author: HERSEY, Judge.

text:
    Eugene WHITEHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 82-2039.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Rehearing Denied March 15, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

The primary issue raised by this appeal involves an application of the mandatory minimum sentence statute, Section 775.-087(2), Florida Statutes (1981) and whether its inappropriate imposition constitutes fundamental error.

On June 3,1982, two black males entered a Winn-Dixie supermarket and then left. A few minutes later one of the men, identified as the codefendant, David Landrau, confronted the store manager, David Stra-chan, at gunpoint in his office and forced him to hand over money. As Landrau was leaving the store he passed Patrick Giorda-no, grabbed two gold chains from his neck and shot him in the chin. Marjorie Bag-gett, a cigarette company sales representative, was servicing cigarette machines during the robbery. She was held at gunpoint by a man she later identified as the appellant, Eugene Whitehead.

Responding to a BOLO, Officer George Jerabek attempted to stop a vehicle coming from the direction of the Winn-Dixie which matched the radioed description of the robbers. Whitehead was the driver. The car pulled over to the side of the road and the passenger fired a shot in Jerabek’s direction. The car then accelerated. Jera-bek pursued the vehicle and returned fire. After the codefendant fired two more shots, the car stopped. The two men fled on foot and were ultimately found and arrested.

Whitehead was informed against on six counts. He was tried and acquitted on two counts and convicted and sentenced on the other four.

On appeal he postulates three grounds for reversal. The first has to do with the alleged inattentiveness of one of the jurors. This was addressed by the trial court during the trial. The trial court was obviously satisfied that no untoward mischief resulted from the complained of conduct. We find no error in that regard. Undoubtedly

[a] trial court has the duty to insure that a defendant receives a fair and impartial trial and that jurors are attentive to the evidence presented. The conduct of jurors is the responsibility of the court and the court is allowed discretion in dealing with any problems that arise.

Orosz v. State, 389 So.2d 1199, 1200 (Fla. 1st DCA 1980), citing Walker v. State, 330 So.2d 110 (Fla. 3d DCA), cert. denied, 341 So.2d 1087 (Fla.1976).

Second, appellant questions the propriety of retaining jurisdiction over a portion of the sentence without stating the grounds for retention with sufficient particularity. We find that any error which may have occurred was not preserved for appellate review. Not being of fundamental proportions it was thereby waived. McFadden v. State, 423 So.2d 456 (Fla. 4th DCA 1982); Hernandez v. State, 425 So.2d 213 (Fla. 4th DCA 1983).

The final error of which appellant complains, and to which we add an observation of our own, concerns the appropriateness here of mandatory minimum sentences.

Appellant was convicted of “attempted murder in the first degree, with a firearm, as charged in the information” [Count II]. The incident to which Count II refers is the get-away during which shots were fired at Officer George Jerabek. We will treat two aspects of the legal problem presented by the record on this issue.

It is established that vicarious possession of a firearm is insufficient to impose the mandatory three year minimum jail sentence under Section 775.087(2), Florida Statutes (1981). Brown v. State, 358 So.2d 92 (Fla. 4th DCA), cert. denied, 364 So.2d 881 (Fla.1978); Earnest v. State, 351 So.2d 957 (Fla.1977). A finding of actual possession may be based upon circumstantial evidence. Bradley v. State, 413 So.2d 1248 (Fla. 1st DCA 1982). Neither the victim, Jerabek, nor any other witness observed appellant in the possession of a firearm after leaving the scene of the robbery. Although appellant had a gun at the store, the firearm found in the vehicle had only his codefendant’s fingerprints on it. Imposition of the mandatory minimum sentence was therefore inappropriate. The state points out, and we think correctly so, that appellant failed to object or to make an appropriate motion to give the trial court an opportunity to correct the error. Thus unless this sentencing error is fundamental it will be deemed to have been waived.

The district courts have not been uniform in their treatment of this particular sentencing error. The third district in Pinder v. State, 396 So.2d 272 (Fla. 3d DCA 1981) refused to reach the merits of an assertion of error of this type “because the issue was not properly preserved for review by any objection or motion which asserted this particularized contention below.” In essence the court declined to view the error as fundamental. In a later case involving the enhancement statute, Section 775.087, Florida Statutes (1981), the third district determined a similar error to be fundamental in the context of that statute. Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982).

The second and fifth districts on the other hand have determined such an error to be fundamental. In Lawson v. State, 400 So.2d 1053, 1055 (Fla. 2d DCA 1981) the court, in holding the error to be fundamental, states that “[0]ne of the more commonly recognized fundamental errors is the imposition of an illegal sentence.” The fifth district in Reynolds v. State, 429 So.2d 1331, 1333 (Fla. 5th DCA 1983) found such an error to be fundamental and held:

Where, as here, the sentencing error can cause or require a defendant to be incarcerated or restrained for a greater length of time than provided by law in the absence of the sentencing error, that sentencing error is fundamental and endures and petitioner is entitled to relief in any and every legal manner possible, viz: on direct appeal although not first presented to the trial court, by post-conviction relief under Rule 3.850, or by extraordinary remedy. As to such a fundamental sentencing error he is entitled to relief under an alternative remedy notwithstanding that he could have, but did not, raise the error on appeal. An erroneous application of the three year mandatory minimum sentence would constitute a fundamental sentencing error.

Despite dicta in an earlier case suggesting that we leaned toward a contrary view (Brown v. State, 358 So.2d 92 (Fla. 4th DCA 1978)) the better rule would appear to be that improper imposition of a mandatory minimum sentence, because of its inherent potential of causing or requiring “a defendant to be incarcerated or restrained for a greater length of time than provided by law in the absence of ... sentencing error,” Reynolds, 429 So.2d at 1333, constitutes fundamental error. On that basis the sentence is unlawful and must be modified to eliminate the mandatory minimum sentence aspect on remand.

Appellant also received consecutive mandatory three year minimum sentences on Count III (for the robbery with a firearm of the manager of the store) and on Count VI with which we deal at greater length momentarily. Imposition of the mandatory three year minimum sentence for Count III was proper since appellant had a gun during the robbery of the manager.

We point out initially that appellant does not assert the imposition of these sentences as error, with some justification: At the time the briefs were filed the supreme court had not yet filed its opinion relating to this issue.

Count VI of the information charges appellant with an assault on Marjorie Baggett with a deadly weapon, that is, a handgun. The jury verdict finds appellant “guilty of aggravated assault, as charged in the information.” The testimony of Baggett unequivocally establishes that her assailant was armed. We have held that as a predicate for enhancement of a defendant’s sentence or the imposition of the mandatory three year minimum sentence either the defendant must have been convicted of a crime an essential element of which is possession of a firearm or the jury must specifically find that the defendant possessed a firearm. Overfelt v. State, 434 So.2d 945 (Fla. 4th DCA 1983). Applying that test here, possession of a firearm is not an essential element of aggravated assault. Section 784.021, Florida Statutes (1981) provides that an assault is aggravated either by possession of a deadly weapon or when accompanied by the intent to commit a felony. The jury may well have found the latter.

We are left, then, to consider whether the reference in the jury’s verdict to “aggravated assault, as charged in the information” is a sufficiently specific finding that a deadly weapon was used in the perpetration of the assault. We think that, on the facts of this case, it was. The information charges:

COUNT VI
AND MICHAEL J. SATZ, State Attorney of the Seventeenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Bro-ward, by and through his undersigned Assistant State Attorney, charges that EUGENE WHITEHEAD and DAVID LUIZ LANDRAU on the 3rd day of June, A.D. 1982, in the County and State aforesaid, did unlawfully commit an assault upon Marjorie Baggett with a deadly weapon, to wit: a handgun, without intent to kill, by placing said handgun in Marjorie Baggett’s side, thereby placing Marjorie Baggett in fear of imminent violence, contrary to F.S. 784.021,

The trial court charged the jury as to aggravated assault

The elements of aggravated assault are: Number one, the defendant intentionally and unlawfully threatened, either by word or act, to do violence to the victim; number two, at the time the defendant appeared to have the ability to carry out the threat; number three, the act of the defendant created in the mind of the victim the well-founded fear that the violence was about to take place; number four, the assault was made with a deadly weapon.
Once again, a weapon is a deadly weapon if it is used or threatened to be used in a way likely to produce death or great bodily harm.

Where the information makes reference to a deadly weapon and the jury is instructed to that effect a verdict which incorporates the crime charged in the information by reference constitutes a specific finding that the crime was committed with the use of a deadly weapon.

Be that as it may, the recent case of Palmer v. State, 438 So.2d 1 (Fla.1983), compels reversal of the mandatory three year minimum sentence imposed by virtue of conviction on Count VI in any event.

The assault underlying Count VI was part and parcel of the armed robbery of which appellant was convicted on Count III. There can be no question that there was but one criminal episode involved here. Palmer mandates that no more than one mandatory three year minimum sentence may be imposed upon a defendant for crimes “arising from the same criminal episode.” The result would apparently be different if we were concerned here with the episodes of (1) the armed assault of the witness during the robbery and (2) shooting at Officer Jerabek from the getaway car. As we interpret Palmer consecutive mandatory three year minimum sentences could then be imposed as these are “separate incidents occurring at separate times and places.” For an illuminating analysis of another aspect of the duality of a criminal episode problem, see Watts v. State, 440 So.2d 505 (Fla. 1st DCA 1983).

Because the trial court improperly imposed three consecutive three year mandatory minimum sentences, only one being justified under the facts and circumstances of this case, we affirm the convictions but remand with instructions to delete the three year mandatory minimum sentences imposed by virtue of conviction of Counts II and VI.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


source: Caselaw Access Project

author: DELL, Judge.

license: Public Domain

text:
    TOWN OF PEMBROKE PARK, a Florida municipality, Appellant, v. STATE of Florida, ex rel., John HEALY, Appellee. PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellant, v. TOWN OF PEMBROKE PARK, a Florida municipality, and State of Florida, ex rel., John Healy, Appellees.
    Nos. 83-240, 83-1325.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Rehearing Denied March 27, 1984.

      Harold D. Smith, of Law Offices of Harold D. Smith, P.A., Hollywood, and Law Offices of A.J. Ryan, Jr., Dania, for Town of Pembroke Park.
    Cary R. Singletary, Tampa, for appellee, State of Florida, ex rel. John Healy.
    Edward S. Stafman, Staff Counsel, Public Employees Relations Commission, Tallahassee.
   DELL, Judge.

The Town of Pembroke Park (Town) appeals from a final order rendered by the Seventeenth Judicial Circuit Court granting enforcement of a final order of the Public Employees Relations Commission (PERC). PERC appeals a subsequent order denying its motion to hold the Town in contempt for failure to comply with the circuit’ court’s order of enforcement. This court consolidated the appeals.

This case originated after the Town eliminated its police force and contracted with the Broward County Sheriff’s Office for police coverage. The Fraternal Order of Police (FOP) filed an unfair labor practice charge with PERC against the Town. PERC found against the Town and ordered reinstatement of the former policemen. The Town filed a timely notice of appeal with the First District Court of Appeal. Due to the Town’s failure to file its initial brief, the First District Court dismissed the appeal. The Town did not seek timely review in the Supreme Court of Florida of the order dismissing its appeal.

The FOP then filed its petition for enforcement of PERC’s order in the circuit court. The circuit court ordered the Town to comply with PERC’s order and the Town filed its appeal with this court.

The Town contends their filing of a timely notice of appeal in the First District Court of Appeal vested jurisdiction in that court to review PERC’s final order pursuant to Sections 120.68 and 447.504, Florida Statutes (1981). The Town further asserts the First District Court had a mandatory obligation to review the merits of the appeal or to affirm PERC’s order once the notice of appeal was timely filed. Alternatively, the Town contends that the First District Court lacked authority to dismiss the appeal for failure to file an initial brief and that it retained jurisdiction because its order dismissing the appeal was a nullity, thus the circuit court lacked jurisdiction to enforce PERC’s order.

We find the Town’s arguments without merit since, in essence, the Town is asking this Court to review an order of its sister court. We have no authority to do so. The Town lost its right of review when it failed to timely seek review in the Supreme Court of the First District Court’s order of dismissal. Therefore, the circuit court properly exercised jurisdiction over the proceedings to enforce PERC’s order because the circuit court has jurisdiction 'over enforcement proceedings pursuant to Sections 120.69 and 447.5035, Florida Statutes (1981) when there is no pending appeal.

Next, we consider PERC’s appeal of the trial court’s denial of its motion for contempt. Since we have held that the circuit court had jurisdiction to enforce PERC’s order compelling reinstatement, we must also conclude that the circuit court had authority to enforce its order by contempt proceeding.

This case has proceeded through the courts of Florida since March, 1981, when PERC originally ordered reinstatement of the policemen. In its motion for contempt, PERC alleged the Town failed to comply with the order of reinstatement by failing to reinstate the officers to their former positions or substantially equivalent positions, and further alleged the Town harassed and endangered the life of the only reinstated policeman. PERC also alleged the Town; has not bargained in good faith and has otherwise violated the circuit court’s order enforcing PERC’s order of reinstatement.' In its order denying PERC’s motion for contempt the trial court concluded that “[ajlleged mistreatment and harassment of the police officers by the Town and the failure to bargain in good faith subsequent to reinstatement [were] not matters properly before this Court.” We disagree.

The circuit court’s order compelling compliance with PERC’s order of reinstatement directed the Town to “unconditionally offer to all bargaining unit members whose employment was terminated ... immediate and full reinstatement to their former positions, or to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings suffered as a result of their termination.” We find the allegations of PERC’s motion for contempt sufficient to require an evidentia-ry hearing and the allegations if proved to justify the imposition of appropriate sanctions. Further, we find this matter requires immediate disposition.

Accordingly, we affirm the trial court’s order granting enforcement of PERC’s order of March 12, 1981, and we reverse the trial court’s order denying PERC’s motion for contempt and remand this cause to the trial court with directions to conduct an evidentiary hearing. The trial court shall enter such orders as may be consistent herewith upon its determination of the Town’s compliance or lack of compliance with its order directing enforcement of PERC’s order of reinstatement.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

HURLEY, J., and SIMONS, STUART M., Associate Judge, concur.


author: JORGENSON, Judge.

text:
    Maria Luisa RIVERA, Appellant, v. RANDLE EASTERN AMBULANCE SERVICE, INC., Hugh Randolph Caines, Jr., and Fidelity and Casualty of New York, Appellees.
    No. 82-2548.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.

      Albert P. Rosillo and David I. Schlos-berg, Miami, for appellant.
    Gerald E. Rosser, Miami, for appellees.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   JORGENSON, Judge.

Maria Rivera and the estate of Juan Rivera, her late husband, filed an action against Randle Eastern Ambulance Service seeking damages for the wrongful death of Juan and for the personal injuries suffered by Maria as a result of Randle Eastern’s alleged negligence. The wrongful death claim was settled and the case proceeded to trial on Maria’s personal injury claim which, in large part, was based upon a theory of mental distress. At the close of all the evidence the trial court granted Ran-dle Eastern’s motion for a directed verdict. For the reasons which follow we reverse and remand for further proceedings consistent with the views expressed herein.

Mr. and Mrs. Rivera were seated on a bus bench waiting for the next bus when a Randle Eastern ambulance ran a red light, collided with another vehicle, careened across the intersection and smashed into the bus bench, shattering it. The impact threw Mrs. Rivera backwards, injuring her head. As Mr. Rivera lay pinned beneath the ambulance, bleeding profusely, Mrs. Rivera screamed for someone to come to his aid. Mr. Rivera died a short time later at Jackson Memorial Hospital.

The trial court, relying on Selfe v. Smith, 397 So.2d 348 (Fla. 1st DCA), review denied mem., 407 So.2d 1005 (Fla.1981), directed a verdict in favor of Randle Eastern because of

the lack of sufficient medical evidence or sufficient legal evidence to go to the jury to determine a jury verdict on the issue of whether Maria Luisa Rivera’s mental injuries were due to her own experience by being involved in the accident or if such injuries were the result of seeing her husband lying there (at the scene of the accident) bleeding to death.

We believe that this case is controlled not by Selfe but by National Car Rental Systems v. Bostic, 423 So.2d 915 (Fla. 3d DCA 1982). In Bostic, a ease involving a plaintiff who was injured in an automobile accident in which his mother was killed, this court held that it was not error for the fact finder to receive evidence regarding the emotional pain and suffering felt by the plaintiff when his mother was killed in his presence. See id. at 917. The court in Selfe limited the plaintiff’s recovery to mental distress caused by the plaintiff’s own injury or by the traumatic event considered in relation to the plaintiff alone. See Selfe at 350. To the extent that .Selfe and Bostic cannot be harmonized we reject Selfe and adhere to Bostic.

Viewing, as we must, the evidence in a light most favorable to the party against whom the verdict is directed, and this state’s inexplicable affinity with the impact rule having been satisfied, we conclude that Mrs. Rivera is entitled to a jury determination as to whether she may be compensated for her mental pain and suffering. See Bostic.

Reversed and remanded for further consistent proceedings.

      . We agree with Judge Pearson's special concurrence in Bostic, particularly his statement "that the reasons for the [impact] rule have been thoroughly repudiated and that the rule should be abolished and replaced, as it has been in other jurisdictions, by some more enlightened rule,” id. at 918 (citations omitted).


author: PER CURIAM. FERGUSON, Judge

text:
    The STATE of Florida, Appellant, v. Jerry Lee LAWSON, Appellee.
    No. 83-805.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.
    Jim Smith, Atty. Gen. and Marti Rothen-berg and Calvin L. Fox, Asst. Attys. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The only issue on appeal is whether the stop of the defendant’s vehicle which began the chain of events leading to the otherwise lawful seizure of the allegedly concealed firearm was based on founded suspicion. We find that it was and reverse the order granting the defendant’s motion to suppress.

While on routine patrol between 4:00 and 4:30 in the morning, two City of Miami police officers observed the defendant driving a car. There were no passengers in the defendant’s vehicle. The officers watched the defendant for about five to ten minutes. During that time, the defendant drove very slowly (between ten and fifteen miles per hour in a thirty-mile-per-hour speed zone) around the same block four or five times. On one of the corners of the city block was an all-night gas station. The streets were deserted except for an occasional car passing through. The only people in the vicinity, apart from the officers and the defendant, were the gas station attendants. The gas station and neighboring buildings had been the scene of burglaries and other criminal activity within the past six months. Based upon the foregoing, the officers suspected that the defendant was about to commit a burglary or robbery or that he was acting as a look-out for someone who was committing a like crime in the immediate area.

Conceding, arguendo, that the act of driving slowly, the late hour, the history of past crime in the area, and other such innocent factors do not in themselves or sometimes even in combination give rise to a founded suspicion, see, e.g., Mullins v. State, 366 So.2d 1162 (Fla.1978); Coladonato v. State, 348 So.2d 326 (Fla.1977); Freeman v. State, 433 So.2d 9 (Fla. 2d DCA 1983); Parker v. State, 363 So.2d 383 (Fla. 3d DCA 1978); State v. Brooks, 281 So.2d 55 (Fla. 2d DCA 1973), we have little difficulty concluding that where, as here, all of these factors are present and, most significantly, the defendant is observed not merely driving through the area, but instead circling a block and passing the open gas station four or five times at a speed of ten to fifteen miles per hour, the officers had a well-founded suspicion of criminal activity to justify stopping the defendant’s vehicle. See In the Interest of G.T., 387 So.2d 485 (Fla. 4th DCA 1980); State v. Boutwell, 367 So.2d 231 (Fla. 1st DCA 1979); Laster v. State, 354 So.2d 1262 (Fla. 1st DCA 1978).

Reversed and remanded.

FERGUSON, Judge

(dissenting).

The operative facts show only that a citizen, in the early morning hours, drove his automobile slowly around the block four or five times in a high crime area where a business establishment was open. The majority finds on those facts a founded suspicion of criminal activity which justified a detention. Our courts have, in the past, consistently rejected similar arguments. See Kearse v. State, 384 So.2d 272 (Fla. 4th DCA 1980); Keenan v. State, 372 So.2d 1012 (Fla. 1st DCA 1979). The only unique fact here is that a business establishment in the area was open rather than closed — a nebulous distinction. A better case could be made if all the businesses had been closed. The trial court heard the testimony then correctly found the facts unsupportive of founded suspicion. I would affirm.


author: NESBITT, Judge.

text:
    Justine A. HIGDON, as personal representative of the Estate of Benny Higdon, deceased, and on behalf of Justine A. Higdon, as wife of Benny Higdon and Christy N. Higdon, Robin L. Higdon and Benny M. Higdon, Jr., minor children of Benny Higdon, deceased, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision; City of Miami, a municipality; Bobby Jones, individually and as Director of the Dade County Public Safety Department; Merritt Stierheim, individually and as County Manager of Metropolitan Dade County; Kenneth Harms, individually and as Chief of City of Miami Police Department; and Joseph Grassie, individually and as City Manager of the City of Miami, Appellees.
    No. 81-1809.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.

      Merritt, Sikes & Craig, Greene & Cooper and Marc Cooper and Sharon L. Wolfe, Miami, for appellant.

      George F. Knox, Jr., City Atty., Mikele S., Carter, Asst. City Atty., and Jack M. Sobel, Asst. County Atty., for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

Justine Higdon, as personal representative of the estate of Benny Higdon and on behalf of her children, appeals the dismissal of her complaint against Metropolitan Dade County, the City of Miami, and various connected officials. We affirm.

The decedent was killed by rioters in the Liberty City area of Miami during a civil disturbance. The riot was precipitated by the angered reaction of the black community to the acquittal that day of white officers who were charged with the unlawful homicide of a black suspect. The complaint alleged that although the defendants knew or should have known that violence would occur, they took no precautions to prevent the 'violence or to warn members of the community of the dangers involved. After the disturbance grew, it is alleged that the police withdrew from the area and afforded no protection to the community. Plaintiff claims that as a result of these breaches of duty, the decedent drove into this dangerous area without being warned and consequently was killed.

Count I of the complaint alleged a violation, pursuant to 42 U.S.C. § 1983, of the decedent’s fifth and fourteenth amendment rights to be protected against arbitrary intrusions on his personal security and his right to due process. Based on the same statute, Count II alleged a violation of equal protection. Count III consisted of a claim of negligence under state law. The trial court granted the defendant’s motion to dismiss and plaintiff appeals.

42 U.S.C. § 1983

Counts I and II of the complaint seek to state a cause of action under 42 U.S.C. § 1983 which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

To adequately state a cause of action under this statute, the plaintiff must allege that a person acting under color of state law, deprived him of rights protected by the constitution or federal statutes. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), Cooper v. Molko, 512 F.Supp. 563 (N.D.Cal.1981). The violation need not be intentional; Huey v. Barloga, 277 F.Supp. 864, 872 (N.D.Ill.1967) and may consist of an act of omission. Smith v. Ross, 482 F.2d 33 (6th Cir.1973).

The statute is not itself a source of substantive rights, but a method of vindicating federal rights conferred by the constitution and federal statutes. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). As stated in Monroe v. Pape, 365 U.S. 167, 180, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961):

[O]ne reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.

Thus, the plaintiff must point to a specific constitutional or federal violation in order to prevail.

COUNT I

In Count I, the plaintiff alleged that by failing to provide adequate police protection against violence in the black community the defendants violated the decedent’s “constitutional right under the fifth and fourteenth amendments to be protected against arbitrary intrusions on his personal security and well-being and to be protected against violation of his right to due process.”

The court, in Reiff v. City of Philadelphia, 471 F.Supp. 1262 (E.D.Pa.1979), had occasion to consider a similar claim under 42 U.S.C. § 1983. In that case, the plaintiff alleged that while a business visitor in a local shop, she was shot by an individual who was robbing the store. She claimed that the city was liable for failure to provide adequate police security in light of its policy of not responding to calls until a crime has actually been committed. The court held:

This Court has been unable to find any precedent supporting plaintiffs contention that inadequate police protection is a violation of any constitutional right. In her memorandum of law in opposition to the defendant’s motion, plaintiff contends that police protection is an essential governmental service and that failure to provide such essential governmental service is a constitutional violation. This contention must be rejected.
The Supreme Court of the United States has repeatedly pointed out that one must look to the Constitution itself in order to determine whether it explicitly or implicitly creates a constitutional right.
The Constitution does not explicitly or implicitly provide a right to adequate police protection.

471 F.Supp. at 1265. See also Shortino v. Wheeler, 531 F.2d 938 (8th Cir.1976); Wooters v. Jornlin, 477 F.Supp. 1140, 1144 (D.Del.1979); aff'd, 622 F.2d 580 (3d Cir.), cert. denied, 449 U.S. 992, 101 S.Ct. 528, 66 L.Ed.2d 289 (1980); Reedy v. Mullins, 456 F.Supp. 955 (W.D.Va.1978). We agree with the federal court that there is no constitutional right to adequate police protection.

The plaintiff attempts to distinguish Reiff on the basis that the constitutional right here asserted is not the right to adequate police protection, but rather the due process right to personal security and well-being, which was deprived by the lack of protection. We reject this contention for several reasons. First, the plaintiff, in Reiff, couched her constitutional claims in terms of the denial of equal protection and due process under the fourteenth amendment, deprivation of her rights, privileges and immunities, deprivation of her right to a safe place to live and her right to reasonable security; however, the court found that the plaintiff was in effect claiming a constitutional right to adequate police protection. The same may be said of the plaintiff in the present case.

Furthermore, as the court, in Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155, 1158 (5th Cir.1970), noted:

[T]he due process clause of the fourteenth amendment does not insulate a citizen from every injury at the hands of the state. “Only those rights, privileges and immunities that are secured by the Constitution of the United States or some Act of Congress are within the protection of the federal courts.... ” (quoting from 1 W. Barron & A. Holtzoff, Federal Practice § 37 at 200 (Wright ed. I960)).

See also McDowell v. State of Texas, 465 F.2d 1342, 1345-46 (5th Cir.1971) (a general claim of the denial of due process is not the sort of deprivation of right, privilege or immunity which is secured by the constitution). Thus, the plaintiff’s general claims of a due process right to personal security must be rejected.

Additionally, by Count I, plaintiff attempts to articulate a substantive right to recover damages caused by a breach of the peace. However, Congress, in passing the Civil Rights Act, considered imposing such liability and ultimately declined to do so. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In the absence of such legislation, courts have uniformly determined that there is no substantive right to recover damages caused by a riot. See, e.g., Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 63 L.Ed. 291 (1919); Westminster Investing Corp. v. G.C. Murphy Co., 434 F.2d 521 (D.D.C.1970); Monarch Insurance Co. of Ohio v. District of Columbia, 353 F.Supp. 1249, 1259-60 (D.D.C.1973), aff'd sub nom., Aetna Insurance Co. v. United States, 497 F.2d 683 (D.C.Cir.), cert. denied, 419 U.S. 1021, 95 S.Ct. 497, 42 L.Ed.2d 295 (1974).

Accordingly, we find that Count I fails to state a cause of action.

COUNT II

In Count II of the complaint, plaintiff alleged that the defendants violated the black community’s right to equal protection by deciding as a matter of policy to let certain segments of the black community engage in unlawful conduct; and in doing so, the plaintiffs decedent (who was white) was deprived of adequate police protection. While it is true that a denial of equal protection will support a § 1983 action, we conclude that Count II of the present complaint must fail.

The court, in Reiff after deciding that there was no constitutional right to adequate police security, continued:

The fact that the United States Constitution does not provide a right to adequate police protection does not mean that whenever a state or municipality undertakes to provide such a service it may do so in a manner which violates a constitutional right.

471 F.Supp. at 1265-66. See Smith v. Ross (a law enforcement officer may be liable under § 1983 when by his inaction he fails to perform a statutorily-imposed duty to enforce the laws equally and fairly and thereby denies equal protection to persons legitimately exercising rights guaranteed them under state or federal law); Cooper v. Molko (failure of police upon notification to protect plaintiff from abduction violates equal protection clause where failure was based on the fact that plaintiff was associated with the Unification Church).

Plaintiff, in this case alleges in essence that the decedent was injured as a result of the defendants’ denial of equal protection to the black community. She has not alleged, nor could she, that the police conduct denied the decedent equal protection, as for example, where the police choose not to protect a particular plaintiff because of race, color or religion. Cooper v. Molko.

Despite this shortfall, plaintiff argues that she has standing to assert the rights of third parties. While it is the general rule that one may not litigate the constitutional rights of third parties, Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), plaintiff correctly points out that the courts have carved out exceptions to this principle. These decisions are difficult to categorize; however, several factors predominate. See Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), Note Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 425 (1974); Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale Law J 599 (1962). These include the presence of some substantial relationship between the litigant and third parties, see e.g., Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); NAACP v. Alabama ex rel. Patterson, 375 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the impossibility of the rightholder asserting his own constitutional rights; see, e.g., Singleton; NAACP; Barrows; and the possibility that the enforcement of a challenged restriction against the litigant would result indirectly in the violation of third party rights, see e.g., Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), pet. for reh’g denied, 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1977); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold; Barrows.

None of these factors justifying standing have been alleged by plaintiff and we find that on the facts before us they could not be alleged. If a member of the black community has been injured as the result of an alleged violation of a constitutional right, he may seek redress for his own claim. Because the relationship between the decedent and the black community is fortuitous at best, the basis upon which plaintiff claims standing, that is, to protect the constitutional rights of third parties, is not supportable. Our allowance of standing would decide only this plaintiffs claim and would not resolve the black community’s rights.

Consequently, we conclude that the plaintiff does not have standing to argue an alleged equal protection violation.

COUNT III

Under the third count, plaintiff attempts to set out a cause of action in common law negligence. We readily affirm the dismissal of this count based on Ellmer v. City of St. Petersburg, 378 So.2d 825 (Fla. 2d DCA 1979). Like the plaintiff in the present case, Ellmer, unaware of the riot, drove through the area of disturbance and was attacked. The court upheld the dismissal of the plaintiff’s complaint filed against the city for its failure to warn of the riot stating:

Just as the city’s handling of a riot is an activity involving basic planning decisions, so too any attempts to warn of riot conditions must involve planning with respect to how, when, and by what means it is to be accomplished so as to avoid causing public panic and to prevent confrontations with rioters which might exacerbate the situation. Decisions are also necessary concerning how to employ available manpower to effectuate the warnings while at the same time maintain sufficient forces to deal directly with the rioters and contain the spread of the riot to other areas of the community.

Ellmer at 827. See also Wong v. City of Miami, 237 So.2d 132 (Fla.1970). Following these decisions, we hold that the activities complained of were part of the planning level function of the governmental officials and thus the defendants are immune from liability.

CONCLUSION

For the foregoing reasons, we conclude that the trial court was correct in dismissing plaintiff’s complaint and, accordingly, we affirm.


author: SCHWARTZ, Chief Judge.

text:
    Thomas WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    Nos. 82-1945, 83-863.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.

      Bennett H. Brummer, Public Defender, and Paul Morris, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   SCHWARTZ, Chief Judge.

Before us for joint consideration are an appeal, case no. 82-1945, from Wright’s convictions of manslaughter and the possession of a firearm in the commission of that felony and another, case(no. 83-863, from an order denying his Fla.R.Crim.P. 3.850 motion to vacate those convictions on the ground of ineffectiveness of trial counsel. We find error in the latter ruling.

Wright was informed against for firearm possession and second degree murder in the shooting death of his former girlfriend’s step brother and present companion. He claimed self-defense. After the state rested, Wright took the stand in his own behalf. The final colloquy in his direct examination as conducted by the assistant public defender — which forms the basis of the finding of ineffectiveness— was as follows:

Q Have you ever been convicted of a crime?
A Yes.
Q How many times?
A Five times.

While a deliberate preemption of the prosecutor’s projected cross-examination concerning the defendant’s prior convictions is ordinarily a well-justified tactical decision, this was decidedly not the case here. This is because, as counsel belatedly discovered and revealed after the jury had retired, all of Wright’s five convictions were for misdemeanors which did not involve dishonesty or a false statement and were thus totally inadmissible for impeachment purposes or otherwise. Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982). The clear terms of Section 90.610(1), Fla.Stat. (1981), so provide:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment....

We conclude that defense counsel’s action in placing this evidence before the jury established her ineffectiveness and entitles Wright to relief under the controlling authority of Knight v. State, 394 So.2d 997 (Fla.1981). Hopkins v. State, 413 So.2d 443 (Fla. 3d DCA 1983). It is first plain that the specifically identified “overt act” of introducing the plainly harmful testimony was “a serious and substantial deficiency measurably below that of competent counsel,” Knight, 394 So.2d at 1001, who are presumed and required to know of the provisions of the Florida Statutes on a vital issue like this. Chapman v. State, 442 So.2d 1024, 1026 (Fla. 5th DCA 1983), and cases cited; Hopkins v. State, supra.

Furthermore, considering (a) the extremely prejudicial nature of this type of evidence, Roman v. State, 438 So.2d 487 (Fla. 3d DCA 1983); Cummings v. State, supra; Vazquez v. State, 405 So.2d 177 (Fla. 3d DCA 1981), approved in part, quashed in part, 419 So.2d 1088 (Fla.1982); (b) the strong and effective emphasis placed upon it by the state attorney in attacking the defendant’s credibility in final argument; and (c) the closeness of the self-defense question, we conclude that “there is a likelihood that the deficient conduct affected the outcome of the court proceedings.” Knight, 394 So.2d at 1001.

In accordance with these views, the order denying Rule 3.850 relief is reversed; the judgment under review in case no. 82-1945 is vacated, and the cause remanded with directions to grant the defendant a new trial.

Vacated, reversed.

      . The Rule 3.850 proceeding was conducted in the trial court while the plenary appeal was pending here pursuant to our express relinquishment of jurisdiction for that purpose. See State v. Meneses, 392 So.2d 905 (Fla.1981).

      . The Florida law prior to the Evidence Code did permit impeachment by showing a prior conviction of either a felony or misdemeanor. Sec. 90.08, Fla.Stat. (1965); Hendrick v. Strazzula, 135 So.2d 1 (Fla.1961).

      . Even with the offending evidence before it, the jury found Wright guilty only of the lesser-included offense of manslaughter.

      . When counsel informed the court of the true nature of the convictions, the jury's deliberations had already begun. It was thereupon recalled and told to disregard that evidence. Especially in the light of the point in the trial when they were given, it is obvious that these instructions could not serve to unring the bell and cure the error. Malcolm v. State, 415 So.2d 891, 892, n. 1 (Fla. 3d DCA 1982) (instructions to disregard evidence of prior criminal activity “of legendary ineffectiveness”). The state thus fell far short of meeting the burden of "showing beyond a reasonable doubt that there was no prejudice in fact,” Knight, 394 So.2d at 1001, resulting from the actions of counsel.


author: PER CURIAM.

text:
    Ezra Lee WILLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2391.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied March 21, 1984.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   CORRECTED OPINION

PER CURIAM.

The order revoking the defendant’s probation in Circuit Court Case No. 81-6774 must be corrected on remand to vacate the finding of violation of probation based on the commission of the offense of attempted robbery, which offense, although supported by proof, was neither alleged in the charging affidavit nor found to have been committed in the court’s oral pronouncement. As corrected, the order is affirmed.

In Circuit Court Case No. 82-7809, the fifteen-year term of imprisonment imposed on Count III for attempted robbery not involving the use of a firearm or deadly weapon must be vacated as being in excess of the maximum sentence allowed by law. Robbery without the use of a firearm or deadly weapon is a second-degree felony. § 812.13(2)(c), Fla.Stat. (1981). An attempt to commit a felony of the second degree is a third-degree felony, § 777.04(4)(c), Fla.Stat. (1981), punishable by a maximum of five years imprisonment. § 775.082(3)(d), Fla.Stat. (1981).

The order revoking probation is affirmed. The cause is remanded for the correction of the order revoking probation and, in Circuit Court Case No. 82-7809, for resentencing.

      . The State has suggested that upon remand the trial court should be free to impose this five-year sentence on Count III to run consecutively with the fifteen and twenty-five-year terms of imprisonment imposed on Counts I and II. But the trial court's original sentence on Count III was to run concurrently with Counts I and II, thus evincing an intent that a twenty-five year sentence would be the maximum for the three crimes. Unlike the situation in Wright v. State, 429 So.2d 836 (Fla. 3d DCA 1983), Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982), and Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982), where, because our vacation of excessive concurrent sentences effected a change in the trial court's sentencing goal, we permitted the imposition of a consecutive sentence upon remand to allow the original sentencing goal to be accomplished, a consecutive sentence here would exceed the evident original sentencing goal of the trial court and cannot be justified.


text:
    Joseph GATT, Appellant, v. The KEYES CORPORATION, a Florida corporation, Appellee.
    Nos. 83-1457, 83-1566.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.

      Worley & Harnage and Henry Harnage, Miami, for appellant.'
    Bruce D. Friedlander, Miami Beach, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   NESBITT, Judge.

The seller appeals from an order entering summary judgment in favor of a broker for his real estate commission. We reverse.

Gatt entered into a multiple listing agreement with a broker under which the broker was to find a ready, willing and able purchaser for Gatt’s property in exchange for a commission of six per cent of the sales price. A prospective purchaser signed a contract for purchase and sale. One of the terms of the contract was that the purchaser had the option to avoid the contract and receive reimbursement of his deposit if the roof and termite inspections indicated that repairs and/or termite eradication would cost in excess of three per cent of the purchase price.

The closing was set for November 1, 1981 at which time the inspections were not available. Subsequently, the prospective purchaser requested return of his deposit because the closing had not taken place. Gatt’s attorney responded that there was an understanding that the closing would be delayed to await the reports from the roof and termite inspections. When the reports were finally obtained, it became apparent that the repairs would be in excess of three per cent. On this basis, the purchaser notified Gatt’s attorney that he was exercising his option to have his deposit returned.

The broker instituted this action against Gatt for its broker’s commission alleging that it had procured a ready, willing and able purchaser. Gatt filed a general denial and two affirmative defenses. First, he claimed that at all relevant times he was ready, willing and able to proceed with the closing; and, second, he argued that the purchaser was not ready, willing and able because he chose to avoid the contract. On the broker's motion, Gatt’s second affirmative defense was stricken as being legally insufficient. Ultimately, summary judgment was entered in favor of the broker.

The matters raised by Gatt’s affirmative defense simply denied the facts contained in the broker’s complaint and did not raise any new matters to defeat the complaint. As such, the trial court acted properly in striking the second affirmative defense. Wiggins v. Portmay Corp., 430 So.2d 541 (Fla. 1st DCA 1983); Tropical Exterminators, Inc. v. Murray, 171 So.2d 432 (Fla. 2d DCA), cert. denied, 177 So.2d 475 (Fla.1965). Nonetheless, the denial by the seller, as well as his affidavit in opposition to the summary judgment, placed in issue the question as to whether the purchaser was ready, willing and able. Summary judgment was, therefore, improperly entered.

Reversed and remanded.


author: WALDEN, Judge. ANSTEAD, Chief Judge,

text:
    Timothy TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 83-1225.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied March 28, 1984.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Judge.

Taylor was convicted of burglary of a dwelling. He appeals. We reverse because of a failure of proof.

A witness testified that Taylor, whom he recognized, was observed carrying a television set down an alley, some fifty (50) to sixty (60) feet away. At the same time the witness noticed that the back door of the victim’s house was open.

Upon notification at work, the victim traveled to his home and discovered that his television set was missing.

There was no testimony that the television set being transported down the alley belonged to the victim. There was no testimony or evidence that Taylor entered or exited from the victim’s house.

In order to prove the offense of burglary, Section 810.02(1), Florida Statutes (1981), the State must introduce evidence as to each of the following elements: 1) that the Defendant entered a structure owned or in possession of another person, 2) that the Defendant did not have the permission or consent of that other person, or anyone authorized to act for him, to enter the structure at the time, and 3) at the time of entering the structure Defendant had a fully formed conscious intent to commit the offense of theft in that structure.

Here the State failed to introduce any evidence that Taylor had entered the structure. Further, the State failed to introduce evidence of any intent to commit theft. There was no evidence introduced to even show that the television set which Taylor is alleged to have had is the television set that was in the dwelling. When the State fails to meet its burden of proving each and every necessary element of the offense charged beyond a reasonable doubt, the case should not be submitted to the jury and a judgment of acquittal should be granted. Ponsell v. State, 393 So.2d 635 (Fla. 4th DCA 1981). In the present instance, the State has failed to meet its burden of proving several essential elements of the offense of burglary of a dwelling.

We reverse and remand with instructions to discharge the Appellant. See McArthur v. Nourse, 358 So.2d 132 (Fla.1978), cert. granted, 438 U.S. 902, 98 S.Ct. 3119, 57 L.Ed.2d 1145 (1978), on remand, 369 So.2d 578 (Fla.1979).

REVERSED AND REMANDED.

GLICKSTEIN, J., concurs.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting.

Upon review of the trial transcript I am compelled to dissent. It seems to me that this is a classic" case of catching the thief in the act, or, at least the jury was entitled to so find on the evidence presented.


author: GLICKSTEIN, Judge.

text:
    STATE of Florida, Appellant, v. Patti Lynn HUNWICK, Appellee.
    No. 83-1442.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied March 28, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Harry Gulkin of Varón, Bogenschutz, Williams & Gulkin, P.A., Hollywood, for appellee.
   GLICKSTEIN, Judge.

The state appeals the trial court’s dismissal of a criminal information. Patti Lynn Hunwick was charged by information together with two other defendants with trafficking in cannabis. Ms. Hunwick filed a sworn motion, to dismiss, the state traversed, and the trial court denied Ms. Hun-wick’s motion. After the charges against a codefendant were dismissed, and while under use immunity, he gave the state a sworn statement, some of which tended to exonerate Ms. Hunwick. Ms. Hunwick filed a supplemental sworn motion to dismiss, incorporating excerpts from the former codefendant’s statement. The state again traversed. The court dismissed the information, having found there was no dispute as to material facts and the state had failed to make out a prima facie case of constructive possession against Ms. Hun-wick.

Ms. Hunwick’s sworn motion and the state’s traverse showed agreement as to many material facts. However, the state denied Ms. Hunwick’s representation that she had never had control of the boat of which she was an occupant when she and it were apprehended and a large cache of marijuana was found aboard. The state denied further that Ms. Hunwick had no conversation with them after her arrest and that she lacked the knowledge and control requisite to the marijuana possession offense. To support what it contends was its prima facie case against Ms. Hun-wick, the state pointed to the following facts: Ms. Hunwick had checked into a Bimini hotel two days before the arrest, and had rented rooms for a group of people including her two codefendants; Ms. Hun-wick had arrived at the hotel in a speed boat of the same size and make as the boat that was seized, and the statement of her codefendant, the boat operator, when the boat was stopped, that the group had been fishing, was inconsistent with the condition of the fishing equipment aboard; an officer’s observation of a hollow sound forward and of fresh caulking indicated there was a secret, newly constructed compartment; the boat fled when the boat occupants were invited to go to the coast guard station; the officers’ chase of the boat ended only when an officer shot out the engine; between the disablement of the boat and the officers’ reboarding, Ms. Hunwick retrieved an object from the forward hold which the boat operator threw overboard; when an officer opened the hold he at once smelled marijuana and saw bales of it; seventeen bales, weighing over 450 pounds were recovered from the boat, and Ms. Hunwick told law enforcement officers she knew the boat operator well and had been with him the past several days in Bimini. In its second traverse the state denied-every allegation of Ms. Hunwick’s supplemental motion to the effect she had no knowledge or control of the marijuana, nor control of the boat.

Ms. Hunwick’s sworn motion for dismissal and supplemental motion for dismissal were pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure. Ms. Hun-wick contended there were no material disputed facts, and the undisputed facts did not establish a prima facie ease of guilt against her.

Rule 3.190(d), Florida Rules of Criminal Procedure, is understood to state a sworn motion to dismiss under (c)(4) must be denied if the state has filed a sworn traverse which with specificity denies a material fact or facts contained in the motion to dismiss. State v. Oberholtzer, 411 So.2d 376 (Fla. 4th DCA), pet. for rev. denied, 419 So.2d 1199 (Fla.1982). Like summary judgment motions in civil eases, Criminal Procedure Rule 3.190(c)(4) motions should be granted rarely, for in most cases there are factual disputes that are properly to be resolved by the jury. State v. Carroll, 404 So.2d 844 (Fla. 5th DCA 1981); Jones v. State, 392 So.2d 18 (Fla. 1st DCA 1980); State v. West, 262 So.2d 457 (Fla. 4th DCA 1972). On a motion to dismiss, the state is entitled to a construction most favorable to it; all inferences are resolved against the defendant. State v. Green, 400 So.2d 1322 (Fla. 5th DCA 1981); State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); State v. Fetherolf, 388 So.2d 38 (Fla. 5th DCA 1980). So long as the state shows the barest prima facie case, it should not be prevented from prosecuting. State v. Pentecost, 397 So.2d 711 (Fla. 5th DCA 1981). The defendant is protected in that if the state’s case is insufficient at trial, the defendant may obtain a directed verdict of acquittal, or the jury will find the defendant not guilty. See id. In sum, only where the most favorable construction to the state would not establish a prima facie case of guilt should a Rule 3.190(c)(4), Florida Rules of Criminal Procedure, motion to dismiss be granted. State v. Horton, 442 So.2d 408 (Fla. 2d DCA 1983).

In a Rule 3.190(c)(4), Florida Rules of Criminal Procedure, proceeding, the trial court may not try or determine factual issues nor consider either the weight of the conflicting evidence or the credibility of the witnesses. State v. J.T.S., 373 So.2d 418, 419 (Fla. 2d DCA 1979) (quoting State v. West, 262 So.2d 457, 458 (Fla. 4th DCA 1972)). In the instant case there is agreement respecting many material facts, but the state denies that Ms. Hunwick never had control of the speed boat nor at least constructive possession of the cannabis. The state supports its position with the circumstantial evidence recited above.

It may indeed be that in presenting its case to the jury, the state will be unable to overcome equally inferable hypotheses of Ms. Hunwick’s innocence. But the state was not required to produce all of its evidence in its traverse, Oberholtzer, supra, and weighing the evidence is for the jury. To prove Ms. Hunwick’s constructive possession, the state will have to show Ms. Hunwick had dominion and control over the contraband, knowledge the contraband was present, and knowledge the contraband was illegal. Ivey v. State, 420 So.2d 613 (Fla. 4th DCA 1982), pet. for rev. denied, 429 So.2d 6 (Fla.1983). Be that as it may, knowledge can only infrequently be shown by direct evidence, but is inferred from the facts and circumstances.

We think the state made out the bare prima facie case necessary to overcome Ms. Hunwick’s sworn motion to dismiss, and the trial court erred in granting Ms. Hun-wick’s motion.

REVERSED and REMANDED for further proceedings.

HURLEY, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


author: COWART, Judge. SHARP, Judge,

text:
    METROPOLITAN PROPERTY AND LIABILITY INSURANCE COMPANY, a corporation, Appellant, v. Richard GRAY and Nancy Marie Gray, his wife, Appellees.
    No. 82-1677.
    District Court of Appeal of Florida, Fifth District.
    March 1, 1984.

      Sutton G. Hilyard, Jr. and Michael K. Bailey, of Pitts, Eubanks & Ross, P.A., Orlando, for appellant.

      John DeM. Haines, of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for appellees.
   COWART, Judge.

The issues in this case are to what extent and under what circumstances the contractual rights and obligations of an insured and an insurer can be varied or impaired by a statutory amendment and whether an uninsured motorist policy with a per person limitation provides less coverage than a liability policy without a per person limitation.

“No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.” Art. I, § 10, Fla. Const.

Prior to its amendment effective October 1, 1980, section 627.4132, Florida Statutes (1979), mandated that every uninsured motorist policy provide total coverage only to the extent of coverage on one of the vehicles covered (called anti-stacking). The amendment removed this restriction thus permitting policies to be interpreted to provide total uninsured motorist coverage equal to the sum of that relating to all vehicles covered (called “stacking”).

Prior to the statute's amendment appel-lee Richard Gray entered into a contract for automobile insurance with appellant Metropolitan Property and Liability Insurance Company. The policy was for a period of one year, to expire, or to be renewed, on July 26, 1981. The policy provided uninsured motorist and other coverage on three vehicles and for three named drivers, Richard, Nancy and Kathleen Gray. The policy provided for a maximum of $100,000 in bodily injury coverage per accident with no per person limit but uninsured motorist was limited to $50,000 per person and $100,000 per accident. In keeping with the intent of the statute before its amendment, the policy specifically provided that no more than $100,000 per accident would be paid regardless of the number of persons insured under the policy and regardless of the number of automobiles insured under the policy. After the effective date of the statutory amendment (October 1, 1980) but before the renewal date of the policy (July 26, 1981) an additional driver, James Gray, was added to the policy. Soon afterwards (on January 30, 1981), Nancy Gray was injured in an accident with an underinsured tortfeasor while a passenger in a vehicle covered under the policy and driven by Richard Gray. Nancy and Richard Gray obtained a declaratory judgment in their favor holding (1) that the uninsured motorist coverage was not subject to the $50,000 per person limitation and provided the same amount coverage as the bodily injury liability coverage ($100,000), and (2) in effect, that the amended statute, which permits stacking, applied so as to invalidate the anti-stacking provision of the policy and to cause the uninsured coverage on the three insured vehicles to be available for a total coverage of $300,000. The insurer appeals.

It is generally held that the renewal of a contract of insurance constitutes the making of a new contract for the purpose of incorporating into the policy changes in the statutes regulating insurance contracts. Conversely, statutory changes occurring between renewals cannot be incorporated into the policy without unconstitutionally impairing the obligations of the parties to the insurance contract. See, e.g., Dewberry v. Auto Owners Insurance Co., 363 So.2d 1077 (Fla.1978); Lumbermens Mutual Casualty Co. v. Ceballos, 440 So.2d 612 (Fla. 3d DCA 1983); Florida Insurance Guaranty Ass’n v. Johnson, 392 So.2d 1348 (Fla. 5th DCA 1980); Hausler v. State Farm Mutual Automobile Insurance Co., 374 So.2d 1037 (Fla. 2d DCA 1979); Bunch v. Hartford Accident and Indemnity Co., 370 So.2d 455 (Fla. 4th DCA 1979). The renewal date is usually certain and definite and litigation rarely arises concerning whether statutes in effect bn the renewal date are applicable to the policy. It is generally accepted that they are. The difficult question is whether statutes that become effective during the time between the effective date of legislation regulating insurance contracts and the renewal date of a policy are effective to change, alter or amend a policy. But for Article I, section 10 of the Florida Constitution, this issue would be merely one of legislative intent. However, regardless of the intent of the legislature, a statute may not, constitutionally, alter, amend or impair the rights of the parties to an existing contract. Thus, the amendment to section 627.4132 does not apply in the instant case unless, between the effective date of the amendment (October 1, 1980) and the date of the accident (January 30, 1981), a new contract was made between the parties.

Sentry Insurance A Mutual Co. v. McGowan, 425 So.2d 98 (Fla. 5th DCA 1982), rev. den., 434 So.2d 888 (Fla.1983), considered the question of whether the addition of a vehicle to an existing policy of insurance constituted the issuance of a “new policy” which incorporated statutory provisions enacted after the issuance of the original policy. In that ease, the applicable version of section 627.727(1), Florida Statutes (1979), required insurance companies to offer uninsured motorist coverage equal to the limits of liability when any policy (contract of insurance) was issued, other than a renewal policy. The addition of a vehicle to an existing policy was held not to constitute the issuance of a “new policy” because there had been no material change in the terms and conditions of the original policy. Kerr v. State Farm Mutual Auto Insurance Co., 434 So.2d 970 (Fla. 5th DCA 1983), rev. den., 441 So.2d 632 (Fla.1983), held that the substitution of a wife’s name for that of her deceased husband’s as named insured on an existing policy of insurance was not such a material change as to constitute the issuance of a “new policy.” Section 627.727(1), Florida Statutes (1981), now provides that uninsured motorist coverage need not be offered and rejected in connection with a renewal policy “or any other policy which extends, changes, supersedes, or replaces an existing policy”. Thus, it is now clear that an amendment or endorsement to an existing policy does not require a new offer of uninsured motorist coverage regardless of whether the change constitutes the issuance of a “new policy.” Nonetheless, the issue in the instant case is identical to the issue in Sentry Insurance A Mutual Company v. McGowan: what changes in an existing policy constitute the issuance of a new contract of insurance subject to statutory provisions enacted after the issuance of the original policy. In the instant case, the addition of a driver (James Gray) to an existing policy of insurance did not in any material way change the terms and conditions of the existing policy and the 1980 amendment to section 627.4132 could not, constitutionally change the obligation of the insurance company under that existing policy.

Appellee relies on United States Fire Insurance Co. v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977). Van Iderstyne stated three possible ways of interpreting an endorsement to an existing policy:

a. The endorsement relates back to the date of the issuance of the original poli-cy_ b. issuance of the endorsement constitutes a reissuance or redelivery of the entire policy_ c. issuance of the endorsement constitutes issuance of a severable and independent contract of insurance. ...
Id. at 673.

The Van Iderstyne court adopted the view that the endorsement constitutes the issuance of a severable and independent contract of insurance.

Assuming that the endorsement which added James Gray as an additional named driver to Richard Gray's policy of insurance constituted the issuance of a separate and severable contract and further assuming that under section 627.412(1), Fla.Stat., the provisions of section 627.4132 as amended in 1980, were incorporated into every uninsured motorist insurance policy issued after October 1, 1980, and were incorporated into the new “separate and sev-erable contract” of insurance issued to James Gray and resulted in providing him with “stacked” coverage under all applicable UMC policies if he were injured, nevertheless, in this instant case it is not James Gray who was injured by the underinsured motorist. Nancy Gray was the injured insured and she was covered under the original policy issued under the anti-stacking statute. Nancy Gray’s policy and the statutes incorporated into that policy do not permit her to stack uninsured motorist coverage and the issuance of a “separate and severable contract” to James Gray should not be used as a device to allow an amendment to section 627.4132 to impair the rights of the insurance company with respect to Nancy Gray.

Thus, the mere addition of another person on a policy, like the addition of a vehicle, is not a reissuance of the whole policy.

Section 627.727(2), Florida Statutes (1981), provides:

The limits of uninsured motorist coverage shall be not less than the limits of bodily injury liability insurance purchased by the named insured, or such lower limit complying with the company’s rating plan as may be selected by the named insured, but in any event the insurer shall make available, at the written request of the insured, limits up to $100,000 each person, $300,000 each occurrence, irrespective of the limits of bodily injury liability purchased, in compliance with the company’s rating plan.

Nancy Gray’s policy with Metropolitan provides limits of uninsured motorist coverage lower than the limits of bodily injury coverage in that the uninsured motorist eover-age is limited to $50,000 per person or $100,000 per occurrence while the bodily injury coverage is $100,000 with no per person limitation. § 627.727(2) permits an insurer to issue a policy with limits of uninsured motorist coverage lower than the limits of liability coverage provided the insured knowingly selects the lower limits. American Fire & Indemnity Co. v. Spaulding, 442 So.2d 206 (Fla.1983); Kimbrell v. Great American Insurance Co., 420 So.2d 1086 (Fla.1982).

However, the insured did not assert in the pleadings in the action for declaratory judgment that the insured selected the uninsured motorist coverage in a lesser amount than that which the insurer was required to make available without knowledge that the insured was legally entitled to uninsured motorist coverage in the greater amount of per person coverage provided by the bodily injury liability coverage. Therefore the issue relating to the per person limitation difference between the liability coverage and the uninsured motorist coverage was not, and is not, properly presented for adjudication in this case.

REVERSED AND REMANDED for proceedings consistent with this opinion.

DAUKSCH, J., concurs in conclusion only.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent in this case because I think the October 1, 1980, amendment to the anti-stacking statute, section 627.4132, Florida Statutes (1981), is applicable to the insurance policy in this ease because an additional driver was added to the policy by endorsement dated December 18, 1980. In United States Fire Insurance Company v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977), the court held that the addition of a vehicle to an insurance policy by endorsement after the date an insurance statute was amended triggered application of the amendment to the policy, which pre-dat-ed the amendment. I can see no material distinction between adding a driver as opposed to adding a vehicle. Therefore, I would conclude that the Grays can stack their uninsured motorist coverage.

I do not think Sentry Insurance A Mutual Company v. McGowan, 425 So.2d 98 (Fla. 5th DCA 1982), or Maxwell v. United States Fidelity and Guaranty Company, 399 So.2d 1051 (Fla. 1st DCA 1981), are controlling. Both cases involve the issue of whether a separate or a material change to a policy occurred so as to trigger the waiver requirements of section 627.727, Florida Statutes (1977) and (1979). The application of a changed statute, however, does not require the finding that a separate or new policy was issued, or that a material change was made. The mere renewal of an insurance policy constitutes a sufficient basis to apply an amended statute. See, e.g., Van Iderstyne. In contrast, policy renewals do not trigger the rejection statute. Clearly, the legislature and the courts do not equate the two issues. Nor should we.

Here the issue is whether the insurance policy and the endorsement are interrelated and interdependent so that the issuance of the endorsement updates the entire policy. If so, the current statute should apply to the whole policy. There is no question in this case but that the endorsement and the policy are but one contract for insurance. The endorsement adds a vehicle, but the policy itself establishes the primary terms of coverage.

Further, I think there is no question but that Metropolitan’s limitation of its uninsured motorist coverage to fifty thousand dollars ($50,000.00) per person violates section 627.727(2)(a) and (b), Florida Statutes (Supp.1982). This statute requires that the uninsured motorist coverage be as broad as the bodily injury and property damage provision in the insurance policy. Metropolitan’s bodily injury coverage under this policy is up to one hundred thousand dollars ($100,000.00) per occurrence, with no per person limit. It follows that the uninsured motorist coverage under this policy cannot be reduced by a per person limit.

For the reasons expressed in this opinion, I would affirm the summary final judgment.

      . Ch. 80-364 § 1 Laws of Fla.

      . Compare Gulf American Fire and Casualty Co. v. McNeal, 115 Ga.App. 286, 154 S.E.2d 411 (1967), with Van Iderstyne. In McNeal, there was, prior to a statutory change, pre-existing insurance coverage as to cars number one and number two. The statutory change required uninsured motorist protection in any automobile liability policy issued subsequent to the date the statute took effect. After the statute took effect the McNeals obtained an endorsement adding car number three to their policy. The statutory definition in Georgia of the word "policy" included endorsements, thus, the court held that as to car number three there was uninsured motorist coverage. However, the court stated that “under the constitutional prohibition against impairing the obligation of contracts, the 1964 Act did not and could not affect the pre-existing insurance coverage as to car number one and car number two.” Id. 154 S.E.2d at 416. See also Welb v. Detroit Automobile Inter Insurance Exchange, 29 Mich.App. 235, 185 N.W.2d 147 (1970) (holding that an amendment to a policy in existence prior to the effective date of a statute requiring uninsured motorist coverage, which substituted insured automobiles, did not incorporate the new statute because to do so would be an unconstitutional impairment of the obligation of the contract).

      . If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, personal injury protection, or other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of insured's or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply:
      (1) To uninsured motorist coverage.
      § 627.4132(1), Fla.Stat. (1981).

      . Section 627.727(1), Florida Statutes (1981), provides in part:
      Unless the named insured, or lessee having the privilege of rejecting uninsured motorist coverage, requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy, or any other policy which extends, changes, supersedes, or replaces an existing policy issued to him by the same insurer, when the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer. Each insurer shall at least annually notify the named insured of his options as to coverage required by this section.

      .Section 627.727(2), Florida Statutes (Supp. 1982), provides:
      (a) The limits of uninsured motorist coverage shall be not less than the limits of bodily injury liability insurance purchased by the named insured, or such lower limit complying with the rating plan of the company as may be selected by the named insured; but in any event the insurer shall make available, at the written request of the insured, limits up to $100,000.00 each person and $300,000.00 each occurrence, irrespective of the limits of bodily injury liability purchased, in compliance with the rating plan of the company.
      (b) In addition, the insurer shall make available, at the written request of the insured, excess underinsured motor vehicle coverage, providing coverage for an insured motor vehicle when the other person’s liability insurer has provided limits of bodily injury liability for its insured which are less than the damages of the insured person purchasing such excess under-insured motor vehicle coverage. Such excess coverage shall provide the same coverage as the uninsured motor vehicle coverage provided in subsection (1), except that the excess coverage shall also be over and above, but shall not duplicate, the benefits available under the other person’s liability coverage. The amount of such excess cover- ■ age shall not be reduced by a setoff against any coverage, including liability insurance. An insurer shall not provide both uninsured motor vehicle coverage and excess underin-sured motor vehicle coverage in the same policy.


author: MILLS, Judge.

text:
    Belinda DUGGAR, Appellant, v. STATE of Florida, Appellee.
    No. AW-54.
    District Court of Appeal of Florida, First District.
    March 1, 1984.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Duggar contends that she was entitled to be sentenced under Florida’s new sentencing guidelines, Rule 3.701, Florida Rules of Criminal Procedure, after the trial court revoked her probation. We agree and reverse.

On 21 June 1982, Duggar pled nolo con-tendere to a charge of attempted aggravated battery. The trial court withheld sentence and placed her on probation for a period of five years.

An affidavit was filed on 17 October 1983 alleging that Duggar had violated the terms of her probation. A hearing was held on 2 November 1983 following which the trial court revoked her probation. Duggar’s attorney requested that she be sentenced pursuant to Rule 3.701, Florida Rules of Criminal Procedure. The trial court denied the request and sentenced her to two years imprisonment.

In its opinion adopting Rule 3.701, In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 849 (Fla.1983), the Florida Supreme Court stated that:

The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 a.m., October 1,1983 and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto. (Emphasis added)

In urging that Duggar was not entitled to be sentenced under the rule, the State asserts that she was sentenced when she was initially placed on probation and that she therefore is not entitled to the election provided by the rule. This assertion is without merit. When a defendant is placed on probation, the trial court must stay and withhold imposition of sentence. Section 948.01(3), Florida Statutes (1983). In this case, therefore, Duggar was not sentenced until probation was revoked on 2 November 1983, and she was thus entitled to elect sentencing under the guidelines.

Moreover, Committee Note (c) to Rule 3.701 states unequivocally:

If a defendant is to be sentenced for a probation violation, and the sentencing judge elects to revoke probation, the new sentence must be in accordance with the guidelines.

Although the Committee Notes to the Florida Rules of Criminal Procedure have not been adopted by the Florida Supreme Court, we find them highly persuasive in arriving at the proper construction to be placed on the rules. Therefore, we hold that a defendant placed on probation prior to 1 October 1983 whose probation is revoked after that date must be sentenced in accordance with Rule 3.701 if the defendant so elects.

The sentence is vacated and the cause remanded to the trial court for resentenc-ing under the guidelines.

WENTWORTH and BARFIELD, JJ., concur.


text:
    Michael R. ADAMS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. AW-284.
    District Court of Appeal of Florida, First District.
    March 1, 1984.

      Michael R. Adams, Sr., pro se.
    No appearance for appellee.
   MILLS, Judge.

On 18 February 1983, Adams filed a motion for postconviction relief, Rule 3.850, Florida Rules of Criminal Procedure, alleging that he was denied effective assistance of counsel and that his guilty plea was involuntary. The trial court denied the motion on 14 April 1983 on the ground that it was legally insufficient on its face. The order denying the motion contained a statement advising Adams that he had thirty days to appeal the order. No appeal was taken.

Adams wrote a letter to the trial court on 5 October 1983 alleging essentially the same facts as had been previously alleged in his Rule 3.850 motion. The trial court treated the letter as a “Motion to Vacate and Set Aside” and denied the motion. This appeal by Adams followed.

We agree with the trial court that the allegations contained in Adams’ letter were essentially the same as those contained in his Rule 3.850 motion filed on 18 February 1983. In effect, therefore, he has filed a second Rule 3.850 motion. Such a filing is impermissible under the rule. For this reason, the trial court was correct in denying Adams’ “motion.”

AFFIRMED.

WENTWORTH and BARFIELD, JJ., concur.


author: NIMMONS, Judge. WENTWORTH, Judge,

text:
    SPECIAL DISABILITY TRUST FUND, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Appellant, v. MOTOR AND COMPRESSOR COMPANY and Shelby Mutual Insurance Company, Appellees.
    No. AS-299.
    District Court of Appeal of Florida, First District.
    March 2, 1984.
    Rehearing Denied March 23, 1984.

      Gordon W. Jacobs, Tallahassee, for appellant.
    Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellees.
   NIMMONS, Judge.

The Special Disability Trust Fund (Fund) appeals from an order of the deputy commissioner ordering reimbursement by the Fund to the employer/carrier (E/C) for vocational rehabilitation benefits paid by the E/C to the worker. The Fund contends that vocational rehabilitation benefits are not among those benefits reimbursement of which may be ordered under Section 440.49(2), Florida Statutes (1979). We agree and reverse.

Subject to certain statutory limitations not pertinent to this case, Section 440.49(2), Florida Statutes (1979), provides for a right of the employer to be reimbursed by the .Special Disability Trust Fund for certain statutorily specified compensation benefits which the employer has paid in situations where the worker’s injury has merged with a preexisting permanent physical impairment causing a greater disability, permanent impairment, or wage loss than would have resulted from the injury alone.

The various classes of reimbursable benefits are enumerated in Section 440.49(2) and include permanent impairment, wage loss, permanent total disability, funeral expenses and death benefits. Subsection 2(e), which was relied upon by the deputy, provides for further reimbursable benefits specified as "remedial treatment, care, and attendance pursuant to s. 440.13.” The deputy concluded that vocational rehabilitation benefits were includable under that category.

The precise issue on appeal here appears not to have previously been presented to an appellate tribunal of this State. We must look to Section 440.13 for guidance inasmuch as the reimbursement section expressly incorporates by reference the Section 440.13 meaning of “remedial treatment, care and attendance.” Section 440.-13 Florida Statutes (1979), provides in pertinent part:

(1) Subject to the limitations specified in s. 440.19(2)(b), the employer shall furnish to the employee such remedial treatment, care, and attendance under the direction and supervision of a qualified physician or surgeon or other recognized practitioner, nurse, or hospital, and for such period as the nature of the injury or the process of recovery may require, including medicines, crutches, artificial members, and other apparatus. ⅜ ⅜ *

Nothing in the above excerpt from Section 440.13 or any of the rest of its provisions suggest that remedial treatment, care and attendance contemplate anything other than of a medical or physical rehabilitative nature. That section has never been construed to encompass vocational rehabilitation services. The E/C cites our opinion in Haga v. Clay Hyder Trucking Lines, 397 So.2d 428 (Fla. 1st DCA 1981), as authority in support of their position. There, we held that it was appropriate for the deputy to order the installation of a swimming pool with handicap facilities as part of a rehabilitation program medically prescribed for a claimant who lost both legs and suffered severe burns in a truck rollover accident. Such medical rehabilitation benefits are patently distinguishable from vocational rehabilitation which was not involved in Haga. See also Firestone Tire & Rubber Co. v. Vaughn, 381 So.2d 740 (Fla. 1st DCA 1980).

As relied upon by the deputy in his order, the E/C also points to the fact that Section 440.49(1) was amended in 1979, Chapter 79-40, Section 37, Laws of Florida, so as to require the employer or carrier, at its own expense, to provide vocational training benefits when it appears that the injury will preclude- the employee from earning wages equal to wages earned prior to the injury. Prior to such amendment, the employer/ carrier was not required to provide such services or benefits. Instead, the Division of Workers Compensation was required to assist permanently disabled workers in obtaining training, education and employment and was authorized to expend monies for such purposes from the Workmen’s Compensation Administration Trust Fund established by Section 440.50. See Section 440.49(1), Florida Statutes (1978 Supp.). However, simply because the legislature amended Section 440.49(1) to require the employer/carrier to provide such benefits does not mean that the reimbursement provisions of Section 440.49(2)(e) should be construed to provide for reimbursement to the employer/carrier for payment of vocational benefits where the language of the latter section was not amended but continued to read “remedial treatment, care, and attendance pursuant to s. 440.13.”

The fact that certain kinds of benefits are statutorily required to be paid by the employer/carrier does not mean that the legislature necessarily intended that all such benefits should be reimbursed from the Special Disability Trust Fund. In fact, Section 440.49(2)(a), Florida Statutes (1979), suggests otherwise. That section provides, in part:

The entitlement of an injured employee or his dependents to compensation under this chapter shall be determined without regard to this subsection, the provisions of which shall be considered only in determining whether an employer or carrier who has paid compensation under this chapter is entitled to reimbursement from the Special Disability Trust Fund.

Although that section also provides that “the division ... shall interpret [reimbursement] eligibility requirements liberally” and although we must read the pertinent statutes “in light of the whole act” in determining legislative intent, see Great American Indemnity Company v. Williams, 85 So.2d 619 (Fla.1956), we are unpersuaded that we are at liberty to read vocational rehabilitation benefits into “remedial treatment, care, and attendance pursuant to s. 440.13.”

As we stated in Rebich v. Burdine’s, 417 So.2d 284 (Fla. 1st DCA 1982):

Usually, the courts in construing a statute may not insert words or phrases in that statute or supply an omission that to all appearances was not in the minds of the legislators when the law was enacted. Armstrong v. Edgewater, 157 So.2d 422 (Fla.1963). When there is doubt as to the legislative intent, the doubt should be resolved against the power of the court to supply missing words. In Re: Estate of Jeffcott, 186 So.2d 80 (Fla. 2d DCA 1966).

We believe this to be a proper case for application of the maxim expressio unius est exclusio alterius. Where a statute enumerates the situations where it is to be operative, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned. Thayer v. State, 335 So.2d 815 (Fla.1976); Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So.2d 234 (1944), Rebich v. Burdine’s, supra.

The E/C also urges that the deputy’s order, which was entered on March 29, 1983, is sustainable under an amendment of Section 440.49(2) enacted by the 1983 Legislature. Indeed, Chapter 83-305, Laws of Florida, did amend Section 440.-49(2) so as to specifically include “costs for rehabilitation” among those compensation benefits for which the employer/carrier will be entitled to reimbursement from the Fund. However, the statute, as so amended, is not applicable in the instant case, the effective date of Chapter 83-305 being June 30, 1983. In the absence of a clear legislative expression to the contrary, a law is presumed to apply prospectively, Van Bibber v. Hartford Accident & Indemnity Ins. Co., 439 So.2d 880 (Fla.1983); State v. Lavazzoli, 434 So.2d 321 (Fla.1983); Seddon v. Harpster, 403 So.2d 409 (Fla.1981); Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977); Recon Paving, Inc. v. Cook, 439 So.2d 1019 (Fla. 1st DCA 1983); Rothermel v. Florida Parole and Probation Commission, 441 So.2d 663 (Fla. 1st DCA 1983). Nothing in Chapter 83-305 suggests any legislative intent that the amendment of Section 440.49(2) should operate in any other fashion than prospectively. Nor are we persuaded that such amendment by the 1983 Legislature can reasonably be regarded as declaratory of prior legislative intent, that is to say that the 1983 amendment simply clarified what a prior legislature meant in providing for reimbursement of certain kinds of compensation benefits. See Roberson v. Florida Parole and Probation Commission, 444 So.2d 917 (Fla.1983), wherein the court stated at footnote 13:

We recognize the import of the new law, Chapter 83-78, Laws of Florida, discussed in Chief Justice Alderman’s dissent, but we decline to impute the intent of this current legislature in its most recent session to the legislatures which preceded it and enacted the laws this opinion interprets.

Accordingly, the order appealed is REVERSED.

ZEHMER, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting.

I would affirm because vocational rehabilitation costs were not excluded by § 449.49(2)(f), Florida Statutes, and were cognizable under subsection (2)(e) as remedial attendance. Such costs in this case met the statutory conditions, i.e. being required by the residuals of the injury and provided by employer/carrier under proper direction. Because the statutory language in question is fairly susceptible of that application, and had certainly not been judicially construed to the contrary prior to the specific declaration by Chapter 83-305, Laws of Florida, that such costs should be reimbursable, that enactment has no negative bearing on the case at hand:

An expository or declaratory act is one passed to end doubts with respect to ... another statute, and it is ordinarily accorded a retroactive construction in the sense that it determines the meaning of the earlier statute from its enactment. 82 C.J.S. Statutes, § 431.

That legislative function is, of course, subject to many restrictions, but I find none pertinent here and would view the amendment as an “interpretive statute ... highly persuasive even for purpose of determining application ... to a transaction occurring prior to enactment of the interpretive statute.” Sutherland, Statutory Construction, § 27.04, note 1, citing Calvert v. Mar athon Oil Co., 389 S.W.2d 153 (Tex.Civ.App.1965).

      . This case previously appeared before us in 417 So.2d 1151 wherein we dismissed the appeal sua sponte because the order appealed was non-final by reason of the deputy's reservation of jurisdiction for later determination of certain issues. The dismissal was without prejudice to the parties’ right to appeal from a final order awarding reimbursement. The order now sought to be appealed is final and we have jurisdiction.


author: ERVIN, Chief Judge.

text:
    June E. BRYANT, as Personal Representative of the Estate of Derik Maurice Bryant, a deceased minor, Appellant, v. William R. MULDROW, J.H. Gary Anderson, Save-A-Stop, Inc., a corporation, and Jessco, Inc., a dissolved corporation, Appellees.
    No. AT-352.
    District Court of Appeal of Florida, First District.
    March 2, 1984.
    Mary Nelson Morgan of Penland, Seelie, Morgan & Penland, Jacksonville, for appellant.
    Gerald W. Weedon of Marks, Gray, Con-roy & Gibbs, Jacksonville for appellee Anderson.
    S. Thompson Tygart, Jr., Jacksonville, for appellee Sav-A-Stop, Inc.
   ERVIN, Chief Judge.

Appellant, Bryant, appeals an order denying her motion to set aside a notice of voluntary dismissal, contending the court erred in concluding it was bound, by Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), to deny the requested relief. We disagree with Bryant’s contention and affirm.

Bryant filed a wrongful death action in 1981 against appellees Muldrow and Anderson. She later added, as defendants, appel-lees Sav-A-Stop and Jessco. On February 18, 1983, Bryant’s attorney, intent on dismissing Jessco only, filed a notice of voluntary dismissal, pursuant to Florida Rule of Civil Procedure 1.420(a)(l)(i), which states simply that Bryant “dismisses this cause of action without prejudice.” (e.s.) The obvious error was discovered in March, and Bryant immediately filed her motion for relief from the voluntary dismissal citing, as grounds therefor, mistake, inadvertence or excusable neglect. The trial court, finding it was constrained to follow Randle and this court’s opinion in Carolina Casualty Co. v. General Truck Equipment & Trailer Sales, Inc., 407 So.2d 1095 (Fla. 1st DCA 1982), applying Randle, denied relief.

Randle holds that when an action is voluntarily dismissed pursuant to Florida Rule of Civil Procedure 1.420(a), “[t]he effect is to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of ‘jurisdiction.’ ”. 360 So.2d at 69. This court has interpreted Randle to mean that Florida Rule of Civil Procedure 1.540(b), providing for relief from judgment, may not be used to relieve plaintiffs of tactical error in taking voluntary dismissals. Bryant, however, urges this court to apply the approach followed in Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970) where, as in this case, the attorney voluntarily dismissed the entire action instead of only as to one of multiple defendants. Bryant’s argument that the situation in Cooper and in this case presents an exception to Randle ignores the fact that the theory of continuing jurisdiction advanced by Cooper was expressly rejected by the Florida Supreme Court in Randle. 360 So.2d at 69 n. 7.

Because we, like the trial court, are bound to follow the Florida Supreme Court’s dictate in Randle, see Nolan v. Altman, 449 So.2d 898 (Fla. 1st DCA 1984), we AFFIRM the trial court’s denial of Bryant’s motion for relief from the voluntary dismissal. Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), however, we certify the following question to the Florida Supreme Court as being of great public importance:

WHETHER FLA.R.CIV.P. L540(b)(l) MAY BE USED TO AFFORD RELIEF TO A PARTY WHO, FOR REASONS OF MISTAKE, INADVERTENCE, SURPRISE OR EXCUSABLE NEGLECT, TAKES A VOLUNTARY DISMISSAL WITHOUT PREJUDICE PURSUANT TO FLA.R.CIV.P. 1.420(a)(1)® AS TO AN ENTIRE CAUSE OF ACTION WHEN SUCH VOLUNTARY DISMISSAL WAS INTENDED TO DISMISS ONLY ONE OF MULTIPLE DEFENDANTS.

AFFIRMED.

BOOTH and ZEHMER, JJ., concur.


text:
    Francisco FONSECA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-341.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Bennett H. Brummer, Public Defender, and Thornton, Rothman, Adelstein & Moreno and Federico A. Moreno, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. See State v. Lawson, 446 So.2d 202 (Fla. 3d DCA 1984).


text:
    Jesus ROJAS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2413.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.

      Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Brown v. State, 358 So.2d 596 (Fla. 2d DCA 1978).