation of a term of his probation as a result of trespassing on property alleged to be owned by his former spouse. At the first hearing held on November 12, 1981, Judge Ferris stated, “Well, we meet again, Mr. Thomas_ I can remember my words to you.” Appellant stated “I can also.” Judge Ferris then proceeded to appoint the public defender to represent appellant and set the final hearing for November 25, 1981. Sometime between November 4 and 25 the public defender withdrew and attorney L.C. Roberts became appellant’s privately retained attorney. Mr. Roberts testified at the hearing on appellant’s motion for post-conviction relief that appellant told him that Judge Ferris had warned appellant after the acquittal of the attempted murder charge not to get in any further trouble because the judge would not be disposed to be lenient. Appellant asked Roberts to move to recuse Judge Ferris. Roberts did not, basing his decision on what he believed were appellant’s best interests in not questioning “the integrity of or the veracity of” the judge, and his belief that appellant's reason was not legally sufficient. Appellant trusted Roberts because he had been a judge and was familiar with judges’ feelings when presented with a motion to recuse.

At the close of the final hearing on the violation of probation Judge Ferris stated that his conscience was satisfied that appellant had violated the condition of probation to remain at liberty without violating the law by unlawfully entering his ex-wife’s house at 3:15 a.m. when he was not invited. Appellant was adjudicated guilty of the offense of grand theft and sentenced to 5 years imprisonment with credit for the 19 days served “as a result of this violation.” At the hearing on appellant’s motion for post-conviction relief before another judge appellant’s counsel argued that Judge Ferris showed a “sentencing predisposition towards Mr. Thompson, which in essence is a violation of Mr. Thompson’s due process rights to a fair and impartial trial.”

Even assuming that appellant would have been entitled to have Judge Ferris recuse himself on the basis of predisposition evidenced by the judge’s remarks (doubtful here because the key element is the subjective impression which the movant reasonably forms because of words or deeds of the trial court, Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981)), it does not necessarily follow that counsel’s decision not to seek recusal simply because it is available automatically affords a basis for later attack on counsel’s competency under the standards formalized in Knight v. State, 394 So.2d 997 (Fla.1981), which are applicable to privately retained counsel as well as public defenders. Vagner v. Wainwright, 398 So.2d 448 (Fla.1981). The elements which the Knight court enumerated are:

First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel....
Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error. This requirement that a defendant has the burden to show prejudice is the rule in the majority of other jurisdictions.
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact. This opportunity to rebut applies even if a constitutional violation has been established. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); DeCoster III

394 So.2d at 1001.

Application must be on a case by case basis and all relevant factors must be taken into account. Where, as here, trial counsel takes a reasonable but calculated risk based upon one or more strategic grounds he is not ipso facto incompetent simply because the end results of the trial are unsatisfactory to the client. Appellate courts will not use hindsight to second guess counsel’s strategy, and as long as it was reasonably effective based on the totality of the circumstances, it will not be faulted. Songer v. State, 419 So.2d 1044 (Fla.1982). As indicated earlier, in our view the evidence presented at the revocation hearing was sufficient to support the finding and the sentence was within legal limits. Thus appellant fails to meet the burden imposed upon a defendant by Knight’s third prong and we affirm .the denial of his motion for post-conviction relief.

Lastly appellant argues that he should have received credit for time spent in jail on the attempted murder charge of violation of probation. Although he was entitled to post a bond on the attempted murder charge under Article I, § 14, Florida Constitution (1981), appellant was detained based on the consequent probation violation charge. We agree that appellant should be given credit for jail time served while awaiting a hearing on the attempted murder charge since that charge resulted in incarceration for an alleged violation of probation.

Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974) prohibits jail time credit being pyramided by giving credit on each sentence for the' full time the defendant spends in jail awaiting disposition of numerous charges or cases. However, when a defendant is arrested and placed in jail while on probation or parole, he is entitled to credit for time served on his original charge once his probation or parole is revoked and credit for time served on the charge which prompted the revocation. Voulo v. Wainwright, 290 So.2d 58 (Fla.1974); Gordon v. State, 379 So.2d 1022 (Fla. 1st DCA 1980). See Bruner v. State, 398 So.2d 1005 (Fla. 1st DCA 1981). Although the attempted murder charge did not prompt the revocation of appellant’s probation, a defendant is entitled to all jail time served on warrants charging violation of probation. Calhoun v. State, 403 So.2d 1082 (Fla. 1st DCA 1981); Grandison v. State, 428 So.2d 258 (Fla. 1st DCA 1982). Appellant has never been given this credit.

Since a defendant has “a fundamental right to receive credit for the time served in jail applied against the sentence imposed upon his conviction,” Narron v. State, 425 So.2d 660, 660 (Fla. 4th DCA 1983), appellants sentence must be reversed and this cause remanded with directions that an order be entered granting appellant credit for jail time served on the attempted murder charge of violation of probation.

REVERSED and REMANDED.

LETTS and WALDEN, JJ., concur.


text:
    Anthony Paul INCIARRANO, Appellant, v. STATE of Florida, Appellee.
    No. 83-750.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.

      Melvyn Schlesser of Isenberg & Schles-ser, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

This appeal presents the issue of the admissibility of an oral communication purportedly intercepted in violation of Chapter 934, Florida Statutes (1981).

Anthony Paul Inciarrano was indicted for having unlawfully, feloniously and with premeditated design caused the death of Earvin Herman Trimble, also known as Michael Anthony Phillips, by shooting him on July 6, 1982.

The existence of a tape recording allegedly containing conversations between Inciarrano and Trimble was disclosed in response to a demand for discovery, whereupon Inciarrano filed a motion to suppress the tape recording as being violative of Chapter 934, Florida Statutes.

At the hearing on the motion to suppress, evidence was adduced that the victim, Trimble, worked as a psychologist and marriage counselor under the pseudonym of Doctor Michael Phillips. His office was located in the Trestle Building in Broward County. At approximately 3:30 to 3:40 p.m. on July 6, 1982, the sounds of muffled gunshots were heard by another tenant in the Trestle Building. Subsequently, Trim-ble’s body was found in his office, the victim of a homicide. There were five bullet holes in the body. The investigating officers discovered a tape recorder in the office which contained the tape subject to the motion to suppress. Appellant testified that the voice on the recording was his. The tape, played for the court, contained a conversation between appellant and the victim concerning a business deal gone sour. The conversation ended abruptly with the sound of five gunshots followed by moaning and sounds like the gushing of blood. Upon cessation of those sounds, footsteps could be heard departing the scene, ending with the closing of a door. Then silence.

It is conceded, and the trial court found, that the issue of admissibility of the tape recording is dispositive of the case. There is no other evidence against appellant. The trial court denied the motion to suppress at a hearing on November -8, 1982.

On April 11, 1983, appellant changed his plea to nolo contendere reserving his right to appeal denial of the motion to suppress. The trial court sentenced appellant to life imprisonment.

The contents of the tape are a mixture of oral communication and identifiable sounds other than oral communication. Nonetheless, it seems probable that suppression of the oral communication would require suppression of the subsequent sounds since they are relevant only to the issue of identification of appellant as the individual creating the sounds of gunfire and identification of the victim as the source of the sounds of a dying man.

Chapter 934 proscribes the interception of wire or oral communications except under certain very limited circumstances. The prohibition is contained in Section 934.-03(l)(a), Florida Statutes (1981). The question is whether the statute prohibits the recording by one party to an oral communication of his conversation with another non-consenting party. The case of State v. Walls, 356 So.2d 294 (Fla.1978), on its face, requires an affirmative answer to this inquiry. The facts as stated by the court in Walls were:

Without respondents’, defendants below, prior consent to the electronic interception, Francis Antel, the alleged victim of extortionary threats, electronically recorded a conversation which occurred in his home on February 19, 1975, between himself and the respondents. The interception was not made by a law enforcement officer or a person acting under the direction of a law enforcement officer. Antel alleged and would testify that the conversation included extortionary threats and would personally testify to the nature of those threats at trial.

356 So.2d at 295.

The court held that each party to a conversation had a legitimate expectation of privacy, so that its interception by another party was appropriately circumscribed by Section 934.03(2)(d), citing Shevin v. Sunbeam Television Corporation, 351 So.2d 723 (Fla.1977). The basis of the court’s holding was that the statute was clear and unambiguous and provided no exception for the facts present in Walls. The court said “[t]his Court cannot substitute its judgment for that of the Legislature and create an exception which would encompass the instant circumstances.... The function of this Court is to interpret the law and is neither to legislate nor determine the wisdom of the policy of the Legislature.” Walls, 356 So.2d at 296.

In order to “interpret the law” it is obviously necessary to ascribe a meaning to each word used in the legislation, whether the term be ambiguous or abundantly clear. With all due respect to the supreme court and precedent, we make the following observations with regard to the terms “intercept” and “oral communication.”

A reasonable layman familiar with the game of football might well comment that if a pass from the quarterback to the tight end of the team on offense was scored as an interception, the quarterback might be more than a little chagrined. It would be assumed that such a play is more properly scored a reception. On the other hand, if the offensive quarterback throws a pass and it is received by a defensive guard, an interception occurs. Thus, in common parlance, the term interception implies a stopping by someone other than the intended receiver. To ascribe to the legislature an intent to embellish the term with a meaning without precedent in the contemporary language or the statutory law seems strained.

The term intercept is not really defined in Chapter 934. What passes for a definition simply designates the means of interception with no consideration as to the parties involved or their relationship to the communication being intercepted. Therefore, the definition is incomplete. On the other hand, the vagueness of the definition and thus of the statute is overcome if we ascribe to the word the meaning customarily assigned to it. Doing so would, we believe, change the result in those cases where a party to a wire or oral communication records the same without any intervention by a third party. Such an interpretation applied in the present case would obviate any objection to admissibility based upon Chapter 934.

Further, referring back to the Walls case, the question of whether the communication in that case constituted an interception was apparently conceded by the state and therefore not analyzed as an issue requiring determination by the court in order to decide the case. On that basis we suggest that Walls may not absolutely dictate the result in the present case.

Another term used in Chapter 934, operative here, is “oral communication.” It is important to note that the statute speaks of communication as an “oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation....” § 934.02(2), Fla.Stat. (1981). The legislature is presumed to know the law in passing statutes and consequently the legislation is to be construed upon the premise that the particular statute in question is to be applied relative to other statutes affecting the same subject matter. In our case it would appear that the legislature fully understood that only under certain circumstances does an individual have a right of privacy; that is, only where it is determined in retrospect that there was a reasonable expectation of privacy which society is willing to recognize. That this is a reasonable interpretation of the statute seems undeniable in view of the use by the legislature of the phrase “circumstances justifying such expectation.” If this be so, as we suggest it is, then not every oral communication is entitled to the privilege bestowed by the statute. Appellant visited the victim not as a patient but as one intent on doing harm to the individual in lawful possession of the business office. We suggest that appellant had no reasonable expectation of privacy in that office. For that reason, the communication should not be privileged. This is so even if appellant originally had come to the office as a patient. One who enters the business premises of another for a lawful purpose is an invitee. At the moment that his intention changes, that is, if he suddenly decides to steal or pillage, or murder, or rape, then at that moment he becomes a trespasser and has no further right upon the premises. Thus here, if appellant ever had a privilege, it dissolved in the sound of gunfire.

We make one final comment to call attention to a significant difference between Walls and the present case. There, the court pointed out in closing that “no harm derives from the suppression of the tape recording since the victim is free to testify as to the alleged extortionary threats.” Walls, 356 So.2d at 297. The consequences in the present case will be significantly different. Suppression of the tape recording here will leave the state without a case.

As we have noted, the supreme court in Walls was not directly confronted with the issue of whether or not the recording of a conversation by one of the participants is a prohibited interception. That issue was however presented and directly decided in State v. Tsavaris, 394 So.2d 418 (Fla.1981). In that case, as we recognized in Chiarenza v. State, 406 So.2d 66 (Fla. 4th DCA 1981), •petition for rev. denied, 413 So.2d 875 (Fla.1982), the recording of a telephone conversation by one of the parties was held to be prohibited by Chapter 934. We do not attempt to distinguish that holding, but simply urge respectfully that it be reconsidered, particularly in light of Chief Justice Alderman’s dissent in Tsavaris and Judge Danahy’s thorough analysis of this aspect of the statute in State v. Tsavaris, 382 So.2d 56 (Fla. 2d DCA 1980), aff'd, 394 So.2d 418 (Fla.1981).

The foregoing analysis, particularly with reference to the legislature’s intention in adopting Chapter 934, Florida Statutes, is reinforced by the stated intention contained in the act itself. The legislature specifically finds the act necessary (1) “[i]n order to protect effectively the privacy of wire and oral communications ...” and (2) “[t]o safeguard the privacy of innocent per-sons_” Section 934.01, Fla.Stat. (1981). We suggest again that the material on the tape here in question is not the product of an expectation of privacy that society should recognize (“1” above) nor does appellant appear to be within the class of individuals the statute is designed to protect (“2” above). That being so the exclusion ought not apply. No matter how pernicious the “crime” of non-consensual recording of a conversation may seem to appear, the crimes of homicide and extortion must certainly be considered vastly more heinous. To prohibit the former by imposing a felony penalty is one thing; to inhibit prosecution of the latter by adding an exclusionary rule is quite another. Compare Horn v. State, 298 So.2d 194 (Fla. 2d DCA 1974), cert. denied, 308 So.2d 117 (Fla.1975) wherein the court refused to consider the weight of the crimes. We-have suggested that the legislature did not intend to include within the prohibition of the statute a recording made by one of the parties to a two-party conversation. We are restrained by apparent precedent from giving effect to that interpretation here.

We have not failed to consider the possible implication of principles of constitutional dimension involved in the trial court’s denial of the motion to suppress.

Prior to its amendment in 1982, Section 12 of Article I provided:

SECTION 12. Searches and seizures. —The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.

This constitutional exclusionary rule was based in language, policy and effect upon the judicially created exclusionary rule under the Fourth Amendment to the Constitution of the United States. That rule is made applicable to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The rule is applicable only to constitutional violations. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The Fourth Amendment was a restriction against government action only. Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954). Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). From the foregoing, it follows that the exclusionary rule as applied to the interception of wire or oral communications by an individual (not involving government action) is based neither on the Federal nor the Florida constitution, but has its genesis within Chapter 934 as a legislatively imposed exclusionary rule. § 934.06, Fla.Stat. (1981). The right of privacy itself is directed toward unwarranted governmental interference, not actions by individuals. One would suppose that imposition of a conviction and sentence for a felony would be a sufficient deterrent to insure compliance with Chapter 934, Florida Statutes. Any additional deterrent effect arising from the imposition of an exclusionary rule pales by comparison with the right of society to have a judicial system, the goal of which is to decide controversies on the basis of all of the facts which are relevant and material. An artificial exclusion ipso facto defeats that goal.

We are nonetheless constrained by Hoffman v. Jones, 280 So.2d 431 (Fla.1973), to reverse the order denying appellant’s motion to suppress on the authority of State v. Walls, supra.

We certify to the Florida Supreme Court the following question as one of great public interest, recognizing that it is substantially the same question as certified in State v. Tsavaris, 382 So.2d at 65:

Does the recording of a conversation by one of the participants constitute the interception of an oral communication within the meaning and intent of Chapter 934, Florida Statutes (1981)?

We reverse the order denying appellant’s motion to suppress and remand for further proceedings.

REVERSED and REMANDED.

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


author: BERANEK, Judge.

text:
    CONSOLIDATED ALUMINUM CORPORATION, Appellant, v. Robert BRAUN, Jefferson Stores, Inc., etc., et al., Appellees.
    No. 83-825.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.
    Rehearing Denied April 10, 1984.
    Michael J. Ferrin of Beverly & Freeman, West Palm Beach, for appellant.
    Walter G. Campbell, Jr., of Krupnick & Campbell, P.A., Fort Lauderdale, and Richard A. Barnett of Richard A. Barnett, P.A., Hollywood, for appellees, Braun, et al.
   BERANEK, Judge.

Plaintiff/appellee was injured when he fell off a ladder manufactured by appellant, Consolidated. Suit was brought on three theories: negligence, strict liability, and breach of implied warranty. The allegations of negligence against Consolidated were set forth in the complaint as follows:

a. Negligently manufactured the ladder out of materials which were inadequate to perform the functions required of the ladder.
b. Negligently designed the ladder such that it was not strong enough to support the weight of the average man.
c. Failed to design the ladder with sufficient width to keep it from becoming unstable.
d. Negligently designed the ladder in such a way that any shift in the weight or minor deviation in weight distribution would result in the legs becoming inadequate to support the person on the ladder.
e. Failed to place any warning notices of this defect on the ladder warning the Plaintiff of these dangerous conditions. (Emphasis added.)

On plaintiffs breach of implied warranty claim, he alleged that the ladder was not fit for use for its intended purposes and was not of merchantable quality in that its legs bent and twisted causing Braun to be thrown from the ladder to the ground. On his strict liability claim, Braun alleged that the ladder was in a defective condition, unreasonably dangerous to the user or consumer due to the defect in the design and/or manufacture of the product.

The case was submitted to the jury on a special interrogatory verdict. The jury found negligence on the part of Consolidated but found that the ladder was not defective and that Consolidated had not breached an implied warranty. Braun was determined to be 60% negligent, and his total award of $1 million was reduced to $400,-000.

On appeal, Consolidated contends that the verdict is not supported by substantial evidence and that the trial court erred in denying its motion for directed verdict and in entering judgment upon the verdict. Although not labeled as such, the real issue in this case is the inconsistency of the verdict. The first three questions of the verdict form read as follows:

1. Was there negligence on the part of the Defendant, CONSOLIDATED ALUMINUM CORPORATION, which was a legal cause of the injury suffered by the Plaintiff, ROBERT BRAUN?
YES YES NO _
2. Did Defendant, CONSOLIDATED ALUMINUM CORPORATION breach an implied warranty in regard to the ladder and was such breach the legal cause of the injuries suffered by the Plaintiff?
YES _ NO NO
3. Was the ladder in question defective when it was sold by the Defendant, CONSOLIDATED ALUMINUM CORPORATION and was such defect the legal cause of the injuries suffered by the Plaintiff?
YES _ NO NO

Apparently Braun, as well as the trial court, viewed the three questions as referring to separate theories and as being mutually exclusive. However, every paragraph of the complaint dealing with negligence states that Consolidated was negligent in designing or manufacturing the ladder. Thus, every allegation of negligence is dependent upon proof of a defect in the ladder. The jury found the ladder did not contain a defect and that there was no breach of any implied warranty. We ask the same question which appellant poses on appeal: How could Consolidated have been negligent in the design and manufacturing of a product which contains no defect? The appellee has no satisfactory answer.

We do not accept Braun’s argument that a finding of no defect merely means that the jury did not find Consolidated strictly liable for the injury but has no effect on the jury’s determination of negligence. Braun contends that, if viewed otherwise, there would be no difference between negligence and strict liability. In some cases, such as this one where all the allegations of negligence are dependent upon proof of a defect, there is no practical difference between the two theories. Since the jury found no defect, we hold that it was inconsistent to find negligence on the part of Consolidated based on the pleadings and the proof at trial. We reverse and remand for a new trial on all issues.

REVERSED AND REMANDED.

DELL and WALDEN, JJ., concur.


text:
    Max A. HOYT, Appellant, v. Freda M. HOYT, Appellee.
    No. AT-247.
    District Court of Appeal of Florida, First District.
    March 14, 1984.

      Michael C. Overstreet of Staats, Over-street & White, Panama City, for appellant.
    Patricia K. Fitzpatrick of Fitzpatrick & Fitzpatrick, Panama City, for appellee.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982).

SMITH, WIGGINTON and NIMMONS, JJ., concur.


author: MILLS, Judge.

text:
    Philip I. EMMER and Barbara L. Emmer, d/b/a Brandywine Associates, Ltd., a Florida limited partnership, Appellants, v. Trifon and Trudi DUBOLSKY, Appellees.
    No. AV-236.
    District Court of Appeal of Florida, First District.
    March 14, 1984.
    R. Franklin Ritch of Ritch & Graves, P.A., Gainesville, for appellants.
    Jack J. Fine of Fine & Farkash, P.A., Gainesville, for appellees.
   MILLS, Judge.

The Emmers take an interlocutory appeal from the trial court’s order denying their motion to dismiss the Dubolsky’s complaint, denying their motion for leave to file an amended answer and overruling their objections to the Dubolsky’s interrogatories.

The appeal is taken pursuant to Rule 9.130(a)(3)(C)(i) which allows interlocutory appeals from nonfinal orders determining jurisdiction of the person. None of the orders appealed from relate to jurisdiction of the person. The Emmers were properly served and the trial court acquired personal jurisdiction of them.

We dismiss the appeal.

WENTWORTH and BARFIELD, JJ., concur.


author: WENTWORTH, Judge.

text:
    FAIRCHILD INDUSTRIES, INC., & Fireman’s Fund Ins. Co., Appellants, v. George SIEVERS, Appellee.
    No. AU-329.
    District Court of Appeal of Florida, First District.
    March 19, 1984.

      J. Nixon Daniel, III, of Beggs & Lane, Pensacola, for appellants.
    Gillis E. Powell, Jr., of Powell, Powell & Powell, Crestview, for appellee.
   WENTWORTH, Judge.

Employer/carrier seek review of a workers’ compensation order by which claimant was awarded permanent total disability benefits. We find that the deputy properly excused claimant from the requirement of a work search, and we therefore affirm the order appealed.

While claimant is neither continuously bedridden nor otherwise totally physically incapacitated, the record contains clear medical evidence of claimant’s patent inability to uninterruptedly maintain any gainful employment. In such circumstances an effort to find employment would be a futile and useless gesture, and the deputy properly excused claimant from the requirement of a work search as a predicate for disability benefits. See Sizemore v. Canaveral Port Authority, 332 So.2d 23 (Fla.1976); Chicken TV Things v. Murray, 329 So.2d 302 (Fla.1976); see generally Red Oak Farms Inc. v. Scott, 408 So.2d 841 (Fla. 1st DCA 1982).

The order appealed is affirmed.

MILLS, J., and McCORD, Jr. (Ret.), Associate Judge, concur.


text:
    Bobby Gerald POSEY, Appellant, v. STATE of Florida, Appellee.
    No. AW-298.
    District Court of Appeal of Florida, First District.
    March 19, 1984.
    Bobby Gerald Posey, pro se.
    Jim Smith, Atty. Gen., for appellee.
   PER CURIAM.

Posey appeals the summary denial of his motion for post conviction relief pursuant to Fla.R.Crim.P. 3.850. His motion alleged in part that his plea of nolo contendere was improperly coerced because evidence was withheld from him. He also alleged that he was denied effective assistance of counsel because his public defender waived his right to speedy trial against his express wishes. These allegations, if true, might entitle appellant to the relief sought. Therefore, it was error for the trial court to summarily deny the motion, and this cause is reversed and remanded with instructions that the trial court either attach portions of the record which conclusively show that appellant is entitled to no relief or conduct an evidentiary hearing and rule on the allegations presented in the motion.

Reversed and remanded with instructions.

MILLS and WENTWORTH, JJ„ and McCORD, Jr. (Ret.), Associate Judge, concur.


text:
    STATE of Florida, Petitioner, v. John Norbert KING, Respondent.
    No. AX-50.
    District Court of Appeal of Florida, First District.
    March 19, 1984.
    Jim Smith, Atty. Gen., Wallace E. Allbrit-ton, Asst. Atty. Gen., for petitioner.
    Daniel A. McKeever, Jr., of McKeever & Johnson, Live Oak, for respondent.
   WENTWORTH, Judge.

Petitioner invokes this court’s certiorari jurisdiction to review an order which declines to disqualify respondent’s counsel from further representation of respondent in the action below. We find that petitioner has failed to demonstrate any departure from the essential requirements of law, and we therefore affirm the order appealed.

Respondent was placed on probation after being convicted for an offense which occurred in 1980, and respondent’s present counsel was the prosecuting attorney in the case. Respondent was subsequently indicted by a federal grand jury for an unrelated offense alleged to have occurred in 1982 and 1983; respondent then retained present counsel (who had entered private practice). A Warrant for Violation of Probation, predicated upon the federal charge, was thereafter filed in Florida, and counsel entered a Notice of Appearance in respondent’s behalf. The state filed a “Motion to Determine the Existence of Conflict,” arguing that counsel should be disqualified since he was the prosecuting attorney for the offense which resulted in the probation alleged to have been violated. After hearing argument of counsel, the court noted that “no actual prejudice has been shown,” and indicated that it would allow counsel to represent respondent. An order denying the state’s “Motion to Disqualify” was subsequently entered.

Respondent’s alleged violation of probation is based upon a factual predicate entirely unrelated to his prior offense, and it has therefore not been shown that counsel had any substantial involvement on behalf of the state in the same action. Likewise, it does not appear that there has been any “advantage gained that would work to the disadvantage of the state,” and petitioner has neither established nor alleged any “actual prejudice.” In these circumstances petitioner has not demonstrated entitlement to disqualification of respondent’s counsel. See Endress v. Coe, 433 So.2d 1280 (Fla. 2d DCA 1983); DeArce v. State, 405 So.2d 283 (Fla. 1st DCA 1981).

The petition for writ of certiorari is denied.

MILLS, J., and McCORD (Ret.), Associate Judge, concur.

      . The order also recites that the court conducted an inquiry in accordance with U.S. v. Garcia, 517 F.2d 272 (5th Cir.CA 1975), and determined that respondent “knowingly and voluntarily has waived his Sixth Amendment right to conflict-free counsel.”


text:
    Richard Oliver BEECHAM, Appellant, v. Silvia Ladove BEECHAM, Appellee.
    No. 83-2287.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Shellie Sachs, Miami, for appellant.
    Barry J. Clyman, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

The judgment under review, which was entered pursuant to our decision in Beecham v. Beecham, 407 So.2d 237 (Fla. 3d DCA 1981), is in complete accordance with that opinion and represents an unassailable exercise of the trial court’s discretion in the light of the record as supplemented by evidence taken after remand. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.


text:
    Karen THOMPSON and Allen Thompson, Appellants, v. Michael Louis MACKARAVITZ, American Ambassador, Debra Marie Spear and Florida Farm Bureau Mutual Insurance, Appellees. Allen THOMPSON, Appellant, v. Michael Louis MACKARAVITZ, American Ambassador, Debra Marie Spear, Florida Farm Bureau Mutual Insurance Company and Karen Thompson, Appellees.
    Nos. 83-820, 83-840.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1984.

      Richard G. Newhouse of the Law Offices of Richard G. Newhouse, Fort Lauderdale, for appellants.
    Jane Kreusler-Walsh, and Larry Klein, West Palm Beach, and Wayne W. Pomeroy, Fort Lauderdale, for appellees.
   PER CURIAM.

Our review of the affidavit and depositions filed in this cause compels the conclusion that appellee, defendant in the trial court, failed to negate the existence of genuine issues of material fact. Consequently, the summary judgment must be reversed. See Landers v. Milton, 370 So.2d 368 (Fla.1979); McCabe v. Walt Disney World Co., 350 So.2d 814 (Fla. 4th DCA 1977).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

HURLEY, DELL and WALDEN, JJ., concur.


text:
    Eric B. KEEL, Appellant, v. STATE of Florida, Appellee.
    No. 83-1466.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1984.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrew N. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984).

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


text:
    Kim Kessler WARD and H. Dean Ward, Appellants, v. HILLSBOROUGH COUNTY SCHOOL BOARD, Appellee.
    No. 83-920.
    District Court of Appeal of Florida, Second District.
    March 21, 1984.

      Catherine M. Venable of Diecidue, Ferli-ta, Prieto & Nutter, P.A., Tampa, for appellants.
    Robert T. Joyce of Barr, Murman & To-nelli, P.A., Tampa, for appellee.
   PER CURIAM.

This is a personal injury suit arising from a collision between a vehicle operated by Mrs. Kim Ward and a county-owned school bus. The jury returned a verdict of $2,500 for Mrs. Ward and nothing for Mr. Ward on his loss of consortium claim.

Appellants (Mr. and Mrs. Ward) argue that the trial court erred in allowing into evidence the fact that Mrs. Ward’s medical bills had been paid by her insurance company, that the court improperly instructed the jury to deduct from its award the amount of those insurance payments, and that the court improperly declined a jury instruction that evidence of collateral source payments should be excluded from jury consideration. See Florida Standard Jury Instructions (Civil) 61.3 (1980 ed.) They also argue that the damages awarded were inadequate as a matter of law.

Appellants contend that the trial court incorrectly failed to give effect to section 627.734(3), Florida Statutes (1979), when it allowed the foregoing evidence, gave the foregoing jury instruction regarding collateral source payments as provided in section 627.7372, Florida Statutes (1979), and declined the foregoing standard jury instruction. Section 627.734(3) provides:

Sections 627.730-627.741 do not apply to any motor vehicle owned by the state, a political subdivision of the state, or the Federal Government.

We agree with appellants’ argument and thus reverse. Section 627.734 provides that sections 627.730-627.741, i.e., the entire Florida Automobile Reparations Reform Act, does not apply to a motor vehicle of the type involved here. The collateral source indemnity statute (section 627.7372) was within that act. If the legislature had intended for section 627.7372 to apply in a case like the one before us, the legislature could, and presumably would, have excepted section 627.7372 from the specific language of section 627.734(3).

As this court said in Russ v. Iswarin, 429 So.2d 1237, 1240 n. 2 (Fla. 2d DCA 1983), “[T]he provisions of the Florida Automobile Reparations Reform Act are not applicable to municipally owned vehicles.” The cases cited by appellee, State Farm Mutual Automobile Insurance Co. v. Chapman, 415 So.2d 47 (Fla. 5th DCA 1982), and Lewis v. Allstate Insurance Co., 425 So.2d 100 (Fla. 1st DCA 1982), did not involve the issue before us.

Appellants cite Albritton v. State Farm Mutual Automobile Insurance Co., 382 So.2d 1267 (Fla. 2d DCA 1980), and Webber v. Jordan, 366 So.2d 51 (Fla. 2d DCA), cert. denied, 374 So.2d 102 (Fla.1979), in support of their argument that the monetary damages awarded were inadequate. On his loss of consortium claim, Mr. Ward was awarded zero dollars. The substantive evidence showed at least some loss of consortium. We recognize appel-lee’s argument that Mr. Ward on cross-examination gave certain self-effacing testimony which could have been the basis for the jury’s finding. However, upon the entire record we do not believe that testimony can be properly construed as constituting a forfeiture of his loss of consortium claim. On remand, the damages of both appellants, which are interrelated, should be retried. See McNash v. Oxenhandler, 288 So.2d 304 (Fla. 4th DCA 1974).

Since there was no issue on appeal as to liability, that issue need not be litigated on retrial.

REVERSED AND REMANDED FOR A NEW TRIAL ON DAMAGES.

HOBSON, A.C.J., and RYDER and LE-HAN, JJ., concur.


text:
    STEPHENS ENTERPRISES, Appellant, v. S.B.E. MANAGEMENT COMPANY, INC., a Florida corporation, Appellee.
    No. 83-1535.
    District Court of Appeal of Florida, Second District.
    March 21, 1984.
    Robert S. McDaniel, Jr. of McDaniel, Ball & Hutchens, P.A., and Robert E. Turffs of Morgan & Tjaden, Sarasota, for appellant.
    No appearance for appellee.
   PER CURIAM.

A review of the record fails to reveal sufficient, competent evidence to support the $25,000 judgment rendered in favor of appellee. We reverse and remand for entry of a judgment in an amount equal to eight months of unpaid rent and common area maintenance fee, less the security deposit paid by appellant, plus such costs and prejudgment interest as the trial court may find appropriate. See Robinson v. Peterson, 375 So.2d 294 (Fla. 2d DCA 1979); Coast Federal Savings & Loan Association v. DeLoach, 362 So.2d 982 (Fla. 2d DCA 1978); Miami Beach Vacations, Inc. v. Wofford, 262 So.2d 683 (Fla. 3d DCA 1972).

REVERSED and REMANDED.

HOBSON, A.C.J., and BOARDMAN and RYDER, JJ., concur.