text:
    David Ray LEISURE, Appellant, v. STATE of Florida, Appellee.
    No. AM-240.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1983.

      Neal R. Lewis, Miami, and Richard Hersch, Miami, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   SHIVERS, Judge.

In this criminal appeal we resume jurisdiction to determine whether appellant’s judgment and sentence for burglary and grand theft should be reversed because of an alleged error committed by the trial court in denying appellant’s motion to suppress certain tangible evidence seized by the police. When we first considered this appeal, we rejected the State’s contention that appellant had waived his right to appeal the suppression issue and relinquished jurisdiction to the trial court with directions to hold a hearing to determine whether the ruling on the motion to suppress was dispos-itive of the case and whether appellant had a reasonable expectation of privacy in the area searched. On remand, the trial court found, based on a stipulation entered into between appellant and the State, that the ruling on the motion to suppress was dispos-itive of the case and that appellant had a reasonable expectation of privacy in the area searched. With these findings now before us, we address the merits of the suppression issue.

The relevant facts are as follows. Appellant was arrested along with Anthony James and charged with committing a burglary which had occurred just moments before. Appellant stood silent, admitting no involvement in the burglary. James, on the other hand, confessed to his involvement in the burglary and also provided information implicating appellant in another burglary. James advised the police that, while at appellant’s apartment, appellant had displayed to him a stash of loot including jewelry, dental gold, a movie projector, and a stamp collection which appellant boasted he had stolen from a house he had previously burglarized. James further advised the police that appellant shared his apartment with his girlfriend — James’ sister — and that by prearranged plan, appellant’s girlfriend would destroy the stash of loot if appellant did not immediately return after finishing their present criminal escapade, which had resulted in their arrest. Fearing that appellant’s girlfriend would carry out the prearranged plan and destroy the evidence of appellant’s misdeeds, the police seized appellant’s apartment, which was then occupied by his girlfriend, until a warrant to search the apartment was obtained some four hours later. At that time, the apartment was searched and a considerable amount of stolen property was uncovered.

On appeal, appellant contends that the police lacked probable cause to search his apartment because the information provided by James, which was the basis for the search, failed to meet the two-pronged Aguilar-SpineUi test of reliability. Appellant further asserts that even if probable cause existed, the search was still unlawful because the facts did not present exigent circumstances justifying the warrantless seizure.

Addressing first the probable cause issue, we note that the United States Supreme Court in Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), abandoned the two-pronged Aguilar-SpineUi test for determining the existence of probable cause based on an informant’s tip. In its stead, the Supreme Court adopted a totality of the circumstances analysis. In reaching this decision, the court noted that:

The “two-pronged test” directs analysis into two largely independent channels— the informant’s “veracity” or “reliability” and his “basis of knowledge.” [footnotes omitted] There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. [citations omitted]

Id. at -, 103 S.Ct. at 2329.

In the present case, the seizure by the police of appellant’s apartment was based on the firsthand observations of James, the informant. Moreover, James’ information was detailed, specifying the kind of evidence that was inside appellant’s apartment and where inside the apartment the evidence was located. Although James’ veracity and reliability as an informant may not have been sufficiently established to meet the rigid two-pronged test established in Aguilar and Spinelli [Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)] we believe that under the totality of the circumstances, the police had probable cause to believe evidence of criminal activity could be found inside appellant’s apartment. As the Supreme Court noted in Gates, supra, “even if we entertain some doubt as to an informant’s motives, his explicit detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the ease.” Id. at -, 103 S.Ct. at 2329-30.

We now turn to the question of whether the police were excused from obtaining a warrant before seizing appellant’s apartment based on the existence of exigent circumstances. In Ferrara v. State, 319 So.2d 629 (Fla. 1st DCA 1975), this court was presented with the question of whether the police were justified in conducting a search without a warrant following the arrest of the defendant on a drug charge, where the police had information indicating that more drugs could be found inside of his apartment. The State attempted to justify the warrantless search on the ground that the warrantless search was necessitated by the exigencies of time because one of Ferrara’s friends or companions could have gained access to his apartment and destroyed or secreted the evidence before a warrant could be obtained. This court rejected the State’s argument as groundless speculation, stating that:

There is no evidence that anyone other than Ferrara had access to Ferrara’s apartment, no evidence that his companions in the car ... knew of or had the slightest inclination to destroy or secrete the cocaine, and no evidence that any justifiable fears the police may have entertained could not have been allayed by surveilling the apartment while other officers obtained a search warrant.

Id. at 630. The facts of this case are diametrically opposite to the facts in Ferrara. Here, the fears of the police that the evidence might be destroyed before a warrant could be obtained were not based on groundless speculation. Appellant’s accomplice, James, advised the police that appellant and his girlfriend had a prearranged plan to destroy the evidence held in his apartment if appellant did not immediately return after completing his criminal activity. Moreover, the police could not have allayed their fears by surveilling appellant’s apartment because appellant’s girlfriend was already inside the apartment and could have easily flushed some of the evidence (the jewelry and gold pieces) down the toilet and destroyed the other evidence by damaging it beyond recognition. .Based on these facts, we believe that the warrantless seizure of appellant’s apartment was justified pursuant to the exigent circumstance exception to the warrant requirement.

AFFIRMED.

WENTWORTH and JOANOS, JJ., concur.


source: Caselaw Access Project

author: ERVIN, Chief Judge.

license: Public Domain

text:
    RUSTY PELICAN RESTAURANT and Continental Insurance Company, Appellants, v. Pedro GARCIA, Appellee.
    No. AO-114.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1983.

      Bernard I. Probst and Kathleen M. O’Connor, of Walton, Lantaff, Schroeder & Carson, Miami, for appellants.
    Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellee.
   ERVIN, Chief Judge.

The employer/carrier (E/C) appeals from an order of the Deputy Commissioner (DC), awarding $15,500 in attorney’s fees to claimant’s attorney, which found the E/C acted in bad faith in controverting the employee’s claims for compensation and, as to those benefits voluntarily paid by the E/C, in failing to include the reasonable value of meals in the employee’s average weekly wage (AWW). The E/C contends that the DC should not have awarded an attorney’s fee calculated as a percentage of all benefits paid to Garcia after the filing of his claim. We agree with the E/C that Garcia’s right to compensation was not controverted and that the temporary suspension of benefits did not amount to bad faith, but also agree that the failure of the E/C to include the reasonable value of meals in Garcia’s AWW did amount to bad faith, and therefore we modify the attorney’s fee order and remand for further consistent proceedings.

On March 4, 1980, Garcia sustained an industrial injury, causing him to lose sight in his right eye, when a wooden salt shaker fell from a shelf and struck him on the back of his head. At the time of the injury, Garcia was a 67-year old dishwasher at employer’s restaurant. The injury was accepted as compensable by the E/C for which temporary total disability (TTD) benefits were paid from March 17 through May 13, 1980. Garcia was treated for the injury by Dr. Ring, who diagnosed a hemorrhage in his right eye, and observed that Garcia had already become legally blind in his left eye, before the March 4 accident, as the result of a cataract condition. Dr. Ring released Garcia to return to work on May 1, 1980 and thereafter, on July 1, 1980, Garcia suffered another hemorrhage in his right eye while lifting a heavy object at work.

Garcia came under the care of Dr. Davis on July 9,1980, who determined that he had a retinal tear and vitreous hemorrhage in the right eye, thereby requiring that he perform a cyro treatment on the right eye. Even after this procedure, the right eye continued to do poorly and his vision deteriorated to the level of 5/200 as of April 16, 1981, when Dr. Davis opined that Garcia had reached maximum medical improvement (MMI), with 100% permanency of impairment of the right eye. Dr. Davis gave his opinion that Garcia could not resume any meaningful work as he was legally blind in both eyes.

The E/C recommended payment of TTD benefits on July 14, 1980, based on a reag-gravation of the March 4 injury; however, on August 26, 1980, the E/C suspended compensation by forwarding a notice disclosing that the TTD benefits had been terminated or suspended as of August 11, 1980, on the ground that Garcia’s disability was unrelated to the job accident. The notice referred to an entry in the adjuster’s activity report, made on August 25, while the customary adjuster was away on vacation, which referred to a conversation with Dr. Davis who reportedly advised that Garcia was “[n]ot released to return to work yet due to left-eye surgery.” (e.s.) Once the regularly employed adjuster returned from vacation, he called Dr. Davis on August 29 to clarify the situation, and upon learning that the right eye was still disabling Garcia, resumed the TTD benefits by posting a check from the E/C to Garcia on September 8, which back-dated all payments from the date of suspension. The benefits voluntarily paid by the E/C were based on a calculation of the AWW as $144, which did not include the reasonable value of meals which the employee had received on the job as part of his remuneration.

Before the notice of suspension of benefits was forwarded to the employee, he filed his first claim for benefits on August 25, 1980, prepared on August 22, requesting permanent partial disability (PPD), and/or permanent total disability (PTD) benefits. An amended claim was filed July 21, 1981, wherein Garcia requested TTD or temporary partial disability (TPD) from March 4, 1980 until April 16,1981, as well as a determination of his AWW to include the value of meals, penalties and interest of late payments, and nursing services. The E/C voluntarily accepted Garcia as permanently and totally disabled, effective June 24,1981 as per the June 24, 1981 deposition of Dr. Davis. The DC entered an order on April 22, 1982, adjusting the compensation rate upward to $152.05 to reflect an inclusion of the value of meals in Garcia’s AWW, awarding TTD from March 17 through May 1 of 1980, and from July 3, 1980 through June 23, 1981, and awarding PTD from April 16, 1981. The DC subsequently, on August 12, 1982, entered the order appealed, awarding $15,500 in attorney’s fees to Garcia’s attorney. The DC found that approximately 61 hours were spent by Garcia’s attorney in the successful prosecution of the claim, yielding approximately $85,000 in compensation plus supplemental benefits, and upon consideration of the statutory criteria in Section 440.34, Florida Statutes (1979), the DC noted that the facts and circumstances of the case did not warrant any departure from the statutory guidelines of 15% of the benefits secured.

We agree with the E/C’s contention that the notice suspending payment of TTD benefits as of August 11, 1980 did not amount to a denial of compensation, i.e., that an injury occurred for which compensation benefits were payable. To the contrary, the E/C promptly regarded the March 4 injury as compensable, and paid TTD benefits to Garcia when appropriate from the time of the injury until August 11. The E/C ceased making payments on that date based on erroneous information pursuant to a conversation with Dr. Davis that Garcia was disabled due to surgery on his left eye, whereas the injury had affected his right eye. As soon as the E/C’s regular adjuster returned from vacation, he called Dr. Davis to verify the cause of Garcia’s disability and, upon learning that Garcia was still recovering from his work-related right eye disability, TTD benefits were resumed as of September 8, 1980, retroactive to the date they were suspended.

The situation here is similar to that in City of Tampa v. Kopkau, 429 So.2d 381 (Fla. 1st DCA 1983), in which we reversed an attorney’s fee award pursuant to Section 440.34(2)(e), Florida Statutes (1979). There, the claimant had received compensation benefits stemming from a 1972 work-related injury as well as benefits voluntarily paid by the E/C for a 1979 work-related injury. The E/C ceased payment of benefits for the 1979 injury on the basis of medical reports disclosing that the claimant’s disability was no longer a result of the 1979 accident and the E/C reasonably, but mistakenly, concluded that the claimant had reverted to his 1972 condition. Upon realizing its mistake that the claimant’s disability was in fact caused by the 1979 accident, the E/C issued a check for the deficiency and voluntarily resumed payments for the 1979 injury. We determined in Kopkau that the E/C did not deny that a compensable injury occurred, stating: “When an employer/carrier admits an accident and pays some disability benefits but denies others are due, an attorney’s fee is not awardable under Section 440.34(2)(c), Florida Statutes (1979).” See also Ardmore Farms, Inc. v. Squires, 395 So.2d 268 (Fla. 1st DCA 1981); Walt Disney World Co. v. May, 397 So.2d 1003 (Fla. 1st DCA 1981); City of Miami v. Wright, 414 So.2d 24 (Fla. 1st DCA 1982); Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981). Accordingly, the DC’s award of an attorney’s fee pursuant to the denial of compensation benefits provisions of the statute is reversed.

In addition to its finding that the E/C acted in bad faith in formally controverting the claim, the deputy found that the E/C’s suspension of benefits was so arbitrary as to constitute bad faith. We reverse this finding as well. Both the con-troversion and the suspension were caused by the same circumstance: the mistaken report by the temporary adjuster disclosing that the employee’s condition was not industrially related. The suspension of benefits was not arbitrary under the circumstances, as there was some justification for the E/C’s belief that Garcia was not entitled to continued TTD benefits, and the E/C conducted a reasonable investigation within a reasonable time. See Exceptional Children’s Home & Nursery, Inc. v. Fortuna, 414 So.2d 1130 (Fla. 1st DCA 1982). The delay was not an intentional disregard of Garcia’s rights and cannot be considered a passive rejection of a claim based merely on a technical matter of form by an E/C having knowledge of a valid entitlement to benefits. See Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). In McDonald, we observed that the award of attorney’s fees under the bad faith provisions of the 1979 act “does no more than reimburse the claimant for expenses incurred in the assertion of his right to benefits.” Id. at 208. Here, the TTD benefits were promptly and voluntarily resumed and retroactively paid by the E/C, nor did it become necessary for Garcia’s attorney to undergo measures to compel the E/C to comply with its obligations. See Greynolds Park Manor v. George, 423 So.2d 485 (Fla. 1st DCA 1982).

As to the E/C’s failure to include the reasonable value of meals in Garcia’s AWW however, we agree that the E/C’s action was tantamount to bad faith. In so saying, we note that it is proper to include any benefit which assists an employee to meet his personal expenses, such as the fair market value of meals provided by the employer, in calculating the claimant’s AWW. See Fair-Way Restaurant v. Fair, 425 So.2d 115 (Fla. 1st DCA 1982). The record before us shows that although Garcia did not file a claim requesting that his AWW should include the value of meals until July 16,1981, the E/C resisted the claim and did not agree to pay the higher rate until after the final hearing, which was conducted on September 10,1981. As we find that the E/C’s failure to include such amounts resulted in an economic loss to Garcia, see Greynolds Park Manor, 423 So.2d at 487; Barosy v. Landscape Crane, 418 So.2d 400 (Fla. 1st DCA 1982), and that Garcia had to incur legal expenses to assert his right to the inclusion of the value of meals in his AWW, we agree that the E/C’s cumulative actions demonstrated bad faith in the handling of the claim.

In view of our findings and conclusions herein stated, we do not find it necessary to address the final issue raised by the E/C with respect to the calculation of the attorney’s fees as a percentage of all benefits paid to Garcia after the filing of his claim.

The fee award entered is REVERSED and the cause is REMANDED to the deputy to compute the fee amount on the basis of the effort expended by claimant’s attorney in securing the proper amount of AWW.

THOMPSON and WIGGINTON, JJ., concur.

      . Section 440.34(2)(c), Florida Statutes (1979) provides that claimant is entitled to attorney fees:
      (c) In a proceeding where a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability.


author: ZEHMER, Judge.

text:
    John SPITZER, Appellant, v. BARTLETT BROTHERS ROOFING and Risk Management Services, Inc., Appellee.
    No. AN-399.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1983.

      Edward Hurt, of Hurt & Parrish, Orlando, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellant.
    John A. Leklem, of Miller & Cooper, P.A., Orlando, for appellee.
   ZEHMER, Judge.

Claimant, John Spitzer, appeals from an order of the deputy commissioner denying catastrophic loss benefits pursuant to § 440.15(2)(b), Florida Statutes (1979), and denying attorney’s fees. We affirm in part and reverse in part.

On September 4,1979, claimant fractured his heel bone when he fell from a truck he was loading in the course and scope of his employment. On September 29, 1981, claimant reached maximum medical improvement, with a rating of 30% permanent physical impairment of the left lower extremity resulting from the fracture. The evidence indicated that the injury did not involve any organic damage to the nervous system. A hearing was held on March 9, 1982, and by order entered July 15, 1982, the deputy denied the claim.

There is competent and substantial evidence in the record to support the deputy’s finding that the claimant did not suffer a catastrophic loss under § 440.-15(2)(b), Florida Statutes (1979), as construed in E.B. Malone Corp. v. Johnson, 425 So.2d 622 (Fla. 1st DCA 1983). In that case, we found that the additional language in the 1979 version of the statute did not allow catastrophic loss benefits unless the injury involved a total loss of limb or total loss of use due to organic damage to the nervous system. We reasoned that any interpretation of catastrophic injury that included total loss of use of a limb for any other cause would render superfluous the more specific language requiring total loss of use of such member due to organic damage to the nervous system. Admittedly, our construction recognized that the added language resulted from an apparent typographical error, as evidenced by the reviser’s note to the 1981 amendments and the fact that the same statute did not include the added language in the years immediately before and after 1979. That construction, however, is consistent with the spirit, purpose, and history of the statutory provision for catastrophic loss. Although the deputy did not have the benefit of our decision in E.B. Malone Corp. when he entered his order on July 15,1982, he correctly anticipated it. Accordingly, we find no error in the deputy’s denial of catastrophic loss benefits.

Before .the hearing in this case, the employer and carrier voluntarily stipulated without qualification or reservation that the claimant was entitled to three months catastrophic loss benefits from September to December 6, 1979. The statute allows a maximum of six months benefits and the employer and carrier were only contesting claimant’s right to the remaining three months benefits because of the claimant’s improved physical condition and alleged ability to use his foot after December 6. Neither party questioned the validity of the stipulation at the hearing. After taking the case under advisement, however, the deputy commissioner rejected the stipulation on his own motion, finding it was based on a misconception of the law. Accordingly, the deputy’s order also relieved the employer and carrier of any obligation to pay the stipulated three months benefits.

A deputy is not required to accept a stipulation if the facts proven are at substantial variance with the stipulation and if good cause is shown for modification of the stipulation. Woods v. Greater Naples Care Center, 406 So.2d 1172 (Fla. 1st DCA 1981). But stipulations of the parties are normally binding on the deputy, and a finding by the deputy that is at variance with a stipulation will ordinarily be overturned. Principe v. Mount Sinai Hospital, 156 So.2d 385 (Fla.1963); Wright v. Golf Drive Residence, Inc., 412 So.2d 884, 887 (Fla. 1st DCA 1982). It is the policy of the law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes, as is made abundantly clear by the Supreme Court in Steele v. A.D.H. Building Contractors, Inc., 174 So.2d 16 (Fla.1965), at page 19:

One entering a stipulation relative to present facts should be sure of his ground before he executes the agreement and subsequently reaps benefits from it. If he is unsure, he should consult counsel at his elbow or should simply decline and rely on the determination of the deputy and the Full Commission. Such an agreement should neither be ignored nor set aside in the absence of fraud, overreaching, misrepresentation or withholding facts by the adversary or some such element as would render the agreement void.
¾! ⅜ S£ ⅜ Sfc ⅜
Stipulations have long been approved and encouraged as means of expediting the resolution of controversies. Dunscombe v. Smith, 139 Fla. 497, 190 So. 796. And there is as much reason to utilize them in cases arising under Workmen’s Compensation Law as in other disputes, if not more, inasmuch as they affect directly the wages of the working man and delay consequently deprives him and his family immediately of the meat and bread to sustain them. (Emphasis supplied)

See also, City of Vero Beach v. Thomas, 388 So.2d 1374, 1376 (Fla. 1st DCA 1980).

In this case, there is no suggestion of fraud, overreaching, misrepresentation, or withholding of facts by the adversary as would render the stipulation void. The employer and carrier voluntarily stipulated to a partial resolution of the disputed claim with full knowledge of the disputed facts and the unsettled meaning of the redundant language in the statute that was still open to dispute, at least until our decision in E.B. Malone Corp. v. Johnson, supra. The stipulation partially resolved disputed issues of law as well as fact. It was not rejected because inconsistent with clear, undisputed facts but because the deputy perceived on his own that the employer and carrier had misconceived the applicable law.

When a party agrees to a stipulation for benefits in the face of uncertainty as to the meaning of the law, the deputy commissioner should not be permitted to reject the stipulation because he thereafter, on his own motion, decides that question of law contrary to the stipulation. The deputy’s adjudication should be limited to those issues and benefits still in dispute between the parties. A contrary conclusion would defeat the salutary purpose and policy underlying and encouraging the usual binding effect of stipulations. The deputy erred in rejecting the stipulation in this case.

Under the peculiar circumstances here involved, we find no reason to disturb the deputy’s denial of attorney’s fees to claimant under § 440.34(2)(b), Florida Statutes (1979), on grounds of the employer’s bad faith.

Accordingly, that portion of the order rejecting the stipulation to three months catastrophic loss benefits is REVERSED. In all other respects, the order is AFFIRMED.

BOOTH and LARRY G. SMITH, JJ., concur.

      . Section 440.15(2)(b), Florida Statutes (1979), provides in pertinent part:
      Notwithstanding the provisions of paragraph (a), an employee who has sustained the loss of an arm, leg, hand, or foot, or total loss of use of such arm, leg, hand, or foot, or total loss of use of such member because of organic damage to the nervous system, or has lost the sight of both eyes shall be paid temporary total disability of 80 percent of his average weekly wage until such employee has completed his training in the use of artificial members or appliances as necessary and completed training or education under a rehabilitative program pursuant to s. 440.49, if provided. In no event should the increased temporary total disability compensation provided for in this paragraph extend beyond 6 months from the date of injury.
      The emphasized language was added in the 1979 amendment and deleted in 1980.

      . E.B. Malone v. Johnson, supra, was recently followed in Lavin v. Alton Box Board Co., 431 So.2d 202 (Fla. 1st DCA 1983).


author: LARRY G. SMITH, Judge. NIMMONS, Judge,

text:
    Beatrice Furman CARTER, Russell Carter, and State Farm Mutual Automobile Insurance Company, Appellants, v. Musa Tony RUKAB and South Carolina Insurance Company, Appellees.
    No. AO-286.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1983.

      Harris Brown and Ronald L. Palmer, Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellants.
    John I. Todd, Jr., Jacksonville, for appel-lees.
   LARRY G. SMITH, Judge.

The Carters and their insurer appeal from a final judgment entered pursuant to a jury verdict denying them recovery in their personal injury suit against Musa Tony Rukab and his insurer. They argue that the trial court erred in admitting into evidence the traffic citation issued to Mrs. Carter charging her with running a red light and her admission of guilt thereto. We agree that under the circumstances of this case, the admission of the citation and guilty plea constitutes reversible error. Because we find that this error is dispositive of the case, we do not reach the other point raised by appellants.

Mrs. Carter and Rukab were involved in an automobile accident at the Jacksonville intersection of Edgewood Avenue and Post Street on May 24, 1980. Mrs. Carter was driving westbound on Post Street and Ru-kab was headed southbound on Edgewood Avenue when their cars collided. The investigating officer issued Mrs. Carter a traffic citation charging her with running the red light at the intersection.

Although the traffic citation provides that Mrs. Carter was required to appear in court for this infraction, Mrs. Carter was permitted to submit an affidavit admitting the infraction and pay a fine of $25.00 in lieu of a court appearance. Her son explained that he advised his mother to follow this procedure because her leg was in a cast, she was taking medication, and he felt that she was unable to make a court appearance. He testified that Mrs. Carter did not understand the implications of what she was signing and that it was always her position that the light was green when she travelled through the intersection.

At the trial below, Mrs. Carter continued to maintain that the light was green when she went through the intersection. Mrs. Abrigail Brown, who was travelling westbound on Post Street when the accident occurred, also testified that the light was green for Mrs. Carter. On the other hand, Rukab testified that the light was green when he went through the intersection. His testimony was corroborated by Arlene Williams’ testimony that the light was green when Rukab passed her and travelled through the intersection.

The trial court did not permit any testimony concerning the traffic citation, but defense counsel was permitted to inquire of Mrs. Carter whether she pled guilty to running the red light at the intersection on May 24. In addition, the traffic citation and guilty plea were introduced into evidence over objection. On appeal, appellants contend this constituted reversible error.

Our inquiry begins with the premise that any fact relevant to prove a fact at issue is admissible into evidence unless its admissibility is precluded by some specific rule of exclusion. Williams v. State, 110 So.2d 654, 658 (Fla.1959). See also Section 90.402, Florida Statutes (1979) which provides that all evidence is admissible except as provided by law. Historically, admissions by a party opponent have been admissible as substantive evidence. Ehrhardt, Florida Evidence, § 803.18, p. 287. In that vein, past decisions of this state hold that a plea of guilty to a traffic offense is admissible as an admission against interest by a party opponent. Chimerakis v. Evans, 221 So.2d 735 (Fla.1969); Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216 (Fla.1967).

However, the rule of admissibility was changed in 1974 when the legislature decriminalized certain minor traffic violations. The new law provided that any person charged with such an infraction could pay a civil penalty or forfeit bond, if posted, and that this would constitute an admission to the infraction and a waiver of any right to a hearing. It further provided, however, that this admission could not be used as evidence in any other proceeding. See Section 318.14(4), Florida Statutes (1979). At the same time, the legislature provided that in more serious accidents, involving the death or personal injury of another or property damage in excess of $250.00 (now $750.00, Chapter 81-34, Laws of Florida (1981)), persons cited for infractions shall not have the provisions of Section 318.14(4) available to them, “but must appear before the designated official at the time and location of the scheduled hearing.” See Section 318.19(1), Florida Statutes (1979). Since this statute contains no exclusionary provision similar to that found in Section 318.-14(4), a plea of guilty to a traffic infraction covered by this statute would be subject to the usual rule of admissibility in other proceedings.

There is evidence in the record that this accident resulted in more than $250.00 property damage. If this case were to be governed solely by the gravity of the accident, Mrs. Carter would obviously not be entitled to the exclusion contained in Section 318.-14(4). On the other hand, since the issue is the admissibility of evidence concerning her conduct in pleading guilty, we conclude that Mrs. Carter is entitled to insist that we look to the manner in which her plea was influenced by the two statutes — as actually applied in her case — before characterizing her conduct as falling under the protection of Section 318.14(4) or under the self-inculpa-tory effect of Section 318.19(1).

Analyzing the problem in this manner, we observe that Section 318.19(1) contemplates a mandatory court appearance. Thus, one entering a plea of guilty under this statute would do so in the courthouse milieu. It follows that one pleading guilty under these conditions would more fully comprehend the significance of an incriminating admission than if that person had utilized the innocuous mail-order adjustment procedure permitted by Section 318.-14(4). In enacting Section 318.14(4), the legislature recognized that persons charged with minor traffic offenses often pay their fines, as a matter of expediency, rather than contesting the charge. MacNeil v. Singer, 389 So.2d 232 (Fla. 5th DCA 1980). In fact, it is the relative ease and lack of restraint with which one would customarily approach an informal and convenient means of paying a traffic fine that tends to encourage use of this prompt and inexpensive settlement procedure which is mutually beneficial to the county and the individual.

Although under the provisions of Section 318.19(1) Mrs. Carter presumably could have been required to attend a mandatory hearing on her traffic citation, the fact is that she did not appear in court. Compare, Mackey v. Reserve Insurance Company, 349 So.2d 830 (Fla. 1st DCA 1977). Instead, Mrs. Carter mailed in her fine and affidavit, apparently to avoid the hardship of a court appearance in her condition. We can find no basis upon which appellees can insist that although Mrs. Carter, possibly through some bureaucratic misstep, was permitted to utilize an informal disposition procedure, she should be deemed to have acted in compliance with a statute mandatorily prescribing an entirely different procedure. In terms of appellees’ right to introduce evidence of a plea of guilty under Section 318.19(1), we simply hold that it must first be shown that the plea was entered under that statute. Such is not the case here.

Because the evidence of fault in this case was so conflicting, we decline to find that the admission of the traffic citation and guilty plea in this case was harmless. MacNeil v. Singer, supra. Accordingly, the final judgment is REVERSED and the cause REMANDED for a new trial.

JOANOS, J., concurs.

NIMMONS, J., dissents with opinion.

NIMMONS, Judge,

dissenting.

I respectfully dissent. I believe that the affidavit executed by Mrs. Carter was properly received in evidence as an admission by a party-opponent. Mrs. Carter’s son, in an effort to avoid having his mother appear in court, obtained his mother’s signature on the affidavit. The affidavit expressly admitted the traffic infraction referred to in the citation issued by the investigating officer. The affidavit referred to the citation by its official number. The affiant stated in pertinent part:

“I received the above numbered complaint charging me with_Ran Red Light_on (Description of Violation) May 24,1980 , at 11:50 a.m. (Date) (Time)

I was driving a 67 Plymouth' Valiant in a (Type of Motor Vehicle) West on Post Street_in Duval (Direction) (Street or Avenue) County, Florida.

I am Donying/Admitting (strike one) the commission of the infraction....”

Section 318.14, Florida Statutes, which provides for a procedure by which a person charged with a noncriminal traffic infraction may, without the necessity of appearance, pay the civil penalty or forfeit a posted bond in which case Section 318.14(4) provides that the person cited shall be deemed to have admitted the infraction but “such admission shall not be used as evidence in any other proceedings.” However, Section 318.19 provides that a person cited for certain specified infractions, including any infraction which results in an accident that causes the death or personal injury of another or property damage in excess of a certain threshold amount shall not have the above-referred provisions of Section 318.-14(4) available to him.

No one disputes that the subject accident involved property damage in excess of the threshold amount. The provisions of Section 318.14(4) were, therefore, inapplicable including the provision purporting to exclude the cited person’s admission of guilt.

The simple fact is that Mrs. Carter signed an affidavit admitting that she went through the intersection against a red light. She claimed just the opposite at trial. Absent some statutory exception, I can see no reason why such an admission ought not to be considered by the trier of fact. See Chimerakis v. Evans, 221 So.2d 735 (Fla.1969); Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216 (Fla.1967). True, there was testimony suggesting that Mrs. Carter may not have been lucid at the time she executed the affidavit. There was also evidence to the contrary. Such is a classic jury question. I am of the view that the affidavit was properly received in evidence.

With respect to the traffic citation, such would ordinarily not be admissible, Section 316.650(9), Florida Statutes, as incompetent evidence as to whether the person in fact committed the traffic infraction. However, the citation was admissible under the circumstances of this case solely for the purpose of describing the infraction which Mrs. Carter admitted in her affidavit.

I would also reject appellant’s claim that the trial court erred in allowing appellees to elicit testimony regarding a subsequent accident in which Mrs. Carter was involved. Such testimony was admissible since the jury could properly conclude that some of her injuries might have been attributable to such subsequent accident instead of the one involving Mr. Rukab.

I would affirm.

      . The affidavit was on a printed form with blank spaces for the affiant to fill in. The underlined portions represent those parts filled in by the affiant.


author: SHIVERS, Judge.

text:
    Willie James McCRAY, deceased, and Elizabeth McCray, Appellant, v. BEVERLY HILLS PLANTATION and Florida Farm Bureau, Appellees.
    No. AP-459.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1983.

      Anthony J. Salzman, Gainesville, for appellant.
    Jack A. Langdon, of Jones & Langdon, Gainesville, for appellees.
   SHIVERS, Judge.

In this workers’ compensation case, Elizabeth McCray appeals the order of the deputy commissioner which denies benefits based on a finding that Elizabeth McCray was not a dependent of her deceased son, Willie James McCray. Appellant argues that the deputy commissioner erred in failing to find dependency and in failing to award claimant’s attorney a fee for the attorneys attendance at claimants deposition. We agree, reverse and remand.

Willie James McCray died on November 4, 1980, in the course and scope of his employment with Beverly Hills Plantation. Claimant, his mother, is a sixty-one-year-old widow who has heart trouble and who has been told by her doctors that she is unable to work. Willie McCray had been living with his mother for approximately six months to one year at the time of his death. Claimant’s nine-year-old grandson, who is not Willie McCray’s child, also lives with her. Before Willie McCray began living with his mother, he gave her fifteen dollars “every week or every other week.” After moving in, he gave her forty dollars a week and was doing so at the time of his death. These payments were made regularly, and claimant had expected to receive these payments in the future. Claimant’s other income consisted of $258 a month in social security disability benefits and $111 a month in AFDC for her grandson.

After moving in, Willie McCray would sleep at claimant’s home during the week, usually arriving home at approximately 11:00 p.m. and leaving at approximately 6:30 a.m. On the weekends he stayed with his girlfriend. He would not eat breakfast or lunch at claimant’s home but would sometimes eat supper there. Claimant estimates that her food bill increased approximately $30 a month after her son moved in. Willie McCray’s employer provided him with clean uniforms, but claimant washed his underwear, which increased her laundry bill approximately $10 a month after he moved in. Claimant’s rent went up to $98 a month, a $20 increase, after her son moved in. Claimant testified that she needed the money Willie McCray was paying her in order to meet her bills. Since her son’s death, she has had trouble meeting her bills and has moved to an apartment where her rent is only $48 a month.

In December 1981, claimant’s attorney allegedly wrote letters to the employer and carrier, requesting to discuss Elizabeth McCray’s “claim.” These letters are not, however, a part of the instant record. Subsequent to the receipt of these letters, but before the claim for benefits was filed on March 10, 1982, the employer/carrier deposed claimant. At the hearing before the deputy commissioner, claimant sought death benefits, an attorney’s fee for the attendance of her attorney at her deposition, attorney’s fees due to bad faith on the part of the employer/carrier, penalties, interest, and costs. The deputy commissioner denied the claim, finding that Elizabeth McCray was not a dependent of her son and that Willie McCray’s contributions were reimbursements for living expenses. The deputy commissioner also found that one of the letters written by claimant’s attorney to the carrier in December 1981, amounted to a “claim” and that, therefore, no attorney’s fee was due.

MacDon Lumber Co. v. Stevenson, 117 So.2d 487 (Fla.1960), lists several criteria which must be met by a claimant to prove dependency for purposes of workers’ compensation dependency benefits. Appellee argues that appellant fails to meet two of these criteria:

5. That if the contributions are made by a child to a parent with whom the child is living and from whom the child is receiving board, lodging, or other accommodations of value, it must be shown that the contributions paid the parent exceed, in substantial amount, the reasonable value of the board, lodging, or other accommodations received by the child from the parent; and
6. That what is a substantial contribution sufficient to create actual dependency must in each instance be determined by the extent to which the contributions of the deceased employee enabled the dependent to maintain his or her accustomed standard of living.

Id. at 492. We disagree and find that the above criteria have been met.

Claimant’s monthly income while her son Willie lived with her, including the approximately $172 per month contributed by him, was $541. Mr. McCray’s contribution, therefore, accounted for approximately 32% of claimant’s total income. Claimant’s rent while her son lived with her was $98 per month. Since there were three people living under claimant’s roof, and since Willie McCray only spent five nights a week staying with claimant, we think that he would have more than “pulled his own weight” if he had contributed half of the monthly rent, $49. Claimant’s testimony was uncontroverted that she spent an extra $30 a month for food and an extra $10 a month for laundry because her son was living with her. Therefore, the reasonable value of the board, lodging and other accommodations received by Willie McCray is $49 plus $30 plus $10, or $89 per month. Mr. McCray’s contribution, therefore, exceeded this amount by $83 per month. This means that his contribution amounted to approximately 15% of the household budget over and above the amount which he paid as the reasonable value of board, lodging and other accommodations. We find this amount substantial on the facts of this case. While a wealthy person might be unaffected by a 15% diminution in monthly income, a person with a total monthly income of $541 would almost certainly be unable to maintain his or her accustomed standard of living following a 15% diminution. In Ramer’s Feed Inc. v. Fleig, 414 So.2d 17 (Fla. 1st DCA), rev. denied, 424 So.2d 762 (Fla.1982), this court found that a 13% diminution in a mother’s income could support a finding of dependency where the mother’s total income was $821.

Appellees argue that appellant’s standard of living has not changed because her rent is $50 per month less since she moved following her son’s death. It is clear, however, that the $50 per month decrease in rent cannot compensate for the $172 per month decrease in monthly income, even after subtracting expenses caused by Willie McCray. Claimant’s testimony that she continues to have problems paying her bills without her son’s support is uncontroverted. Therefore, we find that the facts sub judice meet the criteria of MacDon Lumber Co. v. Stevenson, and the deputy commissioner’s conclusion of non-dependency is erroneous.

Section 440.30, Florida Statutes (1981), provides that if the employer/carrier takes claimant’s deposition and no claim has been filed, then the employer/carrier must pay the claimant’s attorney a reasonable fee for attending the deposition. In the instant case, claimant’s deposition was taken January 26,1982, and the claim for benefits was filed March 10, 1982. Appellees, however, point out that a notice to controvert was filed in this case by the employer/carrier immediately following decedent’s accident in 1980. Appellees cite Ridge Pallets, Inc. v. John, 406 So.2d 1292 (Fla. 1st DCA 1982), for the proposition that a notice to controvert constitutes the filing of a claim for purposes of section 440.30. Although Ridge Pallets contains language which supports this proposition, the facts and rationale of that case distinguish it from the case at bar. In Ridge Pallets, the worker had filed a wage loss form BCL-13b with the employer and carrier. Subsequently, the employer/carrier deposed the worker and then filed a notice to controvert. This court held that the “claim” was not filed for purposes of section 440.30 until after the notice to controvert was filed because it was at that point that the Division had notice of the asserted right to benefits and began its independent investigation under sections 440.20(10)(b) and 440.19(1), Florida Statutes. In the instant case, the notice to controvert was filed on November 25, 1980, shortly after the accident. Appellant’s formal claim for benefits was not filed until March 10, 1982, and it was only subsequent to that time that the Division investigated and rendered an advisory decision pursuant to section 440.19(1). Therefore, based on the rationale of Ridge Pallets and a literal reading of section 440.30, a reasonable attorney’s fee should be awarded claimant’s attorney for attending claimant’s deposition.

Accordingly, the order of October 26, 1982, is REVERSED and this cause REMANDED for further proceedings.

ROBERT P. SMITH, Jr. and NIMMONS, JJ., concur.


text:
    Randy WELLS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AQ-132.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1983.
    Randy Wells, pro se.
    Doris E. Jenkins, Asst. Gen. Counsel, Fla. Parole and Probation Com’n, Tallahassee, for appellee.
   SHIVERS, Judge.

Wells appeals an order of the Florida Parole and Probation Commission (Commission) extending his presumptive parole release date (PPRD) by 24 months based on information contained in two psychiatric reports, which reports the Commission contends were not available at the time of Wells’ initial interview. The Commission contends that this information constitutes “new information” justifying its action in extending appellant’s PPRD. The record, however, is devoid of any evidence which indicates whether the psychiatric reports and information contained therein were in fact available to the Commission at the date of the initial interview, beyond the Commission’s bare assertion in its order affirming its action extending appellant’s PPRD that “[t]he Commission did not have the benefit of the Psychiatric Reports at the time of the setting of your [Wells’] PPRD.” Without competent and substantial evidence in the record to support the Commission’s finding that the psychiatric reports constitute “new information” not available at the time of the initial interview, that information may not properly be relied upon as a basis for altering Wells’ PPRD. Since the record does not contain competent and substantial evidence to support the Commission’s finding that the psychiatric reports constitute “new information,” we reverse.

MILLS, J., concurs.

BOOTH, J., dissents without written opinion.


text:
    Woodrow PRUITT, Appellant, v. Paul BROCK and Sidney Brock, Appellees.
    No. AR-250.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1983.

      Armando Garcia, Tallahassee, for appellant.
    John E. Roberts, Marianna, for appellees.
   ERVIN, Chief Judge.

In this appeal from an order dismissing a “Motion for Relief From Order, or to Set Aside Order”, Appellant, Woodrow Pruitt (Pruitt), argues the lower court erred in ruling that his motion was not timely filed. It is Pruitt’s position that the serving of a motion for rehearing, within the time limitations of Florida Rule Civil Procedure 1.530(b), tolls the time in which a judgment is entered and taken for the purposes of the one-year time period provided in Florida Rule Civil Procedure 1.540(b), until such time as the motion for rehearing is disposed of by the trial court. Therefore, he continues, he is permitted by the rule one year from the entry of the order denying the motion for rehearing — not one year from the recording of the judgment — in which to seek relief from the judgment on the ground of newly discovered evidence. We agree and reverse.

The subject matter of this appeal originated in 1978 when Paul and Sidney Brock (Brock) filed complaints seeking to recover from Pruitt certain real property located in Jackson County, Florida. On September 4, 1981, the lower court in a non-jury action signed a final order finding in the Brocks’ favor and giving Pruitt a reasonable time in which to obtain new access to his home. On the same date, the order was filed with the clerk of court, and on September 8 was recorded in the public records of Jackson County. Pruitt then served his motion for rehearing on September 16, 1981. On October 6, 1981, the court signed and filed an order denying Pruitt’s motion for rehearing, which was subsequently recorded on October 13, 1981.

Pruitt later obtained new evidence which allegedly suggests that the testimony given by surveyors at the final hearing was incorrect as it related to the location of two landmarks, identified in the original government survey field notes. Such testimony, it is alleged, amounted to a fraud upon the court. On the basis of this newly discovered evidence, Pruitt, on September 16,1982 served, and on September 20,1981, filed his motion for relief from, or to set aside, the final order. The Brocks moved to dismiss, contending the motion was untimely in that it was served and filed more than one year after the judgment was entered on the ground that the entry date for the purposes of the rule was the date of the recording of the judgment, or September 8, 1981, not the date of the filing of the order denying the motion for rehearing — October 6, 1981. The trial court agreed and, on January 21, 1983, dismissed Pruitt’s motion for relief from judgment.

Florida Rule of Civil Procedure 1.540(b) provides:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment or decree is void; (5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (S) not more than one year after the judgment, decree, order or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court.

(e.s.). Entitlement to relief under the rule on the ground of newly discovered evidence is thus dependent upon the party’s making a motion no later than one year after the order was “entered or taken”.

The issue presented then is whether Pruitt’s motion for relief was required to be made within one year of the date in which the order granting relief in favor of the Brocks was recorded and, if not, whether the service of a timely motion for rehearing of the original order operates to toll the time in which to file the 1.540(b) motion. The Florida Supreme Court has recently defined the term “entry of judgment”, for purposes of Florida Rule of Civil Procedure 1.530(b) (motions for rehearing), to mean “the recording of the judgment — the spreading of the judgment upon the court's official records.” Casto v. Casto 404 So.2d 1046, 1048 (Fla.1981) (e.s.). Assuming, ar-guendo, that the Casto definition of “entry of judgment” is to be extended to the term “entered or taken” as provided in rule 1.540(b), as opposed to the definition of rendition, which, contemplates that rendition does not occur until timely served motions for rehearing’ are disposed of, Florida Rule Appellate Procedure 9.020(g), it would appear that the trial court’s judgment would not have been “entered” until September 8, 1981, when it was recorded. Extending that argument one step further would result in the conclusion that, without the occurrence of some intervening factor operating to toll the running of the one-year period, the time within which Pruitt would be permitted to make a motion pursuant to Rule 1.540(b) would expire as of September 9,1982, or some eight days prior to the time Pruitt’s motion for relief from judgment was actually served.

We find it unnecessary, however, to enter the controversy created by Casto by attempting to determine whether a motion, required to be “made” within one year of the date on which an order is “entered or taken”, must be signed, served, or filed within one year of the date on which an order itself is signed, served, filed or recorded. We decide only that a motion for rehearing, timely served after the recording of the judgment, tolls the operation of a final order or judgment to the extent that the one-year period provided in Rule 1.540(b) does not commence to run until such time as the motion for rehearing is disposed of by the filing of a written order with the clerk of the trial court. Because Pruitt’s relief motion was both served and filed within one year after the filing of the order denying the motion for rehearing, we conclude, for the reasons stated infra, that it was timely made.

Although we find this case to be one of first impression in Florida, we are persuaded, by analogous case law and general principles of jurisprudence, that our conclusion is correct. The basic rule that a motion for rehearing will operate to toll the time period within which a notice of appeal must be filed is of course not a novel theory. There is no question that such a motion affects the finality of a judgment and suspends its operation until the motion is disposed of. See State ex rel. Owens v. Pearson, 156 So.2d 4, 7 (Fla.1963). The Florida Supreme Court, in discussing the effect of a timely motion for rehearing, has observed:

This Court has never departed from the principle that where a petition for rehearing has been properly made within the time fixed by appropriate statute or rule, the trial court has complete control of its decree with the power to alter or change it until said motion has been disposed of. It therefore follows that the judicial labor has not been terminated and could not be terminated until the trial court had disposed of such petition. Until that time the decree or judgment was not final and the time for taking the appeal did not commence to run until the date of the entry of such order.

Pearson, 156 So.2d at 7 (e.s.). The tolling effect of the service of a timely motion for rehearing for appellate purposes has, of course, been formally recognized by the revision of the Florida Rules of Appellate Procedure in 1977. These rules now provide that

“[rendition (of an order)” ... [means] “the filing of a signed, written order with the clerk of the lower tribunal.” Fla.R. App.P. 9.020(g). The filing of a timely motion for rehearing, however, suspends the rendition of the order. That is, in the event of such a motion, “the order shall not be deemed rendered until disposition thereof.” Id.

Casto, 404 So.2d at 1047 (emphasis in original). If a timely motion for rehearing is to affect the finality and the operation of a final judgment, order or decree for appellate purposes, we can find no logical reason for not consistently applying that principle to toll the one-year time limitation provided in rule 1.540(b), until such time as the motion’s disposition. A timely motion for rehearing, in our view, has the same purpose for either appellate, or relief from judgment purposes: It delays the termination of judicial labor at the trial level.

In so saying, we find particularly persuasive the interrelationship between the various mechanisms provided by the rules of civil and appellate procedure for the reviewing, testing and correcting of judgments, orders, and decrees. As noted by the Florida Supreme Court, these rules represent an attempted accommodation of the primary competing goals of American jurisprudence: “[F]irst, that justice be as exact and as free from error as human fallibility of judgment permits; and, second, that litigation be finally terminated as quickly as due process and necessary reflection allows.” Kippy Corporation v. Colburn, 177 So.2d 193, 196 (Fla.1965). The first mechanism is, of course, the motion for rehearing of a non-jury matter which is designed to give the trial court an opportunity, if necessary, to reconsider or correct its decision either by timely motion of either party or on the court’s own initiative. Fla.R.Civ.P. 1.530(b) and (d). During that 10-day period after “entry of judgment”, the trial court is said to retain continuing jurisdiction over the case. If, however, the rehearing mechanism is not triggered by the service of a timely motion, then “[i]t is the established law of this state that a trial court loses jurisdiction of a case at the expiration of the time for filing a petition for rehearing ...” Mid-State Homes, Inc. v. Ritchie, 181 So.2d 725, 727 (Fla. 1st DCA 1966). If such a motion is timely served, jurisdiction remains in the trial court until the motion is disposed of, either by granting or denying the relief sought. See General Capital Corporation v. Tel Service Co., Inc., 212 So.2d 369, 382 (Fla. 2d DCA 1968). During the period of retained jurisdiction, the trial court exercises complete control over the case and may alter or change its decision accordingly. Pearson, 156 So.2d at 7.

With the expiration of the time for rehearing, or the disposition of a motion therefor, the second mechanism for review becomes available: the direct appeal. That mechanism is, of course, triggered by the filing of a notice of appeal with the lower tribunal within 30 days of rendition of the order or judgment. See Fla.R.App.P. 9.110(b); Casto, 404 So.2d at 1047. Upon such filing, the “jurisdiction of the cause then vests absolutely in the appellate Court until such appeal has been finally disposed of....” General Capital Corp., 212 So.2d at 382.

The applicable rules additionally provide for a third mechanism — the motion for relief from judgment, which is available to a party notwithstanding the lower court’s loss of jurisdiction over the cause. The interrelationship between the first mechanism, the motion for rehearing, and this third mechanism has been explained in the following manner:

The trial court loses jurisdiction, except to enforce the judgment and except as provided by Florida Rule of Civil Procedure 1.540, when the time for filing a motion for rehearing or new trial has expired, or if such motion has been timely filed, when it is ruled upon.

St. Cloud Utilities v. Moore, 410 So.2d 973, 974 n. 3 (Fla. 5th DCA 1982) (e.s.). The purpose of this third mechanism is a limited one — it is designed to

provide relief from judgments, decrees or orders under a limited set of circumstances; it was neither intended to serve as a substitute for the new trial mechanism prescribed by Rule 1.530 nor as a substitute for appellate review of judicial error.

Pompano Atlantis Condominium Association, Inc. v. Merlino, 415 So.2d 153,154 (Fla. 4th DCA 1982) citing Fiber Crete Homes, Inc. v. Division of Administration, State, Department of Transportation, 315 So.2d 492, 493 (Fla. 4th DCA 1975). Rule 1.540 was thus designed to provide a party “with a convenient and orderly method for attacking a final judgment, even after the time for appeal had expired.” Alexander v. First National Bank of Titusville, 275 So.2d 272, 273 (Fla. 4th DCA 1973). With that purpose in mind, it is thus inescapable that relief under rule 1.540 is designed to provide one additional, although restrictive, mechanism whereby the trial court can reconsider and correct its prior decision if necessary. In order for this rule to afford its intended relief, we consider that the one-year time limit does not commence to run until after the trial court loses jurisdiction over the matter at the expiration of the time for rehearing or, if rehearing is sought, upon disposition of that request.

Our conclusion in this regard is influenced by the generally recognized test for determining the finality of a judgment, which is “whether the judicial labor is at an end.” Slatcoff v. Dezen, 72 So.2d 800, 801 (Fla.1954). Accord Financial International Life Insurance Co. v. Beta Trust Corporation, Ltd., 405 So.2d 306 (Fla. 4th DCA 1981); The Travelers Indemnity Co. v. Walker, 401 So.2d 1147 (Fla. 3d DCA 1981); Palardy v. Igrec, 388 So.2d 1053 (Fla. 4th DCA 1980). As we have previously observed:

The traditional test usually employed by the courts of this state in determining the finality of an order, judgment, or decree is whether the order in question marks the end of the judicial labor in the case, and nothing further remains to be done by the court to fully effectuate a termination of the cause as between the parties directly affected.

Hotel Roosevelt Co. v. City of Jacksonville, 192 So.2d 334, 338 (Fla. 1st DCA 1966). Accord Chan v. Brunswick Corp., 388 So.2d 274, 275 (Fla. 4th DCA 1980) (order final when all judicial labor required or permitted is complete).

The end of all required or permitted judicial labor at the trial level is obviously not reached until that court loses jurisdiction over the matter through expiration of the ten-day time period in which a motion for rehearing is required to be served or, if such motion is timely served, upon disposition thereof. In this case, the judicial labor required was clearly not at an end, due to the service of a timely motion for rehearing, until the court disposed of that motion by denying it on October 6, 1981. Had Pruitt then sought to appeal the trial court’s decision, the time for filing his notice of appeal would have then commenced upon the rendition of the denial of his motion. We have not found, nor have the parties suggested, any logical reason for concluding that the one-year period in rule 1.540(b) commences at a different time than the disposition of a motion for rehearing. Accordingly, we feel constrained to follow that which appears to be the more reasoned approach.

Although not expressly stated, we find that the underlying rationale suggested by the foregoing principles and cases is that the rules of procedure must not be permitted to become so technical that “they obscure the justice of the cause.” Sundell v. State, 354 So.2d 409, 410 (Fla. 3d DCA 1978). Rather, the rules should be construed in such a manner as to “further justice, not to frustrate it.” Singletary v. State, 322 So.2d 551, 555 (Fla.1975). Only by applying what we perceive to be the preferred construction to rules of procedure, can we carry out the intended purpose behind the rules' adoption: that a case be determined on its merits. Messana v. Maule Industries, Inc., 50 So.2d 874, 876 (Fla.1951).

We therefore hold that service of a timely motion for rehearing pursuant to rule 1.530 tolls the commencement of the one-year period of limitation in rule 1.540(b) until such time as that motion is disposed of by the filing with the clerk of the trial court of an order disposing of the motion for rehearing, thus marking the end of all required or permitted judicial labor at the trial level.

Accordingly, this cause is REVERSED and REMANDED for further consistent proceedings.

WENTWORTH and NIMMONS, JJ., concur.

      . We note that Pruitt’s motion alleges fraud upon the court in the form of misrepresentations made by witnesses at the final hearing on this matter. Rule 1.540(b) provides that the court may entertain an independent action to relieve a party from a judgment, decree or order for fraud upon the court at any time. See Lewis v. Mack, 411 So.2d 933, 934 (Fla. 2d DCA 1982); Pilz v. Pilz, 395 So.2d 591 (Fla. 2d DCA 1981); Massey, Civil Procedure, 28 U.Miami L.Rev. 257, 328 (1974). Pruitt, therefore, could have filed an independent action based upon allegations of fraud upon the court notwithstanding the otherwise applicable one-year time limit imposed by rule 1.540(b).

      . Although the rule announced in Casto has been applied in such a way as to render otherwise untimely notices of appeal timely, see Southern Atlantic Construction Co. v. First Corporation of DeSoto County, 419 So.2d 729 (Fla. 4th DCA 1982) and Grabarnick v. Florida Homeowners Association of North Broward, Inc., 419 So.2d 1065 (Fla.1982), that rule has also prompted criticism by Justices McDonald and Alderman, who have suggested that the Casto decision was a “mistake”. Gabarnick, 419 So.2d at 1067 (McDonald, J. and Alderman, C.J., dissenting). The fact that confusion and controversy still exists even after Casto is evidenced by two recent decisions addressing the issue of when a jury verdict is rendered for purposes of a timely motion for new trial. See Menfí v. Exxon Company, 433 So.2d 1327 (Fla. 3d DCA 1983); Culpepper v. Britt, 434 So.2d 31 (Fla. 2d DCA 1983). Although we find it unnecessary to consider the wisdom of Casto in determining the issue before us, we would repeat the recommendation of the Fourth District Court of Appeal, made some ten years ago, to the effect that “the several rules which require the filing, serving, or moving, with time deadline and jurisdiction in [the] balance, should be clarified with minute specificity by the rule-making authority, and hopefully with a degree of uniformity to the end that the reader and user will know precisely what is required.” Behm v. Division of Administration, State, Department of Transportation, 275 So.2d 545, 547 (Fla. 4th DCA 1973), reversed on other grounds, 288 So.2d 476 (Fla.1974).

      . We find that although the few Florida cases that have addressed the issue of whether the one-year time period in rule 1.540 may in some way be tolled are not directly on point, they generally support our conclusion. In both Redwing Carriers, Inc. v. Watson, 341 So.2d 1049 (Fla. 4th DCA 1977) and Glatstein v. City of Miami, 391 So.2d 297 (Fla. 3d DCA 1980), the issue was whether the one-year time period is tolled when, during the pendency of a direct appeal, a 1.540(b) motion is timely filed in the trial court, a motion for relinquishment of jurisdiction is filed in the appellate court, the motion for relinquishment of jurisdiction is denied, and the 1.540(b) motion is subsequently denied by the trial court due to lack of jurisdiction. In both cases it was held that although the mere pendency of an appeal will not toll the one-year time limit, the denial of the motion for relinquishment of jurisdiction operates to toll that time period. Redwing, 341 So.2d at 1051 n. 1; Glatstein, 391 So.2d at 299. Finally, in In re Will of Aston, 262 So.2d 246 (Fla. 4th DCA 1972), an issue was raised as to whether a timely motion for rehearing which was granted would toll rule 1.540(b)’s time period. The court answered that “... after a party has filed a motion for relief under Rule 1.540, RCP, and the relief has been granted, the one year period should be tolled from the entry of the order granting said relief to . the termination of any appeal challenging the order which granted the relief.” 262 So.2d at 248 (e.s. by court). The court in Aston justified in part its construction of rule 1.540(b) as an effort to achieve the “just, speedy and inexpensive determination of every action” as required by Florida Rule of Civil Procedure 1.010. Massey, Civil Procedure, 28 U.Miami L.Rev. at 329 n. 641; 262 So.2d at 248 (e.s. by court). In two other cases addressing the issue of whether a pending appeal will operate to toll the running of the one-year time limit in rule 1.540(b), it was held that no tolling occurred. The facts in those cases, however, indicate that the one-year period had already expired before the 1.540(b) motions were filed, and the only theory advanced for the judgments’ tolling was that the filing of the notice of appeal itself acted to toll the time period. See Seven-up Bottling Company of Miami, Inc. v. George Construction Corp., 153 So.2d 11 (Fla. 3d DCA 1963); Paulino v. Hardister, 306 So.2d 125 (Fla. 2d DCA 1974). Those cases, as noted by the Third District in Glatstein, are thus factually distinguishable from Redwing and Glatstein, wherein timely 1.540(b) motions were filed, but the lower courts were deemed without jurisdiction to entertain the motions due to the appellate courts’ refusal to relinquish jurisdiction for that purpose. No later cases have been found directly addressing the issues raised in Redwing or Glatstein. Armbruster v. Amber International Corp., 416 So.2d 1220 (Fla. 3d DCA 1982), however, affirmed a lower court’s order, without prejudicing either party’s right to file a 1.540(b) motion with the lower court within 90 days of that court’s receipt of the mandate. Armbruster observed that during the pendency of the appeal, one of the parties had sought relinquishment of jurisdiction to file a 1.540 motion in the trial court, and the motion was denied. 416 So.2d 1221 n. 2. The appellate court’s granting of an additional 90 days in which to file such motion suggests that the one-year period had fully expired and the court was attempting to provide an exception to the one-year rule for the parties involved.


author: NESBITT, Judge.

text:
    Lawrence MARKS, et al., Appellants, v. CAYO HUESO, LTD., etc., et al., Appellees.
    No. 82-1719.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.

      Albury, Morgan & Hendrick and James Hendrick, Key West, for appellants.
    Taylor, Brion, Buker & Greene and James C. Pilkey, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   NESBITT, Judge.

The question presented for decision is whether, on the facts summarized below, the circuit court properly enjoined the defendants, appellants here, from using the name “Casa Marina” in connection with their condominium development business. Upon a holding that Cayo Hueso, Ltd., (CHL), owner of the Casa Marina Hotel, presented sufficient competent substantial evidence to warrant injunctive relief pursuant to Section 495.151, Florida Statutes (1977), we affirm.

In Key West, Florida is a historic oceanfront hotel called the “Casa Marina.” It was built in 1921 by Henry Flagler and for many years thereafter was the center of social life in the nation’s southernmost city. The Casa Marina, in its heyday, was internationally known as a symbol of elegance and grandeur in hotels. As time wore on, however, the Casa Marina began to feel the effects of decay and a slowed tourism trade. The hotel building itself was not in use throughout most of the 1960’s and 1970’s and was even relegated to a troop shelter during the Cuban Missile Crisis. Several attempts at restoring the hotel failed and yet the people of Key West continued to speak of the Casa Marina in almost human terms.

In 1977, CHL purchased the hotel and adjacent properties. CHL’s plan was to restore the old hotel building, add a new wing and ultimately to build condominiums on the remaining land. The project received a good deal of publicity in Key West and nationally. Several publications featured articles describing CHL, its individual members and their plans for the hotel.

Restoration of the old wing and the hotel addition were completed in 1978. As evidenced by an award from the Key West Historic Preservation Board and international acclaim in the prestigious Architectural Record and other journals, CHL had succeeded where many others had failed. Amidst great fanfare, the Casa Marina recommenced business as a luxury hotel and CHL began an extensive promotional effort to acquaint the public with its operation. Since re-opening the Casa Marina, CHL has spent more than $600,000 annually to promote the hotel. Part of the marketing strategy is aimed at capitalizing on the histofy and tradition behind the name Casa Marina.

In early 1980, the defendants placed an advertisement in the Key West Citizen declaring their intention to do business under several fictitious names, one of which was “Casa Marina Developers.” Having purchased property less than a mile from the Casa Marina, the defendants erected a sign thereon stating: “Casa Marina Developers presents 168 luxury townhouses ... . ” Shortly thereafter, CHL informed the defendants of its objection to the use of the name Casa Marina. The defendants continued to use the name, prompting the filing of this lawsuit.

The facts adduced at trial further show that the sign has been a source of constant confusion among the public. Misdirected and misaddressed mail has been one manifestation of this confusion. Letters addressed to Casa Marina Developers have been delivered to the Casa Marina Hotel, and CHL’s general partner has received mail addressed to him care of Casa Marina Developers. Employees of the hotel are also faced with the continual confusion of hotel customers concerning the nearby development.

More important to our decision today is evidence demonstrating that, because of problems with the construction of the defendants’ condominiums, the public’s confusion has had an adverse effect upon the business reputation of CHL and its individual members. Customers have questioned the financial soundness of the Casa Marina Hotel because of the length of time the defendants’ project has been dormant, employees of the hotel and CHL have received complaints from purchasers of condominiums at the defendants’ development, and some purchasers have even called CHL’s office demanding their money back because of the delay in getting construction under way. In addition, the public has associated the idle condominium development with a golf course project undertaken by some principals of CHL which project is totally unrelated to the Casa Marina Hotel.

Section 495.151, Florida Statutes (1977) protects a prior user of a trade name from injury to business reputation or dilution of the distinctive quality of the trade name. To establish a prior use under Section 495.151 it is not necessary that a party register its trade name, Safeway Stores, Inc. v. Safeway Discount Drugs, Inc., 675 F.2d 1160, 1168, n. 13 (11th Cir.1982), but it is required that there be an appropriation and actual use of the name and that the public associates the name with the producer of the goods or services supplied. Abner’s Beef House Corp. v. Abner’s International, Inc., 227 So.2d 865, 867 (Fla.1969).

In the instant case, it is clear that CHL adopted and fostered the use of the name “Casa Marina” well before the defendants applied the name to their condominium project. CHL spends hundreds of thousands of dollars annually to keep the name Casa Marina before the public eye and in the public mind. There was evidence that the public in fact associates the name Casa Marina with CHL and its principals. Casa Marina is not a generic term and thus is subject to appropriation. Compare, e.g., Consolidated Electric Supply, Inc. v. Consolidated Electrical Distributors Southeast, Inc., 355 So.2d 853 (Fla. 3d DCA 1978). We hold that CHL has established a valid prior use of a trade name protectable under Section 495.151.

Nonetheless, the defendants, relying upon Sun Coast, Inc. v. Shupe, 52 So.2d 805 (Fla.1951), contend that CHL cannot establish an injury to business reputation where there was no similarity between the defendants’ business and that of CHL. Indeed, in Shupe, also a suit between a hotel operator and a real estate developer, our supreme court said, “We cannot see how the public could be deceived by appellees’ use of the title ‘Suncoast’ when there is no similarity in the businesses of the parties.” Shupe, supra, at 805. However, Section 495.151, enacted after Shupe, see Junior Food Stores of West Florida, Inc. v. Jr. Food Stores, Inc., 226 So.2d 393, 396 (Fla.1969), has eliminated the common law requirement of showing competition between the parties or a confusion as to the source of goods or services, Abner’s Beef House, supra, 227 So.2d at 866. The statute requires quite simply that it appear to the court “that there exists a likelihood of injury to business reputation .... ” By the evidence presented at trial, CHL has shown not only a likelihood of injury to business reputation but also actual injury to business reputation. Consequently, we affirm the judgment of the trial court and find it unnecessary to discuss the anti-dilution portion of Section 495.151 or the other grounds for injunctive relief raised by the complaint.

Affirmed.

      . It should be noted that neither party to this suit was a registrant pursuant to Chapter 495, Florida Statutes.

      . CHL has not yet begun its planned condominium development next to the Casa Marina.

      . Quite arguably, the justices who decided Shupe might have decided our case differently even prior to enactment of Section 495.151. In Shupe, the supreme court affirmed the dismissal of the bill for injunctive relief because the justices could not visualize and were not shown how the public could confuse two dissimilar businesses bearing the same name. See Shupe, 52 So.2d at 806 (“As applied to the particular circumstances of this case we are convinced that appellants have alleged nothing to show that the public would be tricked or appellant’s affairs damaged, or even complicated, because a person trading with appellees in real estate might think he was dealing with appellant, a hotel proprietor.”) In the present case, CHL has not only alleged but has demonstrated at trial that, whether it be because of the proximity of the two businesses or because of the celebrity and near anthropomorphism of the Casa Marina, the public has been deceived by the defendants’ use of that name.


author: PER CURIAM.

text:
    C.C.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 82-2374.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirm on authority of E.Y. v. State, 390 So.2d 776 (Fla. 3d DCA 1980).

DOWNEY, LETTS and GLICKSTEIN, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    ADVANCED DIAGNOSTICS and State Farm Fire and Casualty Company, Appellants, v. Patrick WALSH, Appellee.
    No. AJ-213.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1983.

      Bernard I. Probst, Walton, Lantaff, Schroeder & Carson, Miami, for appellants.
    Joel V. Lumer, Miami, and Neil Chonin, P.A., Coral Gables, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier appeal from a final order of the deputy commissioner finding that appellee-Walsh suffered a compensable injury. The sole issue presented on appeal is whether the deputy commissioner erred in applying the “special errand” exception to the “going and coming” rule, thus finding the accident one which occurred in the course and scope of claimant’s employment. We affirm based upon the conclusion that the going and coming rule is not applicable in this case, thus making the finding of an exception to the rule unnecessary in order to justify the award. Any error in the deputy commissioner’s application of the “special errand” exception is therefore harmless, and we affirm.

Walsh was employed by Advanced Diagnostic Imaging, Inc., as a sales representative. The employer was in the business of selling x-ray equipment and supplies to hospitals, physicians’ offices, radiology technicians, and other medical personnel. Walsh normally worked a 9:00 o’clock to 5:00 o’clock day. However, he occasionally would take a physician or technician out to dinner if he felt it would enhance his chances of making a sale. He also was told that as a part of his duties he would be required to attend the meetings of various professional organizations in order to promote the products of the company, although as of the date of the accident he had not yet attended any such meetings because none had been held. On September 17, 1980, approximately two months after he became employed, a meeting of the Greater Miami Society of Radiologic Technologists was scheduled to be held at Victoria Hospital. At approximately 4:30 that afternoon, Walsh was told of the meeting by a superi- or. He was directed to go by a printing company, pick up some business cards, go home and eat dinner, then take the cards to the meeting at Victoria Hospital at 8:00 o’clock that evening for distribution. After arriving home and eating dinner, Walsh walked outside and transferred the business cards, which were in the trunk of his wife’s car, into the back seat of his own car. While he was in the process of getting into his car to leave for the meeting, a motor vehicle travelling at a high rate of speed along the street went out of control, and ran up into Walsh’s yard, striking and injuring him. The accident occurred approximately four to five feet from the street, and on Walsh’s property.

In addition to the foregoing facts, it is pertinent to note that Walsh was paid a weekly salary of $265.00, plus a 10% commission on all sales. In addition he was given a car allowance of $150.00 per week, and was reimbursed for his travel expenses.

The facts as briefly stated above clearly show that the “going and coming” rule does not apply here (as claimant’s counsel asserted at the hearing), so that it is unnecessary to find some exception to the rule in order for the accident to be considered within the course and scope of the claimant’s employment. In the early case of Sweat v. Allen, 145 Fla. 733, 200 So. 348 (Fla.1941), the court stated (Id. at 350):

The authorities all seem to hold that, as a general rule, injuries sustained by employees when going to or returning from their regular place of work are not deemed to arise out of and in the course of their employment, (emphasis supplied)

It is instructive to notice the emphasis upon the words “regular place of work,” which is one, but not the only, factor governing the application of the going and coming rule so as to exclude coverage for injuries received by accident occurring off the premises of the employer. As the Allen opinion points out, the criterion for application of the rule depends upon “the nature and circumstances of the particular employment,” and no exact formula can be devised which will automatically solve every case. The facts here are that .travel to various meetings and gatherings such as the one Walsh was headed for at the time of his accident, as well as to the offices of potential customers and institutions, was an essential part of his employment. Coverage has long been the rule in Florida under these circumstances. See, Grillo v. Gorney Beauty Shops Co., 249 So.2d 13 (Fla.1971), and Zipperer v. Peninsular Life Insurance Company, 235 So.2d 473 (Fla.1970), and cases and authorities therein cited. That Walsh received a weekly car allowance plus travel expenses clearly shows the inapplicability of the “going and coming rule” in this case. See Huddock v. Grant Motor Company, 228 So.2d 898 (Fla.1969); Swartzer v. Food Fair Stores, Inc., 175 So.2d 36 (Fla.1965). Both the holding and the discussion in our recent decision, Poinciana Village Construction Corporation v. Gallarano, 424 So.2d 822 (Fla. 1st DCA 1982), will be found helpful on this issue.

Although the deputy commissioner’s order contains the conclusion that the claimant was “in the midst of a special service for his employer” at the time of the accident, and also contains a reference to Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla.1979), the leading case on the “special errand” exception, it was not necessary to apply this exception, and any error in doing so does not prevent affirmance of the award. The fact that Walsh had been specifically directed to make the particular trip he was embarking upon at the time of the injury does not alter the fact that such trips were a regular part of his employment. The remaining findings contained in the deputy commissioner’s order, considered together with the uncontroverted facts as discussed above, conclusively show that the accident was one occurring in the “course and scope” of Walsh’s employment.

Finally, we agree with the deputy commissioner’s finding that the fact that the claimant’s car was not actually in the street or moving, but stationary in his driveway at the time of the accident, does not change the result in this case. As further pointed out by the deputy, the claimant was “halfway into the car” when he was hit by the other vehicle. The risk of being struck by or otherwise injured in a motor vehicle is one that naturally accompanies one who is required to travel for the purpose of carrying on his employer’s business, as the legions of cases affording coverage for automobile accidents will attest. See, e.g., Taylor v. Dixie Plywood Company of Miami, Inc., 297 So.2d 553 (Fla.1974); Reynolds v. Ferman Oldsmobile Company, 259 So.2d 133 (Fla.1972); Grillo v. Gorney Beauty Shops Co., supra; Zipperer v. Peninsular Life Insurance Company, supra; Krause v. West Lumber Company, 227 So.2d 486 (Fla.1969); Bruck v. Glen Johnson, Inc., 418 So.2d 1209 (Fla. 1st DCA 1982). The deputy here apparently determined that the “outer edge of the cloak of coverage,” Povia Brothers Farms v. Velez, 74 So.2d 103, 105 (Fla.1954), fell upon the claimant from the moment he commenced his journey in behalf of his employer by stepping into his car. This ruling has not been shown to be erroneous. Cf. Povia Brothers Farms v. Velez, supra (claimant, struck while crossing highway toward truck parked on the other side and off the highway, provided by employer to transport claimant and others to work, held covered by workers’ compensation law “from the moment the claimant began to cross the highway to board the truck which had stopped for him.” Id. at 105, 106). Cf. Strother v. Morrisson Cafeteria, 383 So.2d 623 (Fla.1980).

The order appealed from is AFFIRMED.

ERVIN, C.J., and MILLS, J., concur.


text:
    Herbert HERNANDEZ, Appellant, v. Deputy WARD, Deputy Sheriff of Pinellas County, Appellee.
    No. 82-1695.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Herbert Hernandez, pro se.
    Carol Abernathy, County Atty., Clear-water, for appellee.
   PER CURIAM.

The appellant, Herbert Hernandez, challenges the trial court’s order denying his motion for a preliminary injunction. He contends that he was denied due process because he was not given notice of the scheduled hearing on his motion. We agree and reverse.

On March 1, 1980, the appellant’s residence was searched pursuant to a valid search warrant. Among the items seized were one pound of marijuana, twenty-one photographic slides, and one roll of undeveloped camera film. Subsequently, the appellant was convicted of possession of marijuana, sale of marijuana, and possession of methaqualone. Thereafter, the appellant filed an action in replevin seeking the return of his photographic slides and roll of undeveloped film from appellee, Deputy Ward, of the Pinellas County Sheriff’s Department.

In response to the appellant’s replevin action, appellee filed a motion to dismiss alleging that the slides were pornographic and were being retained as evidence for possible additional criminal charges. The roll of film was likewise retained in order to determine whether it also was pornographic. Thereafter, the appellant sought a preliminary injunction to prevent appellee from developing the roll of film on the ground that it could not be pornographic since it was only an undeveloped roll of film, the possession of which violates no law.

The appellant’s motion for preliminary injunction and appellee’s motion to dismiss were scheduled for hearing on January 12, 1982. Neither party received notice of this hearing. The trial court in an order dated May 26, 1982, dismissed both motions nunc pro tunc January 12, 1982, on the ground that neither party appeared at the hearing. It is from this order that the appellant brings this appeal.

It is fundamental that no state shall deprive any person of property without due process of law. U.S. Const. • amends. X and XIV; Fla. Const, art. I, § 9; Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, reh’g denied, 409 U.S. 902, 93 S.Ct. 180, 34 L.Ed.2d 165 (1972). Essential to the requirement of due process is notice reasonably calculated under the circumstances and an opportunity to be heard. Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Quay Development, Inc. v. Elegante Building Corp., 392 So.2d 901 (Fla.1981); Millstream Corp. v. Dade Cty., 340 So.2d 1276 (Fla. 3d DCA 1977).

Parties in a civil matter are not always entitled to a hearing; rather, they must be given an opportunity to be heard, eg., by appropriate motions and memoran-da. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Millstream Corp. v. Dade Cty. If a hearing is appropriate in a particular case, then the parties must be given notice. The notice must state the time and place of the hearing and must sufficiently advise the parties of the charge or claim against them. Hinely v. Wilson, 91 Fla. 815, 109 So. 468 (1926); Knapp v. State, 370 So.2d 38 (Fla. 3d DCA 1979).

In the instant case, the trial court denied the appellant’s preliminary injunction and appellee’s notice to dismiss based upon the failure of the parties to appear at the hearing. It is undisputed that neither party received notice of the scheduled hearing. When a trial court determines that a hearing is appropriate to the ease, as in the case sub judice, due process guarantees notice of the time and place of the hearing. Mullane; Knapp. Therefore, the trial court erred in failing to give the parties requisite notice of the scheduled hearing prior to rendering his order on May 26, 1982.

Accordingly, we reverse and remand with instructions that a full hearing be accorded to the parties after providing them with sufficient notice of the time and place of the scheduled hearing.

REVERSED and REMANDED.

OTT, C.J., and DANAHY and SCHOON-OVER, JJ., concur.


text:
    James Dale FERRELL, Appellant, v. STATE of Florida, Appellee.
    No. 82-1697.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Diane Barrs, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

James Dale Ferrell appeals his judgment and sentence for second degree murder and grand theft. He raises two arguments. While we do not find any merit in his first contention that the trial court erred in denying his motion for judgment of acquittal, we agree with his second assertion that, since he had been previously adjudicated insolvent, the trial court erred in imposing court costs of $10, $2 and $1 against him under sections 960.20 and 943.-25(4) and (8), Florida Statutes (1981), respectively, and in imposing additional costs of $67. See Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983) (question certified).

In reviewing the judgment and sentence, we note that the court also erred to the extent that it directed that appellant pay as conditions of parole a $2,662 lien for court-appointed counsel, a fine of $952.38, and a surcharge of $47.62 under section 960.25. The Parole and Probation Commission, not the courts, has the sole authority to establish conditions of parole. § 947.-13(l)(b); Brown; Alexander v. State, 425 So.2d 1197 (Fla. 2d DCA 1983).

Accordingly, we remand with directions that the court strike all costs and provide that the lien, fine and surcharge are to be paid, but not as conditions of parole. In all other respects we affirm.

AFFIRMED and REMANDED with directions.

OTT, C.J., and HOBSON and SCHEB, JJ., concur.


text:
    STATE of Florida, Appellant, v. Teresa R. GROWDEN a/k/a Cheryl Lynn Powell, Appellee.
    No. 82-2234.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    • Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellee.
   PER CURIAM.

The state has appealed from an order granting the appellee’s motion to dismiss an information on the ground that section 817.-563, Florida Statutes (1981), is unconstitutional. We reverse on the authority of our recent decision in M.P. v. State, 430 So.2d 523 (Fla.2d DCA 1983), wherein we held that section 817.563 is constitutional. See also State v. King, 435 So.2d 370 (Fla.2d DCA 1983).

REVERSED.

HOBSON, A.C.J., and DANAHY and SCHOONOVER, JJ., concur.


author: RYDER, Judge.

text:
    Albert Bernard GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 82-2306.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Jerry Hill, Public Defender, and Austin H. Maslanik, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Katherine V. Blanco and Frank Lester Adams, III, Asst. Attys. Gen., Tampa, for appellee.
   RYDER, Judge.

Albert Bernard Green appeals from his conviction and sentence for shooting into an occupied vehicle. We affirm.

During his jury trial, Green moved to suppress statements made by him immediately after the administration of a polygraph examination. The trial court noted that Green had voluntarily signed a stipulation consenting to the polygraph examination. The court found that the post-polygraph conversation was a part of the whole examination and was covered by the stipulation. The motion for suppression was thus denied. On this appeal, Green argues that there was no valid waiver of his Miranda rights and, therefore, the post-polygraph statements should have been suppressed. Particular emphasis is placed on the right to assistance of counsel. Among other cases, appellant relies upon Fields v. Wyrick, 682 F.2d 154 (8th Cir.1982).

While a violation of the right to assistance of counsel under the Sixth Amendment to the United States Constitution may often be involved in cases of this nature, there has been no showing by appellant of any improper deprivation of that right. Nor has there been a showing that the Miranda dictates have been violated. Thus, the arguments presented on appeal fail to convince us that the trial court’s decision to deny the motion to suppress should be reversed.

We note that Fields v. Wyrick, supra, has been reversed by the United States Supreme Court. Wyrick v. Fields, - U.S. -, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). Through apparent oversight, both counsel for appellant Green and counsel for the state failed to discuss or even cite the decision of the United States Supreme Court. This is despite the fact that the decision was filed some three and one-half months and published some two and one-half months before the appellant’s initial brief was filed. The trial court’s decision comports with the decision of the United States Supreme Court in Wyrick v. Fields, supra. See also Fields v. Wyrick, 706 F.2d 879 (8th Cir.1983).

AFFIRMED.

OTT, C.J., and GRIMES, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).