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

text:
    Carlos MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 82-1632.
    District Court of Appeal of Florida, Fifth District.
    June 7, 1984.
    Rehearing Denied June 26, 1984.

      James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

Appellant appeals from conviction and sentences for two counts of robbery. His principal contention is that the evidence does not support conviction for two robberies, because it shows, at most, only one. We affirm.

The charges arose out of an incident which resulted in the taking of a motor vehicle by defendant. The following facts were essentially proved at trial: Carla Tro-fibio and Karen Sue Cox were travelling on 1-95 in Ms. Cox’s car. Ms. Trofibio had been driving. When they returned to the car after having stopped for dinner, Ms. Trofibio, still in possession of the car keys, unlocked the passenger door, then went around to the driver’s side to unlock the driver’s door. As she was doing so, she was approached by appellant who grabbed her arm and struck her on the face with his fist. Ms. Trofibio resisted and tried to run away, but defendant caught her, hit her again and knocked her down, forcefully taking the car keys from her.

As defendant returned to the car, Ms. Cox came around to the driver’s side in an attempt to stop him, but he struck her also, knocked her down, entered the car, and drove away. He was apprehended in Bre-vard County a short time later.

In support of his contention that only one robbery was committed, appellant relies on Castleberry v. State, 402 So.2d 1231 (Fla. 5th DCA 1981), but that case is distinguishable. In Castleberry, the defendants entered the home of the victims, held a knife on both occupants at the same time, bound them and proceeded to take personal property, including a car. The court, emphasizing that the holding was limited to the facts before it, held that only one robbery took place because the taking “was the product of the same force and fear.” That is not the factual situation here, because separate and distinct force, separated by time and space, was exerted on both victims and separate takings occurred. The first force against Ms. Trofibio resulted in appellant’s taking the keys. The second force against Ms. Cox resulted in appellant’s taking the car. See Hillman v. State, 410 So.2d 180 (Fla. 2d DCA 1982).

We believe this case to be controlled by the holding in Brown v. State, 430 So.2d 446 (Fla.1983), where the court agreed that two separate robberies had occurred when a single culprit entered a store and demanded money from one cashier, and a moment later from another cashier. The court held that although the money belonged to a single owner, it was taken by force, violence, assault or putting in fear from two separate employees. The court explained:

... The two events were separated in time and each required separate criminal intent. Actual ownership of the money obtained is not dispositive of the question of whether multiple robberies have been committed. What is dispositive is whether there have been successive and distinct forceful takings with a separate and independent intent for each transaction. Id. at 447.

Similarly in the facts presented here, the jury could conclude that two separate and distinct takings occurred by force and violence directed at two people, separated by time and space.

There is another basis for affirmance. In State v. Getz, 435 So.2d 789 (Fla. 1983), the supreme court upheld separate convictions for theft of a firearm and theft of other property worth less than a hundred dollars, taken by one person in a single burglary. The court held that there were two separate crimes committed because the items were covered under separate sections of the same statute; viz: the theft of property was covered by section 812.014(2)(c) and the taking of the firearm was covered by section 812.014(2)(b)3. Using the same analogy, because the crime of robbery involves the taking from the person or custody of another by force, violence, assault or putting in fear, of property which may be the subject of larceny, the keys taken here would be the subject of larceny under sec. 812.014(2)(c), since no value was proved, and the motor vehicle would be the subject of larceny under section 812.014(2)(b)4. Under the Getz analysis, the statute indicates the legislative intent that theft of these items constitutes separate crimes for which separate sentences may be imposed.

Appellant also contends that the court erred in not limiting the State’s interrogation of the two women with respect to the injuries suffered by them in this incident. Over objections on relevancy grounds, the trial court specifically ruled that the probative value of the evidence complained of outweighed any prejudicial effect to appellant, and that it was therefore admissible. The trial court has broad discretion in regard to admissibility of evidence and his rulings thereon will not be disturbed on appeal in the absence of a showing of abuse of discretion. Edwards v. State, 414 So.2d 1174 (Fla. 5th DCA 1982). No such abuse is demonstrated.

The judgment and sentences are AFFIRMED.

COWART, J., concurs.

FRANK D. UPCHURCH, Jr., J„ dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting.

I respectfully dissent. In my opinion, under the circumstances here, the taking of the keys and automobile constituted a single robbery.

In considering this issue, we begin with the proposition that neither the Fifth Amendment guarantee against double jeopardy, nor our state counterpart, Article I, section 9, Florida Constitution, forbids double prosecution for conduct that is conceptually divisible into two offenses, each distinguished by a fact or element not present in the other. Watts v. State, 440 So.2d 505 (Fla. 1st DCA 1983). One of the more recent cases considering the issue of divisibility of conduct into more than one theft or robbery is Castleberry v. State, 402 So.2d 1231 (Fla. 5th DCA 1981).

Castleberry involved defendants who were charged with escape, burglary with an assault, burglary while armed with a knife, burglary while armed with a firearm, armed robbery and' grand theft of an automobile. The question was whether the automobile in the last count was personal property taken during the course of the robbery. The court reviewed the evidence in the case which established that the taking of the car, along with other property taken from within the victims’ residence, was effectuated by force and by placing the victims in fear. The defendants had entered the victims’ residence, bound both victims and proceeded to take a gun and ammunition, money, jewelry, clothes and other personal property including keys to a car belonging to one of the victims. After taking articles from inside the house and while the victims remained restrained and in fear, the defendants took the car. In holding that the taking of the car was a lesser included offense of the robbery charged, this court declared:

Whether an item is taken as part of one theft or robbery, or two, necessarily depends upon chronological and spatial relationships. If a defendant thrusts a pistol into a victim’s ribs and says, ‘Give me your watch, your wallet, and your tie!’ and the victim complies, only one statutory violation, one robbery, has been committed. ... [Bjecause possession of the car, like all the rest of the personalty taken from the residence by the [defendants], was the product of the same force and fear, the taking of the car charged in Count VI is a lesser included offense of the robbery charged in Count V.

402 So.2d at 1232.

The majority in the instant case distinguishes Castleberry on the basis that separate and distinct force, separated by time and space, was exerted on both victims and separate takings occurred, in that by the first force, appellant took the keys from Ms. Trofibio and by the second force against Ms. Cox, the owner of the car, he took the vehicle. This result is correct if one views the keys and automobile as separate and unrelated personal property, such as say money in the possession of different cashiers in the same store. For example, in Brown v. State, 430 So.2d 446 (Fla.1983), the supreme court held that two separate robberies occurred when the defendant entered a store and demanded money from one cashier and then from another. The court held that even though the money belonged to a single owner, it was taken by force, violence, assault or putting in fear from two separate employees. The court explained:

The two events were separated in time and each required separate criminal intent. Actual ownership of the money obtained is not dispositive of the question of whether multiple robberies have been committed. What is dispositive is whether there have been successive and distinct forceful takings with a separate and independent intent for each transaction, (emphasis added)

430 So.2d at 447.

However, keys to an automobile and the automobile itself differ in relationship from the circumstances in Brown. It is only logical to assume that one who forcibly takes a set of car keys from the driver of a vehicle such as under the circumstances of this case has only a single intent which is to expropriate the automobile. The keys themselves have no independent value other than to start the automobile, and the automobile for all practical purposes cannot be taken without the keys. Appellant’s sole motive in taking the keys was to operate the vehicle. It is difficult to believe that appellant had a separate and independent intent in taking the keys and the vehicle.

The majority’s reliance on State v. Getz, 435 So.2d 789 (Fla.1983), is also misplaced here. Under the majority’s reading of Getz, a defendant who steals an automobile which has the keys in the ignition could be prosecuted for both grand theft of a motor vehicle and petit theft under section 812.-014, Florida Statutes (1983). It is sincerely doubted that the legislature intended for such a multiple prosecution in enacting the section.

I would find that a single robbery occurred here, that as to Ms. Trofibio and reduce appellant’s conviction on the second robbery count involving Ms. Cox to battery.

      . A different case is presented where either the keys or keychain have inherent value in themselves, such as if they are made of gold or some other valuable material and there is evidence that the thief took them for this reason.

      . The recent supreme court decision in Grappin v. State, 450 So.2d 480 (Fla.1984) is also unavailing here since in that case, the court concluded that the legislature unambiguously intended that the taking of multiple firearms in a single criminal episode be treated as separate thefts under section 812.014.

      . The information here charged appellant with battery of Ms. Cox and the evidence at trial established that appellant struck Cox when she tried to stop him from making off with the car.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    Roma SMITH, Appellant, v. Mary Louise MILLER and The State of Florida, Department of Health and Rehabilitative Services, Appellees.
    No. AT-29.
    District Court of Appeal of Florida, First District.
    June 8, 1984.
    Rehearing Denied July 11, 1984.

      Valerie E. Janard, Quincy, for appellant.
    Joseph R. Boyd of Boyd & Smith, P.A., and Chriss Walker, Dept, of Health and Rehabilitative Services, Tallahassee, for ap-pellees.
   SMITH, Judge.

Appellant urges the existence of several errors and deficiencies in the hearing process which resulted in his adjudication for contempt and subsequent imprisonment for non-payment of his child support obligations as previously ordered by the court. We have duly noted appellant’s arguments and contentions along this line and would agree that the entire process below appears to leave much to be desired. For one thing, the attorneys’ discharge of their duties and review by this court has been hampered by the use of a mechanical recording device, instead of a court reporter, with the result that portions of the testimony and proceedings below are transcribed as simply “(unintelligible).”

We find it unnecessary, however, to dwell upon other issues because we find one fatal defect which requires reversal. Although the court’s April 20, 1983, contempt order recites that appellant “had and has an ability to comply with the order of this court and failed to do so,” when this finding is viewed in the light of the evidence presented and the statements by the trial court at the hearing, we cannot construe it to mean that appellant, at the time of the hearing, had the present ability to make the payment of $291.50 (the portion of total arrearages of $491.50 ordered paid that day) required in order to avoid going to jail, or to secure release afterwards. It is patently obvious that the trial court based the contempt order upon the premise that appellant previously had the ability to comply with the court order but divested himself of that ability through his own fault or neglect designed to frustrate the intent and purpose of the support order. Faircloth v. Faircloth, 339 So.2d 650 (Fla. 1976); Ponder v. Ponder, 438 So.2d 541 (Fla. 1st DCA 1983), petition for review denied, 447 So.2d 887 (Fla.1984); Bowen v. Bowen, 454 So.2d 565 (Fla. 2d DCA 1984). As explained in this court’s Ponder decision, supra, decided subsequent to the proceedings here reviewed, while this finding (the so-called “second prong” of the Faircloth test) is sufficient for the court’s initial determination that contempt has occurred, the contemnor, “cannot be committed to jail unless there is also an affirmative finding based upon evidence in the record that at the time of incarceration the contemnor has the ability to make payment of the purge amount.” Ponder, supra, 438 So.2d at 543. Absent such a finding of present ability to pay and thus secure release from custody, the proceeding is transformed from civil to criminal contempt, because the imprisonment operates to punish, rather than coerce payment. Full compliance with Rule 3.840, Florida Rules of Criminal Procedure, applying to indirect criminal contempt, is a necessary prerequisite to a sentence imposed for punishment of the contemnor. See, also, Bowen v. Bowen, supra. Although appellant was represented by counsel in this proceeding below, appellant did not have the benefit of the additional protections afforded by the rule, including an order stating the essential facts constituting the criminal contempt charged, the right to compulsory attendance of witnesses, and other important safeguards. That appellant, in fact, was without means to pay for his release is further indicated by the trial court’s subsequent order adjudicating him insolvent for the purpose of filing an appeal to this court. See, Andrews v. Walton, 428 So.2d 663 (Fla.1983).

The order appealed from is REVERSED.

WIGGINTON and NIMMONS, JJ., concur.


author: MILLS, Judge.

text:
    ROTH BROTHERS OF FLORIDA and Risk Management Services, Inc., Appellants, v. Andrew SPODRIS, Appellee.
    No. AT-398.
    District Court of Appeal of Florida, First District.
    June 8, 1984.
    Patrick J. Malone of Brennan, McAliley, Hayskar, McAliley & Jefferson, P.A., West Palm Beach, for appellants.
    Dennis M. Usdan, Plantation, for appel-lee.
   MILLS, Judge.

The employer/servicing agent appeal from an order in which the deputy commissioner ordered them to pay for surgery on Spodris’ hip. We affirm.

Spodris was employed by Roth Brothers as a roofer when he suffered a compensa-ble injury to his back. The evidence showed that he subsequently developed aseptic necrosis of the head of the femur of the right hip. That condition was not related to his compensable back injury. Dr. Levine, who diagnosed Spodris’ hip condition, recommended surgery to replace the hip. Dr. Matthews also examined Spodris and concurred in that recommendation.

Spodris filed a claim, requesting that the employer/servicing agent be required to pay for the recommended surgery. The employer/servicing agent controverted the claim, contending that they were not obligated to provide the surgery because the hip condition was not a result of Spodris’ compensable injury.

Dr. Matthews indicated that the hip surgery would take the stress off of Spodris’ back, that without the hip surgery “the back problem would deteriorate,” and that “it would be extremely difficult to achieve any improvement in the back condition ... as long as the hip disease was present and not treated.”

Based on that testimony, the deputy commissioner found that the hip surgery would produce more than merely an incidental benefit to Spodris’ compensable back injury and accordingly ordered the employer/servicing agent to pay for the surgery.

In Glades County Sugar Growers v. Gonzales, 388 So.2d 333 (Fla. 1st DCA 1980), we held that the employer/carrier should not be responsible for medical treatment “required independently by the subsequent noncompensable injury when the removal of a hindrance to recovery from the com-pensable injury is merely an incidental effect of such treatment.” (Emphasis added) 388 So.2d at 336. Stated conversely, treatment for a condition not shown to be causally related to the compensable injury should be the responsibility of the employer “[i]f ... one of the primary purposes of the treatment is also removal of a hindrance to recover from the compensable accident_” Decks, Inc. of Florida v. Wright, 389 So.2d 1074, 1076 (Fla. 1st DCA 1980).

Contrary to the assertions of the employer/servicing agent, we find that the deputy commissioner correctly applied the holding of Glades County when he found that “a significant, secondary purpose” of the hip surgery would be to improve Spodris’ back condition and that the removal of the hindrance to recovery from the back condition would be “more than merely an incidental effect” of the surgery.

We have considered the other issues raised by the employer/servicing agent and by Spodris and have found them to be without merit.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.

By a separate order Judges Shivers and Wigginton have conditionally granted Spo-dris’ motion for an attorney’s fee here. I denied this motion. An explanation is in order.

I quote Spodris’ niotion for an attorney’s fee in its entirety:

The Appellee/Cross Appellant, ANDREW SPODRIS, by and through his undersigned attorney, hereby petitions the FIRST DISTRICT COURT OF APPEAL for an attorney’s fee to be awarded to Appellee/Cross-Appellant/Claim-ant's counsel.

The motion must be denied because it fails to comply with Fla.R.App.P. 9.400(b) which states that a motion for attorney’s fees shall state the grounds upon which recovery is sought.

In Lehigh Corp. and U.S. Fidelity and Guaranty Co. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981), this Court held that Rule 9.400(b) was applicable to workers’ compensation appeals and that an attorney presenting a motion for attorney’s fee must state the grounds including reference to statutory grounds.


author: PER CURIAM.

text:
    Apelle KING a/k/a Eddie King a/k/a Annette Bishop, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2356.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The order revoking probation on the basis that the defendant committed the offenses of burglary and petit theft while on probation is affirmed. The cause, however, is remanded to the trial court with directions to: (1) modify the written order revoking probation so as to conform to the trial court’s oral pronouncements at the close of the probation revocation hearing, to wit: (a) strike the findings that the defendant failed to submit written reports and failed to pay the costs of her supervision, and (b) modify the finding that the defendant committed a burglary and a strong arm robbery so as to reflect that the defendant committed a burglary and a petit theft; and (2) give the defendant credit for any time spent in the county jail prior to the imposition of sentence as required by Section 921.161(1), Florida Statutes (1983). See Lund v. State, 396 So.2d 255 (Fla. 3d DCA 1981).

Affirmed in part and remanded.


text:
    Robert BINGHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 83-497.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1980).


text:
    Richard DENBY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-590.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. State v. Ramos, 378 So.2d 1294, 1297 (Fla. 3d DCA 1980); Dixon v. State, 343 So.2d 1345, 1348 (Fla. 2d DCA 1977).


text:
    T.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-759.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Bennett H. Brummer, Public Defender, and Samek & Besser and Lawrence Besser, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Ensor v. State, 403 So.2d 349 (Fla.1981); State v. Bethea, 409 So.2d 1139 (Fla. 2d DCA 1982).


text:
    SHOBNA, S.A., Takavo Investments, Inc., and Bruno Parroni, Appellants, v. Lidia MAINA and Giancarla Maina Parroni, Appellees.
    No. 83-1558.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Stone, Sostchin & Gonzalez, Miami, for appellants.
    Ruden, Barnett, McClosky, Schuster & Russell and Woodrow “Mac” Melvin, Jr. and James R. George, Fort Lauderdale, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. § 620.645, Fla.Stat. (1981); § 620.755, Fla.Stat. (1981); Uhrig v. Redding, 150 Fla. 480, 8 So.2d 4 (1942); Swann v. Mitchell, 408 So.2d 681 (Fla. 1st DCA 1982).


text:
    Coy Lee SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1980.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Theodore R. Dempster, Miami, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   PER CURIAM.

Affirmed. Herring v. State, 446 So.2d 1049 (Fla.1984); Herman v. State, 396 So.2d 222 (Fla. 4th DCA 1981); Contra, Nettles v. State, 409 So.2d 85 (Fla. 1st DCA 1982).


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Mark A. WITTE, Appellee.
    No. 83-2166.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.

      Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellant.
    Dean & Hartman and Denis Dean, Miami, for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J. and M. IGNATIUS LESTER, Associate Judge.
   DANIEL S. PEARSON, Judge.

The question in this appeal, one of first impression, is whether a pre-filing conference called by an assistant state attorney is an official proceeding as that term is defined by Section 837.011, Florida Statutes (1981), so as to subject the defendant to a charge of perjury under Section 837.02, Florida Statutes (1981).

Count One of the information charged Witte with perjury in an official proceeding in violation of Section 837.02, Florida Statutes (1981). It alleged that at a pre-filing conference held for the purpose of obtaining sworn testimony for the initiation of a prosecution against one Michael Monteagu-do, Witte knowingly made a false statement, under oath, to an assistant state attorney. The trial court dismissed Count One specifically finding that the pre-filing conference was not an official proceeding because Witte was not under the compulsion of a subpoena when he attended the conference; the conference was not recorded in any manner; and Witte was not told, and was not otherwise aware, that the pre-filing conference was a part of an official proceeding. The State appeals. We reverse.

Making a knowing false statement under oath in an official proceeding is a felony under Section 837.02, Florida Statutes (1981). Section 837.011, Florida Statutes (1981), defines an “official proceeding” as

“[A] ■proceeding heard, or which may be or is required to be heard, before any legislative, judicial, administrative, or other governmental agency or official authorized to take evidence under oath, including any referee, master in chancery, hearing examiner, commissioner, notary, or other person taking testimony or a deposition in connection with any such proceeding.” (emphasis supplied).

Since it is plain that a state attorney is an “official authorized to take evidence under oath,” see § 27.04, Fla.Stat. (1981), we need only determine whether the pre-filing conference at which Witte allegedly swore falsely is, as he contends, a convenience created by and for the state attorney or, as the State contends, a legally authorized— indeed, required — predicate to the filing of an information.

Although no case has heretofore squarely held that a conference held in the state attorney’s office for the purpose of taking sworn testimony from witnesses as a predicate to the filing of an information is an official proceeding, the probable explanation for this lack of authority is that the officiality of such a proceeding has been taken for granted. Thus, in Mitchell v. State, 359 So.2d 906 (Fla. 2d DCA 1978), the court’s sole concern was whether the giving of the oath to Mitchell in the state attorney’s office, unlike the falsity of the statement made by Mitchell, was required to be proved by two witnesses. However, the court evinced no concern whether the taking of Mitchell’s sworn testimony in the state attorney’s office in preparation for the trial of Mitchell’s co-defendant was, as it was required to be, an official proceeding. In McCoy v. State, 338 So.2d 52 (Fla. 4th DCA 1976), the court held that a witness, having been called before an assistant state attorney to give sworn testimony in connection with a criminal investigation, and having been administered the oath by such assistant, could not be convicted of perjury by inconsistent statements in official proceedings where the witness’s actual testimony was not taken by the assistant state attorney, but instead was taken by police detectives at the police station to which the witness had been removed. According to the court, the defect in the prosecution lay in the fact that the assistant state attorney destroyed the offi-ciality of the proceeding by directing that McCoy’s testimony be taken by the police officers at the police station, an implicit recognition that had McCoy’s testimony been taken in the state attorney’s office before the assistant state attorney, the prosecution would have been viable. Similarly, in State v. Leighton, 365 So.2d 397 (Fla. 4th DCA 1978), the proceeding, as here, was one conducted by the state attorney’s office for the purpose of investigating violations of the law. The defendant, thereafter charged with perjury by falsely swearing in an official proceeding, successfully contended in the trial court that the proceeding was not official because in addition to the state attorney, two investigators of the state attorney’s office were present and participated in the questioning. The Fourth District held that this fact did not as a matter of law make the proceeding unofficial. Once again, the unstated assumption in the case is that the taking of testimony by the state attorney in connection with an investigation is an official proceeding within Section 837.011, Florida Statutes, if all other elements of Section 887.011 are made to appear.

The thrust of Witte’s argument, adopted by the trial court, is that the pre-filing conference, as described, does not have the trappings usually associated with official proceedings and for that reason cannot be considered official. It is clear, however, that, first, the definition of “official proceeding” in Section 837.011 contains no requirement that these trappings be present, and second, the absence of such trappings has never been recognized as affecting the officiality of the proceedings. It is evident from Section 27.04 itself (were it not otherwise obvious) that whether a witness is summoned to appear by subpoena or voluntarily appears without being summoned does not change the nature of the proceeding or the authority of the person before whom the proceeding is conducted. Moreover, the fact that the witness’s statement was not stenographically, mechanically, or electronically recorded does not make the proceeding any less official. See Mitchell v. State, 359 So.2d 906 (where witness’s statement neither reported nor recorded, testimony of state attorney who took the statement is proof that oath administered and statement made). See also Settles v. State, 75 Fla. 296, 299, 78 So. 287, 288 (1918) (“In a prosecution for perjury, the giving of the alleged false testimony may be proven by the witnesses who heard it.”). Lastly, and not surprisingly, there is simply no support for the proposition that a witness must be apprised that a proceeding at which he is placed under oath is official as a predicate to prosecuting the witness for a felony under Section 837.02. As the Supreme Court has stated in an analogous context:

“The oath which a witness takes is sufficient to put him on notice that he is expected to tell the truth and we are not aware of any authorities which require that a witness be warned that if he fails to tell the truth he will likely suffer the pains of a prosecution for perjury.”
Gordon v. State, 104 So.2d 524, 532 (Fla. 1958).

Thus, a proceeding is not made official by the formality with which it is conducted; instead, its officiality depends on its purpose and the authority from which it derives.

The purpose of and authority for a pre-filing conference is found in Florida Rule of Criminal Procedure 3.140(g), which provides in pertinent part:

“An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his good faith in instituting the prosecution and certifying that he has received testimony under oath from the material witness or witnesses for the offense _” (emphasis supplied).

The rule requires that the state attorney or his designated assistant take testimony under oath before filing an information charging the commission of a felony. Section 27.04, Florida Statutes, in turn, provides the state attorney with the concomitant authority to summon witnesses to testify before him as to any violations of the criminal law and to administer the required oath. We conclude, therefore, that the pre-filing conference alleged to have occurred here is an official proceeding within the meaning of Section 837.011, that is, one “required to be heard, before [an] ... official authorized to take evidence under oath,” and that Count One of the information charging the defendant with perjury under Section 837.02, Florida Statutes (1981), must be reinstated.

Reversed and remanded for further proceedings.

      . The alleged false statement was that Witte, a police officer, discovered a .380 semi-automatic handgun upon the person of Monteagudo during a search incident to the arrest of Monteagu-do for loitering and prowling.

      . Section 837.02(1), Florida Statutes (1981), provides in pertinent part:

        "Whoever makes a false, statement, which he does not believe to be true, under oath in an official proceeding in regard to any material matter shall be guilty of a felony of the third degree_” (emphasis supplied).
      In contrast, Section 837.012, Florida Statutes (1981), makes perjury when not in an official proceeding a misdemeanor of the first degree.

      . Or assistant state attorney. See § 27.181(3), Fla.Stat. (1981).

      . Section 27.04, Florida Statutes (1981), provides:
      "The state attorney shall have summoned all witnesses required on behalf of the state; and he is allowed the process of his court to summon witnesses from throughout the state to appear before him in or out of term time at such convenient places in the state attorney’s judicial circuit and at such convenient times as may be designated in the summons, to testify before him as to any violation of the criminal law upon which they may be interrogated, and he is empowered to administer oaths to all witnesses summoned to testify by the process of his court or who may voluntarily appear before him to testify as to any violation or violations of the criminal law."

      . Mitchell was convicted of perjury by contradictory sworn statements in official proceedings in violation of Section 837.021, Florida Statutes (1977). One of the essential official proceedings was the conference in the state attorney’s office.

      . Since the taking of Mitchell’s sworn testimony in preparation for the trial of Mitchell’s co-defendant, as distinguished from the taking of sworn testimony preparatory to the filing of an information, is not, as the proceeding here, one which is required to be heard, see infra, it could be considered "a proceeding heard" or “which may be ... required to be heard” under Section 837.011, Florida Statutes.

      . Nor is a defendant’s constitutional right to confront the witnesses against him violated where the giving of the alleged false testimony is proven by the testimony of a court reporter. Hall v. State, 136 Fla. 644, 187 So. 392 (1939).

      . The proceeding in question, influencing as it may the discretionary decision to file criminal charges against another, is one which has been accurately characterized as quasi-judicial. See Hall v. State, 136 Fla. 644, 187 So. 392. It would be anomalous indeed to conclude that the Legislature intended that a false sworn statement concerning the alleged commission of a crime be punished to the same degree as the giving of unsworn false information to a law enforcement officer concerning the alleged commission of a crime, a first-degree misdemeanor under Section 837.05, Florida Statutes (1981).


text:
    Leo GREENFIELD, Appellant, v. FINLEY, KUMBLE, WAGNER, HEINE & UNDERBERG, a partnership doing business in Florida, and John H. Schulte, Appellees.
    No. 83-2297.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Greenfield & Duval and Harvie S. Duval, North Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack and Alan G. Greer and Robert B. Galt, III, Miami, for appellees.
    Before NESBITT and JORGENSON, JJ„ and FERRIS, JOHN G., Associate Judge.
   PER CURIAM.

Affirmed. See Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977).


text:
    Eugene ZENOV, Appellant, v. GREENBERG, TRAURIG, ASKEW, HOFFMAN, LIPOFF, QUENTEL & WOLFF, P.A., and Equinational Delvista Towers Joint Venture, a Florida general partnership, Appellees.
    No. 83-2894.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Sidney L. Syna, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellee Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, P.A.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The final order of dismissal under review is affirmed with one modification, to wit: the dismissal herein shall be without prejudice to the plaintiff to file an amended complaint in which the defendants Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, P.A. are sued solely as nominal party stakeholders of the security deposit herein. See Ullendorff v. Graham, 80 Fla. 845, 852, 87 So. 50, 53 (1920); Lewis v. Howanitz, 378 So.2d 310, 311 (Fla. 3d DCA 1979); Ayers v. Homeowners Ass’n of Killearn Estates, 360 So.2d 1326 (Fla. 1st DCA 1978); Ossinsky v. Nance, 118 So.2d 47, 49 (Fla. 1st DCA 1960).

Affirmed as modified.


text:
    Donald Y. BAXTER, as Trustee of the Blanchard Machinery, Inc., Profit Sharing Trust, Appellant, v. Eugenie KOBS and Jean A. Trochet, Appellee.
    No. 83-2915.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Rehearing Denied July 11, 1984.
    Fink & Golden and Richard K. Fink, Miami> for appellant.
    Evan J. Langbein, Dubbin, Berkman, Dubbin & Greenfield, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

The plaintiff mortgagee appeals the trial court order denying entry of a deficiency judgment against one of the co-makers of a promissory note. We reverse.

The granting of a deficiency judgment is the rule rather than the exception. S/D Enterprises, Inc. v. Chase Manhattan Bank, 374 So.2d 1121 (Fla. 3d DCA 1979). Moreover, the exercise of discretion to deny a deficiency decree must be supported by disclosed equitable considerations which constitute sound and sufficient reason for the action. Hamilton Investment Trust v. Escambia Developers, Inc., 352 So.2d 883 (Fla. 1st DCA 1977). In the present case, Trochet’s responsibility is coextensive with that of Kobs against whom the trial court entered a deficiency and we find no equitable considerations which would support the denial of a deficiency judgment. Accordingly, the judgment appealed from is reversed and remanded.


text:
    The STATE of Florida, Appellant, v. Nathaniel PROTO, Appellee.
    No. 83-2971.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.

      Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellant.
    Miller & Miller and Paul Mendelson; Charles I. Chassen, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. See Powers v. State, 224 So.2d 411 (Fla. 3d DCA), cert. denied, 232 So.2d 180 (Fla.1969).


text:
    Salomon KONIG, Appellant, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellee.
    No. 84-268.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Rehearing Denied July 11, 1984.
    Simson Unterberger, Tampa, for appellant.
    Ruden, Barnett, McClosky, Schuster & Russell and O’Bannon M. Cook, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983); Gettys v. Browning, 417 So.2d 1094 (Fla. 3d DCA 1982).


author: PER CURIAM. BARFIELD, Judge,

text:
    Joyce L. LORD, Appellant, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. AT-435.
    District Court of Appeal of Florida, First District.
    June 12, 1984.
    Paul Shimek, Jr., Pensacola, for appellant.
    Dennis R. Erdley, Miami, for appellee.
   PER CURIAM.

Affirmed.

THOMPSON and NIMMONS, JJ., concur.

BARFIELD, J., specially concurs with opinion.

BARFIELD, Judge,

specially concurring:

I concur, reluctantly and unfortunately. It would seem that DER should have something more important to do with its time or find ways of helping such citizens, rather than following a course of government versus the people.


author: SHIVERS, Judge. THOMPSON, Judge,

text:
    Edwin ALLMAN, Jr., Appellant, v. MEREDITH CORPORATION and Maryland Casualty Company, Appellees.
    No. AT-457.
    District Court of Appeal of Florida, First District.
    June 12, 1984.
    David M. Hammond, Orlando, for appellant.
    Wendell J. Kiser and Marshall S. Adler of Zimmerman, Shuffield, Kiser & Sut-cliffe, Orlando, for appellees.
   SHIVERS, Judge.

In this workers.’ compensation case, claimant, Edwin Allman, Jr., appeals the order of the deputy commissioner which denied his claims for temporary total disability and medical benefits. Claimant raises five points on appeal. We reverse the deputy’s findings as to all five points, since these points are interrelated.

Claimant injured his neck in a compensa-ble accident on August 21, 1975. In August of 1977, claimant had an anterior cervical fusion performed at the C5-6 vertebra level by Dr. Donald L. Ames in Vero Beach, Florida. Thereafter, claimant returned to work for a short period of time, but due to the pain he was experiencing, discontinued his employment. In July of 1978, a myelogram was performed on claimant under the direction of Dr. Ames at Indian Rivers Hospital. This myelogram revealed a small cervical bar at the C6-7 vertebra level. The myelogram also revealed the spinal fusion performed earlier by Dr. Ames at the C5-6 vertebra level.

After the performance of the myelogram at Indian Rivers Hospital, claimant moved to New Jersey to be near his immediate family. In March of 1979, claimant first met with a Dr. Clement H. Kreider, Jr., a neurosurgeon, who became claimant’s primary treating physician thereafter. Subsequently, on August 9, 1979, a hearing was held before the deputy commissioner sub judice on, among other matters, claimant’s claim of diminution of his wage earning capacity in excess of the 20% permanent partial disability previously accepted by the carrier. After the same, the deputy entered an order on September 10, 1979, which, inter alia, reserved ruling and retained jurisdiction on the issues of whether claimant was entitled to any temporary total disability benefits, permanent partial disability benefits, or permanent total disability benefits. These issues were to be resolved pending receipt of additional medical testimony.

In February of 1982, claimant and the employer/carrier entered into a joint stipulation that claimant be paid the sum of $6,000 as a full settlement of any claim that claimant might have for back due compensation benefits up to February 23, 1982. The stipulation further provided that claimant was to enter the hospital under the care of a Dr. Montoya for a myelogram. This stipulation was approved by the deputy commissioner.

Dr. Montoya performed a second myelo-gram on claimant on February 23, 1982. This myelogram revealed the presence of spondylosis and degenerative disc disease at the C6-7 vertebra level. Although Dr. Montoya did not opine as to the causal relationship between claimant’s disc disease and his accident, he did opine that claimant’s disability was in the neighborhood of 25% considering claimant's ankylo-sis at the C5-6 vertebra level (the location of claimant’s previous surgery) and claimant’s degenerative disc disease at the C6-7 vertebra level. Dr. Montoya also opined that claimant had reached maximum medical improvement and that he could return to light work.

On October 4, 1982, claimant underwent his third myelogram, this one by Dr. Kreider. This myelogram again revealed problems at the C6-7 vertebra level, i.e., a herniated intervertebral disc at C6-7. Dr. Kreider thereafter performed an anterior cervical fusion on claimant at the C6-7 vertebra level on October 18, 1982. Pursuant to deposition, Dr. Kreider opined that claimant’s herniated disc at the C6-7 vertebra level, and the resulting surgery, were causally related to claimant’s industrial accident within a reasonable degree of medical probability. Dr. Kreider based his opinion on his examination of the myelogram performed by Dr. Ames in 1978, his subsequent treatment of claimant, the physical and radiologic findings adduced from examinations of claimant, including the changes in the radiologic findings over a period of time, and the history given to Dr. Kreider by claimant of claimant’s condition and how claimant progressed throughout the years.

On March 11, 1983, claimant’s attorney filed an application for hearing requesting a hearing on temporary total disability benefits from February 19, 1982, to date and prospectively, payment of remedial care and attention, prescriptions, mileage reimbursement, penalties, interest, attorney’s fees and costs. The deputy commissioner’s notice of hearing set forth the same matters for hearing as outlined in claimant’s application for hearing. At the hearing, claimant testified that he had not worked since 1978 and that since February of 1982 he had spent his time staying at home or visiting with his sister. The employer/carrier refuted claimant’s testimony by showing films of claimant engaging in construction work for his brother-in-law’s company in May of 1982 and May of 1983. These films showed claimant working construction without any signs of disability. Based on the foregoing, the deputy commissioner entered an order finding, inter alia: (i) that claimant reached maximum medical improvement on June 12, 1980, with a 25% permanent partial disability of the body as a whole as a result of claimant’s accident in 1975; (ii) that claimant failed to demonstrate a loss of wage earning capacity in excess of this 25% permanent partial disability rating; and, (iii) that claimant’s continuing complaints and need for medical care were no longer causally related to his accident. As to this latter finding,' the deputy specifically rejected the testimony of Dr. Kreider to the contrary, finding that Dr. Kreider had a total lack of understanding as to claimant’s true physical abilities and activities in 1982.

Claimant’s first point raised on appeal is that the deputy commissioner erred in ruling on claimant’s loss of wage earning capacity in excess of the 25% disability rating assigned by the deputy, since this issue was not properly noticed for hearing. We agree. Here, the application for hearing, the notice of hearing, and the pretrial stipulation all stated that the subject of the hearing below was claimant’s entitlement to temporary total disability benefits, the payment of remedial care and attention, mileage reimbursement, interest, penalties, attorney’s fees and costs. At hearing, claimant’s counsel reiterated that these issues were the subject of the hearing and at no point during the hearing did the deputy commissioner state or indicate, nor did the respective parties state or indicate, that claimant’s loss of wage earning capacity was to be adjudicated. Although we recognize that issues “properly presented and ripe for adjudication” should be adjudicated, see Washington Square Associates, Ltd. v. Bourne, 408 So.2d 809, 810 (Fla. 1st DCA 1982) (emphasis added), it is also well established that notice must be given as to the issues in dispute to adequately apprise the deputy and the respective parties of the issues the deputy is to hear and determine. See, e.g., United States Steel Corp. v. Green, 353 So.2d 86 (Fla.1977); Diplomat Hotel v. Grimes, 379 So.2d 1025 (Fla. 1st DCA 1980), cert. denied, 388 So.2d 1112 (Fla.1980). If the law as articulated in these latter two eases was otherwise, a party could present evidence, as in the instant case, without the knowledge that such evidence would have a bearing on issues that the deputy commissioner might subsequently decide were ripe for adjudication. Further, a party (again as in the instant case) would be effectively prevented from presenting rebuttal or additional evidence on such issues. Accordingly, we find and hold that the deputy commissioner erred in ruling on claimant’s loss of wage earning capacity and direct the deputy upon remand to strike those portions of the order not addressing the issues as framed in the notice of hearing.

Claimant’s next point raised on appeal is that the deputy commissioner erred in finding that claimant’s continuing complaints and need for medical care are no longer causally related to the industrial accident occurring in August of 1975. Again, we agree with claimant. Sub judi-ce, the only medical testimony before the deputy as to the causal relationship between claimant’s accident and claimant’s abnormal disc condition at the C6-7 vertebra level, and Dr. Kreider’s resulting surgery, was Dr. Kreider’s deposition testimony taken on October 1, 1981, and on February 17, 1983. In both such depositions, Dr. Kreider opined, within a reasonable degree of medical probability, that claimant’s accident was the cause of claimant’s abnormal condition at the C6-7 vertebra. Significantly, no other testimony was introduced at the hearing to refute Dr. Kreider’s opinion. To the contrary, it is noteworthy that the deputy found that claimant had a 25% permanent partial impairment. This disability rating presumptively was founded on Dr. Montoya’s opinion that claimant had a disability of 25% based on claimant’s ank-lyosis at the C5-6 vertebra level and claimant’s degenerative disc disease at the C6-7 vertebra level. Thus, by finding claimant’s disability at 25%, the deputy implicitly accepted claimant’s abnormal disc condition at the C6-7 vertebra level as being causally related to claimant’s accident.

The deputy’s stated reason for rejecting Dr. Kreider’s opinion was that Dr. Kreider had a total lack of understanding as to claimant’s true physical abilities and activities in 1982. This finding by the deputy that Dr. Kreider was totally unfamiliar with claimant’s true physical abilities was in turn based on claimant’s testimony, and Dr. Kreider’s opinion supporting claimant’s testimony, that claimant was totally unable to engage in any gainful employment since 1978, when, in fact, claimant was able to engage in gainful employment as evidenced by the films introduced into evidence by the employer/carrier showing claimant working in construction. Although we recognize that in many instances a claimant’s lying about his disability will preclude the award of compensation benefits, we do not believe that Allman’s lack of credibility in this case constitutes an adequate basis for the wholesale rejection of his claim, and in particular, the deputy’s rejection of the only competent, substantial evidence, which evidence comports with logic and reason, as to the cause of claimant’s condition as voiced by claimant’s treating physician, i.e., Dr. Kreider. Rather, we believe that All-man’s incredible testimony in this case, relating to his work activities, should have a direct bearing on whether claimant is entitled to temporary total disability benefits prior to and after the time he was hospitalized for the anterior cervical fusion performed by Dr. Kreider at the C6-7 vertebra level.

We believe it necessary to stress that the only direct medical evidence as to claimant’s abnormal disc condition at the C6-7 vertebra level was that of Dr. Kreider and that Dr. Kreider’s opinion was indirectly supported by the deputy’s acceptance of Dr. Montoya’s opinion as to the extent of claimant’s disability. This case therefore is not a case where the deputy must choose between conflicting medical testimony with respect to causation. Compare Crowell v. Messana Contractors, 180 So.2d 329 (Fla. 1965). Further, we do not mean to imply from our decision that under appropriate circumstances a claimant’s lack of credibility might not be the basis for the rejection of the sole physician’s opinion on causation. However, we find in this case that Allman’s lack of credibility with respect to his work activities does not control the question as to whether his disability was causally related to the industrial accident, but rather, bears on whether he wás incapable of working, other than when he was hospitalized, and therefore entitled to temporary total disability benefits.

We do not believe cases such as Tropicana Pools, Inc. v. Truex, 287 So.2d 71 (Fla. 1973), Magic City Bottle & Supply Company v. Robinson, 116 So.2d 240 (Fla. 1959), and Star Fruit Co. v. Canady, 32 So.2d 2 (Fla.1947), are controlling here. We read these cases as standing for the proposition that under appropriate circumstances lay testimony, particularly that of the claimant, can be probative in establishing simple, uncomplicated kinds of medical facts, such as a claimant’s ability or inability to work. Here, however, the establishment of the causal relationship between claimant’s injury to his vertebra and claimant’s accident would seem to be within the peculiar knowledge of a medical expert. Further, there is no indication in the record that claimant, Allman, lied about the event of his accident and, in connection therewith, Dr. Kreider based his opinion, in part, on the history of claimant’s accident as detailed by claimant, and, in part, on the myelogram performed by Dr. Ames in 1978, which myelogram was performed pri- or to the work activities undertaken by claimant in 1982 and 1983. We therefore find this ease more akin to Willingham v. Boynton Service Corp., 383 So.2d 710 (Fla. 1st DCA 1980), rev. denied, 392 So.2d 1372 (Fla.1980), than cases such as Magic City Bottle & Supply Company, supra, in that the only testimony before the deputy established that claimant’s condition at the C6-7 vertebra level, and Dr. Kreider’s resulting surgery, were causally related to claimant’s accident. Accordingly, we find and hold that claimant was entitled to temporary total disability benefits during the period of his hospitalization in 1982 for the surgery performed by Dr. Kreider at the C6-7 vertebra level and remand this case to the deputy to consider claimant’s entitlement to temporary total disability benefits prior to and after this hospitalization.

The remaining points raised on appeal can be disposed of quickly due to our above resolution of Point II on appeal. As noted, we remand to the deputy to consider whether claimant would be entitled to temporary total disability benefits after February 23, 1982, other than during the period of time claimant was hospitalized (Issue III). In connection therewith, we specifically reject claimant’s argument that the deputy cannot reject, if he so chooses, Dr. Kreider’s testimony that claimant was temporarily and totally disabled during this time period, since the employer/carrier’s films of claimant’s activities during this time period, and claimant’s incredible testimony regarding the same, have a direct bearing on this issue. Next, the deputy commissioner is directed upon remand to consider whether good cause exists to excuse the timely filing of claimant’s medical bills, since such issue was raised, but not disposed of by the deputy due to his resolution of the causation issue adversely to claimant, at the hearing below (Issue IV). Finally, the deputy commissioner is directed upon remand to determine an appropriate award of costs, interest, and a reasonable attorney’s fee to claimant (Issue V).

REVERSED with directions.

JOANOS, J., concurs.

THOMPSON, J., dissents, with opinion.

THOMPSON, Judge,

dissenting.

I dissent. There is competent substantial evidence to support the order of the deputy commissioner (deputy) and I would affirm the order in its entirety.

The claimant contends the deputy erred in ruling on the question of loss of wage earning capacity when this issue was not in the application for hearing, the notice of hearing or the pre-hearing stipulation. I agree with the claimant’s contention and the majority holding that notice must be given as to the issues that are to be heard and decided and such notice was not given in this case. The failure to give such notice is normally reversible error. However, in this case the claimant remained silent and made no effort to correct the deputy’s order during the 30-day period before the order became final. As this court said in Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783, 784-85 (Fla. 1st DCA 1982):

It is familiar general law that an appellate court will not reverse on a point not preserved in the tribunal of first resort. Hartford Fire Insurance Co. v. Hollis, 58 Fla. 268, 50 So. 985 (1909); Bozeman v. Roberts, 188 So.2d 23 (Fla. 1st DCA 1966). A corollary of that, in workers' compensation appeals, is that we will not reverse for a readily correctable technical error that the deputy was not asked to correct within the time available for correction. Section 440.25(4)(a), Florida Statutes (1981); Genuine Parts Co. v. Morris, 409 So.2d 156 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

In Acosta Roofing Co. v. Gillyard, 402 So.2d 1321, 1322 (Fla. 1st DCA 1981), pet. for rev. den., 412 So.2d 463 (Fla.1982), this court also said:

This error might readily have been corrected by application to the deputy during the 20 day period before it became final. Section 440.25(4)(a), Florida Statutes (1979). Claimant concedes the error now and we will not suppose he would have resisted its correction at that earlier, more appropriate time.

I would therefore affirm the deputy’s ruling on this issue.

The claimant next contends that the deputy erred in finding that his continuing complaints and need for medical care after February 26, 1982 were not causally related to his 1975 industrial accident. The deputy’s finding in this respect is supported by competent substantial evidence and I would affirm it.

The deputy specifically found in his order:

The claimant testified, both by deposition and before the undersigned, as to his total inability to engage in any gainful employment, including a specific denial of having performed any work activity for the last several years. However, after hearing the testimony of Kevin Schweer, an investigator in New Jersey, and observing the videotape of the claimant’s activities in 1982 and 1983, the undersigned finds that the claimant’s testimony is totally lacking any credibility. The surveillance film depicted the claimant actively engaged in gainful employment, apparently for his brother-in-law’s company, Glenside Equipment Company, a construction firm in New Jersey. The claimant’s attempted explanation of his activities depicted in the surveillance is so unbelievable that it only serves as a further basis for totally rejecting the claimant’s testimony in this regard. For the foregoing reasons, Dr. Kreider’s opinions concerning the claimant’s disability, both temporary or permanent, must be rejected as being based on the claimant’s continuing complaints.
6. That the claimant’s continuing complaints and need for medical care are no longer causally related to the original industrial accident occurring August 21, 1975. In making this finding, the undersigned has had to disregard the medical opinions based on the claimant’s continuing voiced complaints. Instead, it has been necessary to apply the medical findings to the claimant’s physical activities as the undersigned now believes them to have been. It is apparent to the undersigned that the claimant has been physically active in construction-type work for a long period of time prior to the claimant’s recent hospitalization and surgery in October, 1982. Considering the apparent deterioration in the claimant’s condition beginning in the Summer of 1982, the undersigned feels that the most logical explanation for his continuing complaints thereafter is due to aggravation of the prior neck injury caused by repeated trauma from the claimant's work activities at Glenside Equipment Company. As previously stated, Dr. Kreider’s opinion to the contrary must be rejected based on his total lack of understanding as to the claimant’s true physical abilities and activities in 1982. The claimant further testified to his disability and inability to engage in work activities following surgery and continuing to the present time. However, the surveillance videotape clearly demonstrates the claimant’s ability to engage in vigorous physical activity involving all parts of his body.

I agree with the claimant and the majority that Dr. Kreider’s testimony provides evidence that claimant’s condition and complaints were causally related to his 1975 industrial accident. However, because of the doctor’s total lack of knowledge as to the claimant’s true physical abilities and activities, the deputy did not err in finding the testimony was not competent substantial evidence and did not err in disregarding this testimony. Assuming for the sake of argument that Dr. Kreider’s testimony was competent substantial evidence, as this court has said a number of times, the issue is not whether there is competent substantial evidence to support appellant’s position for reversal but whether there is competent substantial evidence to support the deputy’s order. Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983). The deputy found that the claimant’s testimony regarding his activities and inability to engage in any gainful employment, including his specific denial of having performed any work activity for the last several years was so totally lacking in credibility and so unbelievable that it served as a basis for rejecting the claimant’s testimony in that regard. He also found that Dr. Kreider’s testimony concerning the claimant’s disability must be rejected because it was based on claimant’s continued complaints and his statements regarding his inability to perform any work activities. On the basis set forth in the order, the deputy did not err in rejecting the claimant’s testimony and in rejecting the testimony of Dr. Kreider which was based on claimant’s misrepresentations as to his activities, capabilities, and employment.

There is competent substantial evidence in the record to support the deputy’s finding that the claimant could work and that his alleged disabilities and complaints were not causally related to his industrial accident. As a result of his industrial accident, the claimant had sustained an injury to the C5-C6 area and subsequently had a fusion performed in that area. In February of 1982 claimant was examined by Dr. Montoya, who found that the claimant had spon-dylolysis and degenerative disc disease in the C6-C7 area below the area of the fusion necessitated by the industrial accident. Dr. Montoya was also of the opinion that claimant had reached maximum medical improvement and could return to light work. Dr. Montoya’s report, as well as medical reports of other doctors indicated that a functional overlay or emotional or psychiatric problems contributed to claimant’s complaints.

Because the claimant’s compensable accident occurred prior to August 1, 1979, the deputy is not required to base his determination of any permanent impairment on medically or scientifically demonstrable findings. He had the right to ignore the expert medical testimony and to give greater weight to lay testimony and his own observations and evaluations. See Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959); Andrews v. Strecker Body Builders, Inc., 92 So.2d 521 (Fla. 1957); and Star Fruit Co. v. Canady, 32 So.2d 2 (Fla.1947). In Magic City, 116 So.2d at 243, the court said:

This Court has held on many occasions that the opinions of medical experts are not in and of themselves conclusive in matters of this kind, and in some cases the deputy commissioner may disregard the opinion of the expert and give greater weight to the lay testimony of demonstrative evidence presented to him. (footnote omitted).

Claimant testified both by deposition and personally before the deputy as to his total inability to engage in any gainful employment and specifically denied having engaged in any work activity for the last several years. The deputy personally viewed a video tape of claimant’s activities in 1982 and 1983 and was thus able to observe the claimant actively engaged in work activities including the following: directing employees working at the construction site; driving a pickup truck; removing and placing articles in the pickup truck; driving a tractor; loading the tractor on a trailer; and bending over and putting blocks of wood under a trailer. The fact the claimant could and did engage in these activities completely contradicts the claimant’s testimony that he was unable to work and that he had not worked at all for the past several years.

If the claimant’s condition and complaints are not causally related to his 1975 industrial accident, then the remaining three issues relating to the deputy’s failure to award temporary total disability, permanent partial disability, medical bills, mileage, prescriptions, costs, interest, and attorney’s fees should also be affirmed.

There being competent substantial evidence to support the deputy’s award, it should be AFFIRMED.

      . We note that the deputy commissioner stated in his order on review that he was exercising the reservation of jurisdiction set forth in his order entered on September 10, 1979, in making his findings as to claimant’s entitlement to additional disability benefits other than those applied for in claimant’s application for hearing. We find, however, that the deputy’s reservation of jurisdiction on these issues did not grant him authority to disregard the notice requirements mandated by Fla.W.C.R.P. 8(a) and the above-cited case law, and as a consequence thereof, deny claimant an opportunity to present testimony and argument on these issues.

      . In his dissent, Judge Thompson cites Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959) for the proposition that the deputy had the right to ignore the expert medical testimony in this case and to give greater weight to lay testimony and the deputy’s own observations and evaluations of claimant. However, as noted in our opinion, we do not read Magic City so broadly. Rather, we read Magic City, as applies to this case, for the proposition that claimant’s testimony may be probative in determining claimant’s ability to perform work. On such an issue, a deputy may properly disregard medical expert opinion since a claimant’s inability to work is a hybrid question, involving both medical evidence and a claimant’s own testimony. See Sanlando Utility Corp. v. Morris, 418 So.2d 389, 392 (Fla. 1st DCA 1982); Ardmore Farms, Inc. v. Squires, 395 So.2d 268, 270 (Fla. 1st DCA 1981). Accordingly, upon remand the deputy could determine (we expressly do not decide this issue, as we believe it is best resolved by the deputy upon remand after taking into consideration various factors such as the time needed by claimant to recuperate from his surgery) that claimant is not entitled to temporary total disability benefits for certain periods of time prior to and/or subsequent to claimant’s hospitalization in 1982. Such a determination could be made even though Dr. Kreider opined, based on claimant’s subjective complaints, that claimant was unable to engage in any gainful employment from March of 1979 to the date of his deposition in February of 1983, since the deputy was able to view films contrary to Dr. Kreider’s opinion. See Rodriguez v. Miami Baking Co., 430 So.2d 955 (Fla. 1st DCA 1983). However, claimant’s abnormal disc condition at C6-7 vertebra level, and the etilogy for the same based on an examination of claimant, previous myelograms, and prior medical records, are not matters readily susceptible to determination by the deputy through his observations of claimant. Rather, such matters are essentially medical questions, the most persuasive evidence on which is expert medical testimony. See Decks, Inc. of Florida v. Wright, 389 So.2d 1074, 1076 (Fla. 1st DCA 1980); compare Sanlando Utility and Ardmore Farms, supra.


text:
    Daniel P. HOHENSTEIN, Appellant, v. JIM WILSON CONSTRUCTION COMPANY and Insurance Company of North America, Appellees.
    No. AU-332.
    District Court of Appeal of Florida, First District.
    June 12, 1984.

      Edward H. Hurt of Hurt & Parrish, P.A., and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellant.
    F. Bradley Hassell of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellees.
   MILLS, Judge.

The deputy commissioner erred in finding that she made a mistake of fact in her prior order awarding temporary total disability benefits. In order to support a modification on the ground of mistake of fact, a mistake must be shown on the part of the deputy commissioner, not on the part of the witnesses. Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.1963).

We affirm the order appealed, however, because there was competent substantial evidence to support the findings that Hohenstein had reached maximum medical improvement and that he was no longer entitled to receive temporary total disability benefits.

AFFIRMED.

SHIVERS and WIGGINTON, JJ„ concur.


author: WIGGINTON, Judge. SHIVERS, Judge,

text:
    CITY OF OPA LOCKA, Appellant, v. Thomas J. QUINLAN, Appellee.
    No. AV-21.
    District Court of Appeal of Florida, First District.
    June 12, 1984.
    Rehearing Denied June 27, 1984.
    Robert A. Ginsburg, Dade County Atty., Miami, and William L. Petros, Asst. County Atty., for appellant.
    Albert E. Harum, Jr., Miami, for appel-lee.
   WIGGINTON, Judge.

The City of Opa Locka, a self-insured employer, appeals the deputy commissioner’s order finding appellee’s heart attack compensable under chapter 440, Florida Statutes. We reverse.

On July 23, 1982, appellee, a forty-seven year old police sergeant, suffered a heart attack at work. The record shows that appellee’s job as a police officer includes many administrative supervisory duties, but he also goes out “on the street” for a period each day and has been involved in physical altercations resulting in injury quite a few times during his service to the city. For three consecutive nights preceding his heart attack, while on duty he had to respond in an emergency manner to aid a female police officer who had gotten involved in fracases on the street. His responses did not involve physical confrontations. Additionally, for the several days preceding his attack, appellee had worked longer hours doing his own work plus the administrative work of a sergeant and a commander who were out on sick leave. Further, as punishment due to an earlier reprimand, appellee worked extra hours during the week preceding his heart attack formatting a lesson plan for police explorer groups. On the afternoon of the attack, he engaged in a heated telephone discussion with a state attorney for approximately forty-five minutes and immediately thereafter performed his usual roll call at which, contrary to his usual practice, he “chewed out” several officers publicly for things “they shouldn’t have done.” Immediately thereafter, he suffered his heart attack.

The deputy commissioner found that the above activities “when together considered” constituted unusual exertion which resulted in appellee’s heart attack and thereupon ruled the attack compensa-ble. However compassionate, we conclude that the deputy commissioner’s decision does not comply with Florida’s Workers’ Compensation Law.

In Florida, a long line of cases has firmly established that a heart attack may be deemed compensable under chapter 440, Florida Statutes, only if it stems from a specifically identifiable non-routine physical activity connected with the claimant’s employment. Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962); Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340 (Fla.1978); Richards Department Store v. Donin, 365 So.2d 385 (Fla. 1978). As this Court stated in Mosca:

We have had a number of “heart” cases in which we determined what was or what was not an unusual and non-routine strain or exertion within the definition of Victor Wine. These decisions have involved either physical strain or exertion alone or physical strain or exertion in concert with emotional strain, but in no case have we held emotional strain alone to be sufficient. Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant’s employment.

At 1342.

In Silvera v. Miami Wholesale Grocery, Inc., 400 So.2d 439, 441 (Fla.1981), the court stated:

To be compensable, the “identifiable effort” associated with the onset of a heart attack must be job-related and must stem in part from some non-routine physical exertion. It may, however, involve psychological pressures closely associated with the physical activity.

In Hodgen v. Burnup & Sims Engineering, 420 So.2d 885, 886 (Fla. 1st DCA 1982), the court stated:

Though there was evidence that Mr. Hodgen had undergone some unusual emotional stress, there was no evidence that the heart attack was due to any unusual physical exertion. Emotional strain alone is not sufficient to establish a causal connection between employment and heart failure.

See also Hammersmith, Inc. v. Zanfardino, 425 So.2d 80 (Fla. 1st DCA 1982); McCall v. Dick Burns, Inc., 408 So.2d 787 (Fla. 1st DCA 1982); and State Real Estate Commission v. Felix, 383 So.2d 941 (Fla. 1st DCA 1980).

Appellee did not meet his burden, in this case, of showing that he had engaged in some non-routine physical effort at work which resulted in his heart attack. The duties performed by appellee during the several days preceding his heart attack and on the fateful day, were substantially the same duties he always performed, with the exception that he was carrying a greater load than usual. Even if his excessive workload could be classified as non-routine, no evidence in the record would support a finding that he was engaging in any specifically identifiable sort of non-routine physical activity. While we may sympathize with appellee’s position, in light of the above cases we can only conclude that ap-pellee’s heart attack is not compensable under the present state of our workers’ compensation law.

REVERSED.

MILLS, J., concurs.

SHIVERS, J., dissents with written opinion.

SHIVERS, Judge,

dissenting.

I respectfully dissent. There is competent, substantial evidence that claimant underwent unusual physical and emotional exertion or strain, not routine to his employment, and that there was a causal relationship between this strain or overexertion and his heart attack. See Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla. 1962). Claimant testified that for several days preceding his heart attack, he had worked longer hours doing his own work plus the work of a sergeant and commander who were out sick. Also, because in 1981 he had cooperated with the Florida Department of Law Enforcement in investigation of the Opa Locka Police Department administration, but had failed to tell the administration it was being investigated, he was reprimanded and ordered to perform 24 hours of community service. Claimant had been working overtime on his days off immediately preceding the heart attack to complete a lesson plan for police explorer groups to perform his community service. The payroll records show that he worked for almost 25 hours of the 48 hours preceding his attack.

Dr. Wald, a cardiologist, testified that based on his knowledge of claimant’s activities on the several days preceding the attack, claimant had been under a combination of emotional and physical distress, that he had a “load on his mind and body.” Dr. Wald opined that such strain was a contributory factor to the heart attack.

Unusual office overwork can constitute a physical as well as a mental strain.

The majority would reverse the deputy and hold there was no non-routine physical activity here. The testimony of claimant and Dr. Wald furnish solid basis for the deputy’s order. In Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983), we noted that our review centers only on whether the record contains competent, substantial evidence to support the deputy’s order. In my opinion it does.


text:
    Gladys GONZALEZ, Appellant, v. CFS CONTINENTAL, Employer, and Commercial Union Insurance Company, Appellees.
    No. AV-94.
    District Court of Appeal of Florida, First District.
    June 12, 1984.
    Arthur Newman, Miami, for appellant.
    Cesar Armstrong of Lanza, Sevier, Wom-ack & O’Connor, Coral Gables, and Ronnie Klein Witlin of Witlin & Witlin, Miami, for appellees.
   PER CURIAM.

AFFIRMED. Hopkins v. E-Systems, Commercial Division, 423 So.2d 981 (Fla. 1st DCA 1982), rev. denied, 430 So.2d 451 (Fla.1983); section 440.16(6), Florida Statutes (1981).

MILLS, SHIVERS and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    DEPARTMENT OF CORRECTIONS, Avon Park Correctional Institute and Division of Risk Management, Appellants, v. Maurice LUSSIER, Appellee.
    No. AV-166.
    District Court of Appeal of Florida, First District.
    June 12, 1984.
    Rehearing Denied July 18, 1984.
    Kurt Preston Hampp, of Jacobs, Robbins, Gaynor, Burton, Hampp, Burns, Cole & Shasteen, P.A., St. Petersburg, for appellants.
    Kimberly S. Brush, of W. James Kelly, P.A., Lakeland, for appellee.
   WIGGINTON, Judge.

The employer/carrier appeal from the deputy commissioner’s order awarding benefits, in which the deputy found a causal connection between claimant’s employment and his condition of chronic hepatitis. We reverse.

Claimant was a dentist employed at the Avon Park Correctional Institute when it was first diagnosed that he suffered from Non A Non B hepatitis. In pursuing his claim for compensation benefits, it was claimant’s position that he contracted the disease from a prison inmate, on whom claimant had performed dental surgery. It was alleged that at the time claimant was treating him, the inmate was suffering from an acute case of hepatitis. Claimant developed symptoms of hepatitis approximately three months later. The deputy based his finding of causal relationship on the deposition testimony of claimant’s treating physician, Dr. Dabir Ahmad Siddi-qui, a gastroenterologist, who, in response to a hypothetical question, replied,

If the man on whose tooth Dr. Lussier worked had a viral hepatitis and if within the time limit described Dr. Lussier does show signs, symptoms or evidence of hepatitis with clear-cut contact, then I think a cause and effect relationship can be made.

Unfortunately, Dr. Siddiqui’s opinion presumed a fact yet to be proved, and not later proven, and for that reason, was an insufficient foundation on which the deputy could base his conclusion of causal connection.

According to the medical testimony, and it was uncontradicted in this regard, for claimant to have contracted Non A Non B hepatitis from the inmate, the inmate would necessarily have had to have been suffering from that same strain. However, during the time that the inmate was ill with hepatitis, no blood tests were performed to establish from what particular type of hepatitis the inmate suffered. Moreover, it was also undisputed that there was no way within reasonable medical probability to test for Non A Non B hepatitis. Non A Non B hepatitis may be diagnosed only through the process of exclusion; that is, one can only diagnose Non A Non B hepatitis if there is laboratory evidence of hepatitis, but no serological evidence of either type A or type B hepatitis. Later blood tests performed on the inmate revealed signs of his having had both type A and type B hepatitis in the past.

Consequently, it was vital to claimant’s case that he prove that the inmate suffered from Non A Non B hepatitis. There being absolutely no medical evidence attesting to that fact ever presented, Dr. Siddiqui’s opinion was insufficient to that end, as it was nothing more than a conclusion based on a fact not in evidence. An expert’s opinion “is not sufficient to eliminate the necessity of proving the foundation facts necessary to support the opinion.” Harris v. Josephs of Greater Miami, Inc., 122 So.2d 561, 562 (Fla.1960); see also Arkin Construction Company v. Simpkins, 99 So.2d 557 (Fla.1957).

Accordingly, claimant’s case and the deputy’s conclusion were based on little more than a “preponderance of probabilities.” As to that, the supreme court held in Harris v. Josephs of Greater Miami:

In cases involving diseases or physical defects of an employee as distinguished from external occurrence to an employee such as an automobile accident claimant must prove a causal connection other than by merely showing that it is logical that the injury arose out of claimant’s employment or that by a “preponderance of probabilities” it appears that it arose out of such employment. There must be some clear evidence rather than speculation or conjecture establishing a causal connection ...

Id. As claimant has failed to show by clear evidence that the inmate had Non A Non B hepatitis when claimant was treating him, we hold the deputy commissioner erred in finding a causal relationship and, therefore, in awarding compensation benefits. See Hillsborough, County School Board v. Bigos, 396 So.2d 848 (Fla. 1st DCA 1981); but compare factually Lake v. Irwin Yacht & Marine Corp., 398 So.2d 902 (Fla. 1st DCA 1981).

REVERSED.

MILLS and SHIVERS, JJ., concur.

      . Dr. James Olsen, Director of Health Services for the Department of Corrections, explained the various forms of hepatitis. Hepatitis A, formally termed infectious or short incubation period hepatitis, is transmitted through oral/fecal contamination. It has an incubation period of 15 to 45 days.
      Hepatitis B, formerly known as serum or long incubation period hepatitis, is contracted through blood, blood products, or secretions of the body through intimate contact. It has an incubation period of 30 to 180 days.
      Non A Non B hepatitis is actually a group of approximately 15 viruses, any one of which will result in the illness, and for which there are no tests to allow for specific diagnosis. Thus, it is diagnosed through exclusion, i.e., where there is no finding of hepatitis, but there are clinical symptoms of hepatitis, then the patient’s condition is diagnosed as Non A Non B hepatitis. Non A Non B hepatitis has the same incubation period as does type B, and is similarly transmitted. Also, Non A' Non B hepatitis may be sub-clinical, in that the carrier may appear to be suffering merely from a common cold.

      . This case is distinguishable from Food Machinery Corporation v. Shook, 425 So.2d 163 (Fla. 1st DCA 1983), and Smith v. Crane Cams, Inc., 418 So.2d 1266 (Fla. 1st DCA 1982), cited by claimant. Those cases presented circum- • stances involving diseases arising from more general conditions, such as the use of chemicals or the exposure to noise levels, rather than from a more specific, medically complex pathogen, as is involved in the instant case. Thus, as pointed out in Shook, the logical cause doctrine is applicable in cases where the disease is caused by a general condition obviously endemic, by a layman’s standards, to the claimant's place of employment.


text:
    Roswell WILLIAMSON, Appellant/Cross Appellee, v. Susan WILLIAMSON, Appellee/Cross Appellant.
    No. 83-1820.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Michael J. Dunleavy of Law Offices of Dunleavy & Trick, Fort Lauderdale, for appellant/cross appellee.
    Michael H. Gora of Law Offices of Wolff & Gora, Fort Lauderdale, for ap-pellee/cross appellant.
   PER CURIAM.

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

ANSTEAD, C.J., DOWNEY, J., and RODGERS, EDWARD, Associate Judge, concur.


text:
    Mark Allan BERKWITZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-1670.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Rehearing Denied July 18, 1984.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed upon the authority of Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984) and remanded for further proceedings consistent therewith.

REVERSED and REMANDED.

HERSEY, DELL and WALDEN, JJ., concur.


text:
    Dorothy B. LUNKEN, Appellant, v. Lynne GLATTER, Appellee.
    No. 83-1830.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.

      David B. Norris of Watterson & Dicken-son, P.A., West Palm Beach, for appellant.
    James F. Miller of Nagle & Miller, West Palm Beach, for appellee.
   PER CURIAM.

The final summary judgment of foreclosure is hereby reversed. We believe that appellee failed to demonstrate the lack of an issue of material fact as to the affirmative defense of the appellant. See Bunner v. Florida Coast Bank of Coral Springs, 390 So.2d 126 (Fla. 4th DCA 1980).

ANSTEAD, C.J., DOWNEY, J., and RODGERS, EDWARD, Associate Judge, concur.


text:
    Charles E. SIZELOVE, Appellant, v. STATE of Florida, Appellee.
    No. 83-790.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin and Penny H. Brill, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953); Romero v. State, 435 So.2d 318 (Fla. 4th DCA 1983); and Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982).

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.


text:
    Alfred William THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 83-370.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the conviction and sentence but reverse the assessment of costs and remand for compliance with Jenkins v. State, 444 So.2d 947 (Fla.1984).

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

LETTS, BERANEK and HERSEY, JJ., concur.


text:
    Wilson Knox BAGWELL, Appellant, v. BILL KELLEY CHEVROLET, INC., and General Motors, Appellees.
    No. 82-1083.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Richard A. Barnett, Hollywood, for appellant.
    Charles A. Finkel of Long, Finkel & Cave, P.A., Hallandale, for appellee Bill Kelley Chevrolet, Inc.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for appellee General Motors.
   PER CURIAM.

In this action alleging sale of a defective motor vehicle and wrongful refusal to repair, appellant sought recision and incidental damages, or in the alternative consequential damages. From a final judgment denying recision but requiring each of the parties to take certain affirmative action the within appeal has been perfected. We reverse. While the trial court had ample justification upon this record to deny recision, the relief actually afforded to the parties was requested by none of them. Reversal is therefore required to permit the trial court to reconsider the evidence in light of the pleadings (particularly the third amended complaint) and to make an award of damages as may be supported by substantial competent evidence.

REVERSED AND REMANDED.

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


text:
    Warren Lee TUCKER, Appellant, v. Enrique LAVERNIA, M.D., Lavernia, P.A., Florida Patients Compensation Fund, Colonel Lee H. Tucker and Iris Tucker, his wife, Appellees. Colonel Lee H. TUCKER and Iris Tucker, his wife, Appellants, v. Enrique LAVERNIA, M.D., Lavernia, P.A., and Florida Patients Compensation Fund, Appellees.
    Nos. 83-865, 83-940.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.

      Gary W. Roberts of Ricci & Roberts, P.A., West Palm Beach, and Janet W. Freeman, Palm Beach, for appellant, Warren Lee Tucker.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellants Colonel Lee H. Tucker, et ux.
    Michael K. Davis of Rosenberg & Davis, Davie, for appellees Lavernia and Lavernia, P.A.
   PER CURIAM.

This appeal questions the propriety of two summary judgments entered in favor of a defendant/doctor in two consolidated medical malpractice actions. The trial court predicated its rulings on the legal conclusion that the harm inflicted by the doctor’s patient upon himself and his parents was unforeseeable. Additionally, the court found that the patient’s acts were an active and efficient intervening cause of the parents’ injuries. We reverse both summary judgments without reaching the merits of the court’s rulings because the record reveals several unresolved genuine issues of material fact. Thus, the trial court’s decisions were premature and, consequently, both summary judgments are reversed and the cause is remanded for further proceedings. See Landers v. Milton, 370 So.2d 368 (Fla.1979); McCabe v. Walt Disney World Co., 350 So.2d 814 (Fla. 4th DCA 1977).

REVERSED AND REMANDED.

GLICKSTEIN, HURLEY and DELL, JJ., concur.

      . But see Fitzer v. Forlaw, 435 So.2d 839 (Fla. 4th DCA 1983); see also Watkins v. United States, 589 F.2d 214 (5th Cir.1979); Petersen v. State, 100 Wash.2d 421, 671 P.2d 230 (1983); Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976).


text:
    Allen MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 83-429.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.

      Martin Lemlich, Miami Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed and remanded for a new trial on the authority of Grant v. State, 429 So.2d 758 (Fla. 4th DCA 1983).

Prior to the jury being sworn, the appellant attempted to exercise one of his remaining preemptory challenges to the jury panel. The trial court refused to entertain the appellant’s objection at that time and directed that the jury be sworn. After the jury was sworn and the remaining prospective jurors released, the trial court acknowledged on the record the appellant’s attempt to exercise a preemptory challenge prior to the jury being sworn. At the same time the trial judge stated that under his practice jury challenges were not permitted once a juror had been questioned and accepted, even though that juror had not been sworn as a member of a complete jury. The trial court also acknowledged that the appellant had objected to such procedure.

We specifically disapproved of such a jury selection procedure in Grant. Upon review of the record we also are unable to conclude that the error here was harmless. Cf. Jones v. State, 332 So.2d 615 (Fla.1976). In fairness to the trial court, we acknowledge that Grant was decided after the trial of the present case.

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


author: DOWNEY, Judge.

text:
    George Robert SALISBURY, Appellant, v. Michael R. SPIELVOGEL, Appellee.
    No. 83-2352.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Kenneth M. Jones of Moody & Jones, Fort Lauderdale, for appellant.
    Val L. Osinski of Law Offices of Val L. Osinski, Coral Springs, for appellee.
   DOWNEY, Judge.

This is an appeal from that aspect of an amended final judgment that awarded ap-pellee, Spielvogel, an attorney’s fee.

Appellant, Salisbury, and appellee, Spiel-vogel, were two of seven parties who entered into a joint venture agreement for the acquisition, development, and construction of an office building complex. Spielvo-gel, as trustee, was to have sole discretion and responsibility in the development and construction of the project. The agreement provided that each of the venturers would buy space in the complex and would join in the execution and/or endorsement of the note and mortgage financing the project. The agreement also contained a provision relative to attorney’s fees as follows:

“The parties hereto mutually acknowledge and agree that any documents requiring their signatures or any payments required to be made by them shall be accomplished within 10 days from the date they are notified in writing by the Trustee and failing which, the defaulting party’s interest shall be subject to foreclosure by the non-defaulting parties hereto. Any costs incident to enforcing the terms hereof shall be charged to a defaulting party including reasonable attorney’s fees.”

Salisbury paid the purchase price for his portion of the space and then commenced suit against Spielvogel to recover what Salisbury claimed was an overcharge. Spiel-vogel denied liability and alleged affirmatively that Salisbury, who acted as general contractor, put extras into the space he ordered and was charged for the extras. In addition, Spielvogel filed a two-count counterclaim against Salisbury. Count I alleged that the mortgagee of the real property on which the project was built demanded the joinder on the mortgage note of all owners of space in the project and Salisbury refused to join, thereby breaching his duty under the joint venture agreement. Count I also alleged Salisbury was liable for attorney’s fees under the agreement for refusal to perform “thereunder.” Spielvogel asked the court to require Salisbury to join in or endorse the mortgage note and to pay attorney’s fees. Count II sought (a) money damages for extras Salisbury had allegedly not paid for and (b) attorney’s fees under the joint venture agreement. Salisbury’s answer to the counterclaim denied liability under either count.

The jury returned a verdict for Spielvo-gel on Salisbury’s complaint and on Count II of the counterclaim. In a bifurcated proceeding the court found in favor of Spielvogel on Count I of the counterclaim and ordered Salisbury to execute the mortgage note referred to in the counterclaim. Finally, the court awarded Spielvogel an attorney’s fee of $3,400.

In a colloquy with counsel the trial judge stated that the contract provided for an allowance of attorney's fees for Spielvo-gel’s claim involving specific performance but not for the defense of Salisbury’s complaint or for Spielvogel’s claim for damages. Yet in adducing evidence relative to the question of attorney’s fees, the parties failed to separate the time and effort expended for the specific performance claim from the other claims and counterclaims. Therefore, the fee allowed was for the entire litigation. In seeking attorney’s fees for services in litigation where the prevailing party may be entitled to fees for services regarding some of the issues but not others, the burden of proving entitlement to fees is upon the party claiming them. United Services Auto. Ass’n. v. Kiibler, 364 So.2d 57 (Fla.3d DCA 1978).

Since the fee allowed covered irrelevant issues, the portion of the final judgment that awarded Spielvogel a $3,400 attorney’s fee is reversed and the cause is remanded for a new hearing on and award of attorney’s fees for services rendered Spielvogel in prosecuting the counterclaim for specific performance.

REVERSED AND REMANDED, with directions.

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


text:
    ERSKINE FLORIDA PROPERTIES, INC., etc., Appellant, v. George HARTWELL, Nancy Hartwell, his wife, and Ocean Harbour of North Beach Development Corporation, etc., Appellees. ERSKINE FLORIDA PROPERTIES, INC., etc., Appellant, v. James M. STUART, Helen F. Stuart, his wife, and Ocean Harbour of North Beach Development Corporation, etc., Appellees.
    Nos. 83-1691, 83-1692.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Hubert R. Lindsey, West Palm Beach, for appellant.
    R.N. Koblegard, III, of Fee, Koblegard, Teel & Kenney, P.A., Fort Pierce, for ap-pellees — Hartwell and Stuart.
   PER CURIAM.

We find no error in the issues raised by appellant and therefore affirm. Provided, however, the award of prejudgment interest is incorrectly calculated. Interest accrued at the rate of six percent (6%) per annum to July 1, 1982, the effective date of an amendment to Section 687.01, Florida Statutes (Supp.1982). From July 1, 1982, to the date of judgment, July 19, 1983, interest should have been calculated at twelve percent (12%) per annum. See Meigs & Cope Agency of Florida, Inc. v. Koffey, 435 So.2d 867 (Fla.3d DCA 1983). Cf. Glades County, Fla. v. Kurtz, 101 F.2d 759 (5th Cir.1939). See generally, Annot., 4 A.L.R.2d 93.

The final judgment is affirmed in all respects except as to the rate of prejudgment interest. The case is remanded to the trial court with directions that interest be calculated as indicated above. As modified, the final judgment is affirmed.

AFFIRMED AS MODIFIED.

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.