author: DELL, Judge.

text:
    Darryl Anthony FEATHERSTONE, Appellant, v. STATE of Florida, Appellee.
    No. 83-476.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Rehearing Denied Nov. 30, 1983.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Darryl Featherstone appeals from an order of revocation of probation and sentence.

In 1982, appellant pled guilty to charges of burglary of a structure and grand theft. The court placed him on probation for two years and withheld adjudication. On November 3, 1982, an affidavit of violation of probation was filed alleging that appellant had committed a robbery. Prior to the revocation hearing, during the depositions of two police officers, appellant learned that several persons had witnessed the robbery. However, the State refused to disclose their names and identities asserting that the witnesses had asked to remain anonymous. The appellant moved for a dismissal because of the State’s failure to disclose the names of the witnesses. After the court denied appellant’s motion to dismiss, appellant moved for an in camera hearing to determine whether or not the State’s right to protect the witnesses’ identities outweighed his right to know their names. The court denied this motion as well.

After hearing the evidence presented by the State, the trial court revoked appellant’s probation and sentenced him on the burglary charge to two years imprisonment as a youthful offender, followed by two years probation on community control, and on the grand theft charge to a concurrent term of four years probation.

Appellant challenges the sufficiency of the evidence, the trial court’s sentence, and raises the question whether the trial court should have conducted an in camera hearing of the anonymous witnesses which the State refused to identify.

In the absence of exculpatory evidence from • the anonymous witness the record contains sufficient evidence to support the trial court’s revocation of probation and the sentence. However, identity of the perpetrator of the robbery constituted a major issue in the revocation proceeding. Appellant argues that, in the absence of a determination by the trial court that the anonymous witnesses were confidential informants, that the trial court should have required the State to furnish him with their names since their testimony might have assisted him in his defense. The State responds and asserts that it did not rely on any information from the “confidential informants” during the probation revocation hearing and that appellant’s request for the information did not allege a sufficient basis to require disclosure of the informants’ identities.

Florida Rule of Criminal Procedure 3.220(c)(2) provides:

(2) Informants. Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial, or a failure to disclose his identity will infringe the constitutional rights of the accused.

We also acknowledge that:

[T]he general rule is that the State has the privilege of nondisclosure of the identity of the confidential informant and the burden is on defendant to show why disclosure should be compelled. Treverrow v. State, 194 So.2d 250 (Fla.1967); State v. Anderson, 329 So.2d 424 (Fla. 3d DCA 1978).

Elkins v. State, 388 So.2d 1314, 1315 (Fla. 5th DCA 1980).

Here, the State did not establish that the anonymous witnesses should be given confidential informant protection. The only basis for the State’s refusal to disclose their identities is the alleged request of the witnesses to remain anonymous. We find this assertion wholly insufficient to deny appellant’s request for the names of eyewitnesses whose testimony might exculpate him from the burglary charges. The trial court abused its discretion in failing to grant appellant’s request for an in camera hearing based upon the State’s bare assertion that these witnesses constituted confidential informants. Just as Florida Rule of Criminal Procedure 3.220(c)(2) protects confidential informants, Rule 3.220(i) provides a method by which the court may satisfy itself that a witness is entitled to the protection afforded a “confidential informant.”

Therefore, we reverse and remand this cause to the trial court with directions to conduct an in camera hearing of the anonymous witnesses to determine whether or not they are entitled to confidential informant status and to enter such further orders as may be consistent herewith.

REVERSED and REMANDED.

BERANEK and HURLEY, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gary Lee MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 83-690.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm, finding no reversible error by the trial court in declining to allow the appellant to question a prosecution witness about his prior juvenile record. First, since no proffer was made we have no way of evaluating appellant’s claim. In addition, we note that the trial court allowed great latitude in the questioning of this particular witness, who acknowledged that he was testifying against the appellant for the specific purpose of getting more lenient treatment from the state for his own involvement in the same crime charged against the appellant. Under these circumstances we do not believe the case of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) mandates reversal.

ANSTEAD, C.J., and DOWNEY and HERSEY, *JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    John BEAUREGARD, Appellant, v. COMMONWEALTH ELECTRIC and Aetna Casualty & Surety Co., Appellees,
    No. AP-479.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1983.
    Alex Lancaster, Sarasota, for appellant.
    James F. Pingel, Jr., Tampa, for appel-lees.
   ROBERT P. SMITH, Jr., Judge.

Appellant, 54 years of age, lost all sight in one eye as a result of an industrial acci-' dent. His claims for medical, rehabilitative and wage-loss benefits were apparently honored, or at least not contested in these proceedings before the deputy. He has received permanent impairment benefits of $1,200 in accordance with section 440.-15(3)(a), Florida Statutes (1981), and he asserts that the benefits provided in that class by the 1981 statute are so paltry as to deny him redress for his injury. Art. I, sec. 21, Fla.Const. As points of comparison he points to pre-1979 benefits of “at least $10,-000” and to common law judgments, for loss of an eye due to another’s negligence, in the hundreds of thousands of dollars. 5 Am. Jur. Proof of Facts Ann. (Supp.1980). Ap-pellees respond to the effect that legislation like chapter 440 is designed to compensate principally for loss of earning capacity or earnings. 2 LARSON’S WORKMEN’S COMPENSATION, § 57.11 (1982); Magic City Bottle and Supply Co. v. Robinson, 116 So.2d 240, 243 (Fla.1959).

We adhere to this court’s decision in Mahoney v. Sears, Roebuck & Co., 419 So.2d 754 (Fla. 1st DCA 1982), pet. for rev. granted, Fla. Supreme Court Case No. 62,721, holding that this law is constitutional.

AFFIRMED.

WIGGINTON, J., concurs.

BOOTH, J., dissents without opinion.


text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. Foster WHEELER and Claims Management Services, Appellees.
    No. AR-344.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1983.

      Robert M. Mack, Sp. Disability Trust Fund, Tallahassee, for appellant.
    Gary L. Stump of Whittaker, Pyle, Stump & Webster, P.A., Orlando, for appel-lees.
   ROBERT P. SMITH, Jr., Judge.

We affirm the deputy’s order finding that the employer is entitled to reimbursement of certain chapter 440 benefits payable to claimant, on account of his impairment by an industrial accident, from the Special Disability Trust Fund. Prior to his employment, claimant suffered a herniated intervertebral disc in an earlier com-pensable injury. If that were known to the employer at the time of hiring or otherwise before claimant’s present injury, it is conclusively presumed that “the employer considered the condition to be permanent and to be, or likely to be, a hindrance or obstacle to employment,” a required condition of this employer’s reimbursement claim. Sec. 440.49(2)(f)1, Fla.Stat. (1981). The question is whether the employer previously knew of claimant’s preexisting permanent physical impairment. Id.

This employer delegated hiring exclusively to claimant’s boilermaker’s union, which in hiring claimant in the employer’s behalf well knew of claimant’s prior permanent physical impairment. In the words of the parties’ stipulation, “the referral system ... is one exclusive in nature meaning the lodge itself constitutes a hiring hall,” and “the employment agreement is completed at the time of number selection of the employee and not at the gate or premises of the employer.” When as here the employer relies for hiring upon another, the other is the employer’s veritable agent for that purpose, and the other’s knowledge should be held to satisfy the employer’s need for knowledge in order to claim the benefits of reimbursement consequent upon the hiring and subsequent injury. See Joel Strickland Enterprises, Inc. v. Atlantic Discount Co., 137 So.2d 627 (Fla. 1st DCA 1962). For the employer thus to delegate to another authority to hire despite a worker’s prior disability, notwithstanding knowledge of the worker’s disability, satisfies the expressed legislative purpose in requiring employer knowledge as a condition to reimbursement. Sec. 440.49(2)(a).

AFFIRMED.

BOOTH and WIGGINTON, JJ., concur.


text:
    GENERAL ELECTRIC COMPANY and Electric Mutual Liability Company, Appellants, v. Remington SHEPARD, Appellee.
    No. AP-159.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1983.
    Robert P. Byelick, St. Petersburg, for appellants.
    No appearance for appellee.
   ROBERT P. SMITH, Jr., Judge.

The deputy rejected appellants’ statute of limitation defense, though more than two years had elapsed since the employer and carrier last supplied compensation or medical care, because “there is an outstanding Order of February 1, 1979, requiring treatment by Dr. Forman, which has not been furnished, and because the claimant did not receive the Order because it was mailed to the incorrect address.”

The bar of section 440.13(3)(b), Fla.Stat. (1975) applies notwithstanding the deputy’s findings. An order which directs the employer and carrier to supply medical care, be it specificor general and continuing, does not toll the two-year statute. See Budget Luxury Inns, Inc. v. Boston, 407 So.2d 997 (Fla. 1st DCA 1981); Southern Mill Creek Products v. Bellamy, IRC Order 2-3210 (1977). Nor are the employer and carrier responsible for the failure of claimant’s lawyer, if he did fail, to communicate with his client. What is required to stop the statute running is a claim such as this claimant tardily presented.

REVERSED.

BOOTH and WIGGINTON, JJ., concur.


text:
    ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS and Gallagher-Bassett Insurance Service, Appellants, v. James DAVIS, Appellee.
    No. AP-242.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1983.

      Thomas A. Moore, Orlando, for appellants.
    Lamar D. Oxford, Orlando, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The self-insured employer contests the deputy’s retroactive authorization of treatment by the chiropractor claimant chose when the physician chosen by employer released claimant to return to work with continuing back pain. The employer’s contention, citing a number of decisions, is that this is another case of an injured worker unilaterally selecting a new physician, without prior approval by either the employer or deputy commissioner, while other medical care was still offered by the employer. Sec. 440.13, Fla.Stat. (1981). The record of the brief hearing, where claimant alone testified, gives a slightly different impression: that claimant told his supervisor he still had pain and was going to the chiropractor, that his supervisor referred claimant back to the authorized physician but did not object to the chiropractor, and that claimant went to the chiropractor, receiving treatment that relieved him. Though claimant was dissatisfied with the treatment accorded by the previously authorized physician, it is not clear that he so expressed himself to the employer, or was questioned in that regard by the employer. Sec. 44.13(2), Fla.Stat. (1981).

The sketchy evidence, or the evidence of a sketchy conversation between claimant and his employer, is therefore susceptible of a finding that section 440.13 lapsed in its self-executing purpose because the employer did not object to authorizing the chiropractor, did not determine whether claimant objected to returning to the authorized physician, and therefore did not determine its duty to “select another physician to treat the injured employee unless [on the employer’s motion] a Deputy Commissioner determines that a change in medical attendance is not for the best interest of the injured employee.” Sec. 440.13(2).

The deputy might have faulted claimant instead, for indicating to the employer that he would pay the chiropractor’s bill from other insurance that did not materialize. But that factor, together with the employer’s continuing duty to “furnish to the employee such remedial treatment ... as the nature of the injury ... may require,” see. 440.13(1), were factors to be weighed by the deputy, not by this court on such a record as this.

AFFIRMED.

BOOTH and WIGGINTON, JJ., concur.


author: ZEHMER, Judge.

text:
    David JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AP-381.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1983.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

Appellant, David Johnson, the defendant below, was convicted of burglary of a dwelling and grand theft of a firearm and other property. He seeks reversal of his conviction and a new trial on grounds that, in another criminal case some two years before, he had been adjudicated incompetent to stand trial and found not guilty by reason of insanity and his competency had not been restored in a judicial proceeding. We reject defendant’s argument and affirm.

In 1980, defendant was charged with burglary in the circuit court for Clay County, Florida. After a hearing on the question of his competency to stand trial, the court entered an order declaring defendant incompetent and committing him for involuntary hospitalization pursuant to Section 916.13, Florida Statutes. Approximately four months later, in April 1981, the court received a report of the appointed experts that defendant was then capable of standing trial but that he had been insane at the time of the commission of the alleged offense. At a hearing on defendant’s motion, the court entered judgment of acquittal by reason of insanity and ordered defendant discharged and released from custody.

After being charged in 1982 with the offense of burglary here under review, defendant entered a plea of not guilty and, referring to the above orders, moved, pursuant to Rule 3.210, Florida Rules of Criminal Procedure, for the appointment of two experts to examine him and determine his mental condition. The court thereupon appointed two experts to examine defendant, who did so and reported that defendant was competent to stand trial and was sane at the time of the commission of the alleged offenses. The report was received and filed by the court, and no further hearing was held on the matter. Thereafter, the case went to trial and defendant did not raise any question concerning his mental competency. The jury found defendant guilty as charged, and the court entered the judgment and sentence here appealed.

Defendant contends that, by reason of his previous adjudication of incompetency to stand trial and adjudication of not guilty by reason of insanity, there is a legal presumption that he continues to be incompetent and, thus, cannot be tried and convicted of' the offenses charged until his competency has been restored in a judicial hearing, citing Eason v. State, 421 So.2d 35 (Fla. 3d DCA 1982), and Alexander v. State, 380 So.2d 1188 (Fla. 5th DCA 1980). Accordingly, defendant argues, his conviction and sentence must be set aside and the case remanded for a new trial. We disagree for two reasons.

In the first place, the presumption relied upon by defendant contemplates an adjudication of legal incompetency in a proceeding held for that purpose. The presumption does not become operative by reason of an order adjudicating defendant incompetent to stand trial and committing him to a hospital for a limited period of time for treatment. This is made quite explicit by the provisions of Section 916.13, Florida Statutes, under which defendant was originally committed in 1980:

An adjudication of incompetency to stand trial shall not operate as an adjudication of incompetency ... for any other purpose unless specifically set forth in the court order.

The order relied upon by defendant in this case did not specify such additional purpose and, thus, was not the type of adjudication of incompetency that would give rise to the presumption. See, King v. State, 387 So.2d 463 (Fla. 1st DCA 1980).

In the second place, defendant failed to timely raise any objection on the ground of incompetency during trial. At sentencing, defense counsel expressly argued to the court that he was not contending the defendant was insane but, rather, that he was suffering from diminished capacity, and counsel urged the court to consider that as a mitigating factor in passing sentence.

The judgment is AFFIRMED.

MILLS and SHIVERS, JJ., concur.

      . The predecessor to Section 916.13, Florida Statutes, was Section 925.10(2), Florida Statutes (1979), which similarly provided:
      An adjudication of incompetency to stand trial shall not operate as in adjudication of incompetency for purposes of civil proceedings unless such adjudication is specifically set forth in the order, in which case a guardian of the person shall be appointed.


text:
    J.J.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. AP-467.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1983.

      Charlene V. Edwards, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   ZEHMER, Judge.

Appellant, a juvenile, was found by the trial court to have committed a delinquent act and was placed on community control with adjudication of delinquency withheld. Appellant urges that the trial court erred in denying his motion to dismiss on speedy trial grounds. We agree and reverse.

Appellant was taken into custody on March 6,1982; therefore, according to Section 39.05(7), Florida Statutes (1981), appellant should have been afforded an adjudicatory hearing by June 4, 1982. On June 11, 1982, appellant filed a motion to dismiss, alleging that he had not yet been afforded an adjudicatory hearing and that the speedy trial time limits had expired. The adjudicatory hearing was held on August 4, 1982; and on October 6, 1982, the trial judge issued an order denying appellant’s motion to dismiss, reasoning that on March 26, 1982, appellant had requested an additional pretrial date and that such request operated to toll the speedy trial period.

A trial court is authorized to extend the speedy trial period only upon full compliance with the requirements of Section 39.-05(7)(c), Florida Statutes (1981), and Rule 8.180(d), Florida Rules of Juvenile Procedure. On March 26, 1982, the trial court granted appellant a continuance of a pretrial hearing from March 26,1982, to March 31, 1982, and on its own motion, without a written order and without appellant being present, the court stated that speedy trial would be tolled for the five days from March 26, 1982, until March 31, 1982. Section 39.05(7)(c), Florida Statutes, provides:

The court may extend the period of time prescribed in paragraph (a) on motion of any party, after hearing, on a finding of good cause or that the interest of the child will be served by such extension. The order extending such period shall recite the reasons for such extension. The general congestion of the court’s docket, lack of diligent preparation, failure to obtain available witnesses, or other avoidable or foreseeable delays shall not constitute good cause for such extension.

Rule 8.180(d), Florida Rules of Juvenile Procedure, contains similar provisions. Since the trial court failed to comply with any of these requirements, the court’s extension of speedy trial was not valid. Moreover, even assuming that the court’s extension were valid, it would only extend the speedy trial period five days, with the result that the time for speedy trial would lapse on June 9,1982, ninety-five days after appellant was taken into custody. Under these circumstances, appellant’s June 11 motion to dismiss should have been granted. In the Interest of B.L.G., 414 So.2d 1085 (Fla. 4th DCA 1982); In the Interest of K.L.H., 407 So.2d 297 (Fla. 4th DCA 1981); M.B. v. Lee, 388 So.2d 1364 (Fla. 5th DCA 1980).

The order of the trial court finding that appellant committed a delinquent act and the order withholding adjudication and placing appellant on community control are hereby REVERSED, and in accordance with Section 39.05(7)(b), Florida Statutes (1981), the petition for delinquency is DISMISSED with prejudice.

MILLS and SHIVERS, JJ., concur.


text:
    RAINTREE FARMS and CNA Insurance Company, Appellants, v. Frank S. MINOR, Appellee.
    No. AQ-398.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1983.
    Michael M. O’Brien of Akerman, Senter-fitt & Eidson, Orlando, for appellants.
    Daniel L. Hightower of Green, Simmons, Green, Hightower & Gray, Ocala, for appel-lee.
   PER CURIAM.

This cause is before us on appeal from an order of the deputy commissioner awarding temporary total disability benefits and permanent partial disability benefits. We affirm in part and reverse in part.

Frank Minor, a 67-year-old man who has worked as a race horse trainer all of his life, injured his neck and right shoulder on March 5,1979, when a horse he was holding suddenly reared. He was treated by a chiropractor for four months, then referred to Dr. Whittaker, an orthopedic surgeon, who diagnosed cervical spondylosis as well as rotator tendenitis of the right shoulder and released him to work, with physical restrictions, on August 3, 1979. Dr. Whittaker found claimant MMI on April 7, 1982, with a 15 percent permanent partial impairment of the body as a whole, consistent with the AMA Guides.

Claimant continued working for Raintree Farms for a month after the accident, at his average weekly wage of $325, until he was laid off for reasons unrelated to his accident. There followed approximately five and a half months of unemployment, during which he was paid both TTD benefits and unemployment compensation. Claimant was then employed full time as a supervisory trainer, at a rate higher than his average weekly wage, for the next 21 months; he also received PPD benefits for three months and TTD benefits for seven months during this period. Claimant was again laid off for reasons unrelated to his accident and was unemployed for ten and a half months, during which time he received unemployment compensation and social security retirement benefits. The record demonstrates, and claimant has admitted, that for the more than three years between the date of his accident and the date of MMI, he was either working full time as a horse trainer or receiving unemployment compensation. Under the circumstances, claimant cannot be considered to have been temporarily totally disabled during this period. The deputy’s award of TTD benefits is reversed, without prejudice to the claimant’s right to seek any other benefits to which he may be entitled for this period.

The deputy’s finding of a 95 percent diminution of wage-earning capacity is supported by competent, substantial evidence in the record, in view of claimant’s age (67 years old), work history (horse trainer all his life), the nature of his injury (a serious back injury with poor prognosis), and the limitations placed on claimant by his physicians (he should no longer work in a job that requires him to handle horses or other animals, or that requires bending, lifting, or sudden movement). The deputy’s award of PPD benefits, based upon his finding of loss of wage-earning capacity, is affirmed.

This cause is remanded to the deputy for proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


author: NIMMONS, Judge.

text:
    D.K.D., Appellant, v. STATE of Florida, Appellee.
    No. AR-159.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1983.
    Michael Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

D.K.D. appeals an order denying her motion to dismiss a petition for delinquency, she having entered a nolo contendere plea expressly reserving the right to appeal. We affirm.

The motion to dismiss filed pursuant to Fla.R.Juv.P. 8.130(b)(2) alleged that the petition, which charged the offense of perjury, should be dismissed on the grounds that there were no material disputed issues of fact and the undisputed facts did not establish a prima facie case of guilt against appellant. Among other things, the petition in alleging perjury stated that appellant lied in another judicial proceeding when she testified that she did not make a telephone call to a certain residence on a certain date. The motion to dismiss states that such was not material to that proceeding. Appellant claims that she was entitled to an order of dismissal since the state did not file a pleading denying the allegations of the motion to dismiss.

Even if, as appellant contends, Fla. R.Juv.P. 8.130(b)(2) encompasses the kind of motion to dismiss which contemplates the state’s filing a traverse or other pleading refuting factual allegations, appellant’s motion stating only her legal conclusion concerning the materiality of appellant’s testimony in the prior proceeding is patently insufficient and should be denied without regard to any traverse or demurrer which may be filed by the state. See State v. Sedlmayer, 375 So.2d 887 (Fla. 3rd DCA 1979).

In addition, however, we are of the view that the Florida Rules of Juvenile Procedure simply do not provide for the kind of procedural remedy upon which appellant seeks to rely. Essentially, appellant claims that the “criminal summary judgment” procedures embodied in Fla.R.Cr.P. 3.190(c)(4) are available under Fla.R.Juv.P. 8.130(b)(2). The latter rule provides in pertinent part:

(2) Motion to Dismiss. All defenses not raised by a plea of not guilty or denial of the allegations of the petition shall be made by a motion to dismiss the petition.

The language of that rule does not lend itself to the interpretation that a 3.190(c)(4) motion is contemplated thereunder. Further, neither the Rules of Juvenile Procedure nor the Rules of Criminal Procedure provide that the criminal procedure rules are applicable in juvenile proceedings. Appellant relies upon State v. J.T.S., 373 So.2d 418 (Fla. 2nd DCA 1979), in which the court considered an appeal from the lower court’s order granting a “c(4)” type motion to dismiss. The court stated:

Although, this being a juvenile proceeding, the Florida Rules of Juvenile Procedure are applicable, Rule 8.130(b)(2), Florida Rules of Juvenile Procedure provides only generally for the filing of motions to dismiss and implicitly incorporates Rule 3.190(c) and (d). See Committee Note (b)(3). '

373 So.2d at 419, f.n. 1. We respectfully disagree with the Second District that Rule 8.130(b)(2) implicitly incorporates Rule 3.190(c)(4). Committee Note (b)(2) to Rule 8.130(b)(2) simply says:

(b)(2) General provision for all defenses not raised by a guilty plea to be made by a motion to dismiss. [See Fla.R.Crim.P. 3.190(b), (c), and (d)].

We hold that the procedural remedy provided for in criminal cases by Fla.R.Cr.P. 3.190(c)(4) is not available in juvenile proceedings. We recognize that our decision in this respect is in direct conflict with the Second District’s opinion in State v. J.T.S., supra. Pursuant to Fla.App.R. 9.030(a)(2)(A)(v), we certify to the Florida Supreme Court the following question as one of great public importance:

Is The Procedural Remedy Provided For By Fla.R.Cr.P. 3.190(c)(4) Available In Juvenile Proceedings?

For the reasons stated above, the order denying appellant’s motion to dismiss is AFFIRMED.

ERVIN, C.J., and THOMPSON, J., concur.


text:
    John L. ADKISON and State Farm Mutual Automobile Insurance Co., Appellants, v. George E. MELTON and Glenda J. Melton, his wife, Appellees.
    No. AR-272.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1983.
    Robert D. Bell, of Fisher, Bell, Hahn & Schuster, Pensacola, for appellants.
    Raymond C. Clay, Jr., Pensacola, for ap-pellees.
   PER CURIAM.

AFFIRMED. VanBibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983).

LARRY G. SMITH, WENTWORTH and JOANOS, JJ., concur.


text:
    ROCKLEDGE GARDENS and U.S. Fidelity and Guaranty Company, Appellants, v. Thomas Roy ADAMS, Appellee.
    No. AS-38.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1983.
    John R. Gierach, of Gierach & Ewald, P.A., Orlando, for appellants.
    Thomas E. Thoburn, Cocoa, for appellee.
   PER CURIAM.

AFFIRMED. See Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    Ronald E. EISAMAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-941.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.

      James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

Defendant appeals a judgment of conviction based on a negotiated plea of guilty to a charge of false imprisonment, reduced from the original charge of kidnapping. We dismiss the appeal without prejudice to the right of defendant to seek appropriate collateral relief in the trial court.

Defendant was charged with one count of armed robbery, one count of kidnapping and one count of aggravated assault. Following plea negotiations, he entered a plea of guilty to the armed robbery and aggravated assault counts, and also pleaded guilty to the reduced charge of false imprisonment. The factual basis developed at the plea hearing indicated that defendant and an accomplice gained entry at gunpoint to a restaurant shortly after closing hours, that they took money from the safe, bound the two employees’ hands and eyes with tape, and placed them in the restaurant cooler, came back to check on the employees a few minutes later, and then made good their escape. The employees managed to unbind themselves, opened the cooler door by an inside latch, and called the police.

Appellant recognized the accuracy of this recitation except for the statement that he and his accomplice returned to check on the employees, which he denied, and then added that when the employees were bound, one of them requested that they be placed in the cooler. The trial court advised defendant that this allegation could be a defense to the false imprisonment charge because it would tend to negate the involuntary nature of the confinement, a necessary element of the charge of false imprisonment. Both defendant and his counsel stated that they understood that a jury could find that the confinement was not against the will of the victims, but because they believed the evidence would also support a finding that the confinement was not voluntary (and most likely because under those circumstances the defendant could be convicted on the charge of kidnapping), defendant and his counsel advised the court that defendant specifically waived that defense. On that basis, the court accepted the plea.

Under both Florida Rule of Appellate Procedure 9.140(b) and section 924.-06(3), Florida Statutes (1981), a defendant who pleads guilty has no right to a direct appeal, except for such matters as would invalidate the plea itself. Robinson v. State, 373 So.2d 898 (Fla.1979). Whatever right exists to appeal from a guilty plea, such appeal should never be a substitute for a motion to withdraw the plea, and in presenting such motion after sentence is imposed, the burden is on the defendant to show that a manifest injustice has occurred. Robinson at 902-903.

Florida Rule of Criminal Procedure 3.170(j) requires that there be a factual basis for the plea. See also, Florida Rule of Criminal Procedure 3.172(a). Where it is clear from the factual basis- presented at the plea hearing that the defendant could not have been convicted of the crime to which he has pleaded guilty, fundamental error has occurred, which can be corrected on appeal. See Dydek v. State, 400 So.2d 1255 (Fla. 2d 1981); Waugh v. State, 388 So.2d 253 (Fla. 2d DCA 1980). Where, however, the trial court fails completely to develop a factual basis for the plea, withdrawal of the plea may still be denied in the absence of a showing that withdrawal is necessary to correct a manifest injustice. Williams v. State, 316 So.2d 649 (Fla.1975). This showing should be made by motion for relief under Florida Rule of Criminal Procedure 3.850. See Yarish v. State, 420 So.2d 649 (Fla. 2d DCA 1982).

Where the factual basis developed at the plea hearing is supportive of the charge, but the trial court has failed to make extensive inquiry into a possible defense which is raised in the proceeding, remand is required in order that the facts supporting the charge and the possible defenses be closely examined, and the defendant be given the opportunity of demonstrating that a manifest injustice has occurred. State v. Kendrick, 336 So.2d 353 (Fla.1976); State v. Lyles, 316 So.2d 277 (Fla.1975).

The facts before the court at the plea hearing here, reveal that defendant and his accomplice taped the victims’ hands and eyes and placed them in the restaurant’s cooler while they made their escape. Thus, the factual basis to support the lesser included offense of false imprisonment appears prima facie. See Faison v. State, 426 So.2d 963 (Fla.1983); Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980). If, in fact, the victims voluntarily asked to be placed in the cooler and there was no force or threat exercised by the robbers, a jury might find that the confinement was not involuntary, but in the plea colloquy, the defendant specifically waived this defense. In fact, his attorney indicated, with defendant’s assent, that any consent of the victims was not voluntary.

Because it appears that the defendant knowingly waived the possible defense when the trial judge was determining the factual basis for the charge, he cannot now challenge that point on appeal. If he can demonstrate that the plea was nevertheless not knowingly and intelligently made, collateral relief is available to him in the trial court. Robinson v. State, supra.

The appeal is DISMISSED.

DAUKSCH and COBB, JJ., concur.


text:
    Alvin Wallace WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1035.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Appellant was found guilty by a jury of burglary of a dwelling without a firearm and robbery, inter alia. Each of these crimes is a second degree felony punishable by up to fifteen years’ imprisonment. Fla. Stat. §§ 810.02(3), 812.13(2)(c), 775.082(3)(c). The trial court, however, erroneously entered judgment stating that appellant had been found guilty of the crimes of burglary of a dwelling while armed, and armed robbery. Based on the errors contained in the judgment, appellant was sentenced to consecutive terms of life imprisonment on each of the counts. The state concedes that the trial court erred in entering judgment and sentence because the judgment did not conform to the jury verdict. See Thornton v. Culver, 105 So.2d 489 (Fla.1958). We therefore remand this case to the trial court for correction of the judgment and sentence in accordance with the jury verdict. See Venuti v. State, 437 So.2d 238 (Fla. 5th DCA 1983); Byrd v. State, 388 So.2d 1362 (Fla. 5th DCA 1980).

DAUKSCH, FRANK D. UPCHURCH, Jr. and COBB, JJ., concur.


author: DAUKSCH, Júdgé.

text:
    In re the Interest of R.A.L., a child. Miriam LEAVITT, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 82-1450.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.

      Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Orlando, for appellant.
    Douglas E. Whitney, Dist. Counsel, Dept, of Health and Rehabilitative Services, Orlando, for appellee.
   DAUKSCH, Júdgé.

This is an appeal from an order terminating parental rights and permanently committing a child to the custody of the Department of Health and Rehabilitative Services for adoption.

We have examined very closely the evidence of abuse and neglect and conclude that it is sufficient to sustain the findings of the trial judge. We agree with appellant that perhaps some other conclusion and disposition could have been made, but because there is sufficient evidence to support the trial judge’s conclusions we affirm the determination that the child is a dependent child as Chapter 39, Florida Statutes, defines that term.

There is no question but that the child was tortured, brutalized and severely injured by the mother’s boyfriend while the mother was absent, and that the mother was not attentive enough to the child’s welfare. The mother did respond to the child’s needs, belatedly, and maybe insufficiently, but this does not ameliorate the disregard she evidenced for the child’s welfare by allowing the boyfriend to be near the child, especially unguarded.

However, the trial court erred in committing the child to the custody of the Department of Health and Rehabilitative Services without first considering the statutorily required predisposition report. § 39.-408(2), Florida Statutes (1981). We reverse the disposition order and remand this case to the trial court to conduct a de novo disposition hearing after a current predisposition report is prepared, submitted and studied by all parties. In the interest of all concerned we suggest this be done on a priority basis as soon as possible. We note with some concern that this matter has dragged on for an inordinate period of time due solely to the attorneys for both sides having requested extensions of time for the filing of briefs. It has been the custom of this court, and it will continue to be, to expedite appeals in cases such as this if requested to do so by either party; so we were perhaps too liberal in acceding to the requests of counsel when they asked for extensions of time because of “heavy workload.”

The dispositional order is reversed and this cause is remanded for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part, and REMANDED.

SHARP, J., and MIZE, Associate Judge, concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    John J. PICCIONE and John J. Piccione Real Estate, Inc., Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, Florida Real Estate Commission, Appellee.
    No. 82-1630.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.
    W.E. Bishop, Jr., of Bishop & Behnke, P.A., Ocala, for appellants.
    Frederick H. Wilsen, Orlando, for appel-lee.
   PER CURIAM.

AFFIRMED.

ORFINGER, C.J., and COWART, J., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

In my opinion the evidence upon which the department based its license suspension was legally insufficient to support the very harsh treatment it dealt. The department found the appellant was guilty of fraud, misrepresentation, concealment, etc., and violated Section 475.25(l)(b), Florida Statutes (1979). In my opinion the worst the appellant could really be accused of would be committing a serious error in judgment and failing to be as concerned about his business as he should have been in this instance. To take away a man’s livelihood for one year under the circumstances revealed in this record seems to me to be more than justice should allow. The evidence against appellant is based solely upon testimony given by a co-respondent who was not represented by legal counsel at the hearing. Her testimony concerning appellant’s involvement is conflicting at best and, in my opinion, legally insufficient to support the extreme treatment that appellant has been given by the department. I do note that the board which reviewed the suspension was divided on the issue of punishment (there was some discussion about the inadequacy of the evidence) and that a consideration to “suspend the suspension” will be given in the case. Perhaps if that is done all will be right in the end.


text:
    Wilhelm HACKENBERG and Ingrid Hackenberg, Appellants, v. ARTESIAN POOLS OF EAST FLORIDA, INC., Appellee.
    No. 83-210.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.
    Gregory J. McDole, Daytona Beach, for appellants.
    William F. Poole, IV, of William (Fred) Poole, IV, P.A., Orlando, for appellee.
   PER CURIAM.

„ This is an appeal from an appeal to the circuit court after judgment in the county court. Of course, there is no such appeal. We treat the notice of appeal as a petition for writ of certiorari and deny it. Further, we grant appellee’s motion for attorney fees under Section 57.105, Florida Statutes (1981) and remand the matter to the circuit court to hold a hearing to take evidence and assess a reasonable amount for those fees.

It is so ordered.

DAUKSCH, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    Mark Allen SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 83-320.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.
    James B. Gibson, Public Defender, and Brian R. Hanson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

DISMISSED. Robinson v. State, 373 So.2d 898 (Fla.1979).

ORFINGER, C.J., COBB and COWART, JJ., concur.


text:
    David H. STEWART and Charles L. Lowery, Appellants, v. HUGHES SUPPLY, INC., Appellee.
    No. 83-337.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.
    James A. Lowe, Orlando, for appellants.
    Kimberly A. Ashby of Maguire, Voorhis & Wells, P.A., Orlando, for appellee.
   PER CURIAM.

This is an appeal from a judgment in a suit on an open account and on appellants’ personal guaranty of that account.

Because appellee did not present sufficient evidence at trial to sustain its claim for attorney’s fees, we reverse the award as to those fees and affirm the judgment in all other respects. Mystery Fun House, Inc. v. Magic World, Inc., 417 So.2d 785 (Fla. 5th DCA 1982).

REVERSED in part, AFFIRMED in part.

DAUKSCH and SHARP, JJ., and MIZE, Associate Judge, concur.


text:
    Alfred Francis SNELSON, Appellant, v. Mary A. SNELSON, Appellee.
    No. 83-1345.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1983.
    John T. McKnight, Brunswick, Ga., for appellant.
    W.B. Hunter, Tavares, for appellee.
   ON MOTION TO DISMISS

ORFINGER, Chief Judge.

The notice of appeal was filed more than thirty days following rendition of the order appealed from, so we are without jurisdiction and the appeal is dismissed.

Appellant’s assertion that he was not furnished a copy of the order and thus did not have timely notice of its entry does not extend the jurisdictional time limit for appeal. Relief may be sought in the trial court by motion under Fla.R.C.P. 1.540(b) to set aside the order where no notice of its entry was given the parties, coupled with a request that a new order be entered so that the right of appeal is preserved. See Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980); Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971).

APPEAL DISMISSED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    SERVAMERICA, INC., Appellant, v. E.B. ROOD, Appellee.
    No. 83-13.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1983.
    John R. Bush of Bush, Ross, Gardner, Warren & Rudy, Tampa, for appellant.
    E.B. Rood, pro se.
   PER CURIAM.

The court granted specific performance requiring appellant to return to appellee his promissory note in exchange for certain certificates of corporate stock. Because the stock certificates had been issued with a restrictive legend concerning their transferability, the court ordered that appellee “do anything further that may be necessary to get the certificates titled in the name of” appellant. We construe this language to mean that the return of the promissory note is conditioned upon the transfer of title to the stock. As so construed, we hereby affirm the final judgment.

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


author: BOARDMAN, Acting Chief Judge.

text:
    A.M., III, a child, Appellant, v. STATE of Florida, Appellee.
    No. 83-87.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1983.
    Thomas D. Marryott of Norton & Mar-ryott, Punta Gorda, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant A.M., III, contests the sufficiency of the evidence supporting the trial court’s finding that he committed the delinquent act of burglary, in violation of section 810.02, Florida Statutes (1981). We reverse.

Appellant allegedly burglarized Russell and Deborah Galloway’s house on July 1, 1982, removing the Galloway dog and various items of personal property from the residence. Pursuant to defense counsel’s motions, the trial court suppressed appellant’s subsequent admission of guilt as well as incriminating, tangible evidence produced by appellant in conjunction with his confession. Thus, appellant’s adjudication was based solely on the following evidence.

Several of the victims’ neighbors testified that they noticed a suspicious-looking, distinctive yellow Volkswagen in the neighborhood on the day of the crime; some neighbors later observed the victims’ dog jump out of a similar vehicle two miles from the Galloway home. Six days after the burglary, while driving six to ten miles from the scene of the crime, Russell Galloway spotted a yellow Volkswagen matching the vehicle described by his neighbors. Appellant was apprehended and questioned when the vehicle sighted by Galloway proved to be registered to appellant’s father.

Over defense counsel’s objection, an investigating officer was permitted to testify that appellant’s father conferred with appellant in private and then informed the officer that appellant had committed the crime. Appellant’s father later testified in his son’s behalf and denied having apprised the officer of his son’s guilt.

After examining the evidence presented against appellant, it is quite apparent that the state’s case rested solely upon hearsay testimony and circumstantial evidence of a highly suspect nature. The investigating officer’s testimony concerning the father’s unsworn, out-of-court statement regarding appellant’s guilt presents a classic example of hearsay testimony which is not admissible under any exception to the hearsay rule. See §§ 90.801-.804, Fla.Stat. (1981); Cox v. State, 394 So.2d 237 (Fla. 1st DCA 1981). Thus, defense counsel’s objection to this evidence should have been sustained.

The state’s circumstantial evidence was not inconsistent with appellant’s reasonable hypothesis that someone else perpetrated the crime and, consequently, is not legally sufficient to sustain his adjudication. See Thomas v. State, 374 So.2d 508 (Fla.1979); C.M. v. State, 434 So.2d 5 (Fla. 2d DCA 1983). Indeed, none of the neighbors actually witnessed the burglary, observed the occupants of the suspicious-looking, yellow Volkswagen, or obtained the vehicle’s license number. No fingerprints or other physical evidence linking appellant to the crime was admitted into evidence. That appellant customarily drove a yellow Volkswagen which resembled a vehicle observed in the victims’ neighborhood on the day of the crime does not establish his identity as the perpetrator of the offense beyond a reasonable doubt. Thus, this evidence is legally insufficient to sustain the trial court’s finding of guilt. See Tibbs v. State, 397 So.2d 1120 (Fla.1981).

Accordingly, we REVERSE appellant’s adjudication and REMAND with directions to discharge appellant.

SCHEB and CAMPBELL, JJ., concur.


author: BOARDMAN, Judge.

text:
    MANASOTA BURIAL PARKS, INC., Appellant, v. Frank PERKINS, as property appraiser of Manatee County, Florida, and Sam Cornwell, as tax collector of Manatee County, Florida, Appellees, and MANASOTA MEMORIAL PARK, INC., Appellant, v. Frank PERKINS, as property appraiser of Manatee County, Florida, and Sam Cornwell, as tax collector of Manatee County, Florida, Appellees.
    Nos. 83-897, 83-990.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1983.

      Thomas M. Gallen of Miller, Gallen, Kak-lis & Venable, Bradenton, for appellants.
    Donald B. Hadsock, Bradenton, for appel-lee Frank Perkins.
    Richard H. Bailey of Harllee, Porges, Bailey & Durkin, Bradenton, for appellee Sam Cornwell.
   BOARDMAN, Judge.

In this consolidated appeal, appellants Manasota Burial Parks, Inc. and Manasota Memorial Park, Inc. appeal the trial court’s orders granting with prejudice the motions to dismiss appellee Sam Cornwell, tax collector of Manatee County, as a party defendant.

Initially appellants jointly brought suit to contest the 1981 tax assessment of their various real and personal property. The tax rolls for 1981 were certified for collection on December 1, 1981. Pursuant to the provisions of section 194.171, Florida Statutes (1981), appellants paid the taxes due, under protest, and filed the original complaint on January 29, 1982.

Over a year later, after appellants amended their complaint without adding the tax collector as a defendant, the trial court entered an order severing appellants and their claims.

Thereafter, appellants filed separate complaints naming appellee Cornwell as a party defendant. In each cause, Cornwell filed a motion to dismiss the complaint as to him alleging appellants had failed to comply with the requirements of section 194.171, Florida Statutes (1981). As previously noted, appellants appeal the trial court’s orders granting the motions to dismiss.

We reverse both orders of the trial court because we believe the judges were under the mistaken impression that they lacked jurisdiction to permit the addition of appel-lee Cornwell as a party defendant.

The record clearly shows that appellants filed the original suit within the requisite sixty-day period of section 194.-171(2). Therefore, the trial court had jurisdiction of the subject matter under the rationale of Blake v. R.M.S. Holding Corp., 341 So.2d 795 (Fla. 3d DCA 1977), and it was not essential to jurisdiction that the tax collector be joined at the outset of the case. Cf. McNayr v. Cranbrook Investments, Inc., 158 So.2d 129 (Fla.1963) (involving the interpretation of section 196.14, Florida Statutes, repealed 1969) and former section 192.21, Florida Statutes (1963). Appellants also paid the taxes due before bringing suit, thereby complying with the other jurisdictional requirement of the statute. Reid v. Lucom, 349 So.2d 661 (Fla. 4th DCA 1977), cert. denied, 358 So.2d 132 (Fla.), cert. denied, 439 U.S. 860, 99 S.Ct. 180, 58 L.Ed.2d 169 (1978); Millstream Corp. v. Dade County, 340 So.2d 1276 (Fla. 3d DCA 1977).

Pursuant to our holding that the trial court does have jurisdiction, we remand each case in order that the trial judges may, after a proper hearing, exercise their discretionary authority to allow the addition of appellee Cornwell as a party defendant. McNayr v. Cranbrook Investments, Inc., supra. In the event the judges permit the addition of Cornwell as a party defendant, the amendment will relate back to the date the original complaint was filed. Fla.R.Civ.P. 1.190(c), McNayr v. Cranbrook Investments, Inc., supra. See also Hilltop Ranch, Inc. v. Brown, 308 So.2d 124 (Fla. 3d DCA 1975).

REVERSED and REMANDED with instructions consistent with this opinion.

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

      . Section 194.171, Florida Statutes (1981) states in pertinent part:
      (2) No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2)
      (3) Before a taxpayer may bring an action to contest a tax assessment, he shall pay to the collector the amount of the tax which he admits in good faith to be owing. The collector shall issue a receipt for the payment, and the taxpayer shall file the receipt with his complaint.
      (4) No action to contest a tax assessment may be maintained unless all taxes on the property which the taxpayer in good faith admits to be owing, including taxes assessed in years after the action is brought, are paid before they become delinquent.
      (5) Pending actions to contest tax assessments shall be dismissed unless the taxpayer shall have paid to the collector all taxes on the property which he in good faith admits to be owing, including taxes assessed in years after the action is brought.

      . (c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.


text:
    GTE DIRECTORIES CORPORATION, a Delaware corporation, and General Telephone Company of Florida, a Florida corporation, Petitioners, v. Ralph DeDOMENICO, D.M.D., Respondent.
    No. 83-1846.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1983.

      William A. Wares and Wayne Thomas of McKay & Thomas, P.A., Tampa, for petitioners.
    Charles J. Levin and Richard A. Boucher, Temple Terrace, for respondent.
   PER CURIAM.

Respondent sued petitioners for failure to list his name in the Tampa telephone directory yellow pages under the heading “Deri-tists-Orthodontists.” The court granted respondent’s motion to compel discovery of various documents relating to the reporting, compilation, and study of errors and omissions with respect to the compilation of the petitioners’ telephone directories for the past four years. Since it is not entirely clear, we construe the order as referring only to such documents as are applicable to the administrative area in which Tampa is located. As so construed, we find that the order compelling discovery does not depart from the essential requirements of law.

The petition for certiorari is denied.

HOBSON, A.C.J., and GRIMES and CAMPBELL, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    VAGABOND TRAVEL AND TOURS, INC., a foreign corporation, Appellant, v. UNIVERSAL INNS OF AMERICA, INC., formerly known as Universal Development Corporation, a foreign corporation, d/b/a Admiral Benbow Inn, Appellee.
    No. 83-966.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1983.
    Anthony T. Martino of Peavyhouse, Gig-lio, Grant, Clark, Charlton, Opp & Martino, Tampa, for appellant.
    Benjamin H. Hill, III, and Jeanne M. Trudeau of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Vagabond Travel and Tours, Inc., (“Vagabond”), plaintiff below in an action for specific performance of a contract, appeals a final summary judgment rendered in favor of Universal Inns of America, Inc., doing business as Admiral Benbow (“Ben-bow”), and an order of the lower court denying Vagabond’s motion to amend the complaint. We affirm in part and reverse in part.

On May 18, 1982, Vagabond initiated an action seeking damages and specific performance of an alleged contract to rent 150 hotel rooms during the 1984 Super Bowl. Benbow filed a motion to dismiss, and thereafter Vagabond filed an amended complaint which excluded the claim for damages pursuant to instructions from the client.

After discovery, Benbow moved for summary judgment on January 26, 1983, on the grounds that no genuine issues as to any material fact existed and that Benbow was entitled to summary judgment holding, as a matter of law, that Vagabond was not entitled to the remedy of specific performance.

On February 21, 1983, the trial court heard Benbow’s motion for summary judgment. Although the record does not show when the trial date was set, evidently, prior to the February 21 hearing, trial was set for March 8, 1983. On February 22, 1983, the trial court instructed Benbow’s counsel to prepare a summary judgment in Benbow’s favor. On February 24, 1983, Vagabond filed a motion to amend the amended complaint for the inclusion of an additional cause of action for damages against Ben-bow. However, prior to hearing Vagabond’s motion to amend, final summary judgment was entered on February 28, 1983. The trial court entered the order granting summary judgment on the following grounds: 1) hotel rooms are not unique objects so as to entitle Vagabond to specific performance of any purported agreement relating to the use of hotel rooms; 2) Vagabond had an adequate remedy at law via an action for compensatory damages; 3) the alleged agreement was unilateral in nature, there being no mutuality of obligation or mutuality of remedy; and 4) a prior commitment of Benbow with the National Football League rendered Benbow incapable of complying with the alleged agreement with Vagabond.

The motion to amend, not having been disposed of, was heard by the trial court on March 7, 1983. Thereafter the court entered an order denying Vagabond’s motion to amend the complaint. In its order, the court found that Vagabond’s claim for damages appeared to be premature and, in any event, the proposed second amended complaint attempted to state a new and different cause of action and sought to introduce new issues and materially vary the grounds for relief.

On March 10 and 17,' 1983, Vagabond filed motions for rehearing which were denied by the trial court on April 8, 1983.

On appeal, Vagabond challenges the findings of the trial court in the order granting summary judgment as well as the order denying Vagabond’s second motion to amend the complaint. Because we find that Vagabond does have an adequate remedy at law, we affirm the final summary judgment, denying specific performance. However, in view of the fact that such denial, and our affirmance thereof, was based on Vagabond having an adequate remedy at law, we direct the trial court to grant Vagabond’s second motion to amend the pleadings to allow Vagabond to state a cause of action for damages.

Accordingly, we affirm the final summary judgment and reverse the order denying Vagabond’s second motion to amend the complaint.

AFFIRMED in PART, REVERSED in PART, and REMANDED.

GRIMES and CAMPBELL, JJ., concur.


text:
    The TRIBUNE COMPANY and Richard Bockman, Petitioners, v. The Honorable Oliver L. GREEN, Jr., the State of Florida and Richard E. Leon, Respondents.
    No. 83-2109.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1983.
    Gregg D. Thomas, Steven L. Brannock, and Mike Piscitelli of Holland & Knight, Tampa, for petitioners.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for respondents Honorable Oliver L. Green, Jr., and State.
    Patricia F. Anderson of Rahdert, Anderson & Richardson, St. Petersburg, amicus curiae Times Pub. Co.
   BOARDMAN, Acting Chief Judge.

The Tribune Company and Richard Bock-man filed this petition for issuance of a writ of certiorari to review an order requiring Richard Bockman, a newspaper reporter, to testify as a witness for the state in a pending criminal trial concerning conversations he had with respondent Richard E. Leon, who is the defendant in that criminal case. We grant the petition and issue the writ and therefore quash the order compelling Bockman to testify.

Bockman authored a series of investigative articles about the alleged improper conduct of Hillsborough County Circuit Judge Richard Leon and former Chief Circuit Judge Arden Merckle. The articles recounted a number of conversations between Bockman and the judges regarding the sentencing of Alisa Avery, a criminal defendant in Judge Merckle’s court.

Bookman’s reports culminated in a formal proceeding in which the Judicial Qualifications Commission (JQC) charged both Judge Leon and Judge Merckle with conduct demonstrating “unfitness to hold office.” On July 7, 1983, Bockman was subpoenaed by the JQC to appear as a witness and testify before the commission at a hearing concerning Judge Leon.

On the basis of the privilege of the first amendment to the Constitution of the United States, Bockman moved to quash the subpoena and was ultimately released from testifying. The JQC inquiry resulted in a recommendation to the Florida Supreme Court that Judge Leon be removed from the circuit court bench.

On July 13, 1983, a Hillsborough County Grand Jury indicted Judge Leon on two counts of perjury and one count each of bribery, official misconduct, and acceptance of unlawful compensation. As a result of-the indictment, the state ánd Judge Leon subpoenaed Bockman seeking his testimony concerning the Avery case. Bockman immediately moved to quash the subpoena, and his deposition scheduled for September 23,1983, was postponed until the trial court ruled on the motion.

The hearing on the motion was held on October 3, 1983. The trial judge, apparently relying on the fact that Bockman initiated the conversations with Judge Leon, ordered Bockman to testify when deposed concerning his conversations with Judge Leon. The judge announced that if the examination exceeded the scope of the conversations between Judge Leon and Bock-man, the judge would then allow Bockman to assert a privilege, and he would rule accordingly if the need arose. As previously noted, this emergency petition for writ of certiorari was filed as a result of the trial court’s order.

Judge Leon was charged in the indictment summarized as follows:

Count 1 charged that Judge Leon violated section 837.02(1), Florida Statutes, when he stated under oath before the JQC that he did not attempt to influence Judge Merckle in his sentencing functions, whereas in truth and fact he did attempt to influence Judge Merckle.

Count 2 charged that Judge Leon violated section 837.02(1), Florida Statutes, when he stated under oath before the JQC that the reason he went to see Judge Merckle concerning the Avery case was because he saw her being fingerprinted and he was curious as to what sentence she had received, whereas in truth and fact Alisa Avery’s father, Arthur B. Avery, Sr., told Judge Leon that she had received a prison sentence.

Count 3 charged that Judge Leon violated section 839.25, Florida Statutes, when he caused Judge Merckle to refrain from imposing sentence on Alisa Avery without undue influence and with intent to obtain a financial advantage for himself.

Count 4 charged that Judge Leon violated section 838.015(1), Florida Statutes, by accepting gambling chips representing a monetary value, and/or buying a motor vehicle at a price less than actual value, and/or being relieved of financial obligations, with intent or purpose to influence the sentencing of Alisa Avery which Judge Leon believed to be, or was within the official discretion of Judge Merckle in the performance of a public duty.

Count 5 charged that Judge Leon violated section 838.016(2), Florida Statutes, by accepting gambling chips representing a monetary value, and/or buying a motor vehicle at a price less than actual value, and/or being relieved of financial obligations for past, present, or future exertion of influence upon Judge Merckle regarding the sentencing of Alisa Avery which Judge Leon believed to be within the official discretion of Judge Merckle in the performance of a public duty.

Petitioners contend the reporter is privileged from testifying as the respondents have not satisfied their burden of demon-, strating that (1) Bockman possesses information relevant to the charges set forth in the indictment, (2) that the same information is not available from alternative sources, and (3) that they have a compelling need for any information the reporter may have. Gadsden County Times, Inc. v. Horne, 426 So.2d 1234 (Fla. 1st DCA 1983), and cases cited therein. More specifically, petitioners contend the trial court improperly focused solely on the alternative sources element of the three-part test.

Respondent, State of Florida, on the other hand, questions the applicability of the Gadsden test as that case involved a disclosure of confidential sources in a civil proceeding, two factors not present in the case sub judice. Nevertheless, respondent contends the lower court’s order complies with the Gadsden standard. In addition, respondents submit that Bockman should be compelled to testify because the subject matter of the conversations that he had with the defendant was published in the “Tampa Tribune,” a newspaper of general circulation in Hillsborough County, and is therefore a matter of public record and general knowledge.

Our research of the applicable case law as well as a reading of the cases submitted to us by the parties in support of their respective position show that the trend in cases like the one before us is to apply the three-part test enunciated in Gadsden. There is abundant case law that this test is applicable to criminal as well as civil cases and to confidential and nonconfi-dential sources of information.

As to the first test under Gadsden, a reading of the charges alleged in the indictment clearly shows that each charge is based on allegations that do not involve Bockman in any manner. The evidence sought by the state that Judge Leon denied to Bockman that he met with Judge Merck-le regarding the Avery sentencing is not relevant to the proof of the charges in the indictment.

In counts 1 and 2 of the indictment, Judge Leon is charged with making false statements under oath during testimony before the JQC, a violation of section 837.-02(1). Judge Leon initially testified that he did not attempt to influence Judge Merckle in the Avery sentencing and that the reason he went to see Judge Merckle concerning the Avery case was because he saw Alisa Avery being fingerprinted and he became curious as to what sentence she had received. The perjury charges filed against Judge Leon are directed to his recanting those statements while he was testifying under oath before the JQC.

Pursuant to the statute, the state is only required to prove that Judge Leon lied before the JQC. Therefore, the denials made by Judge Leon to Bockman, or to anyone else other than the JQC, are irrelevant to the proof of the perjury counts. Additionally, the denials to Bockman were not made under oath and for that reason alone the testimony would not constitute the crime of perjury under section 887.02(1).

Although petitioners address the relevance of Bookman’s testimony to counts 3, 4, and 5 in a conclusory fashion, we agree with their position that Bookman’s testimony could have no relation to the elements of these crimes and we so hold.

With regard to the second test, the burden is on the state to seek out and exhaust alternative sources prior to compelling the testimony of a reporter protected by the first amendment. Judge Green’s assumption that this prong of the test could be satisfied only by showing the presence of another witness to the conversations between Bockman and Judge Leon is erroneous. Our research clearly indicates that any person who can provide the same information as Bockman is an alternative source.

The record before us demonstrates the state has failed to take any steps to obtain testimony from any other available source. For instance, the state has not subpoenaed Mr. Thomas C. McDonald, a well-known and highly respected member of the Florida Bar, who was appointed to investigate this matter on behalf of the bar association by the JQC, nor Mr. Richard H. Lee, Jr., the notary public who transcribed the proceedings before the JQC, although the record before us indicates only that Mr. Lee witnessed Judge Leon’s recantation of his previous statements. Further, the state has not attempted to obtain the testimony of Judge Merckle or Mr. Avery, who have been granted immunity in the matter before us by the state in return for their testimony. In view of their involvement in the charged misconduct, we feel that not only are they alternative sources but far better sources. It is inconceivable that Bockman could add anything more to the testimony of these “first hand players.”

Accordingly, we hold respondents have failed to carry their very high burden under the first two prongs of the Gadsden test. In light of our holding, we need not reach the compelling need aspect of the test and refuse to do so.

The petition for the issuance of the writ of certiorari is granted, the subpoenas quashed, and the order compelling petitioner Richard Bockman to testify is hereby vacated and set aside.

RYDER and DANAHY, JJ., concur.

      . In addition to the arguments of the parties, we have had the benefit of a well-written ami-cus curiae brief from Times Publishing Company.


author: MILLS, Judge.

text:
    F.F. HUGHES & ASSOCIATES, INC., a Florida corporation, Appellant, v. MOTTICE & ASSOCIATES, INC., a Florida corporation, et al., Appellee.
    No. AQ-292.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1983.
    Thomas W. Lager of Lager, Woodward, O’Steen & Banks, Tallahassee, for appellant.
    John K. Folsom of Folsom & Steinmeyer, Tallahassee, for appellee.
   MILLS, Judge.

This appeal comes from a multiparty civil action over the right to commissions on the sale of apartment buildings. One of the defendants, Mottice & Associates, Inc., filed a third party complaint against Wooten, its former salesperson, for contribution in the event of an adverse judgment. Wooten counterclaimed against Mottice & Associates, Inc. and against Homer J. Mottice, individually, for a share of the commission allegedly due Mottice & Associates, Inc. on the sale of two apartment complexes. Homer J. Mottice is a real estate broker and sole owner of Mottice & Associates, Inc.

The trial court granted summary final judgment against Wooten on her counterclaim and she appeals. We affirm.

Accepting the facts as alleged by Wooten in her Second Amended Counterclaim as true, Wooten did not state a cause of action as a matter of law. Section 475.42(l)(d), Florida Statutes (1981), provides:

No salesman shall collect any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of the employer and with the express consent of the employer; and no real estate salesman, whether the holder of a valid and current license or not, shall commence or maintain any action for a commission or compensation in connection with a real estate brokerage transaction against any person except a person registered as his employer at the time the cause of action is alleged to have arisen.

There is no dispute that the contract for sale of the apartments was not executed, nor was the transaction closed until after Wooten left Mortice's employ. The cause of action did not arise while Mortice, the broker, was registered as Wooten’s employer. Consequently, summary judgment.was proper.

This case is not like Bustani v. Wells, 291 So.2d 660 (Fla. 4th DCA 1974), where trial was necessary to resolve apparently conflicting evidence pertaining to the applicability of Section 475.42(l)(d), Florida Statutes. Here, the facts making the statute applicable are undisputed.

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    STRUCTURAL FORMING, INC. and Hewitt, Coleman & Associates, Inc., Appellants, v. Joe MAS, Appellee.
    No. AQ-397.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1983.
    Richard E. Hodges of Miller, Hodges & Kagan, Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellee.
   PER CURIAM.

This cause is before us on appeal from an order of the deputy commissioner awarding wage-loss benefits and attorney fees. We affirm in part and reverse in part.

The deputy found that claimant was able to return to work on May 29, 1980, and denied a claim for TTD benefits after that date. The deputy awarded wage-loss benefits from November 10, 1980, totaling $8,386.13. After a separate hearing, the deputy awarded $3,000 attorney fees, based on findings that the employer/carrier had taken no affirmative action to determine the wage-loss status of the claimant and that the claimant sustained economic hardship by reason of the employer/carrier’s failure to supply wage-loss forms.

Appellants assert that the deputy erred in awarding wage-loss benefits, since claimant was provided light-duty work by his employer and by his brother-in-law, both of which jobs claimant voluntarily terminated. Appellants assert that claimant made no attempt to return to work again until April, 1982, even though work was available to him; that claimant has failed to conduct a good-faith work search, has refused to perform work within his capabilities, and has voluntarily limited his income.

Jose Mas, a 50-year-old laborer with a sixth grade education who speaks little English, was injured in an industrial accident on January 7, 1980, when he fell from the third story of a building, sustaining injuries to his head, back, and leg; temporary total disability benefits were paid to May 20, 1980. Claimant was released April 29, 1980 as MMI “neurologically,” with a ten percent permanent disability of the body as a whole. Claimant was released to return to work May 29, 1980 by the orthopedic surgeon, who reported claimant as MMI “orthopedically” on November 10, 1980, with a twenty percent disability of the body as a whole, and able to return to light, sedentary work. Finally, claimant was released with no psychiatric disabilities on November 11, 1980.

This court in Dade County School Board v. Gibavitch, 397 So.2d 1142 (Fla. 1st DCA 1980), stated the two basic prerequisites of a wage-loss award: (1) some permanent anatomical impairment, and (2) a reasonable work search, unless failure to conduct a work search is excused by claimant’s physical or mental condition. There is no presumption of loss of earning capacity. Southern Bell Telephone & Telegraph Company v. Bell, 116 So.2d 617 (Fla.1959).

In the instant case, claimant admitted that he had not looked for work from the time he quit his light-duty job with the employer until over 14 months later, when he took a part-time job sweeping at Sears. There is no medical evidence to excuse his failure to conduct a work search, since all of his doctors agreed that he was able to work at a light-duty job. Claimant contends that he quit the light-duty job with his employer, and subsequently the light-duty, part-time job at Sears, because of pain in his back and leg. However, pain alone does not necessarily indicate a loss of wage-earning capacity, nor is it an excuse for not seeking a job. J.T. Johnson v. Stanfill Drywall Services, 414 So.2d 24 (Fla. 1st DCA 1982); Brevard County School Board v. King, 378 So.2d 1312 (Fla. 1st DCA 1980). We therefore reverse the award of wage-loss benefits from November 10,1982 to the date claimant began working part time at Sears, since claimant has admitted that he did not look for work during that period.

Competent, substantial evidence in the record supports the deputy’s finding of a good-faith work search during the six-month period from the Sears job to the date of hearing; the award of wage-loss benefits for this period is affirmed.

This cause is remanded to the deputy for reconsideration of attorney fees, with the direction that the statutory ground upon which entitlement to attorney fees is based be stated by the deputy and that, if attorney fees in excess of the statutory schedule are awarded, the specific criteria considered in setting the amount of the fee be stated.

The cause is affirmed in part, reversed in part, and remanded for proceedings consistent herewith.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


text:
    CITY OF GAINESVILLE and Crawford and Company, Appellants, v. Ross M. JONES, Appellee.
    No. AR-313.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1983.
    John P. Brooks of Jones & Langdon, Gainesville, for appellants.
    Robert J. Denson of Stripling & Denson, Gainesville, for appellee.
   PER CURIAM.

This cause is before us on appeal from an order of the deputy commissioner. We affirm the deputy’s finding that claimant’s refusal to accept a light-duty job offered by the employer was justified under the circumstances, but we find that the deputy erred in awarding temporary total disability benefits from June 28, 1982, since the deputy found that claimant was able to return to work in a light-duty capacity on that date. We therefore reverse the deputy’s award of temporary total disability benefits without prejudice to claimant’s entitlement to seek temporary partial disability benefits from June 28, 1982.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


text:
    Sharon BATTON, Appellant, v. PIZZA INN and Ranger Insurance Co., Appellees.
    No. AR-324.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1983.
    Warren K. Anderson, Jr., of Coxe, Anderson & Schemer, Jacksonville, for appellant.
    M. Wayne Myers, of Cowles, Coker, Myers, Schickel & Pierce, P.A., Jacksonville, for appellees.
   PER CURIAM.

AFFIRMED. See Barnett v. Lakeland Construction Company, 417 So.2d 834 (Fla. 1st DCA 1982).

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


text:
    Billy WILSON, Appellant, v. PAROLE AND PROBATION COMMISSION, Appellee.
    No. AS-495.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1983.
    Billy Wilson, pro se, for appellant.
    Enoch J. Whitney, Gen. Counsel, Tallahassee, for appellee.
   MILLS, Judge.

Wilson appeals an order denying his petition for writ of habeas corpus. The factual allegations of the petition, even if true, would not require Wilson’s discharge.

The order denying the petition for writ of habeas corpus is affirmed.

SHIVERS and ZEHMER, JJ., concur.


text:
    Gennaro Dean JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. AJ-437.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1983.
    Steven L. Bolotin and Michael E. Allen, Asst. Public Defenders, Jacksonville, for appellant.
    Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Beech v. State, 411 So.2d 1384 (Fla. 1st DCA 1982), approved Beech v. State, 436 So.2d 82 (Fla.1983).

ERVIN, C.J., and THOMPSON and NIM-MONS, JJ., concur.


text:
    Murray A. HARDING, Appellant, v. Suzanne D. HARDING, Appellee.
    No. 82-2633.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Peter S. Holton of Jones & Foster, P.A., West Palm Beach, for appellant.
    William H. Pruitt of Pruitt & Pruitt, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Conner v. Conner, 439 So.2d 887 (Fla.1983), and Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

DOWNEY, BERANEK and WALDEN, JJ., concur.


text:
    Patricia GREGORY, Appellant, v. COMMUNITY HOSPITAL OF SOUTH BROWARD CORP., a corporation for profit, Appellee.
    No. 83-71.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Robert W. Heaton, Jr. of Sobo, Wellens & Balocco, Plantation, for appellant.
    James S. Haliczer of Conrad, Scherer & James, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Chickachop v. Manpower, Inc., 84 N.J.Super. 129, 201 A.2d 90 (N.J.App.1964) and Hamilton v. Shell Oil Company, 233 So.2d 179 (Fla. 4th DCA 1970).

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


author: PER CURIAM

text:
    Willie George STROZIER, Appellant, v. STATE of Florida, Appellee.
    No. 83-421.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM

Affirmed. See Ray v. State, 403 So.2d 956 (Fla.1981).

LETTS, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Marilyn JELINEK, Appellant, v. Miles JELINEK, Appellee.
    No. 83-958.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Marilyn Jelinek, pro se, appellant, Lake-land.
    No appearance by appellee.
   PER CURIAM.

Appellant, Marilyn Jelinek, has filed a brief in this court which, along with the record on appeal, has been read by the members of this court. We are, unfortunately, unable to grasp the nature of the legal problem involved or the relief sought. We have no alternative other than to affirm and do so. A petition for rehearing will not be considered.

AFFIRMED.

BERANEK, HERSEY and DELL, concur.


text:
    James Charles BENTON, Appellant, v. STATE of Florida, Appellee.
    No. 82-240.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1983.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon review of the record, we find that the trial court erred in assessing appellant $250 in attorney’s fees for his representation by the public defender without affording him the notice of hearing thereon and opportunity to be heard required by section 27.56(7), Florida Statutes (1981). Drumm v. State, 432 So.2d 765 (Fla. 2d DCA 1983); Gryca v. State, 315 So.2d 221 (Fla. 1st DCA 1975). In addition, we find no valid waiver by appellant of this statutory requirement.

Accordingly, we reverse the final judgment assessing attorney’s fees and remand for a hearing on the amount of the fee with proper notice to the appellant and an opportunity to be heard.

OTT, C.J., and BOARDMAN and DAN-AHY, JJ., concur.


author: CAMPBELL, Judge. GRIMES, Acting Chief Judge,

text:
    Roger R. MAAS, Appellant/Cross-appellee, v. Jane A. MAAS, Appellee/Cross-appellant.
    Nos. 82-1521, 83-72.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1983.

      Joseph R. Miele, St. Petersburg, for appellant/cross-appellee.
    Michael J. Keane of John T. Allen, Jr., P.A., St. Petersburg, for appellee/cross-appellant.
   CAMPBELL, Judge.

In these consolidated appeals, we consider several related matters arising out of the dissolution of the marriage between Roger and Jane Maas.

In November 1980, before either party filed for dissolution, Mrs. Maas, while unrepresented, executed a property settlement agreement that had been prepared by Mr. Maas, who is an attorney. In March 1981, Mr. Maas filed for dissolution and shortly thereafter, Mrs. Maas counterpetitioned seeking alimony, child support, attorney’s fees and costs, a division of the property and to have the property settlement agreement set aside as the product of overreaching. The trial judge, Judge Sanderlin, held a series of final hearings in this dissolution action, formally dissolving the marriage in November 1981, and entering a final order on the reserved remaining issues in May 1982. In this order, he set aside the property settlement agreement as being the product of overreaching. He did not reserve jurisdiction in this final order to award attorney’s fees and costs. Mrs. Maas then filed a timely motion for rehearing seeking, among other things, attorney’s fees. See Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976). Responding to the rehearing motion, Judge Sanderlin amended his final order and awarded Mrs. Maas attorney’s fees of $8,000. Mr. Maas then appealed and Mrs. Maas cross-appealed. In the meantime, Judge Sanderlin recused himself and Judge Fogle received the case. This court temporarily relinquished jurisdiction to the trial court to determine a pending motion for rehearing. Mrs. Maas filed a motion to tax costs which Judge Fogle denied on the basis that he was without jurisdiction to make the award since Judge Sanderlin had not mentioned costs in his final order in May 1982, nor in his amended order.

Mr. Maas raises seven points in his appeal. All are without merit, but we believe it necessary to address two of them. Those points are whether Judge Sanderlin erred in setting aside the property settlement agreement and whether he further erred in awarding Mrs. Maas the marital home as lump sum alimony.

Regarding the property settlement agreement, we believe that there was sufficient evidence of overreaching presented below to support Judge Sanderlin’s refusal to approve this settlement. Once he set aside the agreement, no part of it could be enforced. Indeed, the agreement itself so provided.

However, because the issue of overreaching is so close, we feel compelled to discuss the duties of a trial judge regarding a settlement agreement in a dissolution of marriage proceeding. Even if overreaching had not been proved in this case, we would be inclined to the view that Judge Sander-lin’s decision not to enforce the settlement agreement finds support in section 61.08, Florida Statutes (1981), and in case authorities too well known and numerous to require citation, that a trial judge in a dissolution proceeding is called upon to do equity and justice between the parties. If Judge Sanderlin felt that by approving the agreement he would not be doing equity and justice, then by all means we feel he was correct in refusing to approve it.

We run headlong into some troublesome precedents, however, in trying to reconcile the statutory obligation of the trial judge “to do equity and justice between the parties” that is supported by case law, and the principle that property settlement agreements between husband and wife, made in contemplation of dissolution proceedings, should be construed and interpreted as other contracts. Perhaps we should find some solace in Belcher v. Belcher, 271 So.2d 7, 10 (Fla.1972), wherein the court holds that “[provision for ‘permanent’ settlement after dissoluion [sic] of the marriage is another matter; fair provisions thereon will be recognized as a matter of contract; indeed post-nuptial settlement agreements are regularly approved upon meeting proper requirements of disclosure and fairness.” Whatever solace Belcher offers dissipates rapidly, however, when we examine Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962), and its progeny.

As we observe the courts of this state drift closer and closer to an absolute “equitable distribution” doctrine in dissolution of marriages cases, it seems necessary to us, in those cases involving settlement agreements, to place more emphasis on the portion of Belcher that states “fair provisions thereon will be recognized as a matter of contract” and that said agreements should be approved if they meet the “proper requirements of disclosure and fairness.” [Emphasis supplied.] As this drift continues to occur, more emphasis should be placed on fairness and equity and less emphasis placed on fullness of disclosure or the extent of the knowledge of the parties concerning their property interests. The bottom line then would necessarily seem to be whether the trial judge can determine that the agreement does equity and justice between the parties, tempered somewhat by the extent of the voluntary nature of the agreement between the parties. Certainly, it should be a rare circumstance, should it occur at all, that a property settlement would be set aside where both parties request its enforcement. ■ We can perceive of such an event occurring only in regard to inadequate support provisions for a spouse or dependent children.

We hasten to add here that we find no need in this cause to rely on the foregoing discussion of the impact of “equity and justice” on enforcement of settlement agreements. Judge Sanderlin did not rely solely upon those reasons in his refusal to enforce the agreement, for he found it to be the product of overreaching, which finding has support in the record.

Proceeding now to consider the provisions of the final judgment, we find that Judge Sanderlin properly awarded Mrs. Maas the marital home as lump sum alimony in the exercise of his equitable powers. This is so despite Mrs. Maas’ failure to specifically plead for a lump sum award. In Nalley v. Nalley, 406 So.2d 1240 (Fla. 1st DCA 1981), our sister court held that a party must specifically plead for a lump sum alimony award of the marital home in order to receive it. However, in McIntosh v. McIntosh, 432 So.2d 176 (Fla. 1st DCA 1983), the First District Court of Appeal, in a rather sharply divided en banc opinion, receded from Nalley and other cases so holding. We agree that it is not necessary to specifically plead for lump sum alimony in order to receive it. A general prayer for alimony will be sufficient and the trial judge may then award lump sum or any other type of alimony in the exercise of his power to do equity and justice between the parties. See Nusbaum v. Nusbaum, 386 So.2d 1294 (Fla. 4th DCA 1980); Caidin v. Caidin, 367 So.2d 248 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 765 (Fla.1980).

Turning next to Mrs. Maas’ cross-appeal in this case, we affirm Judge Fogle’s refusal to require Mr. Maas to pay the children’s private school tuition and to pay for the children’s college education. We do so because providing for education may be ordered if the parties agree to it, but here, that agreement was contained in the property settlement agreement which Judge Sanderlin struck down. Since at the time Judge Fogle replaced Judge Sanderlin the agreement no longer existed, it would have been error for Judge Fogle to then require Mr. Maas to perform part of it when his agreement to do so was no longer valid.

However, the second point raised on cross-appeal has merit. Mrs. Maas had moved to have Mr. Maas held in contempt for failure to pay attorney’s fees. Judge Fogle determined that he could not hold Mr. Maas in contempt to enforce the award of attorney’s fees. We express no opinion as to whether Mr. Maas’ conduct was in fact contemptuous. We hold only that contempt was and remains a viable and available judicial remedy. It was available to Judge Fogle, and it was error to refuse to consider that remedy in addressing the problem of enforcing the award of attorney’s fees to Mrs. Maas.

Finally, we consider Mrs. Maas’ appeal of the order denying costs, and we find that we must reverse based on the authority of Golub v. Golub, 336 So.2d 693 (Fla. 2d DCA 1976). Golub clearly holds that in a final order it is not necessary to reserve jurisdiction to enter a later order taxing costs. Judge Sanderlin’s silence was thus not necessarily a denial and Judge Fogle must consider this matter of costs on remand.

Accordingly, as to 82-1521, we affirm in all respects, except that we note that contempt is an available remedy to Mrs. Maas should she seek to enforce the award of any unpaid attorney’s fees. As to 83-72, we reverse and we remand for consideration of an award of costs.

SCHEB, J., concurs.

GRIMES, A.C.J., concurs with opinion.

GRIMES, Acting Chief Judge,

concurring specially.

Considering the state’s interest in domestic relations, I believe that a trial judge may refuse to incorporate an unfair post-nuptial settlement agreement into a judgment of dissolution regardless of the volun-tariness of execution and full disclosure. Del Vecchio and Posner do not hold otherwise, because they dealt with antenuptial agreements.

      . § 61.08.

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

      . Underwood v. Underwood, 64 So.2d 281 (Fla.1953).

      . Posner v. Posner, 233 So.2d 381 (Fla.1970) and 257 So.2d 530 (Fla.1972); O’Connor v. O’Connor, 435 So.2d 344 (Fla. 1st DCA 1983); Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA 1981); Bailey v. Bailey, 300 So.2d 294 (Fla. 4th DCA 1974).

        . Claughton v. Claughton, 393 So.2d 1061 (Fla.1980); Canakaris; Lynch v. Lynch, 437 So.2d 234 (Fla. 5th DCA 1983); Tronconi v. Tronconi, 425 So.2d 547 (Fla. 4th DCA 1982); But see Hu v. Hu, 432 So.2d 1389 (Fla. 2d DCA 1983); Powers v. Powers, 409 So.2d 177 (Fla. 2d DCA 1982).


text:
    BOARD OF COUNTY COMMISSIONERS OF PINELLAS COUNTY, as the Pinellas County Water and Navigation Control Authority, Petitioner, v. CITY OF CLEARWATER, Respondent.
    No. 83-21.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1983.

      Jean H. Kwall, Asst. County Atty., Clear-water, for petitioner.
    Thomas A. Bustin, City Atty., Clear-water, for respondent.
   HOBSON, Acting Chief Judge.

Petitioner, Board of County Commissioners of Pinellas County, acting as the governing authority of the Pinellas County Water and Navigation Control Authority (hereinafter “Authority”), seeks a writ of certiorari to reverse an appellate order of the Circuit Court for Pinellas County which quashed the Authority’s denial of a dock application submitted by respondent, City of Clearwater (hereinafter “City”). We grant the writ of certiorari, reverse, and remand, because the circuit court departed from the essential requirements of law.

The City filed an application with the Authority requesting a permit to construct a public pier to extend into Clearwater Harbor from upland owned by the City. The pier was to be 200 feet in length and was to have a 100 foot long T-end. Located approximately 200 feet to the north of the site of the proposed T-shaped pier is the eastern end of the Memorial Causeway. This end of the Memorial Causeway is bordered directly to the south by a narrow, abandoned bridge. Situated about 200 feet to the south of the site is the Pierce 100 Condominium.

Subsequent to filing its application, the City submitted permits which it had obtained from the United States Army Corps of Engineers and the State of Florida, Department of Environmental Regulation. The Authority’s staff later held a preliminary hearing on the application, after which it presented to the Authority a recommendation that the application be granted.

The Authority thereafter held two public hearings to consider the City’s application. The minutes of these hearings reveal that a total of about 60 residents from the vicinity appeared in opposition. Also, several letters from local residents were introduced in opposition. One of the main reasons submitted by them in opposition was that the proposed dock would have a material adverse affect upon the natural beauty and recreational advantages of the area.

The Authority’s rules and regulations governing the construction of docks within Pinellas County, which were adopted pursuant to the Authority’s enabling legislation, Chapter 31182, Laws of Florida (1955), as amended by Chapter 72-664, Laws of Florida (1972) and Chapter 78-602, Laws of Florida (1978), grant the Authority the right to deny a permit for the construction of a dock where it is determined that such construction will adversely affect the natural beauty and recreational advantages of the county. See section 5G(5), Rules and Regulations Governing the Construction of Docks, Piers and Wharves Within Pinellas County (1981).

The Authority ultimately denied the application solely upon a positive finding of fact that the proposed pier would have a material adverse affect on the natural beauty and recreational advantages of the county.

The City appealed the Authority’s decision to the circuit court. After reviewing the record on appeal, the court reversed, stating: “[T]here was no expert testimony presented by opponents to the application and the opinions expressed by a number of citizens who appeared before the [Authority] do not constitute sufficient competent substantial evidence to support the Authority’s finding.”

Although it is for a circuit court acting in its appellate capacity to ascertain if administrative action is supported by substantial competent evidence, see City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982), a circuit court acting in such a capacity departs from the essential requirements of law if, in determining whether the administrative action is supported by substantial competent evidence, it reevaluates the credibility of evidence, see City of Miramar v. Giordano, 423 So.2d 1032 (Fla. 4th DCA 1982), or reweighs conflicting evidence, see Town of Mangonia Park v. Palm Beach Oil, Inc., 436 So.2d 1138 (Fla. 4th DCA 1983); Giordano.

In the case at bar, the circuit court departed from the essential requirements of law by reevaluating the competency of the evidence; it usurped the Authority’s fact-finding function. The local, lay individuals with first-hand knowledge of the vicinity who were heard in opposition at the two public hearings were as qualified as “expert witnesses” to offer views on the ethereal, factual matter of whether the City’s proposed dock would materially impair the natural beauty and recreational advantages of the area. Hence, assuming it found their objections credible, the Authority was entitled to accord great weight to their cumulative objections. Its decision to deny the application on the sole ground that the proposed dock would materially impair the natural beauty and recreational advantages of the area implicitly shows that it found their objections credible, and, as a result, attached overriding weight to their objections.

Accordingly, we grant the writ of certio-rari, reverse, and remand with instructions that the Authority’s denial of the City’s application be reinstated.

REVERSED and REMANDED.

RYDER and LEHAN, JJ., concur.