author: ZEHMER, Judge.

text:
    Freddie BRIGGS, a/k/a Billy Bones, a/k/a Billy Dee, Appellant, v. STATE of Florida, Appellee.
    No. AU-125.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.
    Rehearing Denied Sept. 28, 1984.

      Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Barbara Ann Butler, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

Briggs was convicted in a jury trial of murder in the second degree with the use of a firearm in violation of section 782.-04(2), Florida Statutes. On appeal, he urges that the trial court erred in failing to grant him a new trial because various acts of prosecutorial misconduct during trial were so frequent and so pervasive that he was deprived of his right to a fair trial in violation of the Fourteenth Amendment and of article I, section 9, of the Florida Constitution.

For purposes of this opinion, it is not necessary to recite the details of the alleged misconduct. It is sufficient to state that appellant's main complaint centers around the prosecutor’s attempts, in the presence of the jury, to comment on and bring into question the personal integrity of defense counsel by suggesting that counsel was not being truthful and was deliberately misleading the jury. The trial court sustained several objections by defense counsel to the prosecuting attorney’s conduct on this and other grounds, and directed the prosecuting attorney not to persist in such tactics. If the evidence of guilt in this case had been close and the trial court not granted a mistrial, we would have been compelled to do so. The evidence of defendant’s guilt, however, was overwhelming. Appellant shot the victim twice in a public place in the presence of many witnesses while the victim was hiding under a pool table. Once again, therefore, we affirm the defendant’s conviction under the harmless error rule.

Ordinarily we would have affirmed this case without opinion. We feel compelled, however, to note that many criminal appeals have been filed legitimately complaining of misconduct by the prosecuting attorney during trial. The conduct complained of in this case, as is true in most of the cases appealed on similar grounds, evidences an excessive preoccupation with obtaining a conviction at any cost. Such preoccupation disregards the prosecutor’s duty in representing the people of the state of Florida to see that justice is done because obtaining a conviction at the expense of a fair trial is not justice. Such preoccupation usually leads to personal involvement by counsel to such an extent that he or she often becomes unable to try the case with the degree of objectivity and personal detachment required of counsel in the adversarial environment. Verbal attacks on the personal integrity of opposing counsel, rather than appropriate comments on the credibility of witnesses and inferences to be drawn from the evidence before the jury, are wholly inconsistent with the prosecutor’s role.

It is the duty of a prosecuting attorney in a trial to refrain from making improper remarks or committing acts which would or might tend to affect the fairness and impartiality to which the accused is entitled. His duty is not to obtain convictions but to seek justice, and he must exercise that responsibility with the circumspection and dignity the occasion calls for. Cases brought on behalf of the State of Florida should be conducted with a dignity worthy of the client. In violating this duty, the prosecuting attorney jeopardizes all the effort and work expended by those above mentioned. (Footnote omitted.)

Cochran v. State, 280 So.2d 42, 43 (Fla. 1st DCA 1973).

Appellant’s brief questions whether any appropriate remedy exists to prevent these occurrences. Appellant’s counsel argues rather persuasively:

Over 30 years ago, in Irvin v. State, 66 So.2d 288 (Fla.1953) the prosecutor, in closing argument, commented that defense counsel had prevented the state from demonstrating that the accused had a grudge against law enforcement. The defendant’s motion for a mistrial and request for a curative instruction was denied. On appeal, while recognizing that the argument was indeed improper and the court should have given a cautionary instruction, the appellate court held the error harmless.
Thus, at least since 1953, prosecutors have been placed on notice that arguments directed to the role of defense attorneys are not proper.
Undeterred by Irvin, the prosecutor in Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973), commented as to the techniques of defense attorneys and how defense lawyers operate. On appeal, in very strong language, this court branded such comments as both highly improper and unethical. Yet, invoking the harmless error doctrine, this Court affirmed. Undeterred by both Irvin and Cochran, the prosecutor in Simpson v. State, 352 So.2d 125 (Fla. 1st DCA 1977) referred to ‘one of the favorite tricks of a defense lawyer.’ This Court admonished the prosecutor for making the comment, la-belling it a gratuitous insult to the adversary system of justice. Yet, again, apparently on the basis of the harmless error doctrine, Simpson’s conviction was affirmed.
Undeterred by Irvin, Cochran, and Simpson, supra, the prosecutor in Huf ham v. State, 400 So.2d 133 (Fla. 5th DCA 1981) made comments which the appellate court analogized to those made in Cochran. Again, the conviction appealed was affirmed.
Undeterred by Irvin, Cochran, Simpson, and Hufham, supra, the prosecutor in Melton v. State, 402 So.2d 30 (Fla. 1st DCA 1981) argued that it is amusing how defense attorneys come up with arguments to thwart the common sense of the jurors. Again, this Court determined that such remarks constitute a gratuitous insult to the adversary system of justice, and were both improper and unethical. But again, this Court affirmed. Undeterred by Irvin, Cochran, Simpson, Hufham, and Melton, supra, the prosecutor in Westley v. State, 416 So.2d 18 (Fla. 1st DCA 1982) referred to certain inferences concerning possible defenses to the offense charged as ‘smoke screens.’ Although again affirming, this Court stated that the prosecutor’s indulgence in an improper argument is a perilous practice.
Undeterred by Irvin, Cochran, Simpson, Hufham, Melton, and Westley, supra, the prosecutor in McGee v. State, 435 So.2d 854 (Fla. 1st DCA 1983) engaged in a ‘smoke screen’ argument. Although again condemning the prosecutor, this Court affirmed.
Thus, the case law dealing with prosecutorial references to the role of defense counsel in criminal cases has shown two trends. First, such references have never been approved and repeatedly deemed improper. Second, cases in which such references are made are almost as repeatedly affirmed, either on the basis of harmless error or procedural default. Appellant most respectfully suggests that as long as appellate courts tend to affirm such cases, the improper comments will continue. Indeed, the survey of the case law reveals that for over 30 years such prosecutorial tactics have been disapproved of, yet they continue to occur. The historical facts show that only reversals will grab a prosecutor’s attention.

Without question, the vast majority of criminal prosecutions are competently and ethically tried by the prosecuting attorneys of this state. Too often, however, a prosecuting attorney succumbs to the temptation to “try” defense counsel rather than the issues. This temptation must be resisted completely in every case. We have previously warned that “the prosecutor’s indulgence in improper argument is a perilous practice.” Westley v. State, 416 So.2d 18 (Fla. 1st DCA 1982). If it continues, the appellate courts will be compelled, as appellant’s counsel argues, to fashion a special remedy and reverse convictions so obtained to provide an effective means of deterring further misconduct.

AFFIRMED.

SHIVERS and THOMPSON, JJ., concur.

      . Several times during trial, the judge was moved to comment:
      THE COURT: Well, Mr. Stetson [prosecuting attorney], I'm going to tell you right now, I want you to quit. It’s getting out of hand, I want you to quit calling the Public Defender— you’re not here to try the Public Defender. Now, by God, quit doing it.

      Will you quit accusing them and trying Ms. Finnell and Mr. Cofer [defense counsel]. They're not on trial. You talked about the evidence, and — and if you say that isn’t legitimate evidence, please say that, but quit accusing them of impropriety. Suggest that the inference cannot be drawn from the evidence. That's improper argument.

      THE COURT: Counsel, let me say this, and I really mean this, something's wrong, this case is not being tried by lawyers on the evidence and the legitimate inferences on that evidence, it’s being tried on persons and delving into the person. It’s inappropriate and absolutely absurd. It’s happening, the circumstances — I read about it in Miami all the time. I'm not here to try Ms. Finnel, and I don’t want her accusing Mr. Stetson of something other than where is the evidence and legitimate inferences from the evidence.... Gentlemen, rebutt their argument and do the things that are proper that lawyers are to do. This case is not different than any civil case or any other case coming down here. And it’s not a trial of the lawyers. And by golly, that’s what it’s falling down into, and I’m very disappointed in it, and I really mean it.
      You're allowed to draw legitimate inferences. And there were a few in her opening argument. The inference she drew, she did so, and it was a permissible inference. And I suggest you argue this to the jury, but don’t argue Ms. Finnell is to be held in disrepute. Argue that inference — she did — you don’t think can be reached. That’s the purpose of argument. Gentlemen, I really mean it, it’s not right.

      . We hasten to add that it is equally improper and unethical for defense counsel to attack the personal integrity and credibility of a prosecuting attorney instead of trying the factual and legal issues.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    CITY OF JACKSONVILLE, Appellant, v. Thomas Wayne MacDONALD, Appellee.
    No. AU-295.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.

      William Lee Allen, Michael D. Hunt, and Michael B. Wedner, Jacksonville, for appellant.
    William A. Bald, of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellee.
   THOMPSON, Judge.

The City of Jacksonville (the City) appeals a final judgment ordering it to pay disability pension benefits to appellee-Mac-Donald. The City argues that the trial court erroneously concluded that estoppel by judgment precluded consideration of the fact that MacDonald had previously requested and received a refund of his pension contributions and argues that MacDonald is not disabled within the meaning of the applicable laws and regulations. As we agree with the City’s first argument and reverse on that point, we need not address the City’s second argument.

MacDonald was a firefighter with the City from 1969 until 1978 and was covered by the 1937 Policeman’s and Fireman’s Pension Act (the Act). In August 1978 MacDonald applied for disability retirement under the Act. The City denied this application without considering its merits, on the ground that MacDonald had resigned from the fire department prior to submission of the application. In September 1979 defendant signed a request for a refund of 50 percent of his accumulated contributions to the 1937 Policeman’s and Fireman’s Pension Fund (the Pension Fund). This request form specifically indicated that MacDonald was waiving all his rights and interest in the Pension Fund. In September 1979 the City issued MacDonald a check in settlement of his request for a pension refund.

In 1981 MacDonald filed a declaratory judgment action against the City, seeking a determination of whether the City was obligated to consider his application on the merits. In that proceeding the City did not plead the defense that MacDonald had requested and had received a refund of his pension contributions and had waived all his rights and interest in the Pension Fund. In November 1981 the lower court ordered the City to consider MacDonald’s application for disability retirement on its merits. The City thereafter considered and denied MacDonald’s application.

In January 1983 MacDonald filed another declaratory judgment action against the City, seeking a determination that he was entitled to receive disability pension benefits under the Act. Based on estoppel by judgment the trial court refused to consider the City’s defense that MacDonald had specifically waived all his rights and interest in the Pension Fund when he requested and received a refund of his pension contributions. Accordingly, the trial court ordered the City to pay MacDonald disability pension benefits, plus interest, less the amount of the refund.

The trial court erroneously refused to consider the City’s refund defense. In Gladstone v. Kling, 182 So.2d 471, 474 (Fla. 1st DCA 1966), this court said that when a prima facie defense appears to be available and the merits thereof have not been decided in a prior action, “a court of equity will not permit the doctrine of res judicata or estoppel by judgment, to be invoked without a judicial adjudication of such question, if it appears that to do so would result in an injustice.” (citation omitted). In the instant case, the trial court’s refusal to consider the City’s refund defense clearly resulted in an injustice. Accordingly, the trial court erred in applying the doctrine of estoppel by judgment and in refusing to consider the City’s refund defense.

The final judgment appealed from is REVERSED and the cause is REMANDED for proceedings consistent herewith.

SHIVERS and ZEHMER, JJ., concur.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. DEPARTMENT OF REVENUE and Office of the Comptroller, State of Florida, Appellees.
    No. AW-322.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.
    Rehearing Denied Sept. 19, 1984.
    Alfred L. Frith and William J. Roberts, of Roberts, Egan & Routa, Tallahassee, for appellant.
    Larry J. Sartin, Asst. Gen. Counsel, Dept, of Revenue, Tallahassee, Barbara Staros Harmon, Asst. Atty. Gen., Tallahassee, for appellees.
   THOMPSON, Judge.

R.J. Reynolds Tobacco Company (R.J. Reynolds) appeals an order of the Department of Revenue (DOR) which, inter alia, determined that the interest on the over-payments R.J. Reynolds made on its 1977 and 1978 corporate income taxes would accrue from the dates DOR was put on notice of such overpayments. R.J. Reynolds argues that the interest on the overpayments should begin to accrue on the dates the original tax returns were due. We find that under the circumstances R.J. Reynolds is entitled to interest on the overpayments from the dates it actually paid the taxes for the years in question and we reverse.

It is uncontroverted that pursuant to § 214.14, Fla.Stat., R.J. Reynolds is entitled to interest on the overpayments because DOR did not refund these overpayments within the time required by § 214.14. The only controversy involved is when the interest begins to accrue. We find no support for DOR’s “notice” interpretation of § 214.14.

Since R.J. Reynolds obtained a six-month extention for the filing of its corporate income tax return for each year herein, its 1977 return was due on October 1, 1978, and its 1978 return was due on October 1, 1979. However, R.J. Reynolds actually paid its 1977 taxes on September 6, 1978 and its 1978 taxes on September 14, 1979. Since R.J. Reynolds did not pay its taxes by the original due dates, April 1, 1978, and April 1, 1979, such that DOR did not have use of the overpayments on these dates, we are unpersuaded by R.J. Reynolds’s argument that it is entitled to interest from the original due dates. However, we find that under these circumstances R.J. Reynolds is entitled to interest on the 1977 overpayment from September 6, 1978, the date it actually paid the 1977 tax, and to interest on the 1978 overpayment from September 14, 1979, the date it actually paid the 1978 tax. These are the dates from which DOR actually had use of the overpayments.

DOR’s order is reversed and the cause is remanded for entry of an order consistent with this opinion.

NIMMONS and BARFIELD, JJ., concur.


author: PER CURIAM.

text:
    Martin M. GOLD, Petitioner, v. The Honorable W.L. BAILEY, as Circuit Judge for the Fourteenth Judicial Circuit of Florida, in and for Washington County, Respondent.
    No. AZ-389.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.
    Rehearing Denied Sept. 12, 1984.
    Donald I. Bierman and Ira N. Loewy of Bierman, Sonnett, Shohat & Sale, Miami, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari is DENIED.

MILLS, BOOTH and BARFIELD, JJ., concur.


author: JORGENSON, Judge. SCHWARTZ, Chief Judge

text:
    AYARES-EISENBERG PERRINE DATSUN, INC., Edward M. Eisenberg, and Howard A. Ayares, Appellants, v. SUN BANK OF MIAMI, a Florida banking corporation, Appellee.
    No. 83-2321.
    District Court of Appeal of Florida, Third District.
    Aug. 21, 1984.
    Rehearing Denied Sept. 28, 1984.

      Kenneth J. Duckworth, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and A. Rodger Traynor, Jr., Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   JORGENSON, Judge.

We reverse the final summary judgment under review and, because questions of material fact remain, remand this action to the trial court for further proceedings consistent with the views expressed herein.

Ayares-Eisenberg Perrine Datsun [Ayares-Eisenberg] borrowed $30,000 from Sun Bank of Miami [Sun Bank] with which to purchase a computer system which, through a security agreement, served as collateral for the loan. Howard Ayares and Edward Eisenberg, officers of Ayares-Eisenberg, agreed to act as guarantors of the loan. Ayares-Eisenberg fell behind in its payments and Sun Bank took peaceable possession of the computer system and notified Ayares-Eisenberg, the debtor, and Ayares and Eisenberg, the guarantor-debtors [collectively the appellants] that the computer system would be sold by private sale to satisfy the outstanding $21,000 balance of the note. After eight months Sun Bank brought an action directly on the overdue note, seeking the entire outstanding balance of $21,000, and one month later, ostensibly unable to find a buyer for the computer system, gave it to a non-profit entity, without further notice to the appellants. The appellants balked, seeking the fair market value of the computer as an offset, alleging lack of notice and questioning the commercial reasonableness of the disposition. Eleven months after repossessing the computer, three months after beginning an action directly on the note, two months after giving the computer away and three days after the denial of its motion to strike the appellants’ request for an offset, Sun Bank told the appellants that if they wanted the computer back they could come get it. The trial court then granted Sun Bank’s motion for a summary judgment.

Article 9, Part 5, of the Uniform Commercial Code, Default, §§ 679.501-.507, Fla.Stat. (1981), provides that “[w]hen a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this part.... He may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure,” § 679.-501(1), Fla.Stat. (1981). Thus, a secured creditor may avail himself of the default remedies provided in Part 5 and proceed against the collateral, as Sun Bank did by taking possession of the computer system, or the secured creditor may ignore the collateral and sue directly on the overdue note. Part 5 further states, however, that “[t]he rights and remedies referred to in this subsection are cumulative,” § 679.-501(1), Fla.Stat. (1981). By electing one remedy a creditor is not thereby precluded from pursuing other available remedies.

Nevertheless, there is authority for the proposition that once a secured creditor has chosen a remedy he must pursue it to fruition and only when the chosen remedy proves unsuccessful may he attempt the satisfaction of his debt by another method. See J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code § 26-4 (1972), and the cases cited therein. We agree. The record reveals that eight months after taking possession of the collateral, but before the statutory provisions as to the disposition of the collateral had been fulfilled, Sun Bank began an action directly on the note. We hold that Article 9 does not give a secured creditor the authority to harass a debtor by pursuing contemporaneously two or more remedies, see J. White & R. Summers, and that Sun Bank’s obviously premature action directly on the note was therefore precluded and may not be resumed until fulfillment of the statutory requirements with respect to the disposition of the collateral.

When Sun Bank began its initial attack, by taking possession of the collateral, section 679.504, Florida Statutes (1981), required, with certain exceptions not relevant here, compliance with the following provision: “reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor,” § 679.504(3), Fla.Stat. (1981) (emphasis added). Section 679.504(3), Florida Statutes (1981), also requires that “every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable.” Sun Bank does not deny that it failed to give the requisite notice before disposing of the collateral, but a question of material fact remains as to whether the disposition was commercially reasonable.

It would be unnecessary to remand this action for further proceedings were we able to follow the majority rule in Florida that failure to give the notice required by section 679.504(3) precludes an action to recover the balance owed on a note after disposition of the collateral, see Barnett Bank of Tallahassee v. Campbell, 402 So.2d 12 (Fla.lst DCA 1981), review denied mem., 412 So.2d 463 (Fla.1982); Barnett v. Barnett Bank of Jacksonville, 345 So.2d 804 (Fla.1st DCA 1977); Washington v. First National Bank of Miami, 332 So.2d 644 (Fla.3d DCA 1976); Hepworth v. Orlando Bank & Trust Co., 323 So.2d 41 (Fla.4th DCA 1975); Turk v. St. Petersburg Bank & Trust Co., 281 So.2d 534 (Fla.2d DCA 1973). We find, however, that the legislature has provided other relief which will require a remand for further proceedings.

Section 679.507(1), Florida Statutes (1981) (originally enacted as Act of Jan. 1, 1967, ch. 65-254, § 1, I, pt. 1 1965 Fla. Laws 684, 936), provides that

[i]f it is established that the secured party is not proceeding in accordance with the provisions of this part disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this part. [Emphasis added.]

In Bank of Oklahoma, N.A. v. Little Judy Industries, Inc., 387 So.2d 1002, 1005 (Fla.3d DCA 1980), this court, construing section 679.507(1), adopted the following language from Norton v. National Bank of Commerce of Pine Bluff, 240 Ark. 143, 149, 398 S.W.2d 538, 541 (1966):

We do not agree with [the] contention that the bank’s failure to give ... notice of the intended sale completely discharged [the debtor’s] obligation. For the most part the Code follows the theory formerly applicable to mortgages, by which the debtor was entitled to any surplus realized upon foreclosure and was liable for any deficiency. [See U.C.C. § 9-504(2) (codified at .§ 679.-504(2), Fla.Stat. (1981)).] The Code also provides that if the secured party has disposed of the collateral in a manner not in accordance with the Code “any person entitled to notification ... has a right to recover from the secured party any loss caused by a failure to comply” with the provisions of the Code.
We think the just solution is to indulge the presumption in the first instance that the collateral was worth at least the amount of the debt, thereby shifting to the creditor the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law. The extent to which the penalty set out in [U.C.C. § 9-507(1) (codified at § 679.507(1), Fla.Stat. (1981)) ] may be applicable in the case at bar is an issue that may depend upon the further development of the proof.

This court concluded that the rule stated in Norton “achieves a fair and commercially workable result without the imposition of a penalty which is not prescribed by statute,” Bank of Oklahoma, N.A. at 1005. Although by adhering to our decision in Bank of Oklahoma, N.A., which we feel correctly states the law, we find ourselves in conflict with another panel of this court, see Washington, and with other district courts of appeal, see Barnett Bank of Tallahassee; Barnett; Hepworth; Turk; see also Florida First National Bank at Pensacola v. Martin, 449 So.2d 861 (Fla.lst DCA 1984) (acknowledging but not addressing an apparent conflict); Motorola Communications & Electronics, Inc. v. National Patient Aids, Inc., 427 So.2d 1042, 1046 n.10 (Fla.4th DCA 1983) (recognizing the conflict), we are bound to do so by the impermissible alternative of finding ourselves in conflict with the Florida Legislature.

On remand, in addition to Sun Bank’s burden of proving that the amount that should reasonably have been obtained through a sale conducted according to law was less than the outstanding balance of the note, and if so, how much less, there remains the question of whether the length of time Sun Bank held the collateral was unreasonable and, if so, the amount of damage to the appellants caused by Sun Bank’s length of possession. As the Court of Appeals of Michigan said in Michigan National Bank v. Marston, 29 Mich.App. 99, 108, 185 N.W.2d 47, 51 (1970),

It would be unfair to allow a creditor to deprive the debtor of the possession and use of the collateral for an unreasonable length of time and not apply the asset or the proceeds from its sale toward liquidation of the debt. Moreover, it would be equally unfair to allow a creditor to take possession at all, if the creditor never intended to dispose of the security. For during the period that the debtor is deprived of possession he may have been able to make profitable use of the asset or may have gone to far greater lengths than the creditor to sell. Once a creditor ■ has possession he must act in a commercially reasonable manner toward sale, lease, proposed retention where permissible, or other disposition_ If such disposition is not feasible, the asset must be returned, still subject, of course, to the creditor’s security interest. To the extent the creditor’s inaction results in injury to the debtor, the debtor has a right of recovery.

At the time of the filing of the notice of appeal Sun Bank was presumably aware that the commercial reasonableness of its disposition of the collateral was open to question, as was the propriety of its double-barreled election of remedies. Sun Bank had apparently attempted to cure any procedural defects by, in effect, upsetting the chessboard and returning the captured pieces to the antagonist for a new game. In law, however, unlike perhaps in other forms of competition, one may not simply start the game over and thereby avoid the consequences of earlier moves. Sun Bank has chosen its strategy, and it is now time for the rules of the game and the facts of this case to determine where that strategy will lead.

Reversed and remanded for further consistent proceedings.

SCHWARTZ, Chief Judge

(dissenting).

I would not reach the controversial issues involved in the court’s discussion of the legal effect of the creditor’s failure to give proper notice of the initial disposition of the collateral or the fact that it did not occur in a commercially reasonable manner. This is because neither of these factors has caused any real loss to the debtor. The record shows that after the computer was given to the School Board, it proved unusable even for its purposes and was both reclaimed by the bank and, of decisive significance here, was retendered to, but predictably not accepted by the appellants. Under these circumstances, the posture of the case is no different than if the computer' had not been seized in the first place— with the exception of the (probably excessively lengthy) period in which the debtor was unable to use it. I believe that the debtor is thus entitled to an offset only in the amount of the rental value of the computer during the time that it was improperly deprived of its possession. Jones v. Morgan, 58 Mich.App. 455, 228 N.W.2d 419 (1975).

I perceive no reason in the UCC, in sound commercial practice, nor in actual prejudice to the debtor which should act to permit the appellant to reap the windfall of escaping the payment of its debt, less only the amount of cognizable damages it has sustained by the action of the creditor. Thus, I find no basis for adopting the majority’s doctrine of a fatal “double barreled election of remedies,” but see Motorola Communications & Electronics, Inc. v. National Patient Aids, Inc., 427 So.2d 1042, 1045 n.9 (Fla.4th DCA 1983), to preclude the bank’s recovery. I would therefore remand for the limited purpose of determining the value of the use of the computer, if any, during the critical period and require that that amount _ alone be deducted from the judgment under review. .


text:
    Dick HAMMOND Appellant, v. Richard MIHALKO, Appellee. Dick HAMMOND, Appellant, v. PALM BEACH COUNTY, Florida, Appellee.
    Nos. 83-2670, 84-866.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1984.
    Rehearing Denied Oct. 8, 1984.

      Robert Lee Dennis of Dennis & Dunn, Okeechobee, for appellant.
    David M. Wolpin, Asst. County Atty., West Palm Beach, for appellee-Palm Beach County.
   PER CURIAM.

This appeal concerns the estreating of a bond and the subsequent final judgment of forfeiture. The bondsman filed an appeal from the order estreating the appearance bond and a separate appeal from the Final Judgment. This court has permitted consolidation.

Appellant bondsman has a total of eight issues on appeal, none of which the county addresses in its briefs. Instead it depends on the single theory that this court has no jurisdiction because the bondsman did not file a motion to set aside the Final Judgment within the 45 day time limit of Section 903.27(5), Florida Statutes (1983):

(5) After notice of judgment against the surety given by the clerk of the circuit court, the surety or bail bondsman may within 45 days file a motion to set aside the judgment. Upon the filing of such a motion, the court may stay execution on the judgment or set aside the judgment in whole or in part only for those reasons for which the forfeiture could have been discharged.

As the County would have it, the above statute sets forth the mandatory procedure necessary to set aside the judgment and must be complied with. We disagree. Although no case addresses the issue, it can be seen from a reading of the above quoted section, especially the second sentence thereof, that this procedure is similar to a motion under Rule 1.540, Florida Rule of Civil Procedure or Rule 3.720, Florida Rule of Criminal Procedure which enumerates specific reasons under which the motion can be made. Under the statute it is specified that the court can only set aside the judgment for the reasons for which the forfeiture could have been discharged. These are found in Section 903.26(5):

(5) The court may discharge a forfeiture within 30 days upon:
(a) A determination that it was impossible for the defendant to appear as required due to circumstances beyond his control. The potential adverse economic consequences of appearing as required shall not be considered as constituting a ground for such a determination;
(b) A determination that, at the time of the required appearance, the defendant was adjudicated insane and confined in an institution or hospital or was confined in a jail or prison; or
(c) Surrender of the defendant if, but only if, in the case of a surety bond, the surrender was substantially procured and caused by the surety and if, but only if, the delay has not thwarted the proper prosecution of the defendant. If the forfeiture has been before discharge, the court shall direct remission of the forfeiture. The court shall condition a discharge or remission on the payment of costs and the expenses incurred by an official in returning the defendant to the jurisdiction of the court.
(6) The discharge of a forfeiture shall not be ordered for any reason other than as specified herein.

If the bondsman has any other reasons for setting aside or reversing the judgment, they can be raised on plenary appeal.

The county’s only argument in its brief filed in appeal Case No. 83-2670, which was directed to the November 10,1983 trial court Order estreating the appearance bond, is that it is non-final and non-appealable Huie v. State, 92 So.2d 264 (Fla.1957). However, since a Final Judgment has now been entered and appealed (Case No. 84-866, the consolidated case), these issues are reviewable. See Allied Fidelity Insurance Co. v. State, 384 So.2d 727 (Fla. 3d DCA 1980), and Saul v. Basse, 399 So.2d 130 (Fla. 2d DCA 1981) holding that an appeal from a final order allows review of all necessary interlocutory steps leading up to that order.

In view of the foregoing the appellee, Palm Beach County, is hereby directed to file within thirty (30) days, a brief addressing the merits of appellant’s eight points on appeal. Appellant may file a reply brief within twenty (20) days after service of the answer brief.

DOWNEY, LETTS and WALDEN, JJ., concur.


author: PER CURIAM. ANSTEAD, Chief Justice,

text:
    STATE of Florida, Petitioner, v. Freddie GREEN, Respondent.
    No. 83-2675.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1984.
    Rehearing Denied Oct. 2, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for respondent.
   PER CURIAM.

This appellate review initiated by notice of appeal is treated as a petition for writ of certiorari, State v. W.R.C., 444 So.2d 1173 (Fla. 4th DCA 1984); State v. Mendez, 423 So.2d 621 (Fla. 4th DCA 1982), and the petition is denied.

DOWNEY and WALDEN, JJ., concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Justice,

dissenting:

I would grant the state’s petition for certiorari and quash the order of the trial court barring the victim of an armed robbery from testifying in court as to the identity of the person who assaulted and robbed him.

The police, after locating the victim’s car which was taken during the course of the robbery, arrested the respondent when he entered the car and drove it to an alleyway where he started unloading it. The victim, who had been told that the car had been staked out, was then taken to the police station to view the person who was seized in possession of the car, to determine if it was the same person who had robbed him. Upon viewing the respondent through a one-way mirror, the victim immediately made an emphatically positive identification of the respondent. This identification took place some five hours after the actual robbery in which the victim had had an “eyeball to eyeball” confrontation with the robber sufficient to cause the victim to testify that he believed, based on that confrontation, that he would never forget the appearance of the robber.

Notwithstanding that the one-on-one identification of the respondent by the victim was unduly suggestive, I do not believe the victim’s identification testimony should be barred, since the victim had ample opportunity to view the robber at the time of the offense, gave an accurate description of the robber before the police station identification, and was absolutely certain of his ability to identify his assailant in his testimony before the trial court. Similar identifications have been approved. See State v. Freber, 366 So.2d 426 (Fla.1978); Lauramore v. State, 422 So.2d 896 (Fla. 1st DCA 1982); State v. Cromartie, 419 So.2d 757 (Fla. 1st DCA 1982); State v. Ciongoli, 313 So.2d 41 (Fla. 4th DCA 1975).. The fact that the victim identified his assailant under the circumstances set out above may be used to impeach his identification at trial or to lessen the weight of that identification, but it should not be used to totally exclude the identification.

The ruling of the trial court is tantamount to a ruling that all such identifications, popularly referred to as “show-ups,” will bar a witness or victim from later identifying the alleged offender in court. This is directly contrary to Florida and federal law on the issue. In fact, the Florida Supreme Court has intimated that in some instances it would be illogical not to have a show-up:

It is true that a single photograph of Appellant was shown prosecutrix by the sheriff’s deputy, because she told him Appellant had revealed to her he had been jailed for raping another girl. Pursuant to this revelation, it is logical that the police would show prosecutrix a photograph of a suspect in another rape case who had been jailed as a lead in identifying and arresting the person suspected of committing the crime of rape upon the prosecutrix. Under these circumstances, it was not an abuse of due process rights to use the single photograph as a clue or lead in apprehending the rapist of prose-cutrix. In fact, it would be unreasonable to preclude the use of such a photograph for this pre-arrest purpose.

Chaney v. State, 267 So.2d 65, 69 (Fla.1972).

The question is not only whether an unduly suggestive identification procedure was used but whether, in addition, that procedure was so suggestive, when considered together with the evidence of the witness’ ability to identify the assailant based on his observation at the time of the offense, that it results in a substantial likelihood of an irreparable mistaken identification. Gaines v. State, 406 So.2d 523 (Fla. 4th DCA 1981); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Here, the evidence of the victim’s ability to make an identification from his personal confrontation with his assailant overwhelmingly indicates that there is little, if any, chance of a mistaken identification. The only predicate for finding that there will be a mistaken identification is the unduly suggestive “show-up,” a predicate insufficient of itself to support an order barring the victim’s identification.

I sympathize with the trial court’s attempt to fairly evaluate the victim’s testimony based upon the victim’s demeanor, etc., at the suppression hearing, but I do not believe that evaluation can substitute for the victim’s clear-cut testimony on the issue. I concede that I share in the victim’s certain amazement at the fact that he will not be allowed to identify the assailant who robbed him at gunpoint and then removed him from his car and left him bound and gagged, while the assailant fled in the victim’s car.


author: BARFIELD, Judge.

text:
    Susan CALLAHAN, Appellant, v. SCHOOL BOARD OF MONROE COUNTY, Florida and Gallagher Bassett Insurance Service, Appellees.
    No. AU-194.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1984.
    Rehearings Denied Sept. 19, 1984.
    Harvey Kaufman of Kenney, Boswell & Kaufman, West Palm Beach, for appellant.
    Donna S. Catoe of Peters, Pickle, Flynn, Niemoeller & Downs, Miami, for appellees.
   BARFIELD, Judge.

In this workers’ compensation appeal the order of the deputy commissioner finding that the date of maximum medical improvement was February 15, 1982, is AFFIRMED.

The deputy commissioner’s denial of the claim for payment of services of Dr. Wilson for the claimant’s first visit to Dr. Wilson and for the EMG is REVERSED. Deinema v. Pierpoint Condominiums, 415 So.2d 811 (Fla. 1st DCA 1982); Benitoa v. Maritime Machine Products, Inc., 380 So.2d 560 (Fla. 1st DCA), cert. denied, 389 So.2d 1112 (Fla.1980); Schult Mobile Home Corp. v. Walling, 384 So.2d 251 (Fla. 1st DCA), review denied, 389 So.2d 1114 (Fla.1980).

MILLS and BOOTH, JJ., concur.


author: SHIVERS, Judge.

text:
    Billy E. SWAIN, Appellant, v. STATE of Florida, Appellee.
    No. AV-290.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1984.
    Rehearing Denied Sept. 28, 1984.
    Michael E. Allen, Public Defender, Paula S.Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Swain appeals his conviction for grand theft and his sentences for grand theft and attempted burglary. He argues that the trial court erred in allowing the victim sub judice to testify as to the value of the stolen property and that the trial court erred in departing from the sentencing guidelines. We affirm.

Claude Oliver, an independent trucker, was in Jacksonville on February 20, 1983. His refrigerated trailer contained approximately 20 tons of meat. He arrived in Jacksonville around midnight, parked his truck, and went to sleep in the cab. At some point he woke up, looked in the mirror, and saw the right rear trailer door open. He got out of the cab carrying a .22 caliber pistol and walked to the back of the trailer. He could hear boxes of meat hitting the ground. An older model Buick was parked in back of the trailer and Oliver saw a man putting a box of meat into the trunk of the car. He told the man to freeze, but the man started to run, and Oliver fired at him. Oliver then heard a noise in the back of the truck, turned and saw appellant inside the trailer. There were three boxes of meat in the trunk of the car and eight boxes of meat on the ground. Oliver made appellant put the boxes of meat back in the trailer and then sit by a fence while Oliver summoned the police on his CB radio.

After the incident Oliver inventoried the contents of the trailer. He discovered 23 boxes of meat missing. Over appellant’s objections, Oliver testified at trial that he took a price chart from Paramount Poultry and valued the missing meat at approximately $1,700. Oliver also testified that his company had cargo insurance with a $1,000 deductible and that he had to pay the deductible for the missing boxes of meat. At the conclusion of the trial appellant was found guilty of grand theft and attempted burglary.

We find it unnecessary to determine whether the trial court erred in allowing Oliver to testify about what he learned from the price chart concerning the value of the meat. Section 812.012(9)(b), Florida Statutes (1983), provides that if the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount. Oliver testified that he had to pay a $1,000 insurance deductible because of the missing meat. Oliver had personal knowledge as to how much he paid on the insurance deductible, and we think that such testimony adequately proves that the value of the items stolen is worth at least the amount which Oliver had to pay because of the theft. Cf. Jackson v. State, 413 So.2d 112 (Fla. 2d DCA 1982) (conviction for second degree grand theft proper where reasonable persons could not doubt that the value of the property described to the jury was $100 or more). Therefore, we affirm appellant’s conviction for grand theft.

Appellant was sentenced on October 5, 1983. At the sentencing hearing he elected to be sentenced under the sentencing guidelines. The prosecutor prepared a guidelines scoresheet and totaled 71 points. This translates into a recommended sentence of 12 to 30 months under the guidelines. The prosecutor recommended that the trial court depart from the guidelines sentence for numerous reasons and recommended a sentence of 20 years. Appellant objected to a departure from the guidelines. The trial court departed from the guidelines and sentenced appellant to five years for attempted burglary and three years for grand theft to run consecutively. The guidelines scoresheet reflects the following written reasons for departure:

The defendant demonstrates absolutely no remorse or rehabilitation. He took the stand in his trial and perjured himself. He was paroled from a sentence for murder and remained free only six month's before he was convicted for petit theft. One month later, the instant offense occurred. He also failed to make restitution payments to the mother of his murder victim. He is a violent person and a threat to society.

We think at least one reason cited by the trial court justifies departure. It is clear from the written statement of the trial court and from the court’s oral pronouncements during sentencing that one of the primary considerations for departing from the guidelines was the timing of the commission of the various criminal offenses by appellant. It was not merely that appellant had previously committed murder and petit theft, but that appellant had established a pattern of committing new crimes within a very short period of time after his release from any incarceration. The timing of the commission of offenses is not included in the criteria for determining a guidelines score. Nor would consideration of this factor violate the prohibition of Fla.R.Crim.P. 3.701(d)(ll) concerning factors relating to arrests for which convictions have not been obtained. Our conclusion is bolstered by the recent decision of this court in Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984), wherein this court upheld a trial court’s deviation from the sentencing guidelines where the deviation was supported by temporal and geographical circumstances of the offenses for which the appellants were convicted.

Appellant argues alternatively that, if departure from the guidelines is justified, the departure in the instant case is excessive. The sentencing guidelines do not explicitly provide any guidance for trial courts in determining a sentence once the trial court has validly departed from the guidelines. The sentences sub judice are within the parameters established by the Legislature. On the facts of the instant case, we decline to hold that the sentences are excessive.

AFFIRMED.

MILLS and WIGGINTON, JJ., concur.

      . See sections 775.082, 777.04, 810.02, 812.014, and 921.001(5), Florida Statutes (1983).


author: WIGGINTON, Judge.

text:
    Jeffrey Lynn MOORE, Appellant, v. STATE of Florida, Appellee.
    No. AW-88.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1984.
    Rehearing Denied Sept. 28, 1984.

      Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Henri C. Caw-thon, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   WIGGINTON, Judge.

Moore appeals from his conviction of, and sentence for, armed robbery, raising several points for our review.

Points I and II, regarding alleged errors made by the court during the trial stage are without merit. We therefore affirm the court’s denial of Moore’s motion to suppress evidence, and hold that the trial court did not improperly limit defense cross-examination of a state witness.

Points III and IV, however, pertaining to the sentencing stage, merit some discussion. Under Point III, Moore argues that the trial court erred in sentencing him pursuant to the sentencing guidelines, since the record is silent as to whether Moore “knowingly and intelligently” waived his right to parole eligibility. Moore makes two contentions to advance his argument. First, he contends that the applications of the guidelines to his case, where he committed his crime prior to October 1, 1983, the effective date of rules 3.701 and 3.988, Florida Rules of Criminal Procedure, would be an impermissible ex post facto application of the law. Therefore, by his choosing to be sentenced under the guidelines, Moore waived a valuable constitutional right to be protected from the application of ex post facto laws.

Second, Moore contends that a defendant’s choice to be sentenced under the guidelines should be as carefully scrutinized by the trial court as when a defendant enters a guilty plea. As his argument goes, a determination should be made as to whether a defendant knows that by being sentenced under the guidelines, he has lost his eligibility for parole. Thus, the court’s scrutiny would concentrate on the issue of a knowing and intelligent waiver.

We reject Moore’s argument under Point III for one major reason. The Florida Supreme Court, in its opinion approving the sentencing guidelines, and the Florida Legislature, in its legislation authorizing and implementing the guidelines, require only a showing that a defendant “affirmatively selected” to be sentenced under the guidelines. In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983); section 921.001(4)(a), Florida Statutes (1983). There is no indication in either source that the term “affirmatively” was intended to mean “knowingly and intelligently.” We decline to accord it that definition now.

The record indicates the following exchange took place between the trial court and defense counsel:

MR. GREEN: For the record, Your Honor, I have discussed this with my ■ client. The Court was kind enough to give us an option. I think even under the law we’re entitled to an option for us to determine whether or not we would elect to be sentenced under the guidelines. I have discussed this with my client. We have chosen to be sentenced under the guidelines, even though the crime was committed before October 1.
THE COURT: All right. He elects to be sentenced under guidelines?
MR. GREEN: That’s correct.
THE COURT: I want the court file to clearly show that. (T. 588) (emphasis added)

We hold the above colloquy to be clear evidence of Moore’s affirmative selection to be sentenced under the guidelines.

However, we would agree with Moore’s final argument under Point IV, that the trial court erred in scoring Moore by including in his number of prior convictions, over defense objection, a prior conviction of armed robbery. That particular offense was committed the day after the offense in the present case occurred. Rule 3.701 d.5.a), Florida Rules of Criminal Procedure, provides for inclusion in the prior record score only criminal convictions disposed of prior to the commission of the instant offense. Here, the second robbery, and the conviction therefor, occurred after the commission of the instant offense, and obviously was not disposed of prior to the commission of the instant offense. Consequently, we vacate the sentence and remand for resentencing in accordance with this opinion.

SMITH and WENTWORTH, JJ., concur.


author: MILLS, Judge.

text:
    Robert Lee LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    No. AU-225.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.
    Rehearing Denied Sept. 19, 1984.
    Michael Allen, Public Defender, Terry P. Lewis, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Lawrence Kaden, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the record and considered the parties’ briefs, we find no reversible error.

AFFIRMED.

BOOTH and BARFIELD, JJ., concur.


author: SHIVERS, Judge. MILLS, Judge,

text:
    Suzanne HIRSCHENSOHN, Appellant, v. David Wood PERSONNEL, American Mutual Insurance Company and Division of Workers’ Compensation, Appellees.
    No. AU-441.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.
    Rehearing Denied Sept. 28, 1984.

      Alfred Kreisler, Miami, for appellant. Richard B. Wingate, Jr., of Underwood, Gillis, Karcher and Valle, P.A., Miami, for appellees.
   SHIVERS, Judge.

In this workers’ compensation case, Hir-schensohn appeals an order of the deputy commissioner which fails to award any benefits beyond those voluntarily paid by the employer/carrier. Appellant contends that the deputy commissioner erred in determining her average weekly wage (AWW), in finding that appellant reached maximum recovery on October 7, 1982, in not awarding temporary total disability (TTD) benefits in excess of those paid by the employer/carrier, and in denying the claim for costs, penalties, interest and attorney’s fees. Appellant also contends that there is no competent, substantial evidence to support the deputy commissioner’s finding that TTD benefits were paid at a rate of $115.17 per week. We affirm in part, reverse and remand in part.

In the order sub judice the deputy commissioner did not explicitly state which subsection of section 440.14, Florida Statutes, was used to determine the claimant's AWW. It is apparent, however, that the mathematical method used was that of section 440.14(l)(a). This method cannot be used unless the injured employee has worked substantially the whole of 13 weeks immediately preceding the injury. The statute states that the term “during substantially the whole of 13 weeks” shall be deemed to mean during not less than 90% of the total customary full-time hours of employment within such period considered as a whole. The claimant testified that she was absent from work for a portion of the 13 weeks prior to her accident. There is evidence in the record to show that claimant worked 57 days during the three months prior to the accident. The record, however, does not reveal what appellant’s total customary full-time hours of employment within the 13 week period were. Without a proper predicate in the record, we cannot say that the deputy commissioner erred in utilizing the method of section 440.14(l)(a). Cf. Pate v. Maddox Foundry & Machine Works, 414 So.2d 524 (Fla. 1st DCA), rev. dismissed, 419 So.2d 1199 (Fla. 1982) (stating that the issue of AWW could be decided within the parameters of § 440.-14(1) without referring to a “similar employee” where the record showed that appellant worked more than 90% of a 40 hour week during the 13 weeks before the injury).

The record here contains conflicting medical testimony concerning the claimant’s orthopedic condition. Dr. Carlson, claimant’s chiropractor, testified that claimant suffered from low back strain and sub-luxation. He stated that claimant had not reached maximum medical improvement (MMI) at the time of the hearing and that he had recommended she not work from the date of accident, February 26, 1982, through the end of December 1982. However, Dr. Drucker, an orthopedic surgeon, examined claimant on October 7, 1982, and testified that claimant had reached MMI and was not TTD at the time he saw her, that she had no physical residual impairment, and that she was not in need of any active care.

The record also contains conflicting testimony concerning claimant’s psychiatric condition. Dr. Green, claimant’s psychologist, diagnosed depressive reaction with overtones of agitation causally related to the accident. As of the date of the hearing he felt that claimant had not reached MMI psychologically and that she was not able to return to work. However, Dr. Pinosky, a psychiatrist, testified that he saw and evaluated claimant on February 7, 1983, that claimant had no psychiatric condition as a result of the fall and that she needed no psychological treatment because of the fall.

A deputy commissioner may accept the testimony of one doctor and reject that of another, even without explanation. Buro v. Dino’s Southland Meats, 354 So.2d 874 (Fla.1978). The deputy commissioner in the instant case acknowledged the conflicting testimonies of the various doctors. We cannot say that the deputy commissioner erred in accepting the testimonies of a psychiatrist and orthopedic surgeon over those of a psychologist and a chiropractor. We note, however, that the doctors relied upon by the deputy commissioner, Drs. Drucker and Pinosky, did not examine the claimant until October 7, 1982, and February 7, 1983, respectively. For the periods prior to these dates, the only evidence in the record concerning claimant’s condition was the testimonies of Drs. Carlson and Green, both of whom testified that claimant had not reached MMI and was not capable of working. Therefore, we do not think that TTD benefits can be denied appellant prior to February 7, 1983.

Even if there was no medical evidence of total inability to work during this period of time, denial of TTD benefits here could not rest on claimant’s failure to seek work in the absence of evidence that claimant knew or should have known that she was medically released for that purpose. Fulmer-Orlando v. Taylor, 419 So.2d 734 (Fla. 1st DCA 1982); Lakeland Construction Co. v. Flatt, 433 So.2d 1253 (Fla. 1st DCA 1983). Therefore, we reverse the order sub judice insofar as it denies TTD benefits prior to February 7,1983. In light of this reversal, we remand to the deputy commissioner to award appropriate benefits and to reconsider the claim for costs, penalties, interest and attorney’s fees.

In all other respects, the order sub judice is affirmed. The other issue raised by appellant, relating to the compensation rate of $115.17 per week, was not raised before the deputy commissioner. Therefore, we will not address it on appeal. See Mezquita v. Florida Steel Corp., 419 So.2d 675 (Fla. 1st DCA 1982).

AFFIRMED in part, REVERSED and REMANDED in part.

WIGGINTON, J., concurs.

MILLS, J., concurs in part and dissents in part with written opinion.

MILLS, Judge,

concurring in part and dissenting in part:

I would affirm those parts of the deputy’s order which the majority affirmed, but I would also affirm those parts which the majority reversed and remanded.

I find the deputy’s order is supported by competent substantial evidence and the law. I adopt the following from the deputy’s order:

4. That the claimant received an injury by accident arising out of and in the course of her employment on February 26, 1982, when she slipped and fell in the waiting room of the employer’s office, suffering a hip sprain.
5. That the claimant’s average weekly wage is $172.76 giving her a compensation rate of $115.17. In making such findings, I recognize the several items of testimony introduced at the hearings relating to the question of average weekly wage and specifically find that, since the claimant and her fellow employees are commission employees and the performance of each depends on the particular ability of each employee, that there was no like employee whose wages should be considered in computing the average weekly wage and that the claimant’s actual earnings should be used. I have considered that the claimant testify that both Kathy Quinn and Shelly Mandell were like employees; however, the employer’s manager testified that Kathy Quinn was the most successful counselor in the employer’s business and her earnings and ability were not similar to the claimant’s. He did testify that Shelly Mandell was more of a like employee; however, I recognize that when computing Shelly Mandell’s earnings, he developed an average weekly wage of only $123.24. The claimant’s actual earnings as represented by the wage schedule submitted into evidence discloses that her earnings were substantially more than Shelly Mandell’s. I therefore find that there was no like employee whose wages should be considered in computing the average weekly wage and that the claimant’s actual earnings should be used. An analysis of the claimant’s wage schedule discloses that the claimant’s actual earnings during the three months prior to the industrial accident amounted to $1,951.30 with an additional fringe benefits of $294.54 for a total of $2,245.84 or $172.76 per week.
6. That the carrier paid temporary total disability compensation benefits at the rate of $115.17 per week for February 27 and 28, 1982 and again for March 2 to August 8, 1982.
7. I recognize the conflicting testimony between the medical evidence presented by the claimant and that presented by the Employer/Carrier and I accept the opinion by Melvin Drucker, M.D., an orthopedic specialist, over that expressed by the claimant’s chiropractic physician, Dr. Carlson. Dr. Drucker testified and I also find that by the time of his examination on October 7, 1982, the claimant had no residual impairment from the industrial accident of February 26, 1982.
8. I also accept the opinion of Dr. David Pinosky, a Board qualified psychiatrist, and Dr. Charles Kram, a psychologist, over that of the testimony of Dr. Robert A. Greene, a psychologist. It was the opinion of Dr. Pinosky that the claimant had a fragile personality; however, any emotional problems, such as she displayed, were not caused by the industrial accident. I further find that said opinion is supported by the opinion of Charles Kram Ph.D., the psychologist who examined and tested the claimant at the request of Dr. David Pinosky. Dr. Kram’s report was introduced into evidence by the claimant. It is my judgment that the opinions and evaluations of Dr. Pinosky and Dr. Kram are representative of a more detailed and objective analysis than that of Dr. Greene whose treatment had been provided to the claimant for slightly over a year prior to her industrial accident and was obviously initiated for conditions unrelated to the accident of February 26, 1982.
9. With regard to the claim for further temporary total disability compensation benefits, I find that the claimant is entitled to no further temporary total disability compensation benefits in excess of that paid by the Employer/Carrier. I recognize that the claimant testified on January 4, 1983 that she has continued complaints of neck pain and hip pain and headaches; however, I have found, based on the medical testimony of the only Board Certified Orthopedic Specialist, Dr. Drucker, that she has no residual complaints that are related to the industrial accident. I also recognize that Dr. Carlson testified on January 4, 1983 that the claimant continued to suffer from a low back strain and sprain and subluxation of the sacroilliac and interference with the lower vertebra and that in his opinion she was disabled; however, I have rejected the medical opinion of this doctor in favor of the Board Certified Orthopedic Specialist, Dr. Drucker, and also observe that Dr. Carlson has seen the claimant for neck problems and headaches starting in June of 1980, and that those conditions were obviously unrelated to the injury of February 26, 1982. In view of the fact that I find the claimant has no residual impairment related to the industrial accident, (although I recognize she does suffer from a significant physical impairment as a result of her pre-ex-isting unrelated multiple sclerosis) and in considering her testimony that she made no attempts to return to work, I find that the evidence accepted by me is insufficient in support of a finding of further temporary total disability compensation benefits in addition to those previously paid.
10. In view of the fact that I find that the claimant has no permanent residual impairment as a result of her industrial accident, the claim for wage loss benefits and the claim for permanent and total disability compensation benefits are hereby denied.
11. As the claimant reached her maximum recovery by October 7, 1982 with no residual impairment related to the industrial accident the claim for further remedial medical care and attendance subsequent to that date is hereby denied.
12. I find that the claimant has obtained no benefits as a result of her claim which were not voluntarily paid by the carrier and the claim for costs, penalties, interest and attorneys fees is hereby denied.

      . If the injured employee has worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks. As used in this paragraph, the term "substantially the whole of 13 weeks” shall be deemed to mean and refer to a constructive period of 13 weeks as a whole, which shall be defined as a consecutive period of 91 days, and the term "during substantially the whole of 13 weeks" shall be deemed to mean during not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole.


author: PER CURIAM. ERVIN, Chief Judge,

text:
    BRANFORD STATE BANK, Appellant, v. HACKNEY TRACTOR COMPANY, INC., Appellee.
    No. AV-314.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.
    Rehearing Denied Sept. 18, 1984.
    Andrew J. Decker, III, of Airth, Sellers, Lewis & Decker, Live Oak, for appellant.

      Charles Vocelle and William J. Haley of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellee.
   PER CURIAM.

Summary judgment was entered below, holding the appellant bank’s suit was barred based on the court’s determination that the statute of limitations had begun to run at the time of the alleged conversion of the property which was the subject of appellant’s security interest. Thus, judgment was entered for appellee despite appellee’s failure to show that appellant was aware of, or should have been aware of, the invasion of its legal rights. This was error. Lund v. Cook, 354 So.2d 940, 942 (Fla. 1st DCA 1978), quoting Creviston v. General Motors Corp., 225 So.2d 331 (Fla.1969):

From the standpoint of legal principles, the holdings in the cases above discussed appear to crystallize in favor of application of the blameless ignorance doctrine in those instances where the injured plaintiff was unaware or had no reason to know that an invasion of his legal rights has occurred. In reality, such a doctrine is merely a recognition of the fundamental principle that regardless of the underlying nature of the cause of action, the accrual of the same must coincide with the aggrieved party’s discovery or duty to discover the act constituting an invasion of his legal rights.” (emphasis supplied)

Accordingly, the judgment is reversed and the cause remanded for determination of the statute of limitations’ question in accordance herewith and for resolution of any necessary issues of material fact.

BOOTH and WENTWORTH, JJ., concur,

ERVIN, C.J., specially concurs with written opinion.

ERVIN, Chief Judge,

specially concurring.

While agreeing with the decision to reverse the lower court’s judgment, I write this opinion in an effort to guide the parties upon remand of this cause. An issue not raised on appeal, but obvious from the record and findings of the lower court, concerns the expiration of appellant’s financing statement. Specifically, the issue is whether the lapse of appellant’s filed financing statement made appellant’s rights subordinate to those of appellee.

Section 679.403(2), Florida Statutes (1983), states that the effectiveness of a filed financing statement lapses five years after the date of filing. The lower court found that appellant filed a financing statement, perfecting its security interest in the equipment described in the complaint on September 29, 1976, and that the financing statement expired as of September 29, 1981. Upon its lapse, appellant’s security interest became unperfected and under the provisions of section 679.403(2), would be considered unperfected as against appellee, a purchaser of the equipment in March, 1977. Pursuant to section 679.301(l)(c), ap-pellee took priority over appellant if appel-lee purchased without actual knowledge of appellant’s security interest.

Appellee has denied actual knowledge of appellant’s security interest at the time it gave value and took delivery of the equipment. In response to interrogatories, ap-pellee claims that its first knowledge of the prior security interest arose on May 14, 1982, despite its asking the borrower about any liens or security interests on the equipment before accepting the equipment on trade-in. It would therefore appear to me that the only genuine issue as yet unresolved is whether appellee had actual knowledge of appellant’s interest in the security at the time it obtained the equipment in March, 1977.

      . The borrower traded in the equipment to the appellee toward the purchase of new equipment. The appellee qualified as a "purchaser" under section 671.201(33). Appellee was not a buyer in the ordinary course of business since it did not buy from a person in the business of selling goods of that kind. Section 671.201(9).

      . Section 679.301, Florida Statutes (1983), states in pertinent part:
      (1) Except as otherwise provided in subsection (2), an unperfected security agreement is subordinate to the rights of:

      (c) In the case of goods, ... a person who is not a secured party and who is a ... buyer not in ordinary course of business, ... to the extent that he gives value and receives delivery of the collateral without knowledge of the security interest and before it is perfected; .... (emphasis added)
      A person “has ‘knowledge’ of a fact when he has actual knowledge of it.” Section 671.201(25)(c).

      .Section 679.301(l)(c)’s final requirement is that a purchaser receive delivery of the collateral "before it is perfected.” Under the provisions of section 679.403(2), however, appellee can have priority despite taking delivery of the collateral after appellant perfected its security interest. See 1 W. Williams, Florida Law of Secured Transactions in Personal Property § 2.04 (1980); Zaretsky, Lapse of Perfection in Secured Transactions: A Search For a Consistent Approach, 27 B.C.L. Rev. 247, 254 (1981).


author: JOANOS, Judge.

text:
    Sylvester WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AY-407.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.
    Rehearing Denied Oct. 2, 1984.
    Sylvester Williams, pro se.
    John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

This is an appeal from a denial of a motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As ground for relief appellant alleged that the trial court erred in failing to appoint counsel to represent him at the evidentiary hearing held on his motion for post-conviction relief. We affirm.

After being charged with first degree murder, appellant entered a negotiated plea of guilty to a charge of second degree murder with a firearm. Following entry of his negotiated plea, appellant was adjudicated guilty of second degree murder and was sentenced to a life term. Appellant’s motion for post-conviction relief alleged essentially that his plea was involuntary because it was entered with appellant’s understanding that his sentence would be three years, but instead he was sentenced to life.

The trial court ordered an evidentiary hearing on appellant’s motion. Appellant was present at the hearing and was afforded an opportunity to examine all witnesses — both those witnesses who appeared on his behalf, and the state’s witnesses. In addition, appellant testified in his own behalf.

We hold that given the circumstances of this case, where the issue was not complex and there was no need for substantial legal research, the trial court did not abuse its discretion in failing to appoint counsel to represent appellant at the evidentiary hearing. Nevertheless, believing the issue to be one of great public importance, we certify the following question to the Florida Supreme Court:

WHEN A TRIAL COURT HAS DETERMINED THAT IT IS NECESSARY TO HOLD AN EVIDENTIARY HEARING ON ALLEGATIONS RAISED IN A MOTION FOR POST-CONVICTION RELIEF, IS COURT-APPOINTED COUNSEL FOR AN INDIGENT DEFENDANT MANDATORY OR IS SUCH APPOINTMENT PROPERLY LEFT TO THE DISCRETION OF THE TRIAL COURT?

AFFIRMED.

SMITH and ZEHMER, JJ., concur.

"The adversary nature of the proceeding, its complexity, the need for an evidentiary hearing, or the need for substantial legal research are all important elements which may require the appointment of counsel.”

      . Graham v. State, 372 So.2d 1363, 1366 (Fla.1979)—


text:
    ALL SEASONS RESORTS, INC., Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF LAND SALES, CONDOMINIUMS AND MOBILE HOMES, Appellee.
    No. AZ-26.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1984.

      Robert P. Smith and Frank E. Matthews of Hopping, Boyd, Green & Sams, Tallahassee, for appellant.
    Thomas A. Bell, Tallahassee, for appel-lee.
   MILLS, Judge.

All, Seasons Resorts, Inc. (A-S) appeals from a declaratory statement, entered by appellee (Division) pursuant to Section 120.-565, Florida Statutes (1983), finding the provisions of Chapter 721, Florida Statutes (1983), “Real Estate Time-Share Plans,” applicable to A-S’ operations in Florida.

In January 1984, A-S began offering certain memberships for sale to visitors at a Lake County, Florida, campground. For sale were lifetime licenses to use any campground now in, or later added to, the network of campgrounds owned by A-S and located in various states. The purchaser would receive a license for nonexclusive use of a nonspecified parking site for a recreational vehicle, camper or tent in any A-S campground. Each site is a small plot of ground improved by utility services to the vehicle, typically consisting of an electrical hookup, a fresh water spigot and a wastewater discharge line or basin. Other amenities usually provided are a general store, recreation hall, swimming area and other recreational-type improvements (tennis courts, etc.). A member’s stay in an A-S campground is limited to 14 days at any one time, after which period the member must refrain from visiting any A-S campground for 7 days. The member may then make another 14-day stay at any A-S campground, with 7 days off, ad infini-tum.

A-S’ sales activity in Florida ceased after the Division informed A-S that it must comply with Chapter 721, governing the sale of real estate time-share plans. On 7 March 1984, A-S filed with the Division a petition for declaratory statement pursuant to Section 120.565 seeking a declaration that Chapter 721 was inapplicable to it. (Pursuant to Section 120.565, a declaratory statement sets out the agency’s opinion as to the applicability of a specific statutory provision as it applies to the petitioner in his particular set of circumstances only.) A-S based its arguments against the applicability of Chapter 721 primarily on the definitional portions of the chapter.

Section 721.03(1) provides that the chapter is applicable “to all time-share plans consisting of more than 7 time-share periods over a period of at least 3 years in which the facilities or accommodations are located within this state.” (Emphasis supplied). Therefore, before applicability to an operation can be found, these elements must be present. Time-share plan is defined at Section 721.05(28) as “any ar-rangment, plan, scheme, or similar device ... whereby a purchaser, in exchange for a consideration, receives ownership rights in or a right to use accommodations or facilities, or both, for a period of time less than a full year in any given year ... and which extends for a period of more than 3 years.” Section 721.05(27) defines time-share period as “that period of time when a purchaser of a time-share plan is entitled to the possession and use of the accommodations or facilities, or both, of a time-share plan.” Accommodation, according to Section 721.-05(1) as it read at the time of the declaratory statement, means “any apartment, condominium or cooperative unit, cabin, lodge, or hotel or motel room or any other private or commercial structure which is situated on real property and designed for occupancy by one or more individuals.” Facilities means “amenities ... other than the timeshare unit [an accommodation divided into time-share periods, § 721.05(30)], which are made available to the purchasers of a time-share plan.” Section 721.05(16). As is apparent from this brief outline, the statutory definitions are tightly interwoven, with the failure of an operation to include any portion thereof affecting the applicability of the remainder to that operation.

In its petition, A-S argued that its program was not covered by Chapter 721 for 3 reasons: 1) its lack of time-share periods, Section 721.05(27); 2) of time-share units, Section 721.05(30); and 3) of accommodations or facilities, Section 725.01(1) and (16). There were no time-share periods, argued A-S, because no right to use any specific period of time was being sold; no timeshare units because the A-S member, unlike the purchaser with a right in an accommodation, enjoyed numerous campgrounds with no reserved sites; and no accommodations because A-S was offering neither any of the specific types of accommodations listed in Section 721.05(1) nor “a private or commercial structure which is situated on real property and designed for occupancy by one or more individuals.” Facilities were not present either, A-S contended, since the amenities provided were not accompanied by a time-share unit, as required by Section 721.05(16).

On 20 April 1984, the Division issued its declaratory statement finding Chapter 721 applicable to A-S. The Division found that the requisite time-share periods existed in A-S’ program as the requirement that any one campground stay be limited to 14 days, with 7 days off; the Division termed this scheme a “floating” plan, wherein the timeshare period moves within the year, from year to year. Time-share units could not be ruled out of A-S’ operation either, held the Division, as the statute did not limit the plan to one situs. Finally, the Division found that Chapter 721 applied to either-accommodations or facilities. A-S utilized accommodations in two ways: 1) Section 721.05(1) includes “condominium or cooperative unit” as a type of accommodation. Chapter 718, Florida Statutes (1983), provides that a condominium or cooperative can be bare land. Therefore, bare land, such as A-S’ campsites, can be an accommodation; and 2) the general statutory definition is “a private or commercial structure which is situated on real property and designed for occupancy by one or more individuals.” (Emphasis supplied). By using standard dictionary definitions, the Division found that a structure did not have to be a dwelling-type unit and therefore the utility hook-ups improving A-S’ sites qualified as structures; that occupancy equals possession, use and control; and, therefore, when the structure is used, it is occupied. Facilities were offered, concluded the Division, by way of the various amenities offered at A-S’ campgrounds. Based on the foregoing, the Division held Chapter 721 applicable to A-S’ operations. We reverse.

In response to A-S' arguments on appeal, which parallel, for the most part, its arguments in the petition below, the Division’s basic response is to argue the court’s obligation to accord substantial deference to the interpretation of the chapter made by the Division in the declaratory statement. We agree that it is well-settled that “[ajdministrative construction of a statute by an agency ... responsible for the statute’s administration is entitled to great weight and should not be overturned unless clearly erroneous.” Pan Am World Airways v. Florida Public Service Commission, 427 So.2d 716, 719 (Fla.1983). (Emphasis supplied). We find clear error in this case.

As stated above, in order for Chapter 721 to apply to a given program, it must include a time-share plan containing time-share periods as well as accommodations or facilities. Section 721.03(1). A review of the characteristics of A-S’ program shows that none of these elements, as defined by the chapter, exist therein. Purchasers of A-S’ memberships are not buying a plan which gives them the “right to use accommodations or facilities, or both, for a period of time less than a full year in any given year.” Section 721.-05(28). First of all, we cannot accept the Division’s strained interpretation of the term “accommodation” to include the campsites offered by A-S. The Division first attempts to argue that, because Chapter 718 includes “bare land” in its definition of “condominium or cooperative unit,” one of the types of accommodations specifically enumerated in Section 721.05(1), the land constituting A-S’ campsites is an accommodation. This ignores the general statutory language, also found in Section 721.05(1), that an accommodation is a “structure ... situated on real property.” (Emphasis supplied). Bare land is not a “structure.” It was further incorrect to assert that the utility hookups on the campsites are “strueture[s] ... designed for occupancy by one or more individuals.” The Division supports this theory by relying on selected standard dictionary definitions of the terms “structure” and “occupancy,” neither of which is specifically defined by the Legislature in the statute. We are not bound by the Division’s use of these definitions because, as this court stated in Department of Insurance v. Insurance Services Office, 434 So.2d 908 (Fla. 1st DCA 1983), reh. den. July 6, 1983:

“By urging a construction of statutory terms based upon their common ordinary meanings, the [agency] disavows the utilization of any special “agency expertise” in its interpretation of the statute. This mitigates, if it does not entirely eliminate, the rule calling upon the court to accord great deference to the agency interpretation of the statute.”

Id. at 912, n. 6.

We find that by using these definitions, the Division has overlooked the intent of the Legislature, as indicated by the specific types of accommodations enumerated in Section 721.05(1), that the more general definition therein of “structure[s] situated on real property and designed for occupancy by individuals” refer to structures of the type suited to residency, not merely to use and control. This holding is consistent with the well-worn maxim that “[legislative] intent is determined primarily from the language of the statute [and] the plain meaning of the statutory language is the first consideration.” St. Petersburg Bank and Trust v. Hamm, 414 So.2d 1071, 1073 (Fla.1982). Having determined that accommodations do not exist within A-S’ program, it follows necessarily that no time-share units are involved. See Section 721.05(30). This precludes the Division’s holding that A-S’ program involves covered facilities, as facilities are “amenities ... other than the time-share unit” made available to the purchaser of a time-share plan. Section 721.05(16) (emphasis supplied).

We also cannot agree that timeshare periods are being sold by A-S, as required in Section 721.03(1). Once again, the clear language of the statute indicates otherwise. In defining time-share plan, Section 721.05(28) states that the purchaser of such a plan buys a right to use for “a period of time less than a full year in any given year.” (Emphasis supplied). Timeshare period itself is defined by Section 721.05(27) as “that period of time when a purchaser ... is entitled to possession and use_” (Emphasis supplied). The Legislature’s use of the emphasized language clearly indicates that time-share period refers to a single period of time less than a year, within a year, when the purchaser thereof is entitled to use the rights he has purchased. In the case of A-S’ program, purchasers do not buy a right to use for a single period of time within a year; on the contrary, they may use their membership to stay at campgrounds owned by A-S at any time of the year they choose for as many stays as can be accommodated within that year by the 14-day on, 7-day off requirement. Therefore, we find that timeshare periods, as the term is employed by the Legislature in Chapter 721, are not utilized by A-S in its sales program.

Based on the foregoing, the Division’s declaratory statement finding Chapter 721 applicable to A-S’ particular circumstances is reversed. We do not address the constitutional propriety of the post-statement amendment of Chapter 721, as that amendment was not used to find the chapter applicable to A-S nor to enforce the chapter against it.

BOOTH and BARFIELD, JJ., concur.


text:
    Clyde Otis GRANVILLE, Appellant, v. STATE of Florida, Appellee.
    No. AV-413.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1984.
    J. Victor Africano, Live Oak, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

On this appeal two issues are presented: (1) Whether the court erred by summoning potential jurors in a discriminatory manner tending to exclude segments of the general population; (2) Whether the court erred in denying appellant’s post-trial motion for judgment of acquittal predicated on the ground that appellant’s initial arrest was unlawful. As to the first issue, we affirm on the authority of Carwise v. State, 454 So.2d 707 (Fla. 1st DCA 1984), and find no error with respect to the second question.

Among other offenses, appellant was convicted of violating § 843.02, Florida Statutes, by resisting an officer without violence. It was established at trial that appellant committed a battery in the presence of a law enforcement officer. Regardless of whether a violation of probation also occurred, the officer was clearly authorized to effect appellant’s arrest for the battery. Appellant’s conviction for resisting an officer without violence might thus be predicated upon his subsequent flight from the arresting officer.

AFFIRMED.

SMITH, WENTWORTH and WIGGIN-TON, JJ., concur.


text:
    Marvin WARREN, Appellant, v. STATE of Florida, Appellee.
    No. AW-33.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1984.
    Rehearing Denied Sept. 18, 1984.
    Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. Carwise v. State, 454 So.2d 707, (Fla. 1st DCA 1984).

SMITH, WENTWORTH and WIGGINTON, JJ., concur.


author: WENTWORTH, Judge.

text:
    Wade Lee PLUMMER, Appellant, v. STATE of Florida, Appellee.
    No. AW-34.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1984.
    Rehearing Denied Sept. 18, 1984.
    Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of judgments of conviction and sentences for various offenses including attempted resisting an officer with violence. Since there is no such offense under the laws of Florida, we reverse the judgment and sentence for attempted resisting an officer with violence. Appellant having presented no other point of reversible error, we otherwise affirm the judgments and sentences appealed.

Appellant was tried on various charges including resisting an officer with violence in violation of § 843.01, Florida Statutes. The jury returned a verdict of not guilty as to the charged offense, but found appellant guilty of attempted resisting an officer with violence. However, § 843.01 proscribes offering to do the prohibited act, the attempt is therefore a part of the crime. See Jordan v. State, 438 So.2d 825 (Fla.1983). There is thus no lesser included offense of attempted resisting an officer with violence, and conviction of a defendant of such nonexistent offense is reversible error. Jordan, supra. This result obtains even where, as here, the issue is not raised at trial. See State v. Sykes, 434 So.2d 325 (Fla.1983).

The judgments and sentences appealed are otherwise affirmed; the judgment of conviction and sentence for attempted resisting an officer with violence is hereby reversed, and the cause is remanded for further proceedings.

SMITH and WIGGINTON, JJ., concur.

      . Other issues raised in this appeal are addressed in Carwise v. State, 454 So.2d 707 (Fla. 1st DCA 1984).

      . On remand appellant may again be tried upon the charge of resisting an officer with violence. See Jordan, supra; cf., Sykes, supra.


author: BARFIELD, Judge. NIMMONS, Judge,

text:
    Brian Anthony YOUNG, a/k/a William Manley, Appellant, v. STATE of Florida, Appellee.
    No. AX-1.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1984.
    Rehearing Denied Oct. 2, 1984.
    Michael Allen, Public Defender, and Kenneth L. Hosford, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory G. Costas, Asst. Atty. Gen., Tallahassee, for appellee.
   BARFIELD, Judge.

Appellant (defendant below), Brian Anthony Young, a/k/a William Manley, appeals his sentence imposed following his plea of no contest to one second degree felony and eleven third degree felonies. The trial court departed from the sentencing guidelines which called for a sentence of two-and-one-half to three-and-one-half years, and imposed concurrent sentences of fifteen years for the second degree felony and five years for each of the third degree felonies. We reverse.

The guidelines form lists three written reasons given by the trial judge for departure from the guidelines:

1. The defendant is an amoral person and a career criminal who should be segregated from society.
2. The defendant was charged with 11 additional felonies but the score sheet only allows points for four additional offenses at conviction.
3.The score sheet does not take into consideration the 27 other felony charges against defendant pending in the state attorney’s office.

During the sentencing hearing the trial judge enumerated five reasons for departure, three of which are essentially the same as appear in the written statement:

1. The state attorney would not file in-formations on 27 other felonies.
2. Charges are pending against defendant from other jurisdictions.
3. The defendant is immoral and acts without regard to the law or society.
4. The score sheet does not provide points for more than four additional felonies, which means he gets no points for 7 felonies he pled to.
5. The defendant needs mental health treatment.

We find that, of the various reasons given by the trial court for departing from the sentencing guidelines, all but one were either impermissibly considered or not clear and convincing, or both.

Consideration of the twenty-seven felonies pending in circuit court and other charges in other jurisdictions is clearly prohibited by Rule 3.701.dll, Fla.R.Cr.P.

There is no logical correlation between the appellant’s need for mental treatment and an extended term of imprisonment in the state correctional system. This reason is neither clear nor convincing.

The opinion of the trial court that the guidelines form does not account for additional felonies beyond four is both inaccurate and an impermissible and unconvincing reason for departure. The form contemplates more than four felonies and clearly states “4+”.

The remaining reason given by the trial judge, that the appellant-defendant is an amoral or immoral person and a career criminal who should be segregated from society, finds support in the record; however, when this reason is mired in the confusion revealed by this record, it is impossible to determine whether the trial judge would have come to the same conclusion on this reason alone.

The case is therefore REVERSED and REMANDED to the trial court for resen-tencing in accordance with Rule 3.701, Fla. R.Cr.P. We recognize, however, that the issue presented here is a significant one for this state’s criminal justice system, and we therefore certify the following question as being one of great public importance:

WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE IMPERMISSIBLE UNDER FLA.R.CR.P. 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, SHOULD THE APPELLATE COURT EXAMINE THE OTHER REASONS GIVEN BY THE SENTENCING COURT TO DETERMINE IF THOSE REASONS JUSTIFY DEPARTURE FROM THE GUIDELINES OR SHOULD THE CASE BE REMANDED FOR A RESENTENCING.

THOMPSON, J., concurs.

NIMMONS, J., dissents, with opinion.

NIMMONS, Judge,

dissenting.

I respectfully dissent. This defendant was convicted of twelve felonies charged in various counts in seven informations. The “primary offense” under the sentencing guidelines scheme was a second degree felony, dealing in stolen property. The other eleven crimes were third degree felonies. The Category 6 scoresheet was used to arrive at the guidelines sentence. In scoring the “primary offense at conviction,” the defendant was assessed points for one offense since the primary offense was the only count contained in the applicable information. With respect to the eleven addi- following portion of the guidelines score-tional felonies, the defendant was scored sheet: on only four of them as illustrated by the

II. Additional offenses at conviction

As the above chart shows, it makes no difference to the guidelines sentence whether the defendant was convicted of four more felonies or 100 more felonies.

I know of no reason why these guidelines ought to be construed to preclude the trial court from relying upon the fact of the seven additional felonies, which were not counted in the scoring, as a clear and convincing reason for imposing a greater sentence than that called for by the guidelines. On the contrary, it would appear to me rather unusual for a trial judge to adhere slavishly to the guidelines sentence knowing that seven felonies committed by the defendant were not scored.

Having concluded that there was a clear and convincing reason for the trial court to depart from the guidelines, I am of the view, contrary to the implications from the expressions in the majority’s opinion, that we need not examine the other reasons articulated by the trial court for not imposing a sentence within the guidelines range. The majority seems to have been persuaded by the defendant’s argument that if one or more of the reasons stated for departing from the guidelines was not “clear and convincing,” then the case must be remanded for resentencing even though there was at least one clear and convincing reason stated by the trial court as to why the guidelines sentence was not appropriate. I totally disagree.

Even though some of the articulated reasons may not qualify as clear and convincing reasons under Rule 3.701(d)(ll), at least one was. Under such circumstances, I do not understand why this court should be expected to examine all of the other reasons in order to determine whether they, too, would permit departure from the guidelines. Once the appellate court determines that an articulated clear and convincing reason existed for the trial court’s imposition of a sentence outside the guidelines, further inquiry into the reasons should not be required. I believe this approach is consistent with the law and comports with logic and reason. Moreover, I believe a contrary approach will be an invitation to resourceful defense counsel to urge the kind of flyspecking review which, I believe, even the framers and proponents of sentencing guidelines never intended. Frequently, conscientious trial judges articulate numerous reasons for imposition of a particular sentence, and it is healthy that they do so in order that all interested persons will know why the court did what it did. But if we adopt the appellant’s approach to sentence review under the guidelines, we will be compelled to examine each and every reason mentioned by the trial court. And if, for example, only one of five reasons is found to be wanting, the case will have to be remanded for resen-tencing, with all of the attendant costs associated therewith including the costs of transporting the prisoner to the sentencing court from whatever state corrections institution to which he may have been assigned. Such further erosion of the goal of finality in the criminal judicial process is, in my view, uncalled for.

A further argument advanced by appellant as to why this court should be required to scrutinize every reason stated by the trial court for departing from the guidelines is that a reason which does not receive this court’s imprimatur as a clear and convincing reason for departure may, nevertheless, be reflected in the term of years imposed by the court. I would expressly reject that argument. Once it is determined that there was a clear and convincing reason for imposing a sentence outside the guidelines, the trial court should be accorded the discretion, which it had prior to the advent of sentencing guidelines, to impose any sentence within the statutory range.

Unless the appellate courts of this state are prepared to take over the sentencing function, we need to be vigilant in resisting various inroads now being urged in the present glut of cases wending their way through our system, which inroads would inexorably lead towards the development of the district courts of appeal as, for all practical purposes, the sentencing courts of this state. I regret the direction the majority has charted for this court.

I would affirm.

      . Fla.R.Crim.P. 3.701(d)(2) provides:
      " 'Conviction’ means a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended."

      . On May 8, 1984, the guidelines scoresheets were amended by the Florida Supreme Court to permit scoring offenses in excess of four counts. The Florida Bar: Amendment to Rules of Criminal Procedure, 451 So.2d 824 (Fla.1984). Such amendments do not affect the case sub judice inasmuch as their effective date was July 1, 1984. See Chapter 84-328, Laws of Florida.