author: GLICKSTEIN, Judge. ANSTEAD, Chief Judge,

text:
    TARK ENTERPRISES, INC., Appellant, v. Cynthia SIEDLECKI, Appellee.
    No. 84-1312.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Richard A. Sherman of Law Offices of Richard A. Sherman, Fort Lauderdale, for appellant.
    Lawrence M. Weiner of Law Offices of Lawrence M. Weiner, North Miami Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a non-final order, denying appellant’s motion to set aside a default. We reverse and remand.

On June 11, 1983, appellee Cynthia Sied-lecki ate raw clams at Tark’s restaurant and allegedly took sick, with resulting hospitalization and medical treatment. On August 9, 1983, Mrs. Siedlecki’s lawyer notified Tark Enterprises, Inc., of her claim for personal injuries. Tark contacted its insurer, Insurance Technicians, Inc.; and the insurer’s adjuster, Ms. Joan McCammon, contacted Mrs. Siedlecki’s attorney.

Mrs. Siedlecki’s complaint was filed February 2, 1984. The insurer’s adjuster requested an extension to answer the complaint, thinking a settlement was imminent. Plaintiff’s attorney, by letter of March 13, 1984, confirmed that he had agreed to a twenty day extension to answer the complaint. The content of the letter indicates the twenty days had already elapsed. At some point, Ms. McCammon made a $6500 settlement offer, which was rejected by a March 21,1984, letter from plaintiff’s counsel, which letter states apropos the as yet unanswered complaint:

As-1 have extended your time to answer the complaint and that extension has also been extended, I would appreciate if you would have your counsel answer the complaint in this matter so we can move on with our litigation.

On April 11,1984, plaintiff’s counsel filed a motion for entry of a default against Tark for failure to answer, and the clerk entered the default on April 16, 1984. Tark’s (or apparently, really the insurer’s) attorney received the case file from Ms. McCammon and learned of the lawsuit only after the default was entered, on April 19, 1984. At that point, the defendant filed a motion to vacate the default, claiming inadvertence or excusable neglect on the part of the adjusting company and stating there was a meritorious defense in that the cause of plaintiff's illness was in dispute. This motion was accompanied by an affidavit from Ms. McCammon in which she spoke of the extensions, which she had taken to be indefinite, and stated that she had inadvertently failed to forward the file to the attorneys so they were unable to answer. At the four-minute hearing held May 18, 1984, on the motion to vacate the default, the court refused to hear argument, and summarily denied the motion.

The issue is whether the trial court erred in denying appellant’s motion to vacate the default in that excusable neglect accompanied good faith negotiation with plaintiff’s counsel for settlement of the claim and the adjuster thought an extension was still in effect. We conclude that it did.

A party or its legal representative may be relieved from a default judgment for mistake, inadvertence, surprise or excusable neglect. See Fla.R.Civ.P. 1.540(b). This rule is founded on the fact default is intended not to furnish plaintiff an easy advantage for defeating a defense, but as a means of preventing the defendant’s procrastination from stalling plaintiff’s action. See Willyerd v. Anderson, 312 So.2d 504 (Fla. 4th DCA 1975).

In the instant case the insurance adjuster has sworn she negligently or inadvertently failed to supply defendant’s counsel with the case file, and counsel states he was entirely unaware of the action until he received the file. In numerous cases default judgments have been set aside where, for example, the lawyer’s secretary neglected to calendar the due date of a pleading, or was new at the job and did not understand the office tickler system. There are, of course, also cases in which default for failure timely to respond has stood up on appeal. In the latter cases there usually has been an unconvincing or absence of showing of neglect or inadvertence, an evident dragging of feet before the default, or a lengthy reverie even after the default.

Appellant analogizes here to the case of North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). There, the summons and complaint were served on the hospital and inadvertently misplaced until after the default was entered. The Supreme Court, in setting aside the default, cited the venerable case of Water son v. Seat, 10 Fla. 326 (1863), wherein our highest court said that opening a default depends on all the facts and circumstances in the case, and that it will not be opened if the party was grossly negligent. 143 So.2d at 853.

In the instant case the lawyers had no knowledge of the action; and the adjuster had obtained at least two extensions for answering from plaintiff’s counsel — supported by the latter’s own writings — while good faith settlement negotiations were taking place. It is true the adjuster was given to understand the extensions were over some twenty-one days before the default motion was filed, but she either misapprehended the plaintiffs message or inadvertently failed to get the file to the defendant’s attorney. If we eliminate that portion of the delay which took place with the approval of plaintiff’s counsel while negotiations proceeded, the amount of time in excess of that provided for in the rule is not great, and seems attributable to inadvertence or excusable neglect on the adjuster’s part. She cannot be said to have been grossly negligent.

The judicial system appropriately favors judgment on the merits over default judgments. In this instance the trial court erred in refusing to vacate the default so that the matter could be pled by the defendant.

Reversed and remanded for further proceedings.

HERSEY, J., concurs.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

On the record before us the trial court could properly have found that the appellant failed to demonstrate either excusable neglect or a meritorious defense to the action. Accordingly, I would not disturb the trial court’s ruling.


source: Caselaw Access Project

author: COBB, Chief Judge.

license: Public Domain

text:
    Richard R. SCHMITT, Appellant, v. STATE of Florida, Appellee.
    No. 83-1768.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 1984.

      Chandler R. Muller and Michael James Snure of Muller, Kirkconnell & Lindsey, P.A., Winter Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Chief Judge.

The appellant, Richard R. Schmitt, together with four others, was convicted of conspiracy to traffic in marijuana, trafficking, and importation. The evidence and jury instructions herein reveal no differentiation between the act constituting the importation and any separate acts constituting the trafficking, hence the importation conviction cannot stand. Bell v. State, 437 So.2d 1057 (Fla.1983). The remaining appellate issues relating to the convictions for trafficking and conspiracy are without merit.

The appellant also urges that the trial court erred in declining to sentence him under the sentencing guidelines. Section 921.001(4)(a), Florida Statutes (1983), requires that a defendant sentenced after October 1,1983, be sentenced in accordance with the guidelines, if he so elects. There are no exceptions to this requirement except those provided by law. See Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); Knight v. State, 455 So.2d 457 (Fla. 1st DCA 1984).

The trial court explicitly found that it would not be sentencing under the guidelines, apparently for the reason that the defendant did not meet its requirement that the parties file a sentencing report ten days prior to sentencing, although the order for this requirement was received by counsel for the appellant only six days pri- or to sentencing. This cannot constitute a valid waiver of the sentencing guidelines. Florida Rule of Criminal Procedure 3.701 and section 921.001(4)(a), Florida Statutes, not to mention fundamental due process, do not permit the trial judge to place a limitation on a defendant’s right to exercise his prerogative to be sentenced under the sentencing guidelines, as was done in this case.

The appellant’s conviction for importation is reversed; his convictions for conspiracy and trafficking are affirmed. The sentences for the latter two offenses are reversed, and the cause remanded for re-sentencing pursuant to the sentencing guidelines.

REVERSED in part; AFFIRMED in part; and REMANDED for resentencing.

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


author: PER CURIAM.

text:
    Willie Junior SPENCER, Appellant, v. STATE of Florida, Appellee.
    No. AU-229.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1984.
    Michael E. Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Wallace Albritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Stevens v. State, 409 So.2d 1051 (Fla.1982).

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


text:
    Stanley Lynn THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. AX-86.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1984.
    Michael E. Allen, Public Defender, Kenneth L. Hosford, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Henri C. Cawthon, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971).

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


text:
    Marvin E. BLACKSHEAR, Appellant, v. STATE of Florida, Appellee.
    No. AZ-7.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1984.
    Marvin E. Blackshear, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. See Blackshear v. State, 455 So.2d 555 (Fla. 1st DCA 1984).

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


text:
    Richard HAYWOOD, a/k/a, Marvin E. Blackshear, Appellant, v. The STATE of Florida, Appellee.
    No. BA-240.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1984.
    Marvin E. Blackshear, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. See Blackshear v. State, 455 So.2d 555 (Fla. 1st DCA 1984).

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


author: MILLS, Judge.

text:
    Wade CLEGG and Christine Clegg, jointly and severally, Appellants, v. CHIPOLA AVIATION, INC., Appellee.
    No. AZ-87.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1984.
    Michael J. Korn of Boyer, Tanzler & Boyer, Jacksonville, for appellants.

      George J. Little, Marianna, for appellee.
   MILLS, Judge.

The Cleggs appeal a final judgment entered in favor of Chipóla Aviation, Inc. (Chipóla) on its claim for money owed pursuant to a contract between the parties for a charter flight. We affirm.

Mr. and Mrs. Clegg, owners of a Jacksonville art and antique shop, contacted Chipóla in May 1982 to arrange air transportation for Mrs. Clegg and a Miami businessman to Los Angeles, California, for negotiation of a business deal. Chipóla told Mrs. Clegg that payment for the flight ($14,700) had to be made in advance in cash or by credit card. Mrs. Clegg could not meet this condition. She claims that two conference calls then took place between herself, Chipóla, Mrs. Kharufeh, a party to the California deal, and her business partner in Australia, John Corrigan, whereby Corrigan agreed to wire sufficient funds to pay for the flight. Chipóla testified that the only party with whom it dealt during the negotiations for the flight was Mrs. Clegg, who informed it that payment in cash would be made upon arrival in California to which Chipóla agreed.

In California, Chipóla received Mrs. Kha-rufeh’s personal check for $10,000. Mrs. Clegg testified that Chipóla accepted the check as payment from Mrs. Kharufeh. Chipóla stated that the check was given to it by Mrs. Clegg. Mrs. Clegg claims that Chipóla demanded and received long distance assurance from Corrigan that the check was “good” before accepting it. Chi-póla testified that no contact was had with Corrigan until after acceptance of the check, as the Clegg party was leaving Los Angeles.

Enroute to Jacksonville, Mrs. Clegg agreed to pay the balance of $4,700 in cash upon arrival. Instead, Chipóla was given a $2,700 check drawn on the Cleggs’ business account and a topaz ring, belonging to Mrs. Clegg. When Chipóla attempted to negotiate the $10,000 check, it was returned marked “insufficient funds.” No attempt was made to cash Mrs. Clegg’s $2,700 check, as the bank informed Chipóla several times that there were not sufficient funds to cover it.

Chipóla sued. A bench trial followed, resulting in a final judgment holding the Cleggs jointly and severally liable for the balance owed on the charter flight.

The Cleggs allege that this judgment was erroneous because it was not supported by competent evidence that they and not the California parties were responsible for the debt. We disagree.

The testimony was conflicting on the key issue of whether Chipóla understood itself to be contracting with the Cleggs or the California parties. It is well established that

it is the function of the trial court to evaluate and weigh the testimony and other evidence to arrive at findings of fact. It is not our function to reweigh the evidence nor to substitute our judgment for that of the trial court. However, we must look to whether the judgment of the trial court is supported by competent evidence.

Puritz v. Rosen, 442 So.2d 278, 280 (Fla. 4th DCA 1983). Even more compelling in this case is the rule of law which states:

The resolution of factual conflicts by a trial judge in a nonjury case will not be set aside on review unless totally unsupported by competent substantial evidence.

Concreform Systems, Inc. v. R.M. Hicks Construction Co., 433 So.2d 50 (Fla. 3d DCA 1983).

Here, the court’s resolution of these conflicts on behalf of Chipóla is supported by the testimony of Chipola’s president and his wife, both of whom dealt with the Cleggs in negotiating the flight, and by Amil El Gabalawi, one of Mrs. Kharufeh’s associates in Los Angeles, who testified that he could recall no conference calls including Chipóla on the night the flight was arranged. It is also significant that Mrs. Clegg undertook to pay the balance of the debt, indicating an acknowledgment of her responsibility for the flight. There is competent evidence to support the trial court’s decision that Chipóla contracted for the charter with the Cleggs only and that they are responsible for the payment.

The Cleggs also claim that if they made any agreement, it was an oral agreement to answer for the debt of the California parties. Because the Statute of Frauds (Section 725.01, Florida Statutes (1983)) requires such an agreement to be in writing, the Cleggs claim the court erred in failing to invalidate it. Again, we must disagree.

The contract did not consist of the Cleggs’ agreement to pay for the flight if the California parties failed to do so; rath-' er, the contract consisted of Chipola’s agreement to undertake the charter in return for the Cleggs’ assurance of payment in California. The trial court did not err in finding the contract was not required to be in writing.

The Cleggs’ third point on appeal is without merit.

The judgment of the trial court is affirmed.

ERVIN, C.J., and ZEHMER, J., concur.


text:
    Carol BLEICHE, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 83-2991.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Rehearing Denied Dec. 17, 1984.
    Ken Lange, Miami, for appellant.
    Jim Smith, Atty. Gen., and Eric J. Taylor, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

Finding that the temporary change in custody approved by the trial court as serving the child’s best interests did not constitute a breach of the state’s obligations, we affirm the trial court’s denial of appellant’s motion to vacate her plea and adjudication of dependency.

Affirmed.


author: GREEN, OLIVER L., Jr., Associate Judge.

text:
    Daniel Walter DRISCOLL, Appellant, v. STATE of Florida, Appellee. Ronald Stephen AKERS, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1250, 83-1281.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 12, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   GREEN, OLIVER L., Jr., Associate Judge.

This is a consolidated appeal from a single jury trial below, upon an information charging burglary (Count I) and loitering and prowling (Count II). Both appellants were found guilty of attempted burglary and loitering and prowling. The appellants do not complain about having been tried together, however, they do contend that the two counts are not related and therefore should have been tried separately pursuant to Rule 3.152, Florida Rules of Criminal Procedure. The appellants also contend that it was error for the arresting officer to testify about a custodial inquiry which infringed on their right to remain silent. We agree and reverse.

The facts are that the appellants were involved in an encounter, during the early evening of February 11, 1983, with a woman who had parked her automobile in the parking lot of a supermarket. As a result of this encounter, the appellants were charged with having burglarized the woman’s automobile. The appellants were observed by a police officer about two hours later at a different location, acting in a suspicious manner. The police officer decided to arrest the appellants for loitering and prowling. The officer detained the men and asked them what they were doing. No Miranda warning was given. Over objection, the officer was permitted to testify at trial that he did not get an answer.

In the first instance, the two incidents are unrelated so that separate trials upon each count should have been granted. The sole connecting factor is that the arrest for loitering and prowling resulted in arrest for burglary. State v. Williams, 453 So.2d 824 (Fla.1984); Paul v. State, 385 So.2d 1371 (Fla.1980); Crum v. State, 398 So.2d 810 (Fla.1981).

The State cites the case of State v. Jones, 454 So.2d 774 (Fla. 3d DCA 1984), for the proposition that an interrogation like that in this case may not be objectionable per Miranda. The factual circumstances in this case are distinguishable to the extent that nothing occurred after the officer made his decision to stop the appellants, including the silence of the appellant, which gave rise to the arrests for loitering and prowling. The interrogation in this case was clearly of a custodial type.

Section 856.021(2), Florida Statutes (1983), requires an officer to “afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct, .... ” before an arrest for loitering and prowling can be made. This provision cannot be interpreted to supersede the Fifth Amendment of the United States Constitution. Hardie v. State, 333 So.2d 13 (Fla.1976); Polk v. State, 405 So.2d 758 (Fla. 3d DCA 1981); A.L.B. v. State, 399 So.2d 483 (Fla. 3d DCA 1981); Patmore v. State, 383 So.2d 309 (Fla. 2d DCA 1980). We therefore reverse and remand for separate trials on each count of the information.

REVERSED AND REMANDED.

WALDEN and BARKETT, JJ., concur.


text:
    The KEYES COMPANY, A Florida Corporation, Appellant, v. LEEDS FASILIS, INC., A Florida Corporation, Gulf Eastern Corp., A Florida Corporation and John Maplesdon, Appellees.
    No. 83-1601.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 12, 1984.
    Bruce D. Friedlander, Miami, for appellant.
    Robert L. Beals of Price, Kaczmarek & Beals, Boca Raton, for appellee Gulf Eastern.
   PER CURIAM.

The trial court dismissed with prejudice the Second Amended Complaint filed by The Keyes Company. Keyes appeals. We reverse and remand.

We have examined the Complaint m detail and in light of the appellate treatment. We determine that it stated a cause of action sufficient to withstand a motion to dismiss based upon allegations of an intentional interference with an existing contractual relationship with resulting damages. See Tamiami Trail Tours, Inc. v. Cotton, 432 So.2d 148 (Fla. 1st DCA 1983); Wackenhut Corp. v. Maimone, 389 So.2d 656 (Fla. 4th DCA 1980); and Mead Corp. v. Mason, 191 So.2d 592 (Fla. 3d DCA 1966).

Reversed and remanded.

DOWNEY, WALDEN and BARKETT, JJ., concur.


author: LEHAN, Judge.

text:
    Michael W. KINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-371.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant was originally convicted and sentenced to 60 years for attempted first degree murder (an enhanced sentence), 50 years for robbery with a weapon, and 10 years for grand theft (an enhanced sentence). The robbery sentence was to run consecutive to the attempted murder sentence, while the grand theft sentence was to be served concurrently with the attempted murder sentence.

On defendant’s first appeal this court vacated the two enhanced sentences on the attempted murder and grand theft convictions because neither the judgment nor the sentence indicated that defendant was found to be an habitual felony offender (the purported basis for the enhanced sentences) and the procedural requisites of section 775.084, Florida Statutes (1981), were not followed. Accordingly, this court, 441 So.2d 1163, remanded for resentencing.

On remand, the trial court resentenced defendant as it did earlier, except that the 10-year grand theft sentence was to run consecutive to the 50-year robbery sentence instead of concurrently with the attempted murder sentence. The trial court also sentenced defendant as an habitual felony offender on all three charges. Defendant contends in this second appeal that the trial court erred in habitualizing him on all three charges and in sentencing him to consecutive time on the grand theft conviction. We must agree with those contentions and therefore again remand for re-sentencing.

On the prior remand the trial court had only the attempted murder and grand theft convictions before him for sentencing because this court vacated only those two sentences. We did not vacate the robbery sentence. Thus, the trial court did not have jurisdiction to sentence defendant as an habitual felony offender on the robbery conviction. See State v. Sutton, 371 So.2d 717 (Fla. 2d DCA 1979). Therefore, we vacate the portion of defendant’s robbery sentence which finds him to be an habitual felony offender. The habitualization on the attempted murder and grand theft charges was proper because the procedural requisites of section 775.084 were followed.

The trial court also erred in sentencing defendant consecutively on the grand theft charge. When a defendant is convicted of several offenses and given concurrent sentences which are then vacated on appeal and remanded for resentenc-ing, the trial court is without authority on remand to make the sentences consecutive without articulation of valid reasons for the change. See Holloway v. State, 360 So.2d 140 (Fla. 2d DCA 1978); Lyttle v. State, 352 So.2d 942 (Fla. 2d DCA), cert. denied, 357 So.2d 186 (Fla. 1977). We note that because the grand theft sentence should be served concurrently with the attempted murder sentence, defendant should have been credited on both sentences for time served. See Martin v. State, 452 So.2d 938 (Fla. 2d DCA 1984); Bevins v. State, 412 So.2d 456 (Fla. 2d DCA 1982). See also Jenkins v. Wainwright, 285 So.2d 5 (Fla. 1973). Contra Green v. State, 450 So.2d 1275 (Fla. 5th DCA 1984). In Green the Fifth District Court of Appeal took issue with Martin and distinguished Jenkins. However, we believe Martin is consistent with the following rationale of Jenkins:

We agree with the Petitioner’s contention. To conclude the sentencing judge only intended to grant Petitioner credit time on the first concurrent sentence and not on the other would necessarily result in Petitioner serving the longer sentence on Count II and in not having the benefit of the credit time granted him by the trial court. To adopt the interpretation of the Respondent would be tantamount to granting the Petitioner credit time and then taking it away, in short a meaningless act, resulting in no credit time whatsoever. We are not persuaded by such an absence of logic.

285 So.2d 6.

Therefore, we vacate defendant’s sentence for grand theft and remand for a corrected sentence so that this sentence will be served concurrently with the attempted murder sentence and defendant will be credited with time served.

Finally, in response to defendant’s argument that the court improperly calculated retained-jurisdiction time, we find that the wording of the sentence states that the court retained jurisdiction over one-third of defendant’s sentence for attempted murder and robbery, i.e., over one-third of 110 years (60 plus 50). Thus, the retention was proper.

In all other respects we affirm defendant’s convictions and sentences.

Accordingly, we affirm in part and vacate and remand in part.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.


author: BARFIELD, Judge.

text:
    Maple McCOY, Appellant, v. STATE of Florida, Appellee.
    No. AX-31.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.
    Michael E. Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   BARFIELD, Judge.

The trial court departed from the sentencing guidelines for the following stated reason:

[T]he court has gone outside the sentencing guidelines because this man was previously placed on probation. That in itself the court considers to be aggravating circumstances sufficient not to be bound by sentencing guidelines.

We affirm the departure from the guidelines. Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984).

JOANOS and WIGGINTON, JJ„ concur.


text:
    David HALL, Appellant, v. STATE of Florida, Appellee.
    No. AX-32.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.
    Michael E. Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appel-lee.
   BARFIELD, Judge.

The trial court departed from the sentencing guidelines for the following stated reason:

The court has gone outside the sentencing guidelines in this case on you, Mr. Hall, because you were previously placed on probation and the court considers the fact that you violated the conditions of that probation to be sufficient aggravating circumstances to no longer be bound by the sentencing guidelines. For that reason the court has gone outside the guidelines.

We affirm the departure from the guidelines. Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984).

JOANOS and WIGGINTON, JJ., concur.


text:
    Carl A. LESTER, Appellant, v. STATE of Florida, Appellee.
    No. AX-241.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   BARFIELD, Judge.

Carl A. Lester was found guilty of armed robbery and kidnapping, and guilty of assault as a lesser included offense to battery. The judgment and sentence of the trial court are reversed and a new trial is ordered because of improper comments by the trial judge during jury selection and improper imposition of three year mandatory minimum sentences. The remaining issues raised on appeal are found to be without merit.

During jury selection, a prospective juror stated that his daughter had been the victim of an attempted rape. He further stated that he could not base his decision on the law if the charge were kidnapping. The court then stated:

C: Let me explain to you about kidnapping. If you go in to rob a place and the man is behind the cash register and you make him go to the back room, that’s kidnapping under the law.
J: Yes, sir.
C: Do you understand that?
J: Yes, sir.
C: It’s not, you know, chasing someone over six states or anything like that.

The juror was excused for cause, and appellant moved for a mistrial because the court’s instruction on kidnapping was erroneous and based upon the facts of this case, and because the jury panel had been tainted. The court denied the motion without comment.

The facts disclosed at trial were identical to those described by the judge in his dialogue with the prospective juror. Viewed in a light most favorable to the state, the judge’s comment must be regarded as an expression by the judge that conduct similar to that of appellant is kidnapping under Florida law. It could even be construed as an expression of belief in this particular defendant’s guilt. In either event, it is reversible error. Raulerson v. State, 102 So.2d 281 (Fla.1958); Gans v. State, 134 So.2d 257 (Fla. 3d DCA 1961).

It appears undisputed from the record that appellant last touched the gun involved in these offenses when he took it from the glove compartment and put it on the front seat before getting out of the car in which appellant and his accomplice had driven to the scene. Only appellant’s accomplice had possession of the weapon during the commission of the robbery. Imposition of the mandatory minimum three year sentences for possession of the gun was erroneous. Earnest v. State, 351 So.2d 957 (Fla.1977); Boozer v. State, 402 So.2d 585 (Fla. 5th DCA 1981).

The judgment and sentence are REVERSED and the case REMANDED for a new trial.

JOANOS and WIGGINTON, JJ., concur.


text:
    CITY OF GAINESVILLE and Crawford & Company, Appellants, v. Charles H. HELTON, Appellee.
    No. AY-193.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.

      Jack A. Langdon of Jones & Langdon, Gainesville, for appellants.
    James G. Feiber, Jr., of Salter, Feiber & Yenser, Gainesville, for appellee.
   PER CURIAM.

This cause is before us on appeal from a workers’ compensation order finding that claimant has not reached maximum medical improvement and awarding him temporary total disability benefits, medical care and treatment as required by his injury, reimbursement for any outstanding medical and pharmaceutical expenses resulting from his compensable injury, and reimbursement for medical mileage. Since there is no competent, substantial evidence of any reasonable expectation of improvement in claimant’s condition and two doctors were of the opinion that claimant had reached maximum medical improvement before the hearing, we reverse and remand for a determination of the date of maximum medical improvement. We must also reverse the award of temporary total disability benefits without prejudice to claimant's right to seek an award of permanent disability benefits. Once the date of maximum medical improvement is determined by the deputy, further remedial care is improper, and the award of such benefits beyond that date must be reversed. Killebrew Manufacturing Company v. Dawson, 401 So.2d 876 (Fla. 1st DCA 1981). There being no evidence as to medical mileage, the award of medical mileage at the statutory rate is reversed. On remand the deputy may determine medical mileage on proof thereof. Finally, we reverse the award of reimbursement for outstanding medical and pharmaceutical expenses resulting from claimant’s compensable injury since notice of those expenses as an issue at the hearing was neither provided in the application for hearing nor in the notice of hearing. Sparton Electronics v. Heath, 414 So.2d 642 (Fla. 1st DCA 1982).

Reversed and remanded for proceedings consistent with this opinion.

BOOTH, SMITH and THOMPSON, JJ., concur.


author: SMITH, Judge.

text:
    SUPERIOR PONTIAC and Lynn Underwriting, Appellants, v. Wayne H. HEARN, Appellee.
    No. AY-266.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.
    Kenneth L. Olsen of Miller, McKendree & Somers, Tampa, for appellants.
    Joseph Y. Barrs of Barrs, Williamson & Levens, Tampa, for appellee.
   SMITH, Judge.

Appellants Superior Pontiac and Lynn Underwriting appeal a final order issued by the deputy commissioner granting appellee Wayne H. Hearn temporary partial disability (TPD) and wage loss benefits. Appellants contend that the evidence does not support an award of either type of benefit. We agree and therefore reverse.

Hearn, while working for Superior Pontiac as an automobile mechanic, suffered a potentially compensable industrial accident on January 31, 1981, when he dropped a radial tire on the small finger of his right hand. He was treated for his injury by Dr. Martinez, who diagnosed a fracture of the fifth metacarpal and sequestrian’s disease, a form of reflex sympathetic dystrophy. This diagnosis was confirmed by Dr. Bol-ing, both initially in 1981 and upon re-examination in 1983. Dr. Martinez released Hearn to return to work April 1, 1981. Hearn did so and continued to work for Superior Pontiac until August 12, 1982.

Hearn testified at the hearing below that he left his job with Superior Pontiac because his finger continued to bother him to the extent that he was not able to accept certain repair jobs offered by Superior Pontiac, with the result that he was earning less income than prior to his accident. However, the only evidence offered by Hearn to substantiate this claim was the testimony of a supervisor, Kyle Cook, that on one occasion Hearn turned down a proffered under-dash repair job because his hand bothered him while working at that “certain position.” Hearn voluntarily left Superior Pontiac August 12, 1982. Shortly before this, he sold the bulk of his personal tools which he used during work at Superi- or Pontiac. Hearn admitted on cross-examination below that he had informed Mr. Cook that he sold these tools in order to pay off a delinquent child support obligation to avoid imprisonment by the circuit court. Also admitted into evidence below was a letter allegedly written by Hearn to his ex-wife which, among other things, stated “I sold my tools to pay you the last time and there is nothing else to sell.” Finally, Hearn also admitted on cross-examination that automobile dealerships in the area did not furnish tools for their mechanics.

After leaving Superior Pontiac on August 12, 1982, Hearn was employed by his father-in-law in a commercial printing business, working for two months and earning $40.00 in commissions. Subsequently, Hearn began employment at an Exxon service station in November 1982, working as the station’s chief mechanic, a job Hearn apparently maintained through the date of the hearing before the deputy commissioner. His average weekly income at the Exxon station for the remainder of 1982 was $231.63, and was $217.67 through May 1983. Payroll records at Superior Pontiac show that in 1980, the year prior to his injury, Hearn’s average weekly wage was $302.75; from April 1, 1981, when he returned to work for Superior Pontiac after his surgery, until the end of 1981 it was $317.11; and that for the year 1982, it was $332.80.

The medical evidence below consisted of the notes and medical reports of Drs. Martinez and Boling. Dr. Martinez reported that Hearn reached maximum medical improvement on November 1, 1982, with a permanent impairment rating of 2% to the injured hand when compared to the whole body. However, Dr. Martinez opined that Hearn, in spite of his permanent impairment, was capable of returning to his previous job with Superior Pontiac. Dr. Boling, although finding no objective clinical signs of permanent impairment, rated Hearn as suffering from a 10% impairment of the hand based on Hearn’s subjective complaints only. Even so, Dr. Boling concurred with Dr. Martinez regarding Hearn’s ability to return to work at the same job he performed prior to his injury.

In the order appealed from, the deputy noted that the parties had stipulated that the date Hearn reached maximum medical improvement was November 1, 1982. In specifically crediting Hearn’s testimony at the hearing, the deputy found that while one of the reasons Hearn left Superior Pontiac was because he had sold his tools, this was not the only reason. More particularly, the deputy found that Hearn left Superior Pontiac partially because he was no longer able, as a result of his finger injury, physically to keep up with his employment duties. Although the deputy expressed uncertainty as to whether Hearn was entitled to wage loss benefits where, even though suffering from permanent physical impairment, the medical testimony was that he was capable of performing his former occupation, the deputy awarded the benefits, stating that he was “leaving it up to [this] court” to establish the proper rule of law in such a situation. We agree with the E/G’s contention that our decision in C & B Interiors v. Crispino, 446 So.2d 242 (Fla. 1st DCA 1984), points to a result adverse to the claimant on this issue, and that the deputy commissioner’s ruling must therefore be reversed.

In Crispino, the claimant sustained a compression fracture which was rated by the examining physician as resulting in a 6% permanent impairment. As here, the treating physician in that case placed no physical restrictions on the claimant and further testified that the claimant could return to his previous job. In reversing an award received by the claimant, this court in Crispino held that a claimant’s continued subjective complaints of pain are insufficient, as a matter of law, to justify the award of wage loss benefits.

It is clear that the burden of proof is on a claimant to prove all elements of a wage loss claim. Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982). Here, Hearn has failed to show the most basic element of his claim; namely, that his physical limitations subsequent to his accident were a contributing causal factor in his alleged wage loss. City of Clermont v. Rumph, 450 So.2d 573, 576 (Fla. 1st DCA 1984); Williams Roofing, Inc. v. Moore, 447 So.2d 968, 972 (Fla. 1st DCA 1984). Both Dr. Martinez and Dr. Boling testified that, although Hearn suffered from a permanent physical impairment, he was capable of returning to and performing adequately his prior job with Superior Pontiac. Hearn’s testimony of continued subjective pain, standing alone, is insufficient to establish his entitlement to wage loss benefits. Piccadilly Cafeteria v. Polite, 433 So.2d 591 (Fla. 1st DCA 1983).

It is important to understand what this court is not holding. We do not say that the mere failure of Hearn to continue working for the same employer (Superior Pontiac) subsequent to his injury defeats his wage loss claim. Rather, it is the fact that the totality of evidence adduced below, Williams Roofing, Inc. v. Moore, supra, at 972, fails to demonstrate that he has lost the ability to perform his old job at Superi- or Pontiac. It is true that Hearn testified that the injury “slowed him down.” But he introduced no objective evidence to substantiate this claim. On the contrary, both physicians opined that Hearn could return to his former work; and the record is devoid of any medical evidence to suggest that Hearn’s ability to perform his work duties would be slowed down by the injury, or that his symptoms might “flare up” from time to time, thereby preventing him from performing a particular job that he might have been able to perform prior to his accident. Neither did Hearn offer payroll or other evidence indicating a reduction in his earnings or a corresponding increase in the earnings of his co-workers attributable to the transfer of repair jobs from Hearn to his co-workers. Accordingly, the evidence before the deputy establishes no wage loss. It logically follows that the decline in average weekly wages Hearn suffered when he went to work for Exxon — after quitting his job with Superior Pontiac — was the result of his voluntary limitation of his income. Under these circumstances, the evidence supporting Hearn’s wage loss claim falls short of the competent, substantial evidence standard required in such cases. Cf. Woodard v. Dade County Board of Public Instruction, 278 So.2d 620 (Fla.1973) (claimant forced to retire due to work-related injuries; wage-loss award upheld even though claimant returned for a time for the same wage subsequent to his injury).

Similarly, we find the deputy commissioner erred in awarding TPD benefits. Hearn was clearly not entitled to TPD benefits from April 1, 1982, until August 12, 1982, the period during which he worked before finally leaving Superior Pontiac. During that time, he was actually working at his old job and was making a slightly higher average weekly wage than before his injury. Accordingly, there was no actual wage loss as required by Section 440.-15(4), Florida Statutes (1983). For the period between August 12, 1982, and November 1982, between jobs with Superior Pontiac and Exxon, his entitlement to TPD benefits is questionable, in view of his acceptance of a job (the commercial printing job with his father-in-law) obviously not commensurate with his abilities. More significantly, however, Hearn failed to prove that the acceptance of this lower-paying job was the result of his industrial accident, since he still had available to him and was capable of performing his previous job. Brice Southern, Inc. v. Cancino, 447 So.2d 367 (Fla. 1st DCA 1984). Hearn’s “subjective but medically unverified” testimony regarding his inability to continue his job-related duties at Superior Pontiac is insufficient, standing alone, to support the award of TPD benefits. Standard Industrial Linen Co. v. Freeman, 419 So.2d 711, 713 (Fla. 1st DCA 1982).

Accordingly, the order appealed from is REVERSED.

BOOTH and THOMPSON, JJ., concur.

      . Hearn was paid partially on a commission basis, the commission depending on the value of the repair job undertaken.

      . Guzman v. Surge Electric, Inc., 381 So.2d 287 (Fla. 1st DCA 1980), cited by Hearn in support of the deputy’s ruling, is distinguishable. In Guzman, the claimant, who was injured on the job, returned to work with the same employer subsequent to his injury. However, the claimant was not able to perform the heavy work he was able to perform prior to his accident. Guzman later left his original employer, and began working with a different employer performing the same work, albeit of a lighter exertional range, but at lesser wages. The Guzman court held that that claimant had clearly suffered a wage loss because his physical condition, which was a result of his compensable injuries, "restricted him to a more narrow range of [jobs than] he once could perform.” Id. at 289. In Guzman, not only did the medical evidence show claimant to be restricted in his performance capabilities after his injury, but further established that his impairments would become progressively worse, rendering that claimant’s future wage losses medically assured. Here, on the other hand, the medical evidence established neither present nor predictable future wage loss.


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Larry GILCHRIST, Appellee.
    No. 83-1610.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellee.
   SHARP, Judge.

The state appeals a trial court’s dismissal of a two count information which it filed

against appellant. Appellant was charged with resisting an officer with violence to his person, and battery on a law enforcement officer in the lawful performance of his duties. We find that the trial court erred in granting Gilchrist’s motion to dismiss made pursuant to Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure, and we reverse.

Gilchrist argues that the officer was not in the “lawful performance” of his duties when the battery occurred. But the facts and inferences were in dispute and the state’s version established a prima facie case. The question of lawful performance is one of fact which should not be resolved by a (c)4 motion. Smith v. State, 399 So.2d 70 (Fla. 5th DCA 1981).

[A]s this court has repeatedly held in the context of a (c)(4) motion, this procedure is no substitute for a trial, and if any fact or inferences therefrom establish a prima facie case against the defendant, it should not be granted.

State v. Stewart, 404 So.2d 185, 186 (Fla. 5th DCA 1981).

With regard to the second count, this court has held that there is no privilege to use force against an officer attempting to effect an illegal arrest. In State v. Barnard, 405 So.2d 210 (Fla. 5th DCA 1981), we said that the “use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest.” Id. (quoting Lowery v. State, 356 So.2d 1325, 1326 (Fla. 4th DCA 1978)). See also § 776.050, Fla.Stat. (1983). The record clearly establishes that Gilchrist, when contacted by the officers, unquestionably resorted to violence. Therefore, dismissal of this count was clearly erroneous.

REVERSED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

      . Fla.R.Crim.P. 3.190(c)(4).

      . § 843.01, Fla.Stat. (1983).

      . § 784.07, Fla.Stat. (1983).


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

text:
    STATE of Florida, Appellant, v. Jack Thomas RASH, Darrell Anthony Johnson, Anthony D. McGill, Appellees.
    Nos. 84-275, 84-509 and 84-510.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellant.
    James Russo, Jr., Public Defender, and Meryl L. Allawas, Asst. Public Defender, Eighteenth Judicial Circuit, Sanford, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

The State of Florida appeals from three separate orders which dismissed informa-tions filed against appellees Jack Rash, Darrell Johnson and Anthony McGill. These cases have been consolidated for review.

Appellees were charged with loitering and prowling in violation of section 856.021, Florida Statutes (1983). They moved to dismiss, relying on Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), which they claimed mandated a finding that the statute was unconstitutional. The county court agreed, granted their motions to dismiss, and found that under Ko-lender, section 856.021 was facially unconstitutional. We disagree and reverse.

Section 856.021, the loitering and prowling statute, provides:

(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted, of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.
(3)Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

To determine whether this statute is facially unconstitutional under Kolender, review of State v. Ecker, 311 So.2d 104 (Fla. 1975) is necessary. In Ecker, our supreme court held that section 856.021 is not vague or overbroad since rather than merely proscribing loitering or idling, it proscribes loitering that threatens public safety or a breach of the peace. The court declared that the statute:

[I]s not vague or overbroad and specifically the words ‘under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity’ mean those circumstances where peace and order are threatened or where the safety of persons or property is jeopardized.

311 So.2d at 109.

The court stated that the elements of the offense are: (1) that the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; (2) such loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. Id. at 106. See also B.A.A. v. State, 356 So.2d 304 (Fla. 1978), on remand, 357 So.2d 269; Patmore v. State, 383 So.2d 309 (Fla. 2d DCA 1980). This alarm may be presumed under the statute if, when a law officer appears, the defendant flees, conceals himself or refuses to identify himself. Ecker. Finally, the court in Ecker declared that to arrest under the statute, a police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant a finding that a breach of the peace is imminent or the public safety is threatened. Id. at 109.

Kolender v. Lawson, which was decided in 1983, involved the following California statute, Cal-Penal Code § 647(e), which provided:

Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor ... (e) who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.

As construed by the California courts, § 647(e) required that an individual provide “credible and reliable” identification when requested by a police officer who had reasonable suspicion of criminal activity sufficient to justify a Terry v. Ohio detention. 461 U.S. at 355, 103 S.Ct. at 1857, 75 L.Ed.2d at 908. The California courts defined “credible and reliable” identification as identification “carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself.” Id. Under the statute, failure to provide “credible and reliable” identification permitted arrest.

The Supreme Court ruled that § 647(e) as construed was unconstitutionally vague on its face, as it encouraged arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute. 461 U.S. at 361, 103 S.Ct. at 1860, 75 L.Ed.2d at 911. The Court explained that the statute:

[Cjontains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a “credible and reliable” identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest.
An individual, whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets ‘only at the whim of any police officer who happens to stop that individual under § 647(e). Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90, 15 L.Ed.2d 176, 86 S.Ct. 211 [213] (1965). Our concern here is based upon the ‘potential for arbitrarily suppressing First Amendment liberties... ’ Id at 91, 15 L.Ed.2d 176, 86 S.Ct. 211 [213], In addition, § 647(e) implicates consideration of the constitutional right to freedom of movement [citation omitted].

Id. at 358, 103 S.Ct. at. 1859, 75 L.Ed.2d at 909-910.

It should be noted that the Court majority did not hold that the statute violates the Fourth Amendment by authorizing an arrest for failure to produce identification or further information upon demand by the police following a Terry stop.

Appellees claim that section 856.021 is similar to the California statute in that it contemplates the requirement of identification and fails to specify what type of identification is necessary or sufficient. We believe that appellees’ contention is incorrect.

The conduct prohibited by California Penal Code § 647(e) was “failure of the individual to provide ‘credible and reliable’ identification” when requested by a police officer who had a reasonable suspicion of criminal activity. 461 U.S. at 357,103 S.Ct. at 1858, 75 L.Ed.2d at 909. However, the California statute lacked “standards for determining what a suspect has to do to satisfy the requirement to provide a ‘credible and reliable’ identification.” Id. at 358, 103 S.Ct. at 1859, 75 L.Ed.2d at 909.

In contrast, section 856.021 does not make criminal the failure to provide identification. Rather, subsection (1) makes it:

[UJnlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

The criminal conduct has been completed prior to any question, request or other action by the police officers. Section 856.-021(2) does go on to require that the suspect be given an on-the-spot opportunity to dispel the officer’s probable cause to arrest by identifying himself and explaining his presence and conduct, but this is not an element of the crime.

Recently both the Second and Third Districts have been confronted with the claim raised here and they concluded (without extensive discussion) that while some of the authorities and reasoning in Ecker have since been disapproved in Kolender; nevertheless, section 856.021 is still much more definitive than the California statute and hence Ecker still controls. See State v. Hurst, 448 So.2d 612 (Fla. 3d DCA 1984); Watts v. State, 447 So.2d 271 (Fla. 2d DCA 1983). We agree with our sister courts.

REVERSED and REMANDED for trial.

COBB, C.J., and SHARP, J., concur.

      . District courts of appeal have jurisdiction to review county court orders finding a statute to be unconstitutional. See § 26.012(1), Fla.Stat. (1983); Fla.R.App.P. 9.030(b)(1)(A).

      . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Court held that in the absence of a reasonable suspicion to believe that an individual was engaged or had engaged in criminal conduct, the police could not, consistent with the Fourth Amendment, detain such individual and require him to identify himself nor could the state criminally punish such individual for refusing to identify himself. The Court did not decide whether an individual could, under the Constitution, be punished for refusing to identify himself in the context of a lawful investigatory stop. 99 S.Ct. at 2641, n. 3. In Kolender, Justice Brennan, in his concurring opinion, answered this question in the negative, 461 U.S. at 362, 103 S.Ct. at 1861, 75 L.Ed.2d at 912, while the majority did not reach this issue. Id. at 1860-1861, n. 10, 103 S.Ct. at 1860-1861 n. 10, 75 L.Ed.2d at 911-912, n. 10. See also Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) (Brennan, J., dissenting).

      . See State v. Ecker, wherein our supreme court, in discussing the California statute, stated that the California courts had construed the requirement of identification to be "primary and controlling.” 311 So.2d at 108.

      . For instance, in Ecker, our supreme court relied in part on People v. Solomon, 33 Cal. App.3d 429, 108 Cal.Rptr. 867, cert, denied, 415 U.S. 951, 94 S.Ct. 1476, 39 L.Ed.2d 567 (1974), wherein the Court of Appeals for the Second District of California upheld § 647(e) from the claim that it was unconstitutionally vague.


text:
    Denis Stanley ELLIOTT, Appellant, v. Mary Margaret ELLIOTT, Appellee.
    No. AX-27.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.

      W. Paul Thompson, DeFuniak Springs, for appellant.
    James G. Etheredge, Fort Walton, for appellee.
   BARFIELD, Judge.

In this dissolution of marriage case, the former husband appeals the trial court’s awarding of alimony to the former wife and the division of marital property. We find no error in the division of marital property or the lump-sum alimony award of the husband’s interest in the marital home and its contents to the wife. We do find error in the award of permanent periodic alimony and rehabilitative alimony.

The former wife has degrees in music education and nursing and is employed as an industrial nurse at a salary of $350 per week. She also operated a pet boarding and grooming business that grossed approximately $6,000 per year, but she cut back on that business because of her domestic difficulties and the fact that the family’s farm was for sale.

The former husband has a retirement income from the Air Force in the amount of $971 per month. He has additional income as an anesthetist specializing in obstetrics. His income for the twelve months ending November, 1983 was $46,000, and he anticipated income for the year ending April, 1984 of $60,000 to $65,000.

The trial court awarded permanent periodic alimony of $100 per month to the former wife in addition to $400 per month for eighty-four months as rehabilitative alimony to her. In Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla.1980), the court said: “The principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills.” Such a need is not demonstrated by this record. Mrs. Elliott is a degreed nurse working in her profession and expressed no need or interest in retraining. Although it is conceivable that rehabilitative alimony of short duration could be granted to allow the former wife to re-establish her pet business, the eighty-four months duration is manifestly excessive. See, e.g., McVey v. McVey, 417 So.2d 321 (Fla. 4th DCA 1982). Since the $400 per month rehabilitative alimony was effective December 1, 1983, any justification by the pet business has expired. Mrs. Elliott voluntarily allowed the apparently thriving business to decline. This is not an instance of establishing a new business. We therefore reverse the award of rehabilitative alimony.

The former wife’s only established income was $18,000 per year as compared with the husband’s $45,000 to $65,000 earnings in addition to his tax free retirement checks. It is likely that the trial court would have granted a greater amount of permanent periodic alimony if it had realized rehabilitative alimony was inappropriate. The award of permanent periodic alimony is remanded to the trial court for reconsideration in light of this opinion.

This case is AFFIRMED in part, REVERSED in part, and REMANDED for further consideration consistent with this opinion.

JOANOS and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    Theodore J. MOTT, Appellant, v. STATE of Florida, Appellee.
    No. AX-264.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   WIGGINTON, Judge.

Appellant has brought this appeal seeking credit for jail time previously served in case number 81-288-CF. In that case, after being adjudicated guilty of forgery and uttering a forged instrument, in October, 1981, appellant was sentenced to two concurrent terms of five years probation, conditioned on serving the first 364 days in county jail.

After being released from jail and being placed on probation pursuant to those sentences, appellant was arrested on another charge in case number 83-844-GF. That charge gave rise to a charge of revocation of probation in case number 81-288. As a result, in case number 81-288, the judge, pursuant to a plea, sentenced appellant to two concurrent thirty month terms for the two counts on the revocation charge and, in case number 83-844, he sentenced appellant to a third thirty month term on the charge in case number 83-844 to run consecutively to the terms to be served in case number 81-288. No credit was given in case number 81-288 for jail time previously served in that case.

As the state concedes, appellant is entitled to credit on the concurrent sentences for time served in case number 81-288. James v. State, 443 So.2d 510 (Fla. 1st DCA 1984); Polk v. State, 418 So.2d 388 (Fla. 1st DCA 1982); Wargo v. State, 393 So.2d 3 (Fla. 1st DCA 1980). Therefore, we remand to the trial court for entry of a new sentencing order in case number 81-288, reflecting proper credit for jail time previously served in that case.

JOANOS and BARFIELD, JJ„ concur.


text:
    STATE of Florida, DEPARTMENT OF PUBLIC HEALTH, DIVISION OF RISK MANAGEMENT, Appellants, v. Muriel WILCOX, Appellee.
    No. AY-85.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 10, 1984.

      Steven Kronenberg of Adams, Kelley & Kronenberg, and James J. Traitz, Miami, for appellants.
    Alfred D. Bieley, Miami, for appellee.
   SMITH, Judge.

The employer/carrier (E/C) appeal the deputy commissioner’s order awarding claimant Muriel Wilcox (Wilcox) temporary total and permanent total disability benefits (TTD, PTD), costs, interest, and medical expenses. The E/C contend the deputy erred in awarding Wilcox TTD and PTD benefits. The E/C also maintain that it should not be required to pay the medical expenses incurred by Wilcox subsequent to her second, non-compensable, accident. We reverse and remand for further proceedings.

Wilcox, age 55, with 82 years experience as a nurse, was employed by the appellant Department of Public Health as a public health nurse at the time of a work-related automobile accident on August 3, 1978. Examination at the hospital revealed injuries to her back, hips, and legs. Wilcox began receiving treatment for these injuries from Dr. Green, whose examination on August 10, 1978, revealed the following: Wilcox was capable of standing erect and performing satisfactorily a heel-to-toe walk test; however, she exhibited mild spasm and tenderness in the L4-5 and L-5, S-l regions of her lower back. Straight leg raising tests disclosed mild pain, although no disc or sciatic nerve problems were noted by Dr. Green. Finally, Dr. Green characterized his neurological examination of Wilcox at this time as producing essentially normal results. Dr. Green released Wilcox to return to work in January 1979. She did so on January 16, 1979.

However, she continued to complain of lower back and leg pain, and as a result she began consulting Dr. Russell in mid-January 1979. Dr. Russell testified below that he found, upon examination of Wilcox in January 1979, that she suffered tenderness over the spinous processes at L4-5 and S-l, as well as lower back pain during straight leg raising tests to eighty degrees with either leg. He characterized his findings as indicating lumbar radiculitis secondary to discogenic disease, possibly spon-dylosis. At the hearing below, Wilcox testified that after her return to work in January of 1979, she missed a number of days and half-days of work, attributing these absences to continued lower back and leg pain. Her job performance during this period of time apparently suffered; she testified below that her supervisor gave Wilcox lower job ratings because she was no longer able to perform all of her duties.

Wilcox suffered a second — non-compen-sable — automobile accident on December 6, 1979. Following this accident, she was examined by Dr. Russell on December 17, 1979. He found that Wilcox exhibited the same symptomatology as after the August 3, 1978 compensable accident. Dr. Russell also testified that he was not able to separate the two accidents in terms of their impact on Wilcox’s ability to work. Even so, he was of the opinion that Wilcox was totally disabled, and had reached maximum medical improvement (MMI) as of August 25, 1982. He noted that Wilcox had undergone a laminectomy, performed by Dr. Guido at South Miami Hospital, on January 27, 1981, but that the surgery had not been successful in relieving her lower back or leg pain.

Also offered into evidence below was three depositions by Dr. Green. He testified that Wilcox’s complaints of lower back and leg pain began in 1976, and that as of May 28, 1976, she suffered five percent (5%) impairment of the body as a whole due to lumbosacral sprain syndrome superimposed on mild degenerative arthritis of the lumbosacral spine. After examining Wilcox following her non-compensable accident, Dr. Green rated her impairment at that time as twenty percent (20%) of the body, with a portion of that rating attributable to the compensable accident, and a portion to the non-compensable accident.

In analyzing the previously-discussed evidence, the deputy rejected Dr. Green’s deposition testimony relating to Wilcox’s impairment rating after her first, compensa-ble, automobile accident, noting that Dr. Green’s opinions were inconsistent with a report he apparently filed with the E/C subsequent to his January 1979 examination of Wilcox. This report categorized Wilcox as totally disabled from August 3, 1978, and continuing through the date of the report. The deputy further found that Wilcox had lost confidence in Dr. Green professionally, and was justified in seeking treatment from Dr. Russell because her employment supervisor had encouraged her to do so. In this regard, the deputy found that the carrier, in a letter dated May 28, 1981, promised to accept responsibility for any charges incurred by Wilcox in treatment from Dr. Russell, since Wilcox’s supervisor authorized the treatment. The deputy also accepted the opinion of Dr. Russell that Wilcox was totally disabled from future employment, and thus found that she was entitled to both TTD and PTD benefits, even though the deputy specifically stated:

In considering the testimony of Dr. Green and Dr. Guido by Deposition and Dr. Russell’s Deposition as well as in person, I find that I am unable to apportion the extent of the impairment and injury sustained by Mrs. Wilcox secondary to her noncompensable accident of December 6, 1979....

Finally, the deputy found that Wilcox was entitled to have the E/C pay for the medical expenses she incurred while under the care of Drs. Guido and Russell.

The E/C first assert that the deputy’s order functionally effectuated an improper reverse merger in awarding Wilcox TTD and PTD benefits. We agree. A “forward” merger is properly found if a claimant suffers from a pre-existing permanent impairment which combines with a later compensable injury to produce a more severe permanent disability in the claimant than would otherwise have existed. Bordo Citrus Products v. Varnadore, 395 So.2d 260 (Fla. 1st DCA 1981); American Can Co. v. Tomasek, IRC Order 2-3365 (February 23, 1978), cert. denied, 368 So.2d 1375 (Fla.1979). A “reverse” merger, on the other hand, is occasioned when a subsequent non-related and non-compensable injury is superimposed upon a compensable condition, thereby producing disabilities greater than would be suffered as a result of each injury by itself. Despite this “merger” of the two conditions, the disability resulting solely from the second accident is not compensable. Pan American World Airways v. Franchina, 396 So.2d 245 (Fla. 1st DCA 1981); Fisher v. Carroll Daniel Fisher Construction Co., 212 So.2d 289, 291 (Fla.1968); Riverside Baptist Church v. O’Hara, IRC Order 2-2727 (March 14, 1975), cert. denied, 317 So.2d 82 (Fla.1975). The increased disability resulting from the second accident is, however, compensable, if the subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is a direct and natural result of a compensable primary injury. Apgar & Markham Construction Company v. Golden, 190 So.2d 323 (Fla.1966).

Since the deputy commissioner in his order on appeal appears to apply a “reverse merger” in arriving at the finding of total disability, it must be reversed. However, in view of the evidence indicating that on the date of her second (non-compen-sable) accident, the claimant was still suffering from the effects of the first (com-pensable) accident, it does not follow that she is entitled to no compensation award. Whether she was or could have become totally disabled in the absence of the second accident is quite another matter, and one that requires further consideration and findings by the deputy commissioner. In' this connection, we observe that the deputy commissioner’s inability to determine precisely, from a medical standpoint, the percentage of physical impairment attributable to each of the two accidents does not prevent or relieve the deputy from determining the extent of “disability,” under Section 440.02(9), Florida Statutes, since the injured employee is compensated for loss of wage earning capacity, not mere functional impairment. Eden Roc Hotel v. Kearsch, 218 So.2d 751 (Fla.1969); Nuce v. City of Miami Beach, 140 So.2d 303 (Fla. 1962); Miami Beach Awning Co. v. Socalis, 129 So.2d 414 (Fla.1961).

For the guidance of the deputy commissioner on remand we find instructive the language of the Industrial Relations Commission in Lancaster Youth Development Center v. Waters, IRC Order No. 2-3706 (February 21, 1979) (compensable industrial accident followed by subsequently occurring non-related heart disease), where the Commission directed:

The Judge should determine what portion of the total present impairment is due to the unrelated condition and what portion is due to the compensable condition, including all disability to which that condition contributes. Benefits based either on the anatomical impairment from the unrelated condition or loss of wage earning capacity due to that impairment may not be awarded. Rather, the Judge must “carve out” the unrelated anatomical impairment if he finds it is presently causing disability. He is then free to apply the pertinent wage earning capacity factors to the residual anatomical impairment in order to arrive at the correct degree of permanent disability which is compensable, (citation omitted)

See also, Lancaster Youth Development Center v. Waters, 381 So.2d 1156 (Fla. 1st DCA 1980) (district court approved order of deputy commissioner entered pursuant to remand from IRC).

The deputy erred also in the award of medical expenses incurred by claimant while under the care of Drs. Russell and Guido. A correct statement of the law in this regard is found in Glades County Sugar Growers v. Gonzales, 388 So.2d 333 at 336:

... costs should include all medical care necessary for treatment of the compen-sable injury. Costs should also include any treatment required by the non-com-pensable injury if such treatment would not presently be required but for the existence of the compensable injury .... But the award should not include medical treatment required independently by the subsequent non-compensable injury when the removal of a hindrance to recovery from the compensable injury is merely an incidental effect of such treatment. It is the purpose of the [treatment] ... that determines whether or not medical expenses ... are compensable, (citation omitted).

See also Eisenhower Construction Co. v. Berg, 406 So.2d 85 (Fla. 1st DCA 1981); Purex Corp. v. Fay, 400 So.2d 1021 (Fla. 1st DCA 1981). Since the order makes no distinction between the two accidents suffered by Wilcox or the medical expenses related to each, this cause must be reversed and remanded for entry of an order doing so.

Accordingly, this cause is REVERSED, and the ease is REMANDED to the deputy for further proceedings consistent with this opinion.

REVERSED and REMANDED with directions.

BOOTH and THOMPSON, JJ., concur.

      . The E/C raise the further point that Wilcox is barred from recovering the medical expenses she seeks by her alleged failure to gain authorization from the E/C before incurring these expenses. However, this cause is not controlled by cases such as Atkins v. Greenhut Construction Co., 447 So.2d 268 (Fla. 1st DCA 1984), and Usher v. Cothren, 445 So.2d 387 (Fla. 1st DCA 1984), which hold that a claimant who is offered alternative medical care may not unilaterally obtain medical treatment from a physician of her choice and subsequently be reimbursed by the E/C, because the deputy below found as a matter of fact that Wilcox was "encouraged,” and hence authorized, by her supervisor to seek treatment by Dr. Russell. This finding is supported by competent, substantial evidence. McCandless v. M.M. Parrish Construction Co., 449 So.2d 830 (Fla. 1st DCA 1984).


author: DANAHY, Acting Chief Judge.

text:
    John L. GRADY and Lee County Bank, Trustee, Appellants, v. LEE COUNTY, Florida, Appellee.
    No. 83-1085.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1984.

      John Charles Coleman, Fort Myers, for appellants.
    James G. Yaeger, County Atty., and Nea-le E. Montgomery, Asst. County Atty., Fort Myers, for appellee.
   DANAHY, Acting Chief Judge.

The plaintiffs brought this suit to challenge a rezoning of approximately 147 acres of their Lee County land from agricultural to preservation (PR). The “PR” classification designates a preservation district under present Lee County Zoning Regulations and restricts permitted uses to nature and foot trails, canoe trails, and boating limited to motors less than 10 horsepower. The plaintiffs first appealed to the Board of County Commissioners of Lee County for a rehearing and that request was denied. The plaintiffs then brought this suit for equitable relief from the rezoning and requested, if the rezoning were upheld, that they receive an award of compensation for inverse condemnation.

The trial judge ruled that the plaintiffs’ complaint was untimely because it was not filed within thirty days following the denial of the plaintiffs’ request for rehearing by the Board of County Commissioners. A thirty-day time limit for applying to the circuit court for relief from a zoning decision is provided both in the special act of the legislature governing Lee County and the Lee County zoning ordinance. Chapter 61-2405, § 10, Laws of Florida; Lee County Zoning Regulations (1978), § 402.3. The trial judge computed the thirty-day time limit from the date of the adverse decision of the Board of County Commissioners. The plaintiffs vigorously argue that the thirty days should be counted from the time that decision was reduced to writing. Unfortunately, there is nothing in the special act or the ordinance which provides that the adverse decision must be in writing. Therefore, we must reject the plaintiff’s argument in this respect and agree with the trial judge’s determination.

However, neither the special act nor the ordinance can affect the plaintiffs’ right to certiorari review by the circuit court, which is available to review zoning decisions. City of Lakeland v. Florida Southern College, 405 So.2d 745 (Fla. 2d DCA 1981). The time for invoking the certiorari jurisdiction of the circuit court is governed by the Florida Rules of Appellate Procedure. § 59.081, Fla.Stat. (1983). Under Florida Rule of Appellate Procedure 9.100(c), a petition for common law certio-rari shall be filed within thirty days of rendition of the order to be reviewed. Rule 9.020(g) defines rendition as the filing of a signed, written order with the clerk of the lower tribunal.

The parties have indicated to us that the decision of the Board of County Commissioners in this case was in fact eventually reduced to writing. Therefore, if the plaintiffs’ complaint is treated as a petition for common law writ of certiorari, it was timely filed. Although treating the plaintiffs’ complaint as a petition for common law writ of certiorari will not afford the plaintiffs the scope of review which they seek, nevertheless it will provide them with a vehicle for judicial review of the action of the County Commissioners.

In his ruling, the trial judge declared that “the untimely filing is a fatal flaw for the complaint in its entirety as to all causes of action attempted to be stated in said complaint.” The judge’s ruling in this respect was correct, although not on the basis of untimeliness. In Dade County v. National Bulk Carriers, Inc., 450 So.2d 213 (Fla.1984), our supreme court held that a zoning ordinance is, by definition, invalid if it is confiscatory and, consequently, no inverse condemnation would be necessary; a denial of rezoning cannot be both reasonable and confiscatory. The court went on to say that if a zoning ordinance is confiscatory, the relief available is a judicial determination that the ordinance is unenforceable and must be stricken. We read this decision as establishing that a zoning change cannot give rise to a cause of action for inverse condemnation. Accordingly, the trial judge correctly dismissed that count of the plaintiffs’ complaint requesting an award of compensation for inverse condemnation. The only relief available to the plaintiffs in this case, an attack on the zoning decision, is limited to judicial review in the circuit court by writ of certiorari.

For the foregoing reasons, we reverse and remand with instructions that the trial judge reinstate the plaintiffs’ complaint and treat it as a petition for writ of certio-rari to review the decision of the Board of County Commissioners of Lee County denying the plaintiffs’ request for a rehearing on the rezoning of their property.

REVERSED and REMANDED with instructions.

CAMPBELL and SCHOONOVER, JJ., concur.

      . Section 163.250, Florida Statutes (1983), provides for judicial review, including a trial de novo, of a zoning decision within thirty days after rendition of the decision. That statute does not apply here, however, because Lee County has not elected to come within the provisions of Chapter 163, Part II.


text:
    William FOREMAN, Appellant, v. STATE of Florida, Appellee.
    No. 84-255.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Tampa, for appel-lee.
   LEHAN, Judge.

Defendant appeals from his convictions for burglary during which an assault was committed (first degree burglary punishable by life) and first degree sexual battery, violations of section 810.02(2)(a) and 794.-011(4)(b), Florida Statutes (1983). We affirm the conviction for first degree sexual battery but vacate the sentence therefor. We reverse defendant’s conviction and sentence on first degree burglary punishable by life and direct that the burglary conviction be reduced to second degree burglary. We remand for resentencing for first degree sexual battery and second degree burglary.

The crime of burglary is enhanced to a felony of the first degree punishable by life imprisonment if a defendant commits an assault or battery in the course of committing a burglary. § 810.02(2)(a), Fla. Stat. (1983). Sexual battery is a first degree felony. § 794.011(4)(b), Fla.Stat. (1983). Of the five points raised on appeal, we find merit only in the point contending that the trial court erred in convicting and sentencing defendant for both burglary and the sexual battery which was the basis for enhancing the burglary to first degree burglary punishable by life. See Wicker v. State, 445 So.2d 581 (Fla. 2d DCA 1983), review granted.

In Wicker this court vacated a defendant’s conviction for sexual battery because

[t]he finding that appellant committed a sexual battery was necessary to a conviction for first degree felony burglary. Therefore, appellant could not be convicted of both the first degree burglary and the sexual battery which also formed the basis of the burglary charge.

Id. at 583. See also McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980).

In the factually similar Wicker case this court vacated a sexual battery conviction and allowed an enhanced first degree burglary conviction to stand. In the case now before us we vacate the first degree burglary punishable by life conviction and allow the sexual battery conviction to stand. The reason for the difference is that in Wicker the defendant apparently was sentenced prior to the time the sentencing guidelines were in effect, and first degree burglary punishable by life was the higher of the two offenses because it carried the greater maximum sentence. On the other hand, in the case now before us the originally enacted guidelines apply. Under those guidelines first degree burglary punishable by life may appear to be the primary offense because it is a higher statutory degree than first degree sexual battery. Fla.R.Crim.P. 3.701d.3.(a). However, the guidelines scoresheet for burglary which was in effect at the time of de-fendant’s sentencing “only specified point assessments for first-degree felonies or life felonies, but nothing in between_”, i.e., the scoresheet omitted first degree felonies punishable by life. Vileta v. State, 454 So.2d 792 (Fla. 2d DCA 1984).

Therefore, as Vileta held, the first degree burglary punishable by life conviction in this case should be scored only as a first degree felony. Under the original guidelines, when a defendant was convicted of two or more offenses of the same degree (and under Vileta the first degree burglary punishable by life conviction in this case must be treated as a first degree felony, the same degree as the sexual battery conviction), the offense with the lowest guidelines category number should have been used as the primary offense. Fla.R.Crim.P. 3.701d.3.(b). Accordingly, the sexual battery conviction in the case now before us should have been used as the primary offense for sentencing guidelines purposes because sexual battery is a category 2 offense under the guidelines, and burglary is a category 5 offense. Fla. R.Crim.P. 3.988.

In summary, under Wicker one of the convictions should be vacated, and under the foregoing reasoning based upon Vileta, coupled with the procedures for determining the primary offense under the original guidelines, the first degree burglary conviction punishable by life is the offense which should be vacated. But since the only error in these multiple convictions derived from using the enhancing factor of sexual battery to convert second degree burglary to first degree burglary and without that enhancing factor the crime of second degree burglary continues to exist, defendant should be sentenced for sexual battery and second degree burglary.

The trial court erred in not using the foregoing approach in the sentencing of defendant. (We recognize that Vileta was decided after the time of sentencing in this case.) Also, the trial court was given for consideration two graded scoresheets, one for “category 5 burglary” and the other for “category 2 sexual offenses.” The guidelines in effect at defendant’s sentencing required that “one guideline scoresheet shall be prepared for each defendant covering all offenses pending before the court for sentencing.” Fla.R.Crim.P. 3.071d.l. On the basis of the recommended sentencing range shown by the points on that scoresheet, “a sentence must be imposed for each offense [of which defendant is convicted]. However, the total sentence cannot exceed the total guideline sentence unless a written reason is given.” Fla.R. Crim.P. 3.701d.l2.

The enhanced burglary conviction and sentence are vacated. Defendant should be resentenced using first degree sexual battery as the primary offense and second degree burglary as an additional offense. It appears that the trial court departed from the recommended guidelines sentencing range when he sentenced defendant for sexual battery and first degree burglary. Of course, on resentencing the trial court may again depart from the recommended guidelines sentencing range if he articulates clear and convincing reasons therefor. See Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984).

The state has raised a question concerning the continued validity of Wicker in light of Scott v. State, 453 So.2d 798, 799 (Fla.1984); State v. Baker, 452 So.2d 927 (Fla.1984); and State v. Gibson, 452 So.2d 553 (Fla.1984).

We believe the answer to that question is susceptible to legitimate debate. The subject of multiple convictions and sentences in a single trial has been difficult and a matter of developing law. We note that another panel of this court confirmed Wicker. See Wicker v. State, 445 So.2d 583 (Fla. 2d DCA 1984) (on motion for rehearing en banc). The Florida Supreme Court’s pending review of Wicker, together with its pending review of other related eases, presumably will resolve the question. See Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1984), review granted; O’Hara v. State, 448 So.2d 524 (Fla. 5th DCA 1984), review granted; Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984), review granted.

We certify to the Florida Supreme Court the following question to be of great public importance:

MAY A DEFENDANT BE CONVICTED AND SENTENCED FOR BOTH SEXUAL BATTERY AND FIRST DEGREE BURGLARY PUNISHABLE BY LIFE (WHICH IS ENHANCED FROM BURGLARY TO FIRST DEGREE BURGLARY PUNISHABLE BY LIFE BY REASON OF THE COMMISSION OF ASSAULT OR BATTERY IN THE COURSE OF THE BURGLARY) WHEN THE SEXUAL BATTERY IS THE SAME CONDUCT ON THE BASIS OF WHICH THE BURGLARY CHARGE IS SO ENHANCED?

Reversed and remanded for proceedings consistent herewith.

BOARDMAN, A.C.J., and DANAHY, J., concur.

      . See The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guideline), 451 So.2d 824 (Fla.1984) for amendments to the guidelines subsequent to the sentencing in this case.


author: SHIVERS, Judge.

text:
    Hayman B. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AW-301.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1984.
    Paula S. Saunders, Asst. Public Defender, Jacksonville, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Appellant, Hayman Brown, appeals his convictions of sexual battery with great force and burglary of a dwelling with assault and the sentences imposed thereon. Brown’s court-appointed counsel has filed a brief, stating that she is unable to make a good faith argument that reversible error occurred in the trial court, in accordance with the procedure set forth in Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396 (1967). Brown has failed to avail himself of leave granted to file a brief pro se. Our review, therefore, is based upon the allegations of error asserted by Brown’s trial counsel in the Statement of Judicial Acts to be Reviewed:

The court erred in the denial of Defendant’s Motion for New Trial.
The court erred in that the sentence was excessive.
The court erred in the retention of jurisdiction.

We have examined the various grounds raised in the Motion for New Trial and are unpersuaded of any error in the denial of that motion. Review of the record below fails to support any allegation of error as to the trial court’s rulings on evidentiary matters or requested jury instructions. Furthermore, there was no error in the denial of a defense motion for judgment of acquittal where the evidence, albeit circumstantial, was inconsistent with any reasonable hypothesis of innocence of crimes charged. See McArthur v. State, 351 So.2d 972, 976, n. 12 (Fla.1979).

Likewise, Brown’s contentions that the two consecutive 160 year sentences imposed upon him are excessive lack merit. The burglary offense, a first degree felony, is punishable by imprisonment for a term of years not to exceed life. § 810.02(2)(a), Florida Statutes. The sexual battery offense is a life felony punishable by life imprisonment or a term of not less than 30 years. § 775.082(3)(a), Florida Statutes (1981). The 160 year terms imposed by the trial court are not in excess of the statutory máximums of life applicable to these crimes. Harmon v. State, 416 So.2d 835 (Fla. 1st DCA 1982), affirmed, 438 So.2d 369 (Fla.1983); Saname v. State, 427 So.2d 1083 (Fla. 1st DCA 1983). As these sentences imposed are consistent with the applicable statutory penalties, they will not be disturbed upon appeal.

Appellant’s final point upon appeal concerns the retention of jurisdiction during consecutive terms of incarceration and mandates remand for correction of the sentences imposed. Section 947.16(3), Florida Statutes, provides for the retention of jurisdiction of one-third of the maximum sentence imposed for certain enumerated crimes, including those of which Brown was convicted. In the event that consecutive sentences are imposed, the trial court is empowered to retain jurisdiction for one-third of the total consecutive sentences. Id. In the instant case, the trial court stated at sentencing that it was retaining jurisdiction for “the first third” of each sentence. While the court could assume jurisdiction over the first third of Brown’s total 320 year term, it was not authorized to exercise jurisdiction over the first third of Brown’s first 160 years of incarceration and then reclaim jurisdiction over the first third of the second term when it commences. Adams v. State, 435 So.2d 953 (Fla. 2d DCA 1983); Goree v. State, 411 So.2d 1352 (Fla. 3d DCA 1982). Accordingly, the trial court must correct the sentences to clarify that it retains jurisdiction over one-third of the total consecutive sentences.

Judgment affirmed; remanded for correction of sentences.

WENTWORTH and NIMMONS, JJ., concur.

      . We note that the 1983 amendment to § 775.-082(3)(a), establishing a maximum sentence of 40 years, is not applicable to this crime committed prior to October 1, 1983, the effective date of that amendment.


text:
    Terri Lynn ULMER, Appellant, v. JON DAVID COIFFURES, Appellees.
    No. AX-212.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1984.
    Roger W. Plata, of Robinson & Plata, St. Petersburg, for appellant.
    Peter N. Meros, of Meros & Smith, St. Petersburg, for appellees.
   SHIVERS, Judge.

Appellant Terri Lynn Ulmer appeals an order denying her claim for medical benefits to compensate for the expense of hiring assistants to perform certain of the claimant’s job functions which she was no longer able to perform due to a job-related medical condition. The deputy commissioner concluded that such expenses do not fall within the ambit of medical benefits recoverable under the Florida Workers’ Compensation Act. We agree and affirm.

Claimant, a hairstylist, developed a reaction to certain chemicals used in her profession and was diagnosed as having eczema-tous dermatitis of the hands. Her treating physician advised that she avoid contact with such chemicals and refrain from shampooing her customers’ hair. Adherence to this advice resulted in an improvement in the claimant’s skin condition. She was required, however, to pay “shampoo girls” to shampoo her clients’ hair. Prior to development of dermatitis the claimant had performed all of the shampoos for her clients to avoid the additional expense of shampoo girls. Appellant filed the claim below for reimbursement of the cost of using these shampoo girls, asserting that this compensation was available as a medical benefit provided for by § 440.13(1), Florida Statutes (1981), which provides in pertinent part:

[T]he employer shall furnish to the employee such remedial treatment, care, and attendance under the direction and supervision of a qualified physician or surgeon or other recognized practitioner, nurse, or hospital, and for such period as the nature of the injury or the process of recovering may require, including medicines, crutches, artificial members and other apparatus, (e.s.)

Judicial interpretation of this provision has resulted in awards of compensation for such expenses as attendant care for a blinded worker, Khawam v. Collision Clinics International, Inc., 413 So.2d 827 (Fla. 1st DCA 1982); modification of vehicles to allow operation by a handicapped driver, Fidelity & Casualty Co. of New York v. Cooper, 382 So.2d 1331 (Fla. 1st DCA 1980); installation and maintenance of swimming pools for prescribed hydrotherapy, Firestone Tire & Rubber Co. v. Vaughn, 381 So.2d 740 (Fla. 1st DCA 1980); Cover v. TG&Y, 377 So.2d 792 (Fla. 1st DCA 1979), and child care services to relieve tension and pressure experienced by a recuperating worker/mother, Doctor’s Hospital of Lake Worth v. Robinson, 411 So.2d 958 (Fla. 1st DCA 1982). Rejected claims have included compensation for ambulance transportation of the injured worker to his father’s funeral, State, County Correctional Institute, Division of Risk Management v. Hughes, 412 So.2d 922 (Fla. 1st DCA 1982), and housekeeping services not specifically necessitated by the industrial injury, South Coast Construction Co. v. Chizauskas, 172 So.2d 442 (Fla. 1965). We do not find these rulings to control disposition of this appeal. Counsel has not presented to us, nor has our research discovered, authority for compensation under this section for the cost of an aide to perform job functions for which a claimant has become disabled.

It is uncontested that the appellant suffers a continuing doctor-imposed limitation attributable to her work, resulting in a loss of wage-earning capacity. As the claimant has pointed out, it is the goal of workers’ compensation to restore the injured worker to pre-accident earning capacity and Florida’s Workers’ Compensation Act is to be liberally construed in favor of the worker to serve that purpose. However, it appears that the construction which the appellant urges upon us exceeds the bounds of liberal construction.

When a worker suffers a permanent limitation,, such that she is no longer able to fully perform the pre-injury job, relief is available under the Act in the form of rehabilitation or wage-loss benefits. It is not necessary, here, to express any opinion as to the merits of the appellant’s entitlement to rehabilitation or wage-loss benefits as we note that she did not pursue either avenue. Instead, she elected to proceed under § 440.13(1). The services of shampoo girls do not fall within the category of covered medical services described by that statute as “remedial treatment care and attendance” or “medicines, crutches, artificial members and other apparatus” and we do not interpret that language to encompass compensation for losses more effectively and appropriately addressed in other provisions of the Workers’ Compensation Act.

Accordingly, we affirm the deputy’s denial of medical benefits.

WENTWORTH and NIMMONS, JJ., concur.