author: WENTWORTH, Judge.

text:
    WESTERN ELECTRIC CO., INC., Appellant, v. Betty JACKSON, Appellee.
    No. AV-44.
    District Court of Appeal of Florida, First District.
    May 2, 1984.
    Rehearing Denied June 8, 1984.
    Reed A. Bryan, of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellant.
    Lori E. Barrist and Howard M. Pelzner, of Pelzner, Schwedock, Finkelstein & Klausner, Miami, for appellee.
   WENTWORTH, Judge.

This is an appeal from an order of a deputy commissioner awarding wage loss benefits from June 23, 1982, through March 31, 1983. We affirm.

Although in its argument in this court appellant has attacked alleged deficiencies in claimant’s work search evidence, the contention before the deputy (and the primary contention before this court) was that the failure to provide the employer with work search evidence when a claim is filed precludes a subsequent award of wage loss. Even assuming appellant’s argument may be pertinent in determining alleged bad faith handling of a wage loss claim, in the context before us it is in effect an attempt to transform an evidentiary rule into a condition precedent to a claim. The self-execution of the act will of course be better served if claimants promptly provide carriers with such information, but the failure to do so does not as a matter of fact or law preclude proof thereafter.

While the issue of the failure of claimant to provide the work search evidence simultaneously with her claim was thoroughly argued below, the further issue as to sufficiency of the evidence submitted at the hearing was not. Since that evidence generally supports claimant’s good faith and shows a continuing search for work, we affirm. Chainstore Warehouses v. Picard, 431 So.2d 685 (Fla. 1st DCA 1983).

ZEHMER and BARFIELD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    B.E. HENSLEY FORMING COMPANY and Risk Management Services, Inc., Appellants, v. Bobby R. ALEXANDER, Appellee.
    No. AV-70.
    District Court of Appeal of Florida, First District.
    May 2, 1984.
    Rehearing Denied June 5, 1984.
    David A. Danielson, of Brennan, McAli-ley, Hayskar, McAliley & Jefferson, P.A., West Palm Beach, for appellants.
    Frank B. Kessler, of Zwickel, Gross & Kessler, Lake Worth, for appellee.
   PER CURIAM.

AFFIRMED. See Lasher Milling Company v. Brown, 427 So.2d 1034 (Fla. 1st DCA 1983).

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


author: SMITH, Judge. MILLS, Judge,

text:
    FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Appellant, v. FLORIDA DEPARTMENT OF STATE, DIVISION OF LICENSING, Appellee.
    No. AV-197.
    District Court of Appeal of Florida, First District.
    May 2, 1984.
    Gene “Hal” Johnson, Tallahassee, for appellant.
    Stephen Nall, Tallahassee, for appellee.
   SMITH, Judge.

The Department correctly denied appellant’s petition for administrative hearing since appellant was seeking relief which is not available in this administrative proceeding; Appellant is complaining that a rival group, the Law Enforcement Officers, Inc., d/b/a Central Florida Police Benevolent Association, Inc., deceived the public by using a fictitious name and trademark-logo during its solicitation campaign which was purposely similar to that of appellant’s contrary to Section 496.31(5) and (6). Florida Statutes (1981). The Department does not have jurisdiction to grant relief for a trademark violation or a violation with regards to appellant’s fictitious name. Relief is more properly sought in the circuit court..

Although appellant here has not demonstrated standing, there are instances in which an economic injury, in combination with other factors, may provide a basis for standing in an administrative proceeding. Florida Medical Association v. Department of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983), and cases therein cited. No basis for relief under these cases or otherwise has been demonstrated by appellant.

AFFIRMED.

SMITH and NIMMONS, JJ., concur.

MILLS, J., specially concurs.

MILLS, Judge,

specially concurring:

I would affirm the final order of the Department of State which denied, for lack of standing, the Florida Police Benevolent Association’s request for a formal hearing under Section 120.57(1), Florida Statutes (1981).

The only substantial interest asserted by the Association in its petition was an economic one. Such interests are insufficient to confer standing for purposes of initiating a Section 120.57(1) proceeding. Shared Services, Inc. v. State, Department of Health and Rehabilitative Services, 426 So.2d 56 (Fla. 1st DCA 1983); Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981).


author: HERSEY, Judge.

text:
    Maureen M. McSWIGAN, Appellant, v. James A. McSWIGAN, Appellee.
    No. 83-450.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Rehearing Denied May 31, 1984.

      Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant.
    William H. Pruitt of Pruitt & Pruitt, West Palm Beach, for appellee.
   HERSEY, Judge.

Maureen M. McSwigan appeals from a final judgment in dissolution proceedings on the basis that she has been shortchanged. We agree and reverse.

THE MARRIAGE

The parties were married on June 30, 1962. At the time of the final hearing the marriage was of twenty years duration and had produced three children, two of whom remained minors. Custody was split by agreement and modest child support, including temporary exclusive possession of the marital residence, was provided.

THE WIFE

Maureen M. McSwigan at the time of the marriage and for a short period of time thereafter worked as a secretary. She then became exclusively a mother, wife and homemaker. She subsequently went back to school and has been working toward her Master’s Degree which will permit her to enter the teaching profession. Thus, at the time of the final hearing she had not worked for twenty years but had the potential, upon completing her training, of earning $10,000 to $12,000 per year as a teacher. She is forty-two years old and in good health except for a complaint of cardiac arrhythmia.

THE HUSBAND

‘ James A. McSwigan, forty-six years old and in good health, is a successful practicing attorney. He has earned in excess of $90,000 per year in Ohio but has not yet returned to that -.level in Florida, earning most recently approximately $60,000 per year as an associate. He obviously has the potential to substantially increase his income.

ASSETS AND LIABILITIES

The indebtedness of the parties was allocated by the final judgment as follows: the husband to repay $9,196; the wife to repay $4,500; the parties jointly to repay $2,460. The marital home has an equity value of approximately $70,000. Upon termination of the wife’s exclusive possession, the house will be sold and the proceeds divided between the parties, who are jointly responsible for expenses except that the wife pays for ordinary maintenance.

During the marriage the husband, with a partner, acquired interest in several properties in Ohio. As to those properties generally the court found: “The value of these properties is unascertainable based upon the evidence presented to the court; for, in the depressed real estate market and economy where they are situate, they cannot be sold, nor are they self-sustaining.” As to one of the four Ohio properties there was an agreement between the husband and his partner, placed in evidence, providing for a mutual right of first refusal and, upon the death of either partner, an obligation on the survivor to purchase the interest of the deceased for $5,000.

The court determined that neither party had established a special equity in any property of the other.

THE WIFE’S SHARE

Child support, including temporary exclusive possession of the marital home, is not in issue. The final judgment gives the wife a one-half interest in the husband’s one-half interest in the agreement pertaining to one of the four Ohio properties (not an interest in the property itself) together with rehabilitative alimony in the amount of $1,000 per month for eighteen months. She is required to assume the sole liability for $4,500 in debts and $1,230 of the joint obligations or a total of $5,730. Of her rehabilitative alimony, after debts, she will' therefore be able to retain $12,270 ($18,000 less $5,730). The wife is also to receive assistance with the payment of her attorney’s fees and costs.

COMPARISON

Upon termination of the marital partnership the husband exits with an obligation to pay certain debts, child support, and rehabilitative alimony in the amount of $18,000. He has an income of $60,000 with the potential of substantially increasing his earnings in the years to come. The wife, after twenty years of contribution to the marriage in her role as wife, mother and homemaker, receives short-term rehabilitative alimony and an interest in a nebulous agreement which may return her zero dollars. She has been out of the work force for twenty years, is unemployed with the prospect, if she is fortunate and remains in good health, of obtaining a teaching position with an annual income between $10,-000 and $12,000, roughly one-sixth of the husband’s present earnings.

THE LAW

The concept of marriage as a partnership entitling each of the partners, upon termination, to an equitable share of partnership assets, had its most eloquent beginnings in the case of Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cited and quoted with approval in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In the now famous words of Judge Rawls:

How shall the material wealth of a marriage which is being dissolved be divided' when one partner, the wife, has contributed her time to the marital home and children of the parties while the husband has pursued the accumulation of material goods. The evolution of the law of alimony that we have reviewed in length shows that today the contributions of each party to the accumulation of material assets must be considered in dissolving the marital partnership. Either spouse may contribute either by working in the market place or by working as a homemaker. The fact that in one marital venture a spouse is gainfully employed in the market place and pays a housekeeper to rear the children and keep house is not distinguishable from the spouse who devotes his or her full time to the profession of homemaker. The primary factual circumstance is each spouse’s contribution to the marital partnership. In the case sub judice, the wife has been shortchanged. The wife has not been adequately compensated for the contribution that she made as a fulltime mother and homemaker to the equal partnership marriage. We hold that the trial court abused its discretion in awarding the wife a pittance of the material assets accumulated in the' husband’s name during 21 years. In so holding, we emphasize even though the cited authorities on the subject speak of “equal partners” and complete equality as partners, we are not engrafting upon the jurisprudence of this state the law of community property. On the question of alimony the judgment is reversed with instructions to the trial court to enter an award of lump sum alimony sufficient to compensate the wife for her contribution to the marriage.

Id. at 1203-04 (quoting Brown, 300 So.2d at 726).

Our supreme court in Canakaris added the following explanation of the application of the test enunciated by Judge Rawls:

The court emphasized that its policy was not grounded upon principles of community property, but on basic fairness; a dissolution award should be sufficient to compensate the wife for her contribution to the marriage.
We recognize that a trial court need not equalize the financial position of the parties. However, a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one should not be “shortchanged.” Brown v. Brown.

382 So.2d at 1204.

This court has on several occasions followed the precepts of Brown and Canakaris. See for example Grimmett v. Grimmett, 425 So.2d 545 (Fla. 4th DCA 1982), and Tronconi v. Tronconi, 425 So.2d 547 (Fla. 4th DCA 1982).

In applying the discretionary standard of review the test of correctness is also found in Canakaris, quoting from Delno v. Market Street Railway, 124 F.2d 965, 967 (9th Cir.1942):

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

382 So.2d at 1203.

In our view the share allotted to Maureen McSwigan from the partnership assets accumulated over twenty years is “a pittance.” We further find that reasonable men could not disagree as to this characterization. Accordingly, if our analysis were to conclude with the cases reviewed to this point, reversal would seem inevitable and in our view absolutely justified on the facts and the law.

We must, however, go one step further and mention two recent cases which cast some doubt on' what we do here. The nature of our doubts is expressed in both the majority and dissenting opinions in Marcoux v. Marcoux, 445 So.2d 711 (Fla. 4th DCA 1984) and Marshall v. Marshall, 445 So.2d 706 (Fla. 4th DCA 1984). Those doubts are created by the cases of Conner v. Conner, 439 So.2d 887 (Fla.1983) and Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983).

In the Kuvin ease the supreme court quashed the decision of the district court of appeal which reversed the final judgment on the basis that the wife was entitled to permanent rather than rehabilitative alimony. The supreme court reminded us that it is within the discretion of the trial court whether to award permanent or rehabilitative alimony. In finding no abuse, the supreme court pointed out that reversal of the rehabilitative alimony award “appears to elevate to a rule of law the proposition that a rehabilitable wife who is awarded custody of minor children and who desires to forego rehabilitation and remain at home has a right to do so if her former husband can afford to support her.” Id. at 204-05. Further, said the supreme court, “the sole test is not the husband's ability but also the needs of the wife and the best interests of the parties.” 442 So.2d at 205. We take this to mean that the mere desire of the wife to remain a homemaker, coupled with the ability of the husband to accommodate that desire, does not necessarily control. This is consistent with the rule that the trial court takes into account all facts and circumstances, the criteria referred to in Canakaris, and then attempts to make an award that is consistent with the best interests of both parties.

We have no hesitancy in distinguishing McSwigan from Kuvin. We do not hold here that rehabilitative alimony is unsuitable or inadequate. We hold that Maureen McSwigan did not receive upon termination a fair share of the assets of the marital partnership. In our view Kuvin does not overlap an inquiry of this nature.

In Conner the trial court awarded the wife lump-sum, periodic and rehabilitative alimony. The district court briefly summarized the evidence and determined that the amounts were insufficient, concluding that the wife had been shortchanged. The supreme court, approving in part and quashing in part the opinion of the district court, held that:

The determination that a party has been “short-changed” is an issue of fact and not one of law, and in making that determination on the facts before it in the instant case, the district court exceeded the scope of appellate review.

Conner, 439 So.2d at 887.

Of crucial importance in placing the Conner case in proper perspective, as we view it, is the fact that it was only the amount of these awards which troubled the district court. The amount of an alimony award is peculiarly within the discretion of the trial court. Castor v. Castor, 316 So.2d 588, 589 (Fla. 1st DCA 1975). Thus, when the appellate court characterizes a specific award as having shortchanged the wife where the sole question concerns the amount, what is dealt with is a question of fact where the trial court has the very broadest discretion. (We are nonetheless inclined toward the view that an amount may, under extreme circumstances, constitute an abuse of discretion. If not, then the right to appeal in civil actions has been seriously eroded.)

A reviewing court is not preempted from finding that one spouse has been shortchanged where the trial court has applied an incorrect rule of law. Canakaris, 382 So.2d at 1202. The foregoing analysis compels the same conclusion where the trial court has refused to make an award of alimony where such an award is mandated either in the form of support based upon need, ability to pay, and the best interests of the parties, or as an element of equitable distribution where the spouse is entitled to a share of the assets of the marital partnership upon termination.

It therefore seems clear to us that McSwigan does not come within the prohibition of Conner despite our finding that the wife has been “shortchanged.”

We recognize that if our analysis of the holdings in Conner and Kuvin is incorrect, then we have created a conflict with those cases. This is obviously of great public interest and we therefore certify the following questions to the supreme court:

1. Whether appellate review of final •judgments in dissolution of marriage proceedings as defined and explained in Canakaris, 382 So.2d 1197 (Fla.1980), has been further restricted by the holdings in Conner, 439 So.2d 887 (Fla.1983) and Kuvin, 442 So.2d 203 (Fla.1983)?
2. Whether we have correctly interpreted and applied the holdings of Kuvin and Conner in this case?

We therefore reverse the final judgment and remand to the trial court for a determination of the amount and nature of the wife’s entitlement based upon her contribution to the marital partnership.

REVERSED and REMANDED.

LETTS and BERANEK, JJ., concur.


author: LETTS, Judge.

text:
    George COX, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
    No. 83-2050.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Rehearing Denied June 13, 1984.

      Raymond A. Rea, Boynton Beach, for appellant.
    Stanley J. Niego, West Palm Beach, for appellee.
   LETTS, Judge.

This is an appeal from a hearing officer’s final administrative order in which the Division granted a motion to dismiss. The order denied standing to an aggrieved landowner who claimed he would be adversely affected by water restrictions adopted by the South Florida Water Management District for future implementation in times of drought. We reverse.

We agree with the hearing officer’s conclusion that the pivotal question involved here is one of standing predicated upon whether the landowner was substantially or immediately affected. See Fla. Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla.1978). However, the Water Management District admits that one of the hearing officer’s two stated reasons why there was a lack of standing is erroneous because he reasoned that any water restrictions which might be implemented did not mandate compliance by the landowner. In fact they did.

Nor do we agree that the landowner is not substantially or immediately affected just because no drought existed at the time the motion to dismiss was heard. We can all take judicial notice of the fact that Florida’s never ending preoccupation with the delicate balance of its water supply is more than mere speculation. Droughts and floods are to Florida what sand is to the Sahara Desert — inevitable.

At a minimum, we are of the opinion that the allegations of the petition were sufficient to withstand a motion to dismiss.

REVERSED AND REMANDED.

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


text:
    Darrell Glen PRIESTLY, Sr., and Darrell Glen Priestly, Jr., Appellants, v. STATE of Florida, Appellee.
    No. 82-1589.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Rehearing Denied June 7, 1984.

      Alan Jay Braverman, David F. Holmes and Robert L. Bogen of Braverman & Holmes, Fort Lauderdale, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Darrell Priestly, Sr., and Darrell Priestly, Jr., appeal from judgments of guilty of trafficking in marijuana and conspiracy to traffic in marijuana and prison sentences entered pursuant to the judgments. They were convicted in a joint trial with Louis Poynter, whose conviction we reversed in Poynter v. State, 443 So.2d 219 (Fla. 4th DCA 1984), and Robin Angel and Ronald B. Nichols, whose appeal we decide in a separate opinion filed this date. Angel v. State, 450 So.2d 292 (Fla. 4th DCA 1984).

A confidential informant introduced Pen-nie, a business partner of Priestly, Sr., to an undercover agent, Kridos. Pennie and Priestly, Sr., agreed to buy a large quantity of marijuana from Kridos and simultaneously resell it to the persons who would receive it from Kridos. Priestly, Jr., accompanied two ultimate purchasers, Robin Angel and Louis Poynter, to the place appointed for the marijuana transfer. The three all acknowledged they were there to buy “smoke.” Angel identified Priestly, Jr., as the bossman and said he was there for their protection. They cut open bales presented and checked the contents for quality and weighed selected bales. After an undercover agent wrote the weight of each selected bale on a tally sheet, Angel and Priestly, Jr., loaded seven marijuana bales into the trunk of Angel’s car; and Poynter packed six marijuana bales into the trunk of his car. At the $235 per pound price that Nichols, Angel, and Poyn-ter agreed to pay Priestly, Sr., and Pennie, the total price for the marijuana was $55,-930 for the seven bales in Angel’s car trunk and $46,506 for the six bales in Angel’s car trunk. Angel telephoned these sums to Priestly, Sr., who was waiting at his business office with Pennie, Nichols, and an undercover agent named Smith. Priestly, Sr., then gave Smith $89,380, keeping the $13,056 difference between the amount he and his partner had obligated themselves to pay Krido’s group and the total purchase price Angel, Poynter, and Nichols agreed to pay Priestly, Sr., and Pennie for the marijuana. Thereupon officers entered and arrested Priestly, Sr., Pen-nie, and Nichols at Priestly, Sr.’s, business office. Other officers arrested Priestly, Jr., Angel, and Poynter at the scene of the transfer of the marijuana bales.

The Priestlys raise eight points on appeal, none of which demonstrates reversible error, and only some of which need discussion. One needing discussion is the argument that the circuit court’s admission into evidence of a tape recording of a conversation between Pennie and Kridos over their objection was prejudicially erroneous.

During the course of the taped conversation, Pennie made statements about his and Priestly, Sr.’s, involvement in previous drug deals. These statements were clearly designed to impress Kridos with Pen-nie’s and Priestly, Sr.’s, ability to handle a large marijuana purchase from Kridos and were calculated to induce Kridos to consú-mate a large marijuana transaction with Pennie and Priestly, Sr.; they were, therefore, statements made in furtherance of the conspiracy of which the defendants were found guilty. United States v. Knippenberg, 502 F.2d 1056, 1060-61 (7th Cir.1974).

Appellants contend that the admission of the tapes violated the Confrontation Clause of the Sixth Amendment-to the United States Constitution. There is no clearcut answer to the question whether a statement of a coconspirator admissible under the Federal Rules of Evidence is inadmissible because of the Confrontation Clause. See discussion in United States v. Ammar, 714 F.2d 238, 254-57 (3rd Cir.1983).

Our study of the question leads us to hold that the admission into evidence under Section 90.803(18)(e), Florida Statutes (1981), of the tape recording of Pen-nie’s conversation with Kridos did not violate any defendant’s constitutional right to confront Pennie. See United States v. Swainson, 548 F.2d 657 (6th Cir.1977), which held that the admission into evidence under the federal coconspirator rule of a tape containing a conversation between two of three conspirators did not violate the constitutional right to confrontation of the third conspirator.

We also note that, under the facts of this case, any possible error in the admission of the tape would have been harmless because a trial court commits reversible error in permitting a jury, over appropriate objection, to hear evidence that violates the Confrontation Clause only if that evidence is “devastating,” or “critical,” i.e. if without that evidence the prosecution could not have proved its case. Compare Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981), and United States v. Fielding, supra, with McClain v. State, 411 So.2d 316 (Fla. 3d DCA 1982).

Another argument needing some discussion is appellants’ contention that the state’s failure to introduce into evidence the marijuana that Angel, Priestly, Jr., and Poynter packed into the trunks of the two cars was a fatal weakness in the state’s case. However, appellants did not object to the non-introduction at trial, and so that non-introduction was not reversible error. G.E.G. v. State, 417 So.2d 975 (Fla.1982). See, too, Watson v. State, 18 Md.App. 184, 306 A.2d 599 (1973), which holds that the failure to introduce the marijuana possessed is irrelevant to the validity of a conviction for possession of marijuana provided there is testimony to establish the nature of the material possessed.

The complaint that there was no proof of possession as to Priestly, Sr., is also without merit. First, proof of possession is not necessary to establish a sale. See, e.g., Runge v. State, 368 So.2d 366 (Fla. 2d DCA 1979). Second, when the state proved that all the defendants participated in a conspiracy to traffic in marijuana and that Priestly, Jr., Angel, and Poyn-ter had actual possession of the marijuana, it also proved that Priestly, Sr., had constructive possession, since each of the conspirators shares in the actual possessor’s actual possession. United States v. Barrera, 486 F.2d 333 (2d Cir.1973); United States v. DeLeon, 498 F.2d 1327 (7th Cir.1974); United States v. Ramos, 666 F.2d 469 (11th Cir.1982).

The last contention requiring discussion is that the prosecutor’s remark in his closing argument to the jury that those defendants who were raising the defense of entrapment would "have to show or has to be shown through evidence to you — in other words, through the State’s presentation of evidence to you that they were entrapped” constituted an improper comment on the appellants’ right to remain silent. That comment came in the course of lengthy discussion by the prosecutor on the defense of entrapment.

Entrapment is an affirmative defense that a defendant must prove unless the prosecution’s evidence itself shows the entrapment. Koptyra v. State, 172 So.2d 628 (Fla. 2d DCA 1965); Evenson v. State, 277 So.2d 587 (Fla. 4th DCA 1973); 22A C.J.S., Criminal Law, § 573, pp. 319-320. The prosecutor’s comment quoted above called the jury’s attention to this rule; it was proper. Cf. United States v. Nasta, 398 F.2d 283 (2d Cir.1968).

For the foregoing reasons we affirm the judgments and sentences appealed from.

AFFIRMED.

DOWNEY, BERANEK and WALDEN, JJ., concur.


text:
    Robin ANGEL and Ronald Burt Nichols, Appellants, v. STATE of Florida, Appellee.
    No. 82-1608.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Philip G. Butler, Jr., West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by Robin Angel and Ronald B. Nichols from judgments of guilty of trafficking in marijuana and conspiracy to traffic in marijuana. It is a companion case to Priestly v. State, 450 So.2d 289 (Fla. 4th DCA 1984), opinion filed this date, and to Poynter v. State, 443 So.2d 219 (Fla. 4th DCA 1984), all appellants having been codefendants in a joint trial.

The first argument on appeal is that the state did not prove possession because the arresting officers, with whom the appellants were conducting the marijuana transaction, did not intend to allow appellants to leave the scene after appellants loaded the marijuana into the trunks of their cars. This argument has been resolved adversely to appellants in a decision we hereby follow. State v. Brider, 386 So.2d 818 (Fla. 2d DCA 1980).

The second argument is the same as the tape recording argument raised in Priestly v. State, supra. We reject it for the reasons set forth in Priestly.

AFFIRMED.

DOWNEY, BERANEK and WALDEN, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Leroy HAY, Appellant, v. INDEPENDENT NEWSPAPERS, INC., and Phillip A. Pettus, Appellees.
    No. 83-215.
    District Court of Appeal of Florida, Second District.
    May 2, 1984.

      David C. Holloman of Holloman & Lambert, Arcadia, for appellant.
    W. Cort Frohlich of Wotitzky, Wotitzky, Mandell, Batsel, Wilkins & Frohlich, Punta Gorda, for appellees.
   SCHOONOVER, Judge.

This is an appeal from a final judgment dismissing a libel action with prejudice. We affirm.

Appellant, Leroy Hay, filed an action alleging that appellees, Independent Newspapers, Inc., publisher of the Arcadian, a newspaper in DeSoto County, Florida, and Phillip A. Pettus, Editor, committed libel by publishing an article in the Arcadian referring to appellant as a crook and a criminal.

The article, a letter to the editor, published in the “The Forum, Opinion” section of the newspaper, provided as follows:

What’s happened to our laws?
Editor:
What has happened to our laws? Monday the state attorney’s office announced its intention not to prosecute Leroy Hay, Fort Ogden, and Rich Heath, Fort Laud-erdale, and the judge fines Henry Hay $5,000 and gives him 5 years probation.
This makes me sick! Catch a crook, pat him on the back and let him go free. I wonder how many laughs they have had on this, at the taxpayers expense.
No wonder the young people today have no respect for law and order — look at the fine examples you judges and lawyers give them. You twist the laws so the crooks can go free. It makes one wonder who really is the criminal.
It’s time, you judges, lawyers, and leaders of our land, to take a good look at yourselves. Who are you really trying to protect, the crook, the innocent, or maybe your pocketbooks?
Concerned
Name withheld by request.

The trial court held the alleged libelous language was an expression of unactiona-ble opinion protected by the First Amendment of the United States Constitution and granted appellees’ motion to dismiss the complaint. After appellant declined an opportunity to further amend his complaint, a final judgment dismissing the action with prejudice was entered. This appeal timely followed.

It is undisputed that appellant is a private person and not a public official or public figure. To state a cause of action for libel, a private person must allege publication (1) of false and defamatory statements of and concerning that private person, (2) without reasonable care as to the truth or falsity of those statements, (3) resulting in actual damage to that private person. Miami Herald Publishing Co. v. Ane, 423 So.2d 376 (Fla. 3d DCA 1982); Boyles v. Mid-Florida Television Corp., 431 So.2d 627 (Fla. 5th DCA 1983); Tribune Co. v. Levin, 426 So.2d 45 (Fla. 2d DCA 1982).

Whether a statement is one of fact or one of opinion is a question of law. From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981) petition for review denied 412 So.2d 465 (Fla.1982). False statements of fact of or concerning a private person are not protected by the Constitution, but expressions of opinion are. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

There is a distinction between pure expression of opinion and mixed expression of opinion. Pure opinion is based upon facts that the communicator sets forth in a publication, or that are otherwise known or available to the reader or the listener as a member of the public. Mixed opinion is based upon facts regarding a person or his conduct that are neither stated in the publication nor assumed to exist by a party exposed to the communication. From. Rather, the communicator implies that a concealed or undisclosed set of defamatory facts would confirm his opinion. Kotlikoff v. The Community News, 444 A.2d 1086 (N.J.1982). Pure opinion is protected under the First Amendment, but mixed opinion is not. See From.

In determining -Whether an alleged libelous statement is pure opinion, the court must construe the statement in its totality, examining not merely a particular phrase or sentence, but all of the words used in the publication. The court must consider the context in which the statement was published and accord weight to cautionary terms used by the person publishing the statement. All of the circumstances surrounding the publication must be considered, including the medium by which it was disseminated and the audience to which it was published. Information Control v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir.1980) cited with approval in From.

The complaint in the case sub judice was defective because it was based upon an expression of pure opinion and therefore failed to allege a false and defamatory statement of and concerning the appellant. The complaint alleged that statements contained in the article referred to the appellant as a crook and a criminal. These statements were based in part upon facts disclosed in the article, but the fact that criminal charges had been filed against the appellant was either known or readily available to the reader as a member of the public. Furthermore, the statements were made in a letter to the editor published in a section of the newspaper titled “The Forum, Opinion,” and the letter was directed not toward the appellant, but toward the judicial system. Applying the principles hereinabove set forth, we hold the statement was a pure expression of opinion and accordingly protected by the First Amendment of the United States Constitution. See also Demoya v. Walsh, 441 So.2d 1120 (Fla. 3d DCA 1983) (characterization of coworker as “raving maniac” and “raving idiot” was pure opinion based on disclosed facts); Kotlikoff (accusations of mayor’s involvement in “huge coverup” and “conspiracy” were, in context, protected expressions of opinion); contra Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977) (accusations of criminal activity, even in form of opinion, are not constitutionally protected).

The complaint was further defective because it failed to allege fault upon the part of appellee in publishing statements without regard to their truth or falsity. The complaint alleged that the published matter referred to appellant as a crook and a criminal and was therefore libel per se. The Supreme Court of Florida has held that a person commits libel per se when he charges that another is a crook, unless the communication is privileged. Commander v. Pedersen, 116 Fla. 148, 156 So. 337 (1934). Assuming arguendo that we had held the references to the appellant as a crook and criminal to be nonprivileged, false, and defamatory fact statements as opposed to pure opinion, this allegation would have been sufficient to satisfy the fault requirement prior to Gertz. Until Gertz, the law conclusively implied malice and damage if the defamatory language was libel per se. Johnson v. Finance Acceptance Co., 118 Fla. 397, 159 So. 364 (1935).

In Gertz, however, the United States Supreme Court stated:

We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

418 U.S. at 347, 94 S.Ct. at 3010.

Pursuant to Gertz, this court has adopted the negligence standard as the appropriate standard of liability in connection with defamatory statements concerning a private individual. Tribune v. Levin; see also Miami Herald (negligence standard adopted by Third District Court of Appeal); Boyles (negligence standard adopted by Fifth District Court of Appeal). Although libel per se still exists in Florida where nonprivileged defamatory words are deemed injurious upon their face without resort to extrinsic proof, it is not sufficient for a plaintiff to merely raise a presumption of malice. Fault must be alleged. Miami Herald; Boyles. Therefore, the trial court properly dismissed the complaint because the alleged libelous language was an expression of unactionable opinion, but even if the expression had been actionable, dismissal would have been proper because appellant failed to allege fault.

AFFIRMED.

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


text:
    Jose F. CARAGOL, as Personal Representative of the Estate of Sylvia Caragol, deceased, Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION and Florida Department of Insurance, Appellees.
    No. 83-1575.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Rehearing Denied June 11, 1984.
    Rudolph Browd, Miami, for appellant.
    Richard M. Dunn and Christine R. Tray-nor, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the judgment under review upon a holding that the jury’s verdict expressly finding the defendant-appellee not negligent rendered harmless the error, if any, in the court’s instructions pertaining to the comparative negligence of the plaintiff. Swindell v. Hellkamp, 242 So.2d 708 (Fla.1970); McArthur v. St. Louis-San Francisco Railway Company, 306 So.2d 575 (Fla. 1st DCA 1975). Accord, Zerwal v. State Farm Mutual Automobile Insurance Company, 332 So.2d 645 (Fla. 3d DCA 1976).

Affirmed.


text:
    Richard W. WARNER, Personal Representative of the Estate of Gerhard Betker and Mirjam Betker, Appellant, v. NATIONAL CAR RENTAL SYSTEM, INC., Appellee.
    No. 83-1862.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Rehearing Denied June 5, 1984.
    Ralph P. Ezzo, Miami, for appellant.
    Daniels & Hicks and Patrice A. Talisman; George, Hartz, Burt & Lundeen and Michael Goldberg, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Morpurgo v. Greyhound Rent-A-Car, Inc., 339 So.2d 718 (Fla. 1st DCA 1976).


text:
    The STATE of Florida, Appellant, v. Renier RODRIGUEZ, Appellee.
    No. 83-2016.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Rehearing Denied June 11, 1984.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellant,
    Thomas G. Murray, Donald F. Spain, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Mancini v. State, 448 So.2d 573 (Fla. 1st DCA 1984).


text:
    Robert D. NOBLE and Linda Noble, his Wife, Appellants, v. MIDWAY SKATING CENTER, INC., Appellee.
    No. 83-2608.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Rehearing Denied June 13, 1984.
    Black & Black and Robert Black, Coral Gables, for appellants.
    Walton, Lantaff, Schroeder & Carson and Sally R. Doerner, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

Affirmed. Hickory House, Inc. v. Brown, 77 So.2d 249 (Fla.1955); McCarty v. Dade Division of American Hospital Supply, 360 So.2d 436 (Fla. 3d DCA 1978).


author: MILLS, Judge.

text:
    James Edward LOVE, Appellant, v. STATE of Florida, Appellee.
    No. AT-431.
    District Court of Appeal of Florida, First District.
    May 10, 1984.
    Rehearing Denied June 8, 1984.
    Martin S. Page, Lake City, for appellant.
    Jim Smith, Atty. Gen., Henri C. Cawthon, Tallahassee, for appellee.
   MILLS, Judge.

Love appeals from his conviction of two counts of grand theft. He challenges the adequacy of the charging document as to one count and the sufficiency of the evidence against him as to both counts. We affirm.

The gist of the allegations was that Love, while a captain in the Florida Highway Patrol, had the costs of repairs to his personal tractor charged to the State and had parts replaced on a Florida Highway Patrol car at state expense after arranging to purchase the car himself.

Love first contends Count II of the information was vague, failed to charge a crime, and should have been dismissed. Count II of the information stated:

And DONALD S. MODESITT, as State Attorney aforesaid, further charges that JAMES EDWARD LOVE between the 1st of MARCH, 1980, and the 7th of APRIL, 1980, in the County of Suwannee and State of Florida, did knowingly obtain or use, or did endeavor to obtain or to use United States currency or new parts for an automobile of the value of $100.00 or more, the property of the STATE OF FLORIDA, with the intent to permanently deprive the STATE OF FLORIDA of a right to the property or a benefit therefrom or to appropriate the property to his own use or to the use of any person not entitled thereto, by having MOTT CHRYSLER-PLYMOUTH, INC., install new engine parts on Florida Highway Patrol motor vehicle number 208 shortly before the vehicle was to be traded in and then purchasing the vehicle personally, contrary to Section 812.014, Florida Statutes.

To dismiss an information for vagueness, the information must be “so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” Florida Rule of Criminal Procedure 3.140(o). Count II tracked the language of Section 812.014, Florida Statutes (1981). Count II also described with some particularity the alleged factual events the State considered a violation of the statute. The trial court properly denied Love's motion to dismiss Count II. State v. Dilworth, 397 So.2d 292 (Fla.1981).

Love also contends the evidence against him was legally insufficient and, therefore, the trial court erred in denying his motion for judgment of acquittal allowing the case to go to the jury. A defendant moving for judgment of acquittal admits the facts adduced in evidence and every conclusion favorable to the State fairly and reasonably inferable therefrom. Spinkellink v. State, 313 So.2d 666, 670 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). After carefully reviewing the record, we cannot say the State failed to present a prima facie case.

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


text:
    Jimmy MAYS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-831.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Bennett H. Brummer, Public Defender, and Ken Lange, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   OPINION ON REHEARING

PER CURIAM.

We affirm Mays’ conviction for the crime of third degree murder. We reverse, however, Mays’ conviction for the crime of grand theft because that crime was a predicate supporting the murder conviction. See Bell v. State, 437 So.2d 1057 (Fla.1983); Boivin v. State, 436 So.2d 1074 (Fla. 3d DCA 1983), review granted, No. 64,368 (Fla. Mar. 30, 1984). We reverse the reservation of jurisdiction over the sentence on the authority of Pope v. State, 441 So.2d 1073 (Fla.1983), and Owen v. State, 441 So.2d 1111 (Fla. 3d DCA 1983).

Affirmed in part; reversed in part.


text:
    Thomas W. McKAY, Appellant, v. BELCHER YACHT, INC., a Florida corporation, and Edwin N. Belcher, III, Appellees.
    No. 83-2529.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Rehearing Denied June 8, 1984.
    Edward C. Vining, Jr., Miami, for appellant.
    Mark E. Pollack, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See AMC/Jeep of Vero Beach, Inc. v. Funston, 403 So.2d 602 (Fla. 4th DCA 1981); Florida Sunshine Coast Development Co. v. McClung, 352 So.2d 154 (Fla. 2d DCA 1977).


author: GRIMES, Acting Chief Judge.

text:
    Patricia V. TARLTON, Appellant, v. DIXIE INSURANCE COMPANY, Appellee.
    No. 83-1807.
    District Court of Appeal of Florida, Second District.
    May 16, 1984.
    Scott Charlton of Peavyhouse, Giglio, Grant, Clark, Charlton, Opp & Martino, Tampa, for appellant.
    Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamb, P.A., St. Peters-burg, for appellee.
   GRIMES, Acting Chief Judge.

Patricia Tarlton obtained automobile bodily injury liability coverage from Dixie Insurance Company with limits of $100,000 per person and $300,000 per occurrence. For underwriting purposes, Dixie issued two policies. The first policy carried bodily injury limits of $10,000/$20,000 and uninsured motorist limits in the same amount. The second policy, being an excess policy, provided bodily injury limits of $90,000/ $280,000 but no uninsured motorist coverage. As part of the application for the first policy, Ms. Tarlton signed a form explaining that section 627.727(2), Florida Statutes (1979), required insurers to make available uninsured motorist coverage at limits up to $100,000/$300,000 and acknowledging that she had rejected the offer of such coverage. The application for the second policy signed on the same date simply stated that the applicant had rejected uninsured motorist coverage.

Subsequent to the issuance of the policies, Ms. Tarlton was injured in an automobile accident with an uninsured motorist. Upon Dixie’s insistence that her uninsured motorist coverage was limited to $10,-000/$20,000, she sued for declaratory judgment. The court entered summary judgment for Dixie with the observation that “plaintiff knowingly rejected an informed offer of uninsured motorist coverage to the appropriate limits of the two policies simultaneously offered by the defendant.” We affirm.

Ms. Tarlton’s reliance upon the omission of a statement reflecting an offer of higher uninsured motorist limits on the second policy application is misplaced. She cannot argue that she was unaware that higher coverage was available because the application for the first policy clearly included an offer of the requisite limits. See American Fire & Indemnity Co. v. Spaulding, 442 So.2d 206 (Fla.1983). Unlike the cases relied upon by Ms. Tarlton, there was an affirmative rejection of uninsured motorist insurance in the application for the second policy under which she now seeks coverage.

AFFIRMED.

SCHEB and RYDER, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge. COWART, Judge,

text:
    Craig Eugene FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1606.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.

      James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Craig Eugene Freeman pleaded nolo contendere to the offenses of burglary of a structure and resisting an officer without violence expressly reserving his right to appeal the denial of a motion to suppress his confession. There was no finding by the court that the suppression issue was dispositive of the case.

In Brown v. State, 376 So.2d 382 (Fla.1979), the Florida Supreme Court held that a defendant could take an appeal from a judgment entered upon a conditional plea of nolo contendere only when the reserved issue was legally dispositive of the case. In the course of its opinion, the court stated:

We must now ascertain what constitutes a dispositive legal issue. In most cases the determination will be a simple one. Motions testing the sufficiency of the charging document, the constitutionality of a controlling statute, or the suppression of contraband for which a defendant is charged with possession are illustrative. This case, however, presents us with one of the truly inscrutable areas— confessions. In order to determine accurately whether a confession is dispositive of a case, the prosecution would have to present to the trial judge all of the evidence it intended to introduce at trial. The judge would then have to decide on the basis of hearsay and summarized information, whether there was sufficient evidence apart from the confession to support a conviction. Such a procedure would be unwieldy and time-consuming. Therefore, in order to avoid a mini-trial on the sufficiency of the evidence in each case involving a confession, we hold that as a matter of law a confession may not be considered dispositive of the case for purposes of an Ashby nolo plea, (footnote omitted; emphasis added)

376 So.2d at 385.

In the instant case, counsel announced that Freeman would withdraw his not guilty plea and enter a plea of no contest “specifically reserving the right to appeal the denial of a motion to suppress a confession, which we filed dated June 9, 1982.” Following a recap of the grounds of the motion, the following colloquy occurred:

[DEFENSE COUNSEL]: We would, we feel that the state’s version of the facts, which I presume will be given in a few minutes, do not substantiate, or would not substantiate a guilty plea or guilty verdict in either one of these charges, and the confession, we filed and sent the motion to suppress the confession, that being denied — in other words, if it had been granted, we feel as if the state would not have been able to bear the burden of proof they need to bear to get a conviction in these cases.
We do enter a plea of no contest, reserving the right to appeal that denial.
THE COURT: Would that be acceptable to the state under all the circumstances?
[PROSECUTOR]: Yes, Your Honor.
THE COURT: Whether or not that would be dispositive of the case, like I said, that’s up to the Fifth District Court of Appeals.
Of course not stipulating or agreeing it is fully dispositive of that case.
The state possibly could still go forward to a jury trial even without the admission or confessions of Craig Freeman.
Mr. Freeman, plead no contest here today, told your lawyer of course going to adjudicate you guilty,' put a felony on your record and also a misdemeanor; Court’s going to impose three years Department of Corrections on count one the burglary of a structure, and impose one year in the Orange County Jail, count two, resisting an officer without violence. These two sentences run concurrently, at the same time — however, they would run consecutive, in addition to any other sentence you might be serving, if you’re serving any other sentence.
Do you fully understand that?
MR. FREEMAN: Yes, sir.
THE COURT: Is that what you want to do here today, give up your jury trial and plead no contest to the two charges?
MR. FREEMAN: Yes, sir.
THE COURT: Mr. Taylor, anything further you want to put on the record about that before we proceed?
[DEFENSE COUNSEL]: No, Your Hon- or.
THE COURT: Acceptable, the two pleas under all the circumstances?
[PROSECUTOR]: Yes, Your Honor.
THE COURT: Place Craig Freeman under oath and see if I accept his nolo contendere pleas.
THE COURT: Your trial probably take about a day, day and a half.
Plead no contest, nolo contendere, you’re not admitting the two charges, not disputing, not contesting them — however, you are reserving your right to take an appeal; do you understand all that?
MR. FREEMAN: Yes, sir. (emphasis added)

Whether a confession is dispositive is not a matter to be determined initially by an appellate court. It is a matter to be determined by the trial court before acceptance of a plea of nolo contendere with a reservation of the right to appeal. Since Brown, some district courts of appeal have held that a confession could be dispositive of the case if so stipulated by the state. See Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff'd., 392 So.2d 1324 (Fla.1981); Oesterle v. State, 382 So.2d 1293 (Fla. 2d DCA 1980). In Sommers v. State, 404 So.2d 366 (Fla. 2d DCA) petition dismissed, 407 So.2d 1105 (Fla.1981), the Second District held that in ordinary cases where a defendant seeks to plead nolo con-tendere with the reservation of the right to appeal an issue, his attorney will have some burden to show that the issue is actually dispositive, though a mere reference to the nature of the case, such as possession of contraband may sometimes suffice for this purpose. According to the Second District, if the state attorney does not stipulate that the issue is dispositive, he should then explain to the court the additional available evidence upon which the defendant might be convicted and at this point the court should determine whether the issue is dispositive and decide whether to accept the plea.

Although the trial court made no finding that the suppression of the confession was dispositive, we conclude that the statements made by the prosecutor amounted to a stipulation that the confession was dispositive. Counsel for Freeman clearly contended the confession was necessary to the state’s case. The state twice said that the plea was acceptable to it under the circumstances. The factual statement offered by the state reflects that Freeman was not found at the scene of a burglary, but was apprehended nearby. His confession was the only thing that identified him as the culprit.

Turning to the merits of the appeal, Freeman asserts that his confession was the “fruit” of an illegal stop. We disagree. At the suppression hearing, a deputy testified he responded to a radio call that a burglary had taken place in Winter Park. On arrival, he spoke with the owner and a witness who had observed two black males in dark clothing run past him in a northerly and northwesterly direction. The burglary site was in a predominately white area and the pattern of the fleeing blacks indicated they were headed into a black section of town. The incident occurred at approximate 10:00 p.m. on a Sunday night. The deputy radioed requesting a BOLO be broadcast. Another officer, hearing the broadcast, also received information the two fugitives were in their early twenties. The officer continued in the direction indicated and observed two young males. He observed that they were acting suspiciously for that particular time and place. When he approached the two men displaying his badge, they ran. Freeman was apprehended when he injured himself attempting to jump a parking lot wall. These two individuals were the only two meeting the description of the fugitives observed in the area.

We believe the stop was reasonably based on “articulable reasons” and “founded suspicion” and therefore justified. See United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Webb, 398 So.2d 820 (Fla.1981); State v. Jones, 417 So.2d 788 (Fla. 5th DCA 1982). Accordingly, the denial of the motion to suppress was correct.

AFFIRMED.

ORFINGER, C.J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting.

Appellant entered a plea of nolo conten-dere expressly reserving the right to appeal the denial of a motion to suppress a confession. The State did not stipulate that the issue of legality of the confession was dispositive of the case. The trial court explicitly declined to rule whether or not the evidence in the case would be sufficient to support a conviction in the absence of the confession (i.e., that the suppression of the confession would dispose of the case) expressly leaving that matter up to this appellate court. Further, the trial judge understood that the prosecutor was “not stipulating or agreeing” that the deposition was dispositive. Consider the following portion of the trial judge’s statement quoted without emphasis in the majority opinion:

THE COURT: Whether or not that would be dispositive of the case, like I said, that’s up to the Fifth District Court of Appeals.
Of course not stipulating or agreeing it is fully dispositive of that case.
The state possibly could still go forward to a jury trial even without the admission or confessions of Craig Freeman, (emphasis supplied)

Experience with the fact that court reporters edit and provide punctuation when transcribing their stenographic notes of oral statements strongly suggests that rather than being a separate fragmentary sentence, the middle statement was an introductory phrase to a second sentence that should have been transcribed, punctuated, and written as follows:

THE COURT: Whether or not that would be dispositive of the case, like I said, that’s up to the Fifth District Court of Appeals.
Of course, not stipulating or agreeing it is fully dispositive of [the] case, the state possibly could still go forward to a jury trial even without the admission or confessions of Craig Freeman, (emphasis supplied)

In Brown v. State, 376 So.2d 382, at 385 (Fla.1979), the Florida Supreme Court held that “as a matter of law a confession may not be considered dispositive of the case for purposes of an [State v.] Ashby [245 So.2d 225 (Fla.1971)] nolo plea.” In order to plead nolo contendere and appeal an order declining to suppress a confession, the burden is on defense counsel to secure a ruling from the trial court based on a concession from, or stipulation with, the state or on an independent finding that, as a matter of law, the admissibility of the confession is dispositive of the particular case. As this was not done in this case, I would dismiss the appeal.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Jose Guadalupe VELA, Appellant, v. STATE of Florida, Appellee.
    No. 83-331.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Jose Guadalupe Vela was convicted of DWI/Manslaughter and vehicular homicide arising from an automobile accident. He appeals contending the trial court erred in denying his motion for discharge based on pre-arrest delay and denial of speedy trial. He also maintains that the court erred in adjudicating and sentencing him for DWI/Manslaughter and vehicular homicide where there was only one collision and one death.

The facts, stated briefly, are as follows. By information filed on August 7, 1977, Vela was charged with the above two crimes arising out of an automobile accident which occurred on May 15, 1977. Vela, who is a fruit picker and travels to different states to work, was not arrested on the charges until April 1, 1982, and trial began in late January, 1983.

At trial, two eyewitnesses to the accident testified for the state. They each testified that they saw the car being driven by Vela fly across Highway 50 in Orange County and plow into the side of an automobile being driven by the decedent, who was apparently killed instantly. Neither of the eyewitnesses saw anyone else in Vela’s car and a search of the accident scene failed to reveal the presence of any other passengers. Extensive testimony was presented regarding Vela’s intoxication at the time of the accident. Vela denied being intoxicated and claimed he had been struck on the back of the head by an intruder while driving and that this rendered him senseless to the collision.

Vela argues that in light of the over five-year delay between the time the information was filed against him and the time trial began, his motion for discharge should have been granted. The record reveals that Vela, as a fruit picker, works with his family part of the year in Florida and part in midwestern states including Iowa, Illinois and Missouri. He lives in Florida from November to June and spends the remaining months in the midwest. He keeps a house trailer in Orange County and moved it once in 1979.

Nine days after the information was filed against Vela, Detective Humphrey of the Orange County Sheriff’s Department visited Vela’s address in Orange County, but Vela was not at his trailer. Humphrey spoke with the trailer park manager who told him that Vela had left the state. The manager had a postal change of address card which indicated Vela’s new address in Illinois. The manager informed Humphrey that Vela would be back during fruit season, in May. Humphrey left his card with the manager and asked her to call him if and when Vela returned. She never called. He also left a card with a migrant workers official for whom Vela had worked. After this visit, Humphrey sent a teletype and capias to Illinois police, and subsequently learned that Illinois officials could not locate Vela.

Humphrey returned to the trailer park in November, 1977, but again could not locate Vela. He spoke to some maintenance people who had no idea who Vela was. Following this visit, Humphrey indicated this was a “could not locate” situation and did nothing until March 29, 1982, when he received an anonymous call that Vela had been seen in a residential area of Orange County. Humphrey investigated and on April 1, 1982, was able to locate Vela’s trailer and arrest him.

The constitutional guarantee of a speedy trial, embodied in the Sixth Amendment, becomes applicable upon either arrest or indictment, whichever occurs first. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set forth four elements that are to be balanced against each other on a case-by-case basis to determine whether a defendant’s right to constitutional speedy trial has been violated. These elements are: (1) length of delay; (2) reason for delay, (3) whether the defendant asserted his right to be tried speedily, and (4) prejudice to the defendant caused by the delay. See also State v. Bonamy, 409 So.2d 518 (Fla. 5th DCA 1982). In Barker, the Court stated that it regarded “none of the four factors... as either a necessary or sufficient condition to the finding of a deprivation of the speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” 92 S.Ct. at 2193.

As to the first element, length of delay, it is merely a threshold triggering mechanism. Bonamy, 409 So.2d at 519. A court need not inquire into the other factors unless there has been a delay of such length as to be “presumptively prejudicial.” Id. In Bonamy, this court indicated that a delay of one year between arraignment and trial is long enough to trigger this threshold presumption, but we also emphasized that the length of delay is not sufficient in itself to warrant a finding that the defendant was deprived of constitutional speedy trial. Id. See also United States v. Edwards, 577 F.2d 883 (5th Cir.1978). To emphasize this latter point, we noted that:

In Barker, the United States Supreme Court found that there had been no denial of speedy trial even though the delay had been ‘well over five years.’ In numerous other eases, delays ranging from one-and-a-half years to six years have been found not in violation of a defendant’s constitutional speedy trial when viewed in light of the other elements. E.g. United States v. Hill, 622 F.2d 900 (5th Cir.1980); United States v. Saglimbene, 471 F.2d 16 (2d Cir.1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2146, 36 L.Ed.2d 686 (1973).

Bonamy, 409 So.2d at 519-20. Here, the delay of over five years between the filing of the information and commencement of trial is of sufficient length to require consideration of the other factors.

The Fifth Circuit has recognized three different categories of delay, deliberate delay, negligent delay, and justified delay. United States v. Avalos, 541 F.2d 1100 (5th Cir.1976). See also Howell v. State, 418 So.2d 1164 (Fla. 1st DCA 1982). A deliberate delay is to be weighted heavily against the government • while a negligent delay should be weighted less heavily but nevertheless should be considered since ultimate responsibility for such circumstances rests with the government. Barker, 92 S.Ct. at 2192.

There is no claim that the delay between filing of the information and Vela’s arrest was deliberate. Rather, Vela is, in essence, alleging negligent delay, that he could and should have been arrested much sooner than he actually was. In United States v. Jenkins, 701 F.2d 850 (10th Cir.1983), the Tenth Circuit found that the authorities’ attempts to locate the accused (which included contacting the post office for a forwarding address, checking for utility services and other standard inquiries) were insufficient and that the government was negligent in failing to locate the defendant for some sixteen months. The court noted there was no evidence establishing that the defendant left his residence to avoid arrest or conceal his whereabouts.

This case is similar. Not only is there no evidence of flight or concealment, but the manager of Vela’s trailer park advised the police that Vela would be returning to his trailer in May, 1978. No attempt was made to check back at that time. From this we conclude that the police were negligent in not locating and arresting Vela until April of 1982.

As noted in Jenkins, however, this factor again is not dispositive and the crucial issue concerns the presence or absence of prejudice to the defendant from the delay.

While a showing of prejudice is not necessary to a finding of a Sixth Amendment violation, there is some reluctance to find a speedy trial deprivation where there is no prejudice. Jenkins, 701 F.2d at 857. See also United States v. Brown, 600 F.2d 248, 254 (10th Cir.); cert. denied, 444 U.S. 917, 100 S.Ct. 233, 62 L.Ed.2d 172 (1979). For instance, in Jenkins, the court, while finding that the government was negligent in not arresting the defendant for some sixteen months after the indictment against him was issued, nevertheless concluded that “after weighing all of the Barker factors, and considering especially the lack of a showing of prejudice by the delay, we conclude that the defendant’s Sixth Amendment right to a speedy trial has not been violated.” 701 F.2d at 857-58.

Under Barker, prejudice to the defendant is assessed in light of three interests the speedy trial guarantee is designed to protect: (1) prevention of oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Barker, 92 S.Ct. at 2193. Here, there was virtually no pre-trial incarceration as Vela was free for the entire period from the filing of the information until he was arrested on April 1, 1982. Likewise, Vela apparently was unaware of the pending charges during this period and hence can claim no anxiety and concern. Finally, Vela has not shown actual prejudice by impairment of his defense due to the delay. Vela claims that because of the delay, the identities of participating deputy sheriffs were lost, thus preventing him from establishing any independent support for his claim that he had been struck on the head from behind by someone hiding in his car. However, considering the testimony of the only eyewitnesses to the accident who said they searched around the vehicle and a nearby orange grove and did not find anyone else, this claim is without merit.

In summary, after considering all of the Barker factors and especially the lack of a showing of prejudice by the delay, Vela’s constitutional right to a speedy trial was not violated and hence the trial court did not err in denying his motion for discharge.

We do agree with Vela, however, that he could only be convicted and sentenced for DWI/Manslaughter or vehicular homicide, and not both. See Goss v. State, 398 So.2d 998 (Fla. 5th DCA 1982); Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981); Ubelis v. State, 384 So.2d 1294 (Fla. 2d DCA 1980). We reverse the conviction and sentence on vehicular homicide.

AFFIRMED in part, REVERSED in part.

COBB and SHARP, JJ., concur.

      . We recognize there is authority for the view that when the first three Barker factors are heavily weighted in favor of the accused, the necessity for a demonstration of actual prejudice is not required. Howell v. State, 418 So.2d at 1174; United States v. Edwards, 577 F.2d at 889, n. 8. However, we are not confronted with such a situation here because factors two and three are not weighted heavily in Vela's favor.

      . Vela was charged and convicted of both DWI/Manslaughter in violation of section 860.-01, Florida Statutes (1977) and vehicular homicide, in violation of section 782.071, Florida Statutes (1977). DWI/Manslaughter requires proof of the following elements:
      (1) that the victim is dead;
      (2) that the death was caused by the operation of a motor vehicle by the defendant; and
      (3) that the defendant was intoxicated at the time he operated the motor vehicle.

        Baker v. State, 377 So.2d 17 (Fla.1979).
      Vehicular homicide requires proof of the following elements;
      (1) that the victim is dead;
      (2) that the death was caused by the operation of a motor vehicle by the defendant; and
      (3) that the defendant operated the motor vehicle in a reckless manner likely to cause the death of, or great bodily harm to another person.

        Grala v. State, 414 So.2d 621 (Fla. 3d DCA 1982).
      The state argues that under a double jeopardy analysis, since each offense requires proof of an element which the other does not (DWI/Manslaughter requires proof of intoxication while vehicular homicide requires proof of recklessness) the offenses are separate and distinct and Vela could be convicted and sentenced for each. However, we are dealing here with a degree crime, homicide, and it is "logically impossible to commit more than one degree crime as to one death.” Baker v. State, 425 So.2d 36,60 (Fla. 5th DCA 1982) (Cowart, J., dissenting).


author: JOANOS, Judge.

text:
    CITY OF GAINESVILLE and Crawford and Company, Appellants, v. Clent B. BECK, Appellee.
    No. AS-251.
    District Court of Appeal of Florida, First District.
    May 18, 1984.
    John P. Brooks of Jones & Langdon, Gainesville, for appellants.
    Rodney W. Smith of Smith, Saier & Bryant, Alachua, for appellee.
   ON MOTION FOR CLARIFICATION

JOANOS, Judge.

Having considered the appellee’s motion for clarification of decision, we grant the motion and withdraw the decision and opinion filed March 27, 1984, substituting the following decision and opinion in lieu thereof.

Employer, City of Gainesville, and the insurance carrier, Crawford and Co., appeal a workers’ compensation order in which the deputy commissioner found that claimant’s heart attack was an injury by an accident arising out of his employment, relying upon section 112.18, Florida Statutes.

Claimant, a twenty-six-year veteran firefighter with the City of Gainesville, took medical leave from his job on March 10, 1981 for back problems unrelated to his work. While on medical leave, claimant suffered a heart attack on June 28, 1981, while talking with a group of friends at a local tavern. By August 27, 1981, Dr. Cooper, claimant’s treating cardiologist, had released him to full time activity regarding his heart, with limitations on lifting more than thirty pounds and avoiding stressful situations. Claimant was not released to light duty with his back problem until January, 1982. Upon his release to light duty work, claimant chose to retire. His use of accumulated sick time for his back injury lowered claimant’s retirement benefits. Claimant filed a claim for temporary total disability and permanent partial disability benefits under the “Firefighters’ Heart and Lung Provision” of section 112.18(1), Florida Statutes, to recover the sick leave used during his convalescence from his heart attack. He had passed a physical examination upon entering fireman service and had undergone physicals each year thereafter with stress tests and cardiograms given after claimant reached forty years of age. Claimant also sought medical costs and mileage.

Section 112.18(1) provides that heart attacks suffered by firemen are presumed to be accidental and suffered in the line of duty unless the contrary is shown by competent evidence. The deputy commissioner correctly determined that claimant’s heart attack was a compensable accident arising in the line of duty. Daniels v. Division of Retirement, 389 So.2d 340 (Fla. 1st DCA 1980). Claimant’s disability, however, was not caused by his heart attack, but rather by his back injury which preceded his heart attack by over three months and physically incapacitated claimant until January, 1982, over four months after he was released to light duty from his heart attack. The presumption that claimant’s heart attack resulted from an accident, suffered in the line of duty does not discount his total disability from his back surgery and subsequent convalescence. Temporary total disability benefits were not awardable because the back problems were not compen-sable or related to claimant’s work.

Accordingly, the deputy commissioner’s award of temporary total disability benefits is reversed, and the remainder of the order is affirmed.

SHIVERS and THOMPSON, JJ., concur.


author: BARFIELD, Judge.

text:
    LAKELAND HIGHLANDS CONSTRUCTION COMPANY and Iowa National Mutual Insurance Company, Appellants, v. Ronald CASEY (Deceased) and Darin Casey and Ronald Lee Casey, Appellees.
    Nos. AT-284, AT-285, AU-366 and AU-367.
    District Court of Appeal of Florida, First District.
    May 18, 1984.
    Bernard J. Zimmerman of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellants.
    John M. Mayer, Jr. of Hanger, Engebret-son & Mayer, Clarksville, Ind., for appel-lees.
   BARFIELD, Judge.

In these workers’ compensation cases the employer appeals the orders of the deputy commissioner awarding death benefits to the minor children of the deceased employee and awarding attorney fees to claimants’ attorney based on the employer’s bad faith in failing to pay death benefits. We affirm.

The employer defended against payment of the claims on the grounds that the natural minor children of the employee had not been economically dependent on the employee because he had failed to pay court-ordered child support. The deputy commissioner found that there is a conclusive presumption as a matter of law that unmarried, legitimate, natural minor children are entitled to death benefits without proof of dependency, and in the alternative that there was sufficient evidentiary proof to establish the dependency of both claimants. While we agree that there is sufficient evidentiary proof to establish dependency under the law, we focus our attention on the deputy commissioner’s ruling regarding the conclusive presumption of entitlement to benefits without proof of dependency. The deputy commissioner is correct in this ease.

Section 440.02(13), Florida Statutes (1981) divides the classification of “child” into two groups. The first group includes legitimate natural children born at the time of the employee’s death, legitimate natural children born posthumously and children legally adopted by the employee prior to the injury. The second group includes stepchildren “dependent” upon the employee and acknowledged illegitimate children “dependent” upon the employee. Excluded from both groups are married children unless “wholly dependent” on the' employee and all children eighteen years of age or older unless full-time students in accredited educational institutions and under twenty-two years of age.

In this case there was never any contention that the claimants were not legitimate natural, unmarried minor children under the age of eighteen years. Proof of economic dependency for this class of children is irrelevant. White v. P and G Erectors, Inc., IRC Order 2-3650 (January 12, 1979).

AFFIRMED.

WENTWORTH and ZEHMER, JJ., concur.


text:
    Alphonso SANDERS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-951.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

The trial court’s finding that the defendant violated his probation is affirmed. We nevertheless remand so that the trial court can correct the order of probation revocation to reflect the trial court’s oral pronouncement.

Affirmed and remanded with directions.


text:
    Willie HINES, Appellant, v. The STATE of Florida, Appellee.
    No. 83-964.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.

      Bennett H. Brummer, Public Defender, and Howard Landau, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Ferguson v. State, 417 So.2d 639 (Fla.1982); A.McD. v. State, 422 So.2d 336 (Fla. 3d DCA 1982); Paulk v. State, 405 So.2d 785 (Fla. 4th DCA 1981).


text:
    Helen P. TURKE and George J. Turke, d/b/a Silver Palm Groves, Appellant, v. KIMBALL TOPPERS, INC., a foreign corporation, Appellee.
    No. 83-2628.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Keyfetz, Poses & Halpern and L. Barry Keyfetz, Miami, for appellant.
    Fletcher & Langer and Robert A. Solove, Homestead, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Because there was no contractual or statutory basis for such an award, the award of attorney’s fees is reversed. The trial court s final default judgment is otherwise affirmed.

Affirmed in part, reversed in part.


text:
    Frank DEMOLFETTA, Appellant, v. AMERICAN SIGHTSEEING TOURS, INC., a Florida corporation, and Red Top Sedan Service, Inc., a Florida corporation, Appellees.
    No. 83-2748.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    William A. Cain, North Miami, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Fort Lauderdale, for appel-lees.
    Before BARKDULL, BASKIN and FERGUSON, JJ.

       Participated in the decision but not in oral argument.

   PER CURIAM.

The trial court’s order of dismissal for failure to serve the 5 day notice provided by Section 770.01 Florida Statutes (1983) prior to bringing a defamation action against a private “non-media” entity is reversed under the reasoning found in this court’s recent opinion of Davies v. Bossert, 449 So.2d 418 (Fla. 3d DCA 1984).

Therefore the order under review is reversed and the matter is returned to the trial court for further proceedings.


text:
    Luis ZARATE, Olga Zarate, Mauricio Zarate, Carolina Zarate and Alejandro Zarate, Appellants, v. NATIONAL CAR RENTAL SYSTEM, INC., a foreign corporation, Travelers Indemnity Company, a foreign corporation, and Old Republic Insurance Company, a foreign corporation, Appellees.
    No. 83-2771.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Fertig, Curtis & Wakefield and Edward R. Curtis, Fort Lauderdale, for appellants.
    Morgan, Lewis & Boekius and Paul J. Levine and Melvia L. Bailey, Daniels & Hicks and Patrice A. Talisman and Michael I. Goldberg, George, Hartz, Burt & Lun-deen, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. American Fire & Indemnity Co. v. Spaulding, 442 So.2d 206 (Fla.1983); MacKenzie v. Avis Rent-A-Car Systems, 369 So.2d 647, 648, n. 2 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 202 (Fla.1982); Guardado v. Greyhound Rent-A-Car, Inc., 340 So.2d 510 (Fla. 3d DCA 1977); Morpurgo v. Greyhound Rent-A-Car, Inc., 339 So.2d 718 (Fla. 1st DCA 1976).


text:
    Clint W. MURCHISON, Jr., Appellant, v. BANQUE ARABE ET INTERNATIONALE D'INVESTISSEMENT, a bank organized and existing under the laws of France, Appellee.
    No. 84-460.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Thomson, Zeder, Bohrer, Werth, Adorno & Razook and Jerold I. Budney, Miami, for appellant.
    Fine, Jacobson, Block, Klein, Colan & Simon and Linda Ann Wells, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Newton v. Bryan, 142 Fla. 14, 194 So. 282 (1940); Southwest Cycle Sales, Inc. v. Gold Key Marketing, Inc., 265 So.2d 390 (Fla. 3d DCA 1972).


author: BARFIELD, Judge. WENTWORTH, Judge,

text:
    KISSIMMEE CONSTRUCTION COMPANY (GAC CORPORATION) and Travelers Insurance Company, Appellants, v. Paul RILEY, Appellee.
    No. AT-214.
    District Court of Appeal of Florida, First District.
    May 22, 1984.

      Robert G. Brightman, Orlando, for appellants.
    J. David Parrish of Hurt & Parrish, P.A., and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   BARFIELD, Judge.

In this workers’ compensation case, the employer appeals the order of the deputy commissioner granting claimant’s petition for lump-sum payment of all benefits. Upon first impression this appeal appears to ask this court to review factual determinations made by the deputy commissioner and the application of those facts to the criteria for lump-sum settlement set forth in section 440.20(10), Florida Statutes (1977). If that were the only consideration, our review of the record would indicate that there is competent substantial evidence to support the findings and conclusions of the deputy commissioner. However, examination of the deputy commissioner’s order, together with review of discussions among counsel and the deputy commissioner as appear in the record of these proceedings, convinces us that the deputy commissioner and the attorneys were discussing the law as it existed prior to the 1979 amendments to chapter 440. These amendments revised and renumbered the subsection pertaining to lump-sum payments of workers’ compensation benefits.

Since claimant was injured in March of 1980, the standard by which the deputy commissioner must evaluate lump-sum settlements is set forth in section 440.-20(12)(a), Florida Statutes (1979), which reads in part:

It is the stated policy for the administration of the workers’ compensation system that it is in the best interest of the injured worker that he receive disability or wage-loss payments on a periodic basis.

This language was added in the 1979 amendment and sets forth a strong policy statement against lump-sum payments.

The deputy commissioner’s order which refers to section numbers that could only have preceded the 1979 amendment requires that we reverse and remand this case to the deputy commissioner for reconsideration in light of the law in effect at the time of claimant’s injury.

REVERSED and REMANDED.

THOMPSON, J., concurs.

WENTWORTH, J., concurs specially with an opinion.

WENTWORTH, Judge,

concurring.

Although I concur in the majority opinion I do not consider this to be a case controlled by the “law in effect at the time of claimant’s injury.” I view § 440.20(12) as a procedural enactment, and the statute would therefore apply as effective at the time of the hearing. See Sullivan v. Mayo, 121 So.2d 424 (Fla.1960). However, this does not affect the result in the present case. The relevant portion of the statute remained unchanged between the time of claimant’s injury and the time of the hearing. And I further note my perception of the amendatory language, quoted in the majority opinion, as merely a statutory expression of existing policy.


text:
    WESTERN ELECTRIC COMPANY, Appellant, v. Evelyn N. VICKERS, Appellee.
    No. AU-268.
    District Court of Appeal of Florida, First District.
    May 22, 1984.
    Peter L. Dearing of Mahoney, Hadlow & Adams, Jacksonville, for appellant.
    Kathryn Collins Peek of Howell, Liles, Braddock & Milton, Jacksonville, for appel-lee.
   BARFIELD, Judge.

In this workers’ compensation case, the employer appeals the final order of the deputy commissioner disallowing credit to the employer for payments made as to temporary total disability benefits after the date found by the deputy commissioner to be the date of maximum medical improvement of claimant. We reverse.

Claimant injured her back in an accident which arose out of and in the course of her employment with Western Electric Company, which is self-insured for purposes of the workers’ compensation law. The accident occurred on June 22, 1978, and aggravated a previously asymptomatic congenital defect.

Claimant was paid benefits under a contract benefit plan which provides for full wages for the first several weeks after the accident and half wages for the remainder of the disability. A relevant section of the plan reads:

In case any benefit, which the Committee shall determine to be of the same general character as a payment provided by the Plan, shall be payable under any law now in force or hereafter enacted to any employee of the Company, the excess only, if any, of the amount prescribed in the Plan above the amount of such payment prescribed by law shall be payable under the Plan; ...

Employer reported to the Division that benefits were being paid to claimant under the workers’ compensation law as either temporary total disability or temporary partial disability. When receiving total benefits, claimant realized approximately $30 weekly in excess of the workers’ compensation benefits to which she was entitled.

Claimant’s recovery from the injury was unsatisfactory, and in December 1979, a spinal fusion was performed by Dr. Michael Scharf. Although the x-rays of that surgery indicate that it was successful, claimant did and still does have considerable back pain. In August of 1980, Dr. Scharf released claimant for part-time work. She attempted to return to work but experienced pain and numbness in her legs which caused her to fall, and was unable to return to work in any capacity. Dr. Scharf’s attempts to relieve the pain with a corset, with a TENS unit, with medication, and with physical therapy were all unsuccessful.

In September 1981, claimant was referred to Dr. Arthur Rosen, who specializes in chronic pain dysfunction. Dr. Rosen altered claimant’s medication but otherwise was unable to help her. He released her on February 25, 1982, and recommended psychiatric evaluation and referral to a pain clinic.

On February 2, 1982, Dr. Scharf advised the employer that “[fjrom an orthopedic standpoint, I have nothing else to offer her.” He stated that she has a 45% permanent physical impairment and identified her as a candidate for vocational training.

Claimant was referred to Dr. Ethan Todd, an orthopedic surgeon, for an independent medical examination. On April 22, 1982, he reported to the employer, concurring in Dr. Scharf’s conclusions and identifying psychiatric counseling as the only remaining alternative.

Claimant was referred to psychiatrist Milton B. Mann, M.D. He reported his conclusions to the employer on April 22, 1982. He identified claimant as being depressed due to chronic pain, and stated “[pjrobably all that would help at this point has been done, except for a pain clinic, which may be of great benefit .... Her depressed feelings would not preclude employment within her orthopedic restrictions and limitations.”

Claimant continued to receive benefits under the employee plan which were identified to the Division as temporary total disability benefits. Claimant requested a hearing on the permanency of her disability. On hearing the evidence, Deputy Commissioner Gay issued his order of May 3, 1983, finding that claimant was totally and permanently disabled with a maximum medical improvement date of February 2, 1982. Employer was ordered to reclassify all benefits paid after that date as permanent total disability and to take credit for such payments against the award.

Claimant filed a motion for rehearing on the question of reclassification and credit. The deputy commissioner granted the motion, vacated his prior order, and after a hearing on the merits, issued a new order on July 13, 1983. In that order, the deputy commissioner cited the case of Belam Florida Corporation v. Dardy, 397 So.2d 756 (Fla. 1st DCA 1981) (en banc), and stated, “Given the virtual unanimity of medical opinion herein, Employer’s continuing payment of temporary benefits was not reasonable; and the credit should not be allowed.” Employer’s request for rehearing on the question was denied, and it undertook this appeal.

The deputy commissioner did not properly apply the Belam test. The test is a two-part test. First, there must be some basis in the record to support the employer’s position (even if that evidence is not the predominant medical opinion). Second, the basis must be a reasonable one, not one based on mere speculation or an unqualified opinion. Although the medical authorities were uncertain, the employer was told that a pain clinic might relieve claimant’s pain to a degree where she could return to work. This is especially important in light of the consensus opinion that claimant could physically perform many types of work if the pain could be relieved.

The other arguments raised by the appellant are without merit. The decision of the deputy commissioner is REVERSED. The employer is allowed to reclassify benefits paid after February 2, 1982, and receive credit for those payments against permanent total disability benefits due to claimant.

WENTWORTH and THOMPSON, JJ., concur.


text:
    PLYMOUTH CITRUS PRODUCTS and Corporate Group Service, Appellants, v. Sarah WOODARD, Appellee.
    No. AU-496.
    District Court of Appeal of Florida, First District.
    May 22, 1984.
    James B. Cantrell of Sparks, Cooper & Leklem, P.A., Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   BARFIELD, Judge.

In this workers’ compensation case the employer appeals the deputy commissioner’s final order awarding wage-loss benefits to claimant from April 13, 1983 to July 1, 1983 and awarding costs. We reverse.

Claimant sustained a work-related injury in December 1981. Her job in the canning industry was seasonal and subject to layoffs. The period for which wage-loss benefits were awarded in this case occurred during one such layoff. Although the deputy commissioner found that claimant had made an adequate job search during the period for which wage-loss benefits were claimed, he did not make a specific finding that claimant had satisfied her burden of establishing that the wage-loss was the result of the compensable injury. There is no competent substantial evidence in the record to support such a finding.

The order of the deputy commissioner dated August 12, 1983 is REVERSED.

ZEHMER, J. concurs.

WENTWORTH, J., concurs specially with an opinion in which ZEHMER, J., concurs.

WENTWORTH, Judge,

concurring.

I agree that the work search evidence does not in this case establish a causal connection between wage loss and injury, but would note that benefits are not precluded simply because the period of wage loss occurred after a layoff unrelated to the compensable injury. In this case claimant had been a seasonal worker for 16 years, and the record evidence on the claim shows only a period of seasonal unemployment in the same pattern previously established. Work search under these circumstances, however adequate and unsuccessful, would not, standing alone, establish prima facie that her injury effected a change in her employment status entitling her to wage loss benefits. Cf., Lasher Milling Co. v. Brown, 427 So.2d 1034 (Fla. 1st DCA 1983); Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982).


text:
    Arthur PRIEST and Parker Priest, Appellants, v. STATE of Florida, Appellee.
    Nos. AV-11, AV-12.
    District Court of Appeal of Florida, First District.
    May 22, 1984.
    Douglas N. Duncan of Foley, Colton & Duncan, West Palm Beach, for appellants.
    Jim Smith, Atty. Gen. and John W. Tiede-mann, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellants, Arthur and Parker Priest, challenge the trial judge’s denial on the basis of King v. State, 104 So.2d 730 (Fla. 1957), of their respective motions to dismiss that count of the information charging them with conspiracy to traffic in cannabis. We affirm. See State v. Brandon, 399 So.2d 459 (Fla. 2d DCA 1981); State v. Cristodero, 426 So.2d 977 (Fla. 4th DCA 1982). Appellant Parker Priest also argues that the trial judge’s imposition of a fine as a condition of parole violates Section 947.-13(1)(b), Florida Statutes, as interpreted in Ferrell v. State, 437 So.2d 782 (Fla. 2d DCA 1983), and Alexander v. State, 425 So.2d 1197 (Fla. 2d DCA 1983). The alleged error was not preserved below. Accordingly, we decline to reach the merits of the issue raised and dismiss without prejudice to appellants’ right to collaterally attack the sentence pursuant to Rule 3.850, Florida Rules of Criminal Procedure.

BOOTH, SHIVERS and JOANOS, JJ., concur.