author: NESBITT, Judge.

text:
    Ronald Ellis REED, Appellant, v. The STATE of Florida, Appellee.
    No. 82-206.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.

      Jeffrey A. Ward, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The defendant appeals from the denial after evidentiary hearing of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

The circumstances out of which the defendant’s conviction arose may be briefly summarized. Late in the evening of September 10, 1981, the victim was killed while allegedly standing on the highway between his disabled vehicle and attached U-Haul trailer. The investigating officer, relying upon the physical evidence which he observed at the scene, concluded that death was caused by the impact of the defendant’s vehicle into the back of the trailer hurling the deceased into the concrete median strip.

The defendant was arrested and transported to the Dade County jail where a breathalyzer test was administered. The test indicated that the defendant had a blood alcohol level of .23%.

Reed was charged with manslaughter by operating a motor vehicle while intoxicated in violation of Section 860.01(2), Florida Statutes (1979). On the advice of privately-retained counsel, he pled guilty and was sentenced to ten-years probation, conditioned on his serving one year in jail, surrendering his driver’s license for five years, and performing 500 hours of community service. After a motion to mitigate the sentence was denied, the defendant, through substituted counsel, filed his Rule 3.850 motion. An evidentiary hearing was held, subsequent to which the order appealed from was entered.

The defendant’s motion for post-conviction relief was predicated upon his claim that his trial attorney provided ineffective assistance thereby causing the defendant’s guilty plea to be unknowingly and unintelli-gently entered. More specifically, Reed alleged that counsel: (1) incorrectly advised him that if he pled guilty he would not receive any jail time; (2) failed to adequately prepare for the case; (3) failed to investigate the possible defense presented by the sole “eyewitness,” Mr. Woodberry; (4) failed to inform him of that possible defense; and (5) failed to move to suppress the breathalyzer test.

THE STANDARD

The Florida supreme court, in Knight v. State, 394 So.2d 997 (Fla.1981), has recently adopted the standards by which we may determine whether an attorney represented his client in a reasonably competent manner. The following four-step analysis must be undertaken. First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading. Second, the defendant has the burden of showing that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. Third, the defendant has the burden of showing that this deficiency was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings; and fourth, if the defendant makes a prima facie showing of prejudice, the state still has the opportunity to rebut these assertions by showing, beyond a reasonable doubt, that there was no prejudice.

In discussing the second step, the supreme court recognized that death penalty cases are different and consequently counsel’s performance must be judged in light of those circumstances. Similarly, we find that when the defendant pleads guilty, the analysis of what is a substantial and serious deficiency must be considered within that framework. See Castro v. State, 419 So.2d 796 (Fla. 3d DCA 1982); Pollinzi v. Estelle, 628 F.2d 417 (5th Cir.1980).

A conviction based upon a plea of guilty rests upon the defendant’s own admission in court that he did in fact commit the crime with which he is charged. Such a plea constitutes a waiver of fundamental constitutional rights as well as all nonjuris-dictional defenses known and unknown. Bradbury v. Wainwright, 658 F.2d 1083 (5th Cir.1981), cert. denied, 456 U.S. 992, 102 S.Ct. 2275, 73 L.Ed.2d 1288 (1982); Edwards v. United States, 256 F.2d 707 (D.C.Cir.), cert. denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958). Guilty pleas are meant to be, and should be final, Colson v. Smith, 438 F.2d 1075 (5th Cir.1971); nothing remains but to give judgment and sentence. Robinson v. State, 373 So.2d 898 (Fla.1979).

A necessary corollary of the seriousness with which such pleas are entered is the requirement that the defendant enter his plea knowingly and voluntarily. Mendenhall v. Hopper, 453 F.Supp. 977 (S.D.Ga.1978), aff'd, 591 F.2d 1342 (5th Cir.1979). It is therefore the lawyer’s duty to ascertain that the defendant possesses sufficient awareness of the relevant circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Lamb v. Beto, 423 F.2d 85 (5th Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970). To do so, of course, the attorney must familiarize himself with the facts and the law enough to advise the defendant meaningfully of his options. Bradbury.

Focusing on the level of competency required of counsel in advising his client to plead guilty, we proceed to the claims in the present case.

PROMISE OF NO JAIL TIME

We readily reject the defendant’s first contention that he was incorrectly promised he would serve no jail time because we find that the plea colloquy unequivocally indicates that no such bargain was contemplated.

His argument, that despite the plea colloquy he believed another agreement was struck, is equally unavailing on the record before us. The attorney testified at the evidentiary hearing that “there was no other deal struck or discussed or contemplated,” and when asked whether there was any conversation with the client wherein the attorney indicated that if Reed did not have any felony convictions he would not receive jail time, the attorney responded in the negative.

FAILURE TO PREPARE A DEFENSE

The defendant’s second contention in support of his 3.850 motion was that the attorney failed to adequately prepare for the case. This allegation, standing alone, would be insufficient to warrant an eviden-tiary hearing. See United States v. Crook, 607 F.2d 670 (5th Cir.1979); Matthews v. United States, 518 F.2d 1245 (7th Cir.1975). Accordingly, we will only review the more specific challenges to the attorney’s preparation of the case — his failure to investigate the testimony of the sole eyewitness, his failure to inform the defendant of this witness and his failure to suppress the breathalyzer test. To properly consider these allegations, a summary of the evidence is essential.

Before advising his client to plead guilty, the attorney acquired information from several sources. The Florida Highway Patrol report contained a statement of the investigating officer in which he concluded, based on the physical evidence, that the decedent had exited his stalled vehicle and was standing between the vehicle and an attached trailer when the defendant’s automobile collided with the rear of the victim’s trailer. The impact hurled the decedent into the concrete median strip. The police report also included an admission by the defendant that he had in fact been drinking prior to the accident. Further, the alcohol test unit report reflected that the defendant had a .23% blood alcohol level, his speech was slurred, his eyes were bloodshot, and he showed other positive signs of intoxication. The attorney reviewed the medical examiner’s protocol and found it to indicate injuries consistent with the state’s theory of prosecution and inconsistent with a reasonable theory of nonculpability.

As a final and significant source of information each attorney has his own client. United States v. Clayborne, 509 F.2d 473 (D.C.Cir.1974). As the court observed in United States v. Decoster, 624 F.2d 196, 210 (D.C.Cir.1979), “[rjealistically, a defense attorney develops his case in large part from information supplied by his client.”

FAILURE TO INVESTIGATE TESTIMONY OF WITNESS

Notwithstanding this evidence, the defendant argues that his counsel was ineffective for failing to investigate the testimony of an eyewitness, Mr. Woodberry. We disagree.

Woodberry’s statement to the police at the time of the accident provided:

Approximately 12:00 midnite 09-10-80 (Wednesday) traveling North on 1-95 at exit 7. I saw a U-Haul trailer & car stopped in 2 lane E. of divider. I looked & saw no one in car and immediately picked up my radio to call Miami TRBL office (FPL) to inform FHP on potential hazard. I looked in my mirror at same time & saw the cars & trailer spinning in the road. I returned to scene while calling for rescue squad when I got there some man came up & said, “I Think She’s Dead.” (Man left — Doubdt (sic) If I could identify him.) I check man on ground against divider & found he was alive and continued my message to FP & L.

There was nothing in this innocuous statement to indicate that the witness could provide exculpatory information. To the contrary, Woodberry’s observations as recorded at the time of the accident were entirely consistent with the facts as found in the police report. Since the statement contained nothing which would have put the attorney on notice that he should investigate further, we hold that his failure to do so was not a substantial deficiency. Were we to decide otherwise, then attorneys, before advising their clients to plead guilty, would be required to interview all witnesses whose identities became known to them.

It is clear that less than the exhaustive and plenary investigation that would accompany a trial is required to enter a plea. Lee v. Hopper, 499 F.2d 456 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 633, 42 L.Ed.2d 650 (1974); Lamb v. Beto. The court in Jones v. Henderson, 549 F.2d 995, 996 (5th Cir.1977) observed that “it is essential to recognize the difference between the duty of counsel to a defendant who enters a guilty plea and the duty to one who goes to trial.” More specifically, in Walker v. Caldwell, 476 F.2d 213 (5th Cir.1973) it was stated that:

[W]e do not hold that every appointed counsel representing an accused who desires to plead guilty or whom he advises to plead guilty, must investigate all the facts of the case, explore all possible avenues of defense, etc., to the extent required of an appointed counsel representing an accused who pleads not guilty and goes to trial.

476 F.2d at 224.

The defendant attempts to buttress his argument that the attorney should have proceeded with further investigation by pointing to a statement taken subsequent to the plea being entered. In this subsequent statement, Woodberry explained his exculpatory theory that the decedent was killed by an unknown motorist in an accident prior to the one in which the defendant was involved. He reached this conclusion based on the fact that he carefully looked for people as he drove by the disabled vehicle but saw no one in or near the car.

This conclusion upon which the defendant now places great reliance was not part of the statement given to the police. Nor, as we have previously observed, was this defense readily discernible from the mere statement that “I looked and saw no one in the car.” On the information known to the attorney at the time the plea was entered, we hold that it was not a substantial and serious deficiency for the attorney to advise his client to plead guilty without further investigating a statement which on its face was consistent with the theory of the prosecution. See United States v. Decoster; Murray v. State, 384 F.Supp. 574 (S.D.Fla.1974).

FAILURE TO INFORM THE DEFENDANT OF WITNESS

Since we have determined that the attorney adequately represented his client without investigating Woodberry’s testimony, we fail to see how his failure to inform the defendant of that witness’ non-exculpatory statement could have been a deficiency.

FAILURE TO SUPPRESS BREATHALYZER TEST

The defendant’s final allegation of ineffectiveness pertains to the attorney’s failure to move to suppress the breathalyzer test. In McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), the principal issue was whether one could collaterally attack a guilty plea on the basis that it had been motivated by a prior coerced confession. In effect, the defendant argued that the admissibility of his confession was mistakenly assessed and that since he was erroneously advised, his plea was unintelligently entered. The court rejected this argument stating:

In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant’s guilt? On those facts would evidence seized without a warrant be admissible? Would the trier of fact find a confession voluntary and admissible? Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel’s answers, uncertain as they may be. Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts.

McMann, 397 U.S. at 769-70, 90 S.Ct. at 1448. Beckham v. Wainwright, 639 F.2d 262 (5th Cir.1981); see also Rutledge v. Wainwright, 625 F.2d 1200 (5th Cir.1980), cert. denied, 450 U.S. 1033, 101 S.Ct. 1746, 68 L.Ed.2d 229 (1981).

That a guilty plea must be intelligently made is not a requirement that all advice by counsel withstand retrospective examination in a post-conviction hearing.

With the aid of hindsight, one can always second guess the tactical judgments made by counsel, but it by no means follows that constitutional rights were infringed.

Long v. Brewer, 667 F.2d 742, 744 (8th Cir.1982). See also McMann.

Turning to the present case then, we need not, as appellant would urge us to do, determine whether the motion to suppress would have been granted. See McMann; compare Blatch v. State, 389 So.2d 669 (Fla. 3d DCA 1980) (after trial, defendant’s claim that his counsel was ineffective for failing to suppress his confession turned on whether or not his confession would have been inadmissible). The attorney’s decision not to press for suppression was not a substantial deficiency in his representation of his client in light of the incriminating evidence against the defendant contained in the Florida Highway Patrol report and the possible sentence which could have been imposed after trial. See Long; Gunn v. Kuhlman, 479 F.Supp. 338 (S.D.N.Y.1979).

CONCLUSION

Having carefully considered all of the points raised by Reed, we affirm the trial court’s denial of his motion for post-conviction relief.

      . Pursuant to Section 322.262, Florida Statutes (1979), a blood alcohol level exceeding .10% shall be prima facie evidence that the person was under the influence of alcohol.

      . This condition was vacated as to work-related driving on August 13, 1981.

      . The following portion of the plea colloquy supports our findings:
      THE COURT: You heard what your attorney has had to say; that you have reached a decision in that the Court should determine the appropriate sentence in this case; with that understanding, in any event, you would be incarcerated for not longer than a period of three years.
      Do you understand that, sir?
      THE DEFENDANT: Yes.
      THE COURT: In all likelihood, the Court will, as a portion of your sentence, order that you serve a period of probation.
      In the event that you violate the terms and conditions of that probation, in that event, you can be brought back before the Court and sentenced to up to—
      MR. RABIN: Fifteen.
      THE COURT: —fifteen years in the State Penitentiary.
      Do you understand that, sir?
      THE DEFENDANT: Yes, sir.
      THE COURT: Has anybody promised you anything or threatened you in any way to tender this plea?
      THE DEFENDANT: No, sir.

      . Woodberry gave a voluntary statement after sentencing and testified at the evidentiary hearing on Reed’s 3.850 motion.

      . At the hearing on the motion for post-conviction relief, Woodberry testified that on the night of the accident he gave the officer a handwritten copy of his statement which was substantially the same as the statement given by him subsequent to sentencing. The trial court by its denial of the 3.850 motion implicitly rejected Wood-berry’s testimony on this point. Additionally, the only copy signed in the police report was the typewritten version which has been included in this opinion. As we have stated, that version did not indicate that the witness could provide exculpatory information.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Luis Garcia BLANCO a/k/a Luis Garcia, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1714.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied April 23, 1984.
    Samek & Besser and Lawrence Besser, Miami, for appellant.
    Jim Smith, Atty. Gen., and William Thomas, Asst. Atty. Gen., for appellee.

      Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

The defendant Luis Garcia Blanco a/k/a Luis Garcia appeals three criminal convictions and sentences entered against him on two counts of attempted first degree murder with a firearm [§§ 782.04, 775.087, 777.04, Fla.Stat. (1981)] and one count of aggravated assault [§ 784.021, Fla.Stat. (1981)]. He raises two points on appeal: (1) that the trial court erred in allowing in evidence “testimony concerning the individual with whom the defendant was with at the time of his arrest” [appellant’s brief at 12], and (2) that the trial court erred in “denying the defendant’s motion for a judgment of acquittal as to the first two counts of the information [the attempted first degree murder counts]” [appellant’s brief at 22]. We disagree and affirm.

First, we think the evidence which the defendant complains of on this appeal, to wit: police testimony “concerning the individual with whom the defendant was with at the time of his arrest,” was relevant and admissible at trial. This evidence tended to show that the defendant’s companion was wanted by the police on outstanding arrest warrants, that certain preparations were made to effect that person’s arrest, that the police pursued the car driven by the defendant herein because the defendant’s companion was a passenger in the car, and that the defendant attempted to flee and shot at the police in order to make good his companion’s escape. The evidence was relevant, we think, to give the jury an intelligible account of the entire criminal episode and ensuing gun battle from which the crimes charged herein arose. We see no error in the admission of the complained-of evidence. See Williams v. State, 110 So.2d 654, 658 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Jacobson v. State, 375 So.2d 1133 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980); §§ 90.401, 90.402, Fla.Stat. (1981).

Second, we think that sufficient evidence was adduced below to sustain the attempted first degree murder convictions. According to police testimony, the defendant fired his gun once at relatively close range (20-25 yards) at two police officers (7-8 feet apart) who were pursuing him. The gunshot missed both officers. Subsequent to this arrest, the defendant told one of the officers that “next time I’ll kill you.” Both elements of attempted first degree murder are present here, to wit: (1) an intent to commit the underlying crime [first degree murder], and (2) an overt act designed to effectuate that intent, carried beyond mere preparation, but falling short of executing the ultimate design. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967). The fact that one shot, rather than two, was fired at two pursuing officers cannot by the weight of authority change this result. State v. Temple, 394 So.2d 259 (La.1981); People v. Bigsby, 52 Ill.App.3d 277, 9 Ill.Dec. 924, 367 N.E.2d 358 (1977); People v. Mimms, 40 Ill.App.3d 942, 353 N.E.2d 186 (App.Ct.1976); Annot., 8 A.L.R.4th 960 (1981).

Affirmed.


text:
    Jose R. TRAVIESO, Jr., Appellant, v. Linda Lee TRAVIESO, Appellee.
    Nos. 83-373, 83-663.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied April 17, 1984.

      Elizabeth S. Baker, Coconut Grove, for appellant.
    Melvyn B. Frumkes and Cynthia L. Greene, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the post-dissolution order of the trial court which granted the former wife’s petition for modification of child support, denied the former husband’s petition for modification of custody and denied the former wife’s request for suit money to pay expert witnesses who testified as to the reasonable value of her lawyer’s services. We reverse in part the award of attorney’s fees in the amount of $27,000 to the former wife and remand this action to the trial court with instructions to enter an order reducing the award of attorney’s fees to Mrs. Travieso to the amount of $9,000.

A final judgment of dissolution of marriage which awarded custody of the parties’ infant daughter to Linda Lee Travieso and required Jose Travieso to pay $25 per week child support was entered in 1978. In 1981, because of the substantially increased needs of their daughter, Mrs. Tra-vieso petitioned the trial court for modification of child support. Three months' later Mr. Travieso petitioned the court for modification of custody. The cases were consolidated and heard by a general master who, after a three-day hearing, found that the needs of the minor child had dramatically increased, that these expenses could not have been taken into consideration at the time of the final judgment and that Mr. Travieso’s income was such that he was able to pay the increased amount of $95 per week child support. The general master also found that Mrs. Travieso had completely refuted her former husband’s allegations that she was unfit to keep custody of their daughter.

As in many domestic cases the litigation of these issues was heated and, at times, vitriolic. The trial court denied Mr. Travieso’s exceptions to the general master’s reports and awarded Mrs. Travieso approximately $27,000 in attorney’s fees and suit money. On the authority of Mills v. Aronovitz, 404 So.2d 138 (Fla. 3d DCA 1981), the court denied Mrs. Travieso’s request for additional suit money to pay for services of expert witnesses who testified as to the reasonable value of the services performed by Mrs. Travieso’s lawyers. Mrs. Travieso has cross-appealed the denial of expert witness fees. Mr. Travieso asserts as error the modification of child support, the denial of modification of custody, and the award of attorney’s fees. There was substantial competent evidence of the increased needs of the child presented to support the order granting modification of child support. See Flynn v. Flynn, 433 So.2d 1037 (Fla. 4th DCA 1983); Frumkes v. Frumkes, 349 So.2d 823 (Fla. 3d DCA 1977). We find no merit to Mr. Travieso’s contention that the trial court should have granted his petition for modification of custody.

There is merit, however, to Mr. Tra-vieso’s contention that the trial court erred in awarding attorney’s fees. The award of attorney’s fees authorized by section 61.16, Florida Statutes (1981), is a matter of discretion “to be exercised in consideration of the disparate economic needs and abilities existing between the parties,” Desilets v. Desilets, 377 So.2d 761, 765 (Fla. 2d DCA 1979); see Kissinger v. Mason, 436 So.2d 1049 (Fla. 1st DC/ 1983). The question of fees in the final analysis can only be resolved with reference to a particular case. Lodding v. Dunn, 251 So.2d 560 (Fla. 3d DCA 1971), cert. denied mem., 258 So.2d 818 (Fla.1972). The award of attorney’s fees depends not upon who prevails but rather upon the relative financial resources of the parties. Kissinger; Hudgens v. Hudgens, 411 So.2d 354 (Fla. 2d DCA 1982).

Applying these principles of law to the instant case it is clear that Mr. Travieso does not possess the financial resources to pay the amount awarded in attorney’s fees. Considering the increased award of child support ordered by the trial court Mr. Tra-vieso’s net income, as reflected by his financial statement, is approximately $17,000 per year. Mrs. Travieso’s net income, also considering the increase in child support, is approximately $15,000 per year. As in Hiler v. Hiler, 442 So.2d 373 (Fla. 2d DCA 1983), this certainly is not a case where the parties have achieved a lucrative income and numerous assets over the duration of a long marriage.

Accordingly, we hold that based upon the relative financial resources of the parties the award of $27,000 in attorney’s fees to Mrs. Travieso was an abuse of discretion and direct the trial court to enter an order awarding her $9,000 in attorney’s fees. Although the reasonableness of attorney’s fees is an issue of fact to be determined by the trial court, Conner v. Conner, 439 So.2d 887 (Fla.1983), we find that the trial court abused its discretion in ordering a man with a net income of $17,-000 per year to pay $27,000 in attorney’s fees.

The trial court also erred in alternatively awarding attorney’s fees pursuant to section 57.105, Florida Statutes (1981). Mr. Travieso’s petition for modification was not so clearly devoid of merit as to be completely untenable. See Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982).

As to Mrs. Travieso’s cross-appeal, we affirm the trial court’s denial of her request for expert witness fees. The holding in Mills that expert witness fees may be'taxed as costs only where the expert witness is called upon to prove any matter at issue in trial applies to dissolution and post-dissolution modification cases pursuant to chapter 61, Florida Statutes (1981). The existence of conflict with Mills was implicit in Murphy v. Tallardy, 422 So.2d 1098 (Fla. 4th DCA 1982). We now explicitly recognize conflict between our present holding and that of the court in Murphy.

Turning to the amount of attorney’s fees, we find that the record in this case does not support an award of $27,000. Attorney’s fees should be awarded based upon the quality of services rendered and not necessarily the quantity of such services. Pfohl v. Pfohl, 345 So.2d 371 (Fla. 3d DCA 1977); Hall v. Hall, 200 So.2d 544 (Fla. 3d DCA 1967).

It is apodictic that “[t]he amount of the award [of attorney’s fees] should square with fairness and justice to all alike under similar circumstances.” Lumbermens Mutual Casualty Co. v. Quintana, 366 So.2d 529, 530 (Fla. 3d DCA 1979); see Donner v. Donner, 281 So.2d 399 (Fla. 3d DCA 1973) (award of attorney’s fees should be made only for services that are shown to have been reasonably necessary).

Considering the factors provided in Florida Code of Professional Responsibility Disciplinary Rule 2-106, we are left with a definite and firm conviction that the fee is in excess of a reasonable fee. This was hardly a case involving novel, complex or extraordinary legal issues requiring specialized legal knowledge or experience. See The Florida Bar v. Moriber, 314 So.2d 145 (Fla.1975). Mrs. Travieso sought to modify the amount of child support because of the increased needs of the parties’ adolescent daughter, who was an infant at the time of the final judgment of dissolution. The issues involved in the child support modification case were whether the child’s needs had increased and whether Mr. Travieso had the financial ability to meet any increased needs. See Frumkes. The sole issue involved in the modification of custody case as framed by Mr. Travieso in his petition was whether Mrs. Travieso was a “fit and proper person to have custody of the minor child.”

We are not insensitive to the fact that dissolution-related cases are often more emotionally charged than the usual case, see Guthrie v. Guthrie, 357 So.2d 247 (Fla. 4th DCA 1978); however, the amount of fees awarded in this case, as in Guthrie, simply cannot be justified. The propagation of exorbitant legal fees such as those in the instant case does a disservice to the litigants sub judice and to the entire legal profession. As Justice Terrell said in Baruch v. Giblin, 122 Fla. 59, 63, 164 So. 831, 833 (1935),

Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney’s fee is, therefore, a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. It does more than that; it brings the court into disrepute and destroys its power to perform adequately the function of its creation.

Affirmed in part, reversed in part and remanded with directions.

      . Mrs. Travieso discharged her first lawyer midway through this litigation. The trial court is to determine on remand the apportionment of the $9,000 award of attorney’s fees between the discharged lawyer and subsequent counsel.

      . The factors to be considered as guides in determining the reasonableness of attorney’s fees under DR 2-106 are:
      (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client.
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.
      The trial court’s denial of modification of custody and granting of and increase in child support which amounted to $3,640 per year simply does not justify an award of $27,000 in attorney’s fees.


author: HENDRY, Judge. JORGENSON, Judge,

text:
    Lydia BURKE, Appellant, v. Samuel BURKE, the natural father of Ernest Burke, Deceased, Appellee.
    No. 83-1328.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied April 23, 1984.
    Chaykin, Karlan & Jacobs and Sharon B. Jacobs, Coral Gables, for appellant.
    Goodhart, Rosner & Green and Samuel R. Danziger, Miami, Adolfo Pedrecea, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

This is an appeal by Lydia Burke, putative wife and widow of Ernest Burke, deceased, for a review of orders of the Circuit Court, Probate Division, denying her petition to set aside homestead and granting the petition of appellee, Samuel Burke, to revoke letters of administration previously granted to appellant in proceedings in re the estate of Ernest Burke, deceased.

The proceedings in the probate court were begun by the appellant upon the assumption that she was the common law wife of the deceased, Ernest Burke, since they had cohabited together from 1965 to the date of his death in 1981, and had held themselves out to be husband and wife for this entire time.

There is no question, however, that Ernest Burke was legally married to Ola Allen Burke at the time he began to cohabit with Lydia Burke, and he continued to be the lawful husband of Ola until their ceremonial marriage was dissolved on August 17, 1971 by final judgment of the Circuit Court in and for Dade County, Florida.

It is appellant’s contention on appeal that the trial court erred in denying her petition to set aside homestead for her benefit and in granting the petition of Samuel Burke to revoke letters of administration granted to appellant. We disagree and affirm.

The prior valid marriage of Ernest to Ola Allen Burke made it impossible for Lydia and Ernest to establish a common law marriage as long as the valid marriage existed. Porter v. La Fe, 68 So.2d 602 (Fla.1953); Greene v. Greene, 156 Fla. 342, 22 So.2d 792 (1945). Additionally, the fact that Lydia and Ernest continued to live together and hold themselves out as husband and wife after Ernest and Ola dissolved their marriage served no purpose in establishing a common law marriage between them because in 1967, the State of Florida enacted section 741.211, Florida Statutes (1967), which abolished common law marriages as of January 1, 1968. Cf. In Re Estate of Suggs, 405 So.2d 1360 (Fla. 5th DCA 1981).

For these reasons, the orders appealed are affirmed.

Affirmed.

JORGENSON, Judge,

specially concurring.

I agree with the result reached by the court today. I write only to emphasize that this result in no way prejudices any equitable claims that Lydia Burke may assert in the future. See Wallace v. Luxmoore, 156 Fla. 725, 24 So.2d 302 (1946); Bambrick v. Bambrick, 165 So.2d 449 (Fla. 2d DCA 1964).


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Juan YANES, Appellee.
    No. 83-1638.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied April 25, 1984.

      Talburt, Kubicki & Bradley and Betsy E. Hartley and Gail L. Kniskern, Miami, for appellant.
    Gerald E. Rosser, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Yanes was the operator of a delivery van owned by his employer. In the course of his employment, he parked the vehicle in a space adjacent to the company’s warehouse, got off the truck, unloaded a package and was crossing the street when he was struck by an uninsured motor vehicle. It was upon these salient facts that he prevailed in an action for declaratory judgment against the State Farm policy issued to his employer. We reverse.

The policy defines insured, for purposes of uninsured motorist coverage, as:

any other person while occupying:
1. your car, a temporary substitute car or a newly acquired car. Such car has to be used within the scope of the consent of the first person named in the declarations or that person’s spouse or ....

It also states that the word “occupying” means “in, on, entering or alighting from.”

This court, in considering almost identical policy language, has stated:

We think that a rational limit to the activity that may be said to be encompassed within the term “alighting from” is the time and place at which the insured shows an intention, evidenced by an overt act based on that intention, to undertake a new direction or activity, (citations omitted)

Fidelity & Casualty Co. of New York v. Garcia, 368 So.2d 1313 at 1315 (Fla. 3d DCA), cert. denied, 378 So.2d 344 (Fla.1979). The evidence in this case shows that the plaintiff had ceased the activity of “alighting from” the truck and had commenced the new activity of walking across the street. Accordingly, we hold that he was not an insured under the uninsured motorist provision of the policy.

Reversed and remanded with directions to enter judgment for the insurer.

      . There are .other definitions of insured under the uninsured motorist section of the policy, none of which are applicable here.

      . We reject the insured’s claim that we must look to the subjective intent of the party in order to determine the commencement of a new activity. Were we to adopt such a test, there would be no limit to an insurer’s responsibility.


text:
    J.G. BUDD ASSOCIATES, INC., Appellant, v. CITY OF MIAMI, Florida, a municipal corporation, Appellee.
    No. 83-1918.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied April 23, 1984.

      Sidney L. Syna, Miami, for appellant.
    Jose Garcia-Pedrosa, City Atty. and Gise-la Cardonne, Asst. City Atty., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Evans v. Southern Holding Corp., 391 So.2d 231 (Fla. 3d DCA 1980), rev. denied, 399 So.2d 1142 (Fla.1981); Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980); see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980); Parker v. Gordon, 442 So.2d 273 (Fla. 4th DCA 1983); Crown Life Ins. Co. v. Garcia, 424 So.2d 893 (Fla. 3d DCA 1982).


author: CAMPBELL, Judge.

text:
    William ROBERTS, as former Sheriff of Pinellas County, Florida, Appellant, v. Henry JAMES, Appellee.
    No. 83-1360.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.
    Rehearing Denied April 6, 1984.
    Wilfried H. Florin, Asst. County Atty., Clearwater, for appellant.
    Barry M. Salzman of Chambers & Salzman, P.A., St. Petersburg, for appellee.
   CAMPBELL, Judge.

Appellant, a former sheriff of Pinellas County, appeals a final judgment following a jury verdict awarding appellee, a former inmate of the Pinellas County jail system, $34,500 as a result of an accidental injury inflicted by a fellow inmate. Appellee’s injury consisted of having the little finger on his right hand cut off with a pair of pruning shears. We reverse.

Appellant raises three points on appeal:

I. WHETHER APPELLEE PRESENTED A PRIMA FACIE CASE ON WHICH APPELLANT’S LIABILITY CAN BE PREDICATED?
II. WHETHER APPELLANT IS IMMUNE “FROM LIABILITY FOR THE ACTS AND/OR OMISSIONS COMPLAINED OF BY APPEL-LEE?
III. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR NEW TRIAL BECAUSE THE VERDICT OF THE JURY WAS RENDERED THROUGH MISTAKE, MISCONCEPTION AND/OR MISAPPLICATION OF THE LAW OF COMPARATIVE NEGLIGENCE AND/OR DAMAGES?

We are not required to address points II and III, inasmuch as we dispose of the case by answering point I in the negative.

Appellee was an inmate at the medium security center of the Pinellas County jail system. Inmates at the medium security center were county prisoners who were confined to serve county jail time of less than one year. The medium security center was the lowest security classification of the three confinement centers located in Pinellas County at that time, the other two being maximum security centers.

Appellee’s injury occurred around 2:00 p.m., November 12, 1980, appellee’s first day of working outside the perimeter fence at the medium security center. Appellee was assigned to a ground crew of ten to eleven inmates who were clearing vegetation, underbrush and vines around the construction site of the new criminal courts building, which was just outside the perimeter fence. The inmates were divided into two groups, working approximately 100 yards apart. They were supervised by William Mock, a deputy sheriff assigned to the corrections department of the Pinellas County Sheriff. Deputy Mock’s chief duty was to act as guard in charge of all work areas outside the perimeter fence.

The inmates started clearing land and trimming vegetation about 8:00 a.m. on the day of the accident. They used pruning shears, grass slingblades, saws and hoes. They had been instructed in their work by a horticulturist employed by the Pinellas County jail system. The inmates had a lunch break from 11:00 a.m. to 1:00 p.m., and took other unspecified breaks by lying or sitting around the work area. According to Deputy Mock’s testimony, the inmates were only expected to do a reasonable amount of work.

Deputy Mock supervised the inmates by walking periodically back and forth between the groups. The two groups were at each end of a driveway. The evidence indicated the inmates were consistently within Deputy Mock’s view as he walked back and forth between the groups, although there were times he might not have had each individual inmate within his immediate vision.

Deputy Mock testified his basic duty was to supervise the inmates as to security, and to see that there were no problems occurring between them. Because most of the inmates had only a few months to serve, it would have been unusual to expect either a security or disciplinary problem. None of the inmates involved here had been disciplinary problems in the past, and there was no evidence to alert Deputy Mock, or appellant, of any special potential problems. Although appellee testified he had complained to Deputy Mock of others in his work detail lying around and not working steadily, it appears from Deputy Mock’s testimony that a certain amount of “goofing off” among the inmates was expected, and was therefore of no particular concern.

Appellee was injured when he was pulling vines from out of a tree. He testified that some of the inmates, who had been sitting or lying around, got up to go back to work when he warned them that the guard was coming back in their direction, and that “You all better get up and go to work.” One of the inmates using pruning shears started to cut the vines appellee was pulling out of the tree, and as appellee raised his hand, the other inmate accidently cut off his little finger with the pruning shears.

During the one-day trial, only appellee testified as to the circumstances surrounding the accident. Appellee failed to present evidence of any standard of conduct on which appellant’s alleged liability was based. Appellee testified that if Deputy Mock had been in his immediate vicinity at all times, the accident, in his opinion, would not have happened. That testimony alone is not sufficient to establish a standard of care by which appellant can be held liable for the accidental conduct of another inmate. Nonetheless, appellant’s motions for a directed verdict at the close of appel-lee’s case, and at the close of all the evidence, were denied. The trial judge, during the trial, stated the sole issue framed by appellee’s complaint as: “Was there sufficient supervision?” There is not one shred of evidence in the record to establish a standard by which the jury could have legitimately exercised their judgment to answer that question.

Appellee’s sole support for sustaining his judgment comes from the trial judge’s charge to the jury of Florida Administrative Code Rule 33-8.11(4) and (5)(f), as that rule purportedly existed on November 12, 1980. The rule was read to the jury without any explanation as to its purpose or effect.

At trial, appellant’s captain, who was in charge of the medium security center at the time of the accident, testified that the center was operated under chapter 33-8 of the Florida Administrative Code. However, he did not explain the rules, state what they were, nor were they introduced into evidence. Chapter 33-8 is that chapter of the rules of the Department of Offender Rehabilitation that pertains to county and municipal detention facilities. The trial judge’s complete charge to the jury, relative to rule 33-8, was as follows:

Now, you are also instructed that at the time of the accident the rules of the State of Florida Department of Offender Rehabilitation applicable to county municipal detention facilities, which this facility was one, the rules applicable were Florida Administrative Code 33-8.1 sub 4, which reads:
“All prisoners other than minimum security trustees will be under constant, direct supervision at all times when outside the secured areas of the facility.”
The other rules of the Florida Administrative Code 33-8.1, sub 5, sub f reads:
“Tools are not to be used by prisoners not under direct and constant supervision.” >

Appellee relies on the wording of the rule which requires “constant, direct supervision ... outside secured areas ...” and the prohibition against the use of tools when not “under direct and constant supervision.” Appellee argues that since Deputy Mock was walking back and forth between the two groups of inmates who were using tools, they were not under “direct and constant supervision.”

There was no evidence offered to explain what “direct and constant supervision” would entail in order to meet the standard set by that technical rule. Neither can we say that the rule, because of the special and technical nature of its subject matter, is subject to interpretation by the jury according to the ordinary meaning of its terms. Cf. Southern Bell Telephone & Telegraph Co. v. Mobile America Corp., Inc., 291 So.2d 199 (Fla.1974). The jury below was therefore without any valid means to determine whether there had been a violation of the rule so as to constitute negligence on the part of the appellant toward the appellee.

In addition, because the record contains no evidence interpreting the rule, it cannot be said with any degree of certainty, that appellant was a member of the class the rule was intended to protect, or that the injury was of a type intended to be prevented. 38 Fla.Jur.2d 87 Negligence § 54. In fact, we suspect neither was the case in this matter. The title of the rule charged, rule 33-8.11, in 1980, was as it is now, “Security and Control.” It was obviously directed toward preventing escape rather than providing discipline since another section, section 33-8.13 was entitled “Order and Discipline.” While section 33-8.11, the “Security and Control” section, referred to “direct and constant supervision,” section 33-8.09, entitled “Programs,” contained specific provisions regarding supervision of working prisoners. That section stated that except for minimum security inmates, prisoners involved in a work “program” must have, as opposed to “direct and constant,” only “constant supervision while outside the secure perimeter of the detention facility.” Rule 33-8.09(17). Thus, even if section 33-8.11 was applicable, and even if there was evidence of a violation of the rule, since it does not appear appellant was in the class sought to be protected by the rule, nor was his injury of the type sought to be prevented, the violation would not constitute negligence per se; it would merely have been, in that case, prima facie evidence of negligence on the part of appellant. It is unclear from the charge given the jury, which standard, if any, they were being instructed to apply.

In either case, a violation of rule 33-8.11 would not necessarily mean there was actionable negligence. The appellee would have to affirmatively establish that he was of the class the rule was intended to protect, and that he suffered injury of the type the rule was intended to prevent, and that the violation of the rule was the proximate cause of his injury. deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973); Rex Utilities, Inc. v. Gaddy, 413 So.2d 1232 (Fla. 3d DCA 1982); Boles v. Brackin, 411 So.2d 280 (Fla. 1st DCA 1982); Stanage v. Bilbo, 382 So.2d 423 (Fla. 5th DCA 1980); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977). Therefore, had appellee presented evidence that rule 33-8.11 was applicable, that appellant violated that rule, and that the violation was either negligence per se or prima facie evidence of appellant’s negligence, neither of which do we conclude, then because of the intervening act of another inmate, there would also have to be evidence that appellee’s resulting injury was the natural and probable consequence of appellant’s violation of the rule before ap-pellee could prevail. Cone v. Inter-County Telephone & Telegraph Co., 40 So.2d 148 (Fla.1949); Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976); Tennessee Corporation v. Lamb Brothers Construction Co., 265 So.2d 533 (Fla. 2d DCA 1972); Spann v. State of Florida, Department of Corrections, 421 So.2d 1090 (Fla. 4th DCA 1982); Guice v. Enfinger, 389 So.2d 270 (Fla. 1st DCA 1980). There was no such evidence.

Appellee’s motions for directed verdict should have been granted. We accordingly reverse and remand for entry of the same.

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


author: MILLS, Judge.

text:
    Jeff WINANS, Appellant, v. TAMPA BAY BUCCANEERS and Insurance Company of North America, Appellees.
    No. AT-8.
    District Court of Appeal of Florida, First District.
    March 14, 1984.

      E. Peter Pfaff, St. Petersburg, for appellant.
    Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellees.
   MILLS, Judge.

Winans contends the deputy commissioner erred in ruling that his workers’ compensation claim was barred by the statute of limitations. We do not agree and affirm.

Winans was a professional football player employed by the Tampa Bay Buccaneers. He was injured on 8 September 1978 while engaged in a practice scrimmage. He was treated by Dr. James Murphy for a back injury. His employment by the Bucs terminated in August 1979. Later he was employed by the Oakland Raiders. He filed his claim for compensation on 10 September 1981.

Winans argues that the statute of limitations was tolled because he was treated by Dr. Murphy on 29 November 1979. Although Dr. Murphy was an authorized physician for the Bucs at the time of Win-ans’ injury, he was not at the time of Winans’ last visit and Winans and the doctor knew this. Neither Winans nor the doctor notified the Bucs of the treatment, nor did either seek payment for the visit. This did not constitute treatment by the Bucs, thus, did not toll the running of the statute.

Winans argues also that the statute was tolled because he was subsequently timely treated by Oakland who was engaged in a joint venture with the Bucs in the National Football League. Not only is the record devoid of direct medical evidence of Winans’ treatment by the Raiders for the injury he suffered while employed by the Bucs, but there is no competent substantial evidence of a joint venture. The Raiders and the Bucs were separate corporate entities. Each had workers’ compensation coverage with different carriers. Treatment by the Raiders was not treatment by the Bucs.

AFFIRMED.

WENTWORTH and BARFIELD, JJ., concur.


author: MILLS, Judge. WENTWORTH, Judge,

text:
    Danny Blair LEE, Appellant, v. CASABLANCA RESTAURANT and United States Fire Insurance Company, Appellees.
    No. AT-354.
    District Court of Appeal of Florida, First District.
    March 14, 1984.

      J. Michael Brennan of Brennan & Mus-chott, Fort Pierce, for appellant.
    Steven A. Rissman and John E. McLain III, of Cooper, Rissman, Weisberg & Jeffery, Orlando, for appellees.
   MILLS, Judge.

In this workers' compensation action, Lee appeals the deputy commissioner’s ruling that Lee is not entitled to benefits because he was an independent contractor at the time of the accident. We affirm.

Lee and his partner, Price, performed together as a musical team called Side-by-Side. On 25 January 1982, Lee and Price entered into a written contract with King, owner of the Casablanca restaurant, for Side-by-Side to perform at Casablanca from 2 February 1982 through 27 February 1982. The contract specifically provided that Lee and Price were independent contractors.

Following the February engagement at Casablanca, Lee and Price performed at another establishment but returned to Casablanca in May 1982 and performed there until 4 July 1982. There was no written agreement concerning this second engagement at Casablanca. Instead, Side-by-Side performed pursuant to an oral agreement with Casablanca under substantially the same terms as provided in the prior written contract.

While performing at Casablanca on 12 June 1982, a ceiling fan fell on Lee’s head causing multiple injuries. Lee filed a workers’ compensation claim on 2 December 1982. The employer/carrier controverted the claim contending Lee was an independent contractor.

Both Lee and King testified at a hearing on 24 May 1983. Following the hearing, the deputy commissioner issued an order finding Lee was an independent contractor at the time of the accident and therefore was not entitled to benefits.

The uncontroverted testimony disclosed that Lee and Price selected their own music, bought and cleaned their own stage costumes, furnished their own instruments, chose the name for their act, and were not expected to perform duties apart from their musical performances. This was enough evidence for the deputy commissioner to find that Lee enjoyed by an independent contractor. See La Grande v. B & L Services, Inc., 432 So.2d 1364 (Fla. 1st DCA 1983).

We reject Lee’s contention that only musical performers defined as independent contractors by Section 440.02(2)(d)l, Florida Statutes (1981), can be independent contractors for purposes of the workers’ compensation laws.

Section 440.02(2) provides in pertinent part:

(d) The term “employee” does not include:
1. An independent contractor, including:
a. An individual who agrees in writing to perform services for a person or corporation without supervision or control as a real estate salesman or agent, if such service by such individual for such person or corporation is performed for remuneration solely by way of commission;
b. Bands, orchestras, and musical and theatrical performers, including disk jockeys, performing in licensed premises as defined in chapter 562, provided that a written contract evidencing an 'independent contractor relationship is entered into prior to the commencement of such entertainment;

Clearly, the legislature did not intend to limit the definition of independent contractor to those who work solely by way of commission (Section 440.02(2)(d)l.a.), and to musical and theatrical performers (Section 440.02(2)(d)l.b.). Construction of a statute which would lead to an absurd or unreasonable result should be avoided. State v. Webb, 398 So.2d 820 (Fla.1981). The proper interpretation of Section 440.-02(2)(d)l is that independent contractors include, but are not limited to, those individuals described in subparagraphs a and b.

Lee also contends admission into evidence of the written contract between Side-by-Side and Casablanca was error. The prior written contract, while not controlling, was probative of the terms of the subsequent oral agreement and was therefore relevant. The deputy commissioner properly admitted it into evidence.

AFFIRMED.

McCORD, GUYTE R, Jr., (Ret.), Associate Judge, concurs.

WENTWORTH, J., concurs specially with opinion.

WENTWORTH, Judge,

concurring specially.

Although affirmance appears to me to be proper for other reasons stated by the deputy, I do not believe we can approve his conclusion that § 440.02(2)(d)b, Florida Statutes, can be disregarded in this case merely because the evidence otherwise shows independent contractor status. The majority correctly states that independent contractors under the statute “include, but are not limited to, those individuals described in subparagraphs a and b.” It does not follow, however, that those paragraphs do not control the individuals described. We cannot, under ordinary rules of statutory construction, simply nullify or disregard the plain requirement of the statute that the specified performers in licensed premises are to be included in the classification of independent contractors only “provided that a written contract evidencing an independent contractor relationship is entered into prior to the commencement of such entertainment.” (e.s.) The appellee employer, Casablanca Restaurant, does not controvert its licensed premises status.

Based on evidence of trade custom in general, and the parties’ understanding in particular, as to resumption or extension of performance dates under an initial written contract, without any variation of terms other than time, the deputy found:

Since Section 440.02(2)(d)l.b. indicates that a written contract must be ‘entered into’ prior to the commencement of the entertainment, 'not that such a written contract must be in effect at the time of the entertainment resulting in the injury, I find as a matter of law that the written contract entered into by Side by Side and Casablanca on January 25, 1982 fulfills the written contract requirement of Section 440.02(2)(d)l.b.

That application of the statutory terms seems to me to be fair and permissible. The contract terms plainly described an independent contractor relationship, and dismissal of the claim is properly affirmed.


author: THOMPSON, Judge.

text:
    ELECTONE, INC. and Chubb Group Insurance Company, Appellants, v. Mary WALSH, Appellee.
    No. AT-396.
    District Court of Appeal of Florida, First District.
    March 14, 1984.
    Bernard J. Zimmerman and Paul J. Morgan of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a compensation order awarding wage loss benefits and assert, among other things, that the claimant failed to demonstrate that her wage loss resulted from her compensa-ble injury. We agree and reverse.

The claimant sustained a compensable neck injury on March 9,1981, and remained off the job for approximately a week thereafter. She then returned to work and worked steadily at her usual job until July 23, 1981, when she quit work in order to travel “up north” to visit her elderly and ill father. According to the claimant, before leaving to visit her father she requested a week’s leave of absence without pay and informed the employer of her reason for needing to take some time off. She further testified that although her request for a leave of absence was refused, the employer promised that if she reapplied upon her return, she would be rehired. The claimant indicated that when she reapplied for her job some two weeks later, she was told that no work was available. Representatives of the employer testified that claimant had not asked for a leave of absence, but had simply resigned, that there had been no promise that she would be rehired, and that they had no record or recollection of her ever having reapplied for her job.

On February 11, 1982, the claimant’s treating physician determined that she had reached maximum medical improvement and had a 3 percent permanent impairment of the body as a whole. He discharged her on that date without placing any restrictions on her activities. Following this release the claimant began actively seeking work.

In the order appealed, the deputy commissioner found that claimant had sustained permanent impairment, had conducted a bona fide job search, and was therefore entitled to an award of wage loss benefits. He rejected the E/C’s argument that the claimant had voluntarily left her employment, expressly finding that her leave from her employment “was necessary under the circumstances and that she had expected her job to be available when she returned.” The findings that claimant had sustained permanent impairment and had conducted an adequate work search, although supported by competent substantial evidence, were an insufficient basis for an award of wage loss benefits. Section 440.-15(3)(b), Florida Statutes, requires that a claimant not only demonstrate permanent impairment and a good faith effort to obtain employment commensurate with his or her post-accident abilities, but also requires a claimant to prove that any post-accident wage loss resulted from the compensable injury. Here, the claimant adduced no evidence whatsoever that her inability to find work subsequent to discharge from her doctor’s care was the result of her injury. On the contrary, the only medical testimony was that claimant could return to work without any restrictions. The case of Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), wherein this court ruled that a claimant need not prove that inability to find work was due to accident-related impairment rather than to economic conditions, is easily distinguishable. It was uncontested in Regency Inn that the claimant lost her job because of her industrial injury. Here, the claimant’s own testimony established beyond question that the disruption in her employment pattern was not a result of her industrial accident, but came about because she voluntarily left employment for reasons unrelated to her compen-sable injury. Because neither the initial loss of claimant’s job with the employer nor the claimant’s subsequent inability to find work were shown to have been related to the industrial accident, the award of wage loss benefits is REVERSED.

SHIVERS and JOANOS, JJ., concur.


author: BARFIELD, Judge. WENTWORTH, Judge,

text:
    SPECIAL DISABILITY TRUST FUND, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Appellant, v. ARTISAN WOODCRAFTERS, INC., and American Mutual Insurance Company, Appellees.
    No. AU-80.
    District Court of Appeal of Florida, First District.
    March 14, 1984.

      Thomas R. Criss, Sp. Disability Trust Fund, Tallahassee, for appellant.
    Donald F. Harrington, Miami, for appel-lees.
   BARFIELD, Judge.

The Special Disability Trust Fund (Fund) appeals the final order of the deputy commissioner requiring the Fund to reimburse the employer, Artisan Woodcrafters, Inc., and its carrier for permanent partial disability payments to an employee in accordance with Section 440.49, Florida Statutes (1975). The deputy commissioner found that the prerequisites to reimbursement had been met. We reverse.

The issue on appeal is whether there is competent substantial evidence in the record to support the finding that the employer reached an informed conclusion that the injured employee’s pre-existing condition was or likely would be a hindrance or obstacle to employment.

The employee sustained a compensable injury to his left arm and left leg in 1971. He was given a rating of 15% permanent impairment of his left arm. In 1975 the employee sustained a second injury when he struck his right elbow, for which he received a permanent partial impairment of 15% of the right arm. The employee and carrier entered into a joint petition for lump sum settlement that included payment for permanent partial disability based on diminution of wage earning capacity over and above the 15% rating previously voluntarily paid. The employer and carrier filed for reimbursement from the Fund.

In the final order the deputy commissioner went to great lengths to articulate reasons why knowledge of the 1971 disability should be attributed to the employer at the time of the 1975 injury. We will concede knowledge by the employer, although not Subscribing to the theories expressed in the final order. The question is whether the employer, armed with knowledge of the prior injury, made an informed conclusion that the condition was permanent and was or likely would be a hindrance to employment, as required by Section 440.49(2)(f)(l), Florida Statutes (1975). The final order did not contain a specific finding of informed conclusion, and the record will not permit such a finding.

REVERSED.

MILLS, J., concurs.

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting.

Even assuming applicability of the 1974 statutory amendment to the employer who retained the impaired claimant in 1972, I would affirm.

The order and record would indicate to me that before claimant’s second accident in this employment the employer reached an “informed conclusion” that claimant’s permanent impairment was “likely to be a hindrance or obstacle to employment.” § 440.49(2)(f), Florida Statutes. While some employers might conceivably evidence a state of mind in some formal or definitive way when an impaired employee returns to work, that requirement seems to me to be highly artificial. The more usual and more reasonable situation will, I think, be that which is presented in this case, where the employer has acted with full knowledge of all the pertinent facts. This clearly fulfills the statute’s intent to reward an employer’s informed decision to employ or retain an impaired worker.

Because the employer here was a party to the first agreement for permanent disability compensation generated by arm impairment and other injuries; because this employer should be presumed to know the nature of claimant’s work in woodcraft and the likelihood of some hindrance in that employment from a permanent arm impairment; and because that forseeable hindrance has now occurred by merger of the injuries to each arm, I would affirm the deputy’s order for reimbursement.


author: WENTWORTH, Judge.

text:
    Joyce M. JOSLIN, Appellant, v. K-MART CORPORATION, Self-Insured, Appellee.
    No. AU-161.
    District Court of Appeal of Florida, First District.
    March 14, 1984.
    Alex Lancaster, Sarasota, for appellant.
    Keith A. Mann, of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellee.
   WENTWORTH, Judge.

The claimant in this workers’ compensation case appeals that portion of the deputy commissioner’s order denying her motion for continuing medical care by her previously authorized physician. We reverse.

Claimant was injured in a compensable accident on April 15, 1981. Shortly after the accident, the self-insured employer authorized treatment by Dr. McCarthy, an orthopedic surgeon, who continued to conservatively treat claimant for approximately a year and a half. Sometime during the holidays of late 1982, claimant needed a refill of one of her medical prescriptions and called Dr. McCarthy’s office to request that it be phoned in to the drugstore. Since Dr. McCarthy was on vacation at the time, his partner, Dr. Boyce, phoned the prescription in instead. Employer refused to pay the bill for the medication, apparently because it was not prescribed by Dr. McCarthy, the authorized physician. Claimant’s attorney wrote a letter to the employer’s attorney requesting payment of the prescription and authorization of Dr. Boyce. Subsequent events indicated that the latter request, i.e., authorization of Dr. Boyce, was solely due to an unfortunate choice of words by claimant’s attorney who intended only to request authorization for treatment while Dr. McCarthy was away. In response to the request, the employer’s attorney responded by letter informing claimant’s attorney that Dr. Boyce was authorized and Dr. McCarthy was deauthor-ized. A copy of this letter was also sent to Dr. McCarthy, who therefore refused to see claimant when she appeared for her scheduled appointment on February 23, 1983. Claimant then attempted to make an appointment with Dr. Boyce, but he refused to see her because he considered her to be Dr. McCarthy’s patient.

Claimant’s attorney was apparently out of town on February 23, 1983, and unaware that Dr. McCarthy had been deauthorized, but somehow claimant’s predicament was brought to the employer’s attention because its lawyer wrote the following to claimant’s attorney:

Dear Alex: Subsequent to your February 3, ’83 request for authorization and treatment by Dr. Boyce, my clients agree to change the physicians. Now I'm informed that Mrs. Joslin really doesn’t want to be treated by Dr. Boyce and that she is satisfied with Dr. McCarthy.
In all fairness to their physicians and their clients, I would appreciate it if you would have a conference with Mrs. Joslin to resolve this matter.

This letter apparently crossed in the mail with one from claimant’s attorney which he had written when he discovered upon his return to work, that Dr. McCarthy had been deauthorized:

Dear Keith: Have just returned from vacation. Have your letter of February 15, ’83, in which you indicated that Dr. McCarthy is no longer authorized to treat Mrs. Joslin and that Dr. Boyce is now the authorized treating physician. I think you have everything a bit confused, and it is for that reason I’m writing this letter.
Your clients have indicated to Mrs. Joslin that they would not pay for the medication prescribed by Dr. Boyce since he was not an authorized treating physician. I advised you on February 3, '83, that Dr. Boyce was on call for Dr. McCarthy while Dr. McCarthy was out of town. And that was the reason that Dr. Boyce had treated her and prescribed medication. Mrs. Joslin was very happy with Dr. Boyce, and she’s been happy, as she has been with Dr. McCarthy. Your letter of February 15, '83, makes it sound as though she was not happy with Dr. McCarthy and only wanted Dr. Boyce to treat her. This is certainly not the case, and we would once again request that your client pay for the medication prescribed by Dr. Boyce and continue to authorize Dr. McCarthy.

The record shows that the next event in claimant’s quest for medical attention was the filing of a “Motion for Continuing Medical Care by Dr. McCarthy or Change of Physician to Dr. McCarthy” on May 2, 1983. A hearing was held on June 21, 1983, and in an order of June 30, 1983, the deputy commissioner denied claimant’s motion. However, in the body of the order, the deputy found as follows:

... at the hearing before the undersigned, the claimant stated that Dr. Boyce would not see her. The employer/self-insured then did agree to provide another doctor for the claimant. Therefore, it would be appropriate for the employer/self-insured and claimant to mutually agree upon another treating physician. If the parties cannot agree, then the employer/self-insured shall provide the names of three doctors from which the claimant shall choose one.

As evidenced by the extent to which the parties have pursued this controversy, the above quoted suggestion went unheeded. Instead, the parties present arguments pertaining to such legal principles as the employer’s right to “first choice” in selection of the treating physician and the employer’s rights and/or duties when a claimant expresses dissatisfaction with the authorized doctor. See e.g. Pinellas County School Board v. Fly, 393 So.2d 610 (Fla. 1st DCA 1981); Greynolds Park Manor Nursing Center v. Efford, IRC Order 2-3348 (1978).

Although the legal questions raised are intriguing, we have determined that this is not the appropriate case for their resolution. We are convinced that too much judicial labor has already been exerted to cure what we perceive as either a communication failure between the parties’ attorneys or a stubborn refusal on their part to cooperate. In any event, it is clear that no real alternative treatment had been offered to claimant at the time of the hearing in this case. For that reason, without regard to sufficiency of proof otherwise supporting claimant’s motion for care by the originally authorized doctor, the deputy’s duty was to grant the motion. We therefore reverse the order denying same and remand for further proceedings consistent with this opinion.

MILLS, J., and McCORD, Jr. (Ret.), Associate Judge, concur.

      . Claimant testified that she had never been treated by Dr. Boyce, that her sole contact with him had been his act of calling in a prescription for her. Thus, it appears that claimant’s attorney was at least as confused as the employer’s.


text:
    George T. FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. AW-118.
    District Court of Appeal of Florida, First District.
    March 14, 1984.

      J. Craig Williams of Williams & Stapp, Jacksonville, for appellant.
    No Appearance for appellee.
   MILLS, Judge.

Frazier filed a motion for postconviction relief, Rule 3.850, Florida Rules of Criminal Procedure, alleging that his plea of nolo contendere was involuntary and that he was denied effective assistance of counsel. After holding an evidentiary hearing, the trial court denied the motion. We affirm.

Frazier’s allegations of an involuntary plea are affirmatively refuted by the transcript of the plea hearing. The transcript shows that Frazier stated that no one had threatened him or promised him anything to induce him to plead nolo con-tendere and that the trial court conducted an adequate inquiry into the voluntariness of the plea.

Further, we agree with the trial court that Frazier presented insufficient evidence on the issue of ineffective assistance of counsel. First, he stated at the plea hearing that he was satisfied with the services of his attorney. Such a statement by a defendant precludes him from later raising the issue of ineffective assistance of counsel. Holloway v. State, 432 So.2d 649 (Fla. 1st DCA 1983). Second, even if Frazier’s allegations concerning his attorney were true, there was no proof that the alleged deficient conduct affected the outcome of the court proceedings as is required by Knight v. State, 394 So.2d 997 (Fla.1981). That is, Frazier failed to show that further investigation or other activity by his attorney would likely have resulted in a decision to go to trial, much less a verdict favorable to him following the trial. It has been held that “[i]n order to support a claim of ineffective assistance of counsel under Knight it must be established that the alleged error was prejudicial in fact.” Buford v. Wainwright, 428 So.2d 1389, 1391 (Fla.1983). Frazier has failed to carry this burden.

We also base our affirmance on another ground. Frazier entered his plea of nolo contendere on 20 August 1973. After serving two years of his seven-year sentence, he escaped and remained at large for almost seven years. He filed this Rule 3.850 motion in 1983 after he was recaptured. While he was at large, both the attorney that he now alleges was ineffective and the trial judge who accepted his plea died. We hold that under such circumstances Frazier’s motion is barred by the doctrine of laches. Remp v. State, 248 So.2d 677 (Fla. 1st DCA 1970). It offends our sense of justice to allow a defendant to bring allegations such as these where there has been such an unjustified delay in filing the motion and especially where the persons who possibly could have refuted the allegations have long since died or have otherwise become unavailable to testify.

AFFIRMED.

WENTWORTH and BARFIELD, JJ., concur.


text:
    Ronald G. WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. AW-473.
    District Court of Appeal of Florida, First District.
    March 14, 1984.
    Ronald G. Wright, pro se.
    No appearance for appellee.
   MILLS, Judge.

Wright contends the trial court erred in denying his Rule 3.850 motion without an evidentiary hearing. His motion alleged ineffective assistance of counsel, failure of the trial court to establish a factual basis for his guilty plea, and his plea of guilty was coerced. We affirm.

The record furnished us clearly shows that before the trial court accepted Wright’s plea of guilty, pursuant to plea bargaining, it determined from Wright, while he was under oath, that he was satisfied with the services of his attorney, that a factual basis for the plea was established, and that his plea was not coerced.

In addition, the allegations of ineffective assistance of counsel do not follow the guidelines laid down in Knight v. State, 394 So.2d 997 (Fla.1981).

AFFIRMED.

WENTWORTH and BARFIELD, JJ., concur.


author: PER CURIAM. ORFINGER, Chief Judge,

text:
    STATE of Florida, Appellant, v. Anthony IAFORNARO, Appellee.
    No. 83-119.
    District Court of Appeal of Florida, Fifth District.
    March 15, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    Russell H. Cullen, Jr., of Freeman, Cullen, Eaton & Fountain, Altamonte Springs, for appellee.
   PER CURIAM.

Affirmed on the authority of Ramsey v. State, 442 So.2d 303 (Fla. 5th DCA 1983).

COBB, J., and LEE, R.E., Associate Judge, concur.

ORFINGER, C.J., concurs specially with opinion.

ORFINGER, Chief Judge,

specially concurring.

I concur in the affirmance only because we are bound by the decision of this court in Ramsey v. State, cited in the per curiam decision. Were I free to do so, however, I would vote to reverse.

The facts are relatively simple. Defendant was stopped by a police officer for running a red light. While talking to defendant, the officer smelled alcohol on defendant’s breath and had him take a field sobriety test. When defendant failed the test, the officer placed him under arrest and told him to put his hands on top of the police car for a pat down. Instead of complying, defendant took a few steps toward the car, then fled. On the charge of escape, the trial court granted defendant’s motion to dismiss and the state appeals.

Under similar facts, this court in Ramsey held that while the defendant might be charged with resisting arrest, he could not be charged with escape because under the facts of the case he could only be charged with escape if he were being “transported to ... a place of confinement ...”. See section 944.40, Florida Statutes (1981). The Ramsey panel was aware of the decision in State v. Akers, 367 So.2d 700 (Fla. 2d DCA 1979) and noted conflict with that case. I would have followed the reasoning and the result of Akers.

Section 944.02(5), Florida Statutes (1981) defines a prisoner as “any person who is under arrest and in the lawful custody of any law enforcement official ...” Defendant here was under arrest, thus presumptively in lawful custody. See State v. Williams, 444 So.2d 13 (Fla.1984). For the purposes of the motion to dismiss, defendant was a “prisoner.” The question then is whether defendant violated Florida Statute Section 944.40 (1981) which reads:

Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.

by escaping while “being transported to or from a place of confinement.” The Akers court in dealing with a factual situation similar to that here and in Ramsey, although not discussing the issue of whether “transporting” was involved, held that the present escape statute includes escape from confinement while under arrest, and that all the state need prove was (1) the right to legal custody and (2) a conscious and intentional act of the defendant in leaving the established area of such custody.

In disagreeing with Akers because there had been no showing that the prisoner was being “transported” to a place of confinement, Ramsey does not address the question of when and by what means “transportation” begins. Does transportation of a prisoner necessarily begin only when he is handcuffed? Or does it begin only when he is placed in the patrol car? Mus.t the patrol car begin to move before “transportation” begins? I pose only some of the difficult questions, but I believe that the Akers rationale eliminates them and makes resolution of the problem much simpler both for the courts, the prosecutors and defendants. Since a suspect does not become a “prisoner” until he is placed under arrest, and since he cannot be transported to a place of confinement until he becomes a prisoner, unless the facts clearly show that the officer had no intention of taking him from the scene, “transportation to a place of confinement” begins at the time the suspect is placed under arrest, because that is the very first step in the process. Even though not yet physically restrained, one who has been placed under arrest has had his liberty restrained in that he is not free to leave. His confinement has thus begun and if he escapes from lawful custody, he may be properly charged with escape. The fact that he may also be charged with resisting arrest does not affect the result, because oftentimes a single act violates two or more criminal statutes.

Therefore, were I not bound by Ramsey, I would reverse. We should again note express conflict with Akers.


text:
    Stephen B. FREEMAN, Appellant, v. Glenda FREEMAN, Appellee.
    No. AQ-401.
    District Court of Appeal of Florida, First District.
    March 16, 1984.
    Antony E. Fiorentino, Pensacola, for appellant.
    William J. Manikas, Pensacola, for appel-lee.
   PER CURIAM.

This is an appeal from a final judgment dissolving Stephen Freeman’s (Stephen) and Glenda Freeman’s (Glenda) marriage pursuant to Chapter 61, Florida Statutes. Following Glenda’s petition for dissolution, a default was entered against Stephen for failure to answer or take any other steps within the time allowed by law. Glenda and Stephen voluntarily executed an agreement in which the parties agreed that custody of Stephen’s minor child from a previous marriage, Joseph L. Freeman (Joseph), should be given to Glenda, with Stephen providing monthly child support. Over four months later, the trial court entered its final judgment which incorporated, by reference, the parties’ agreement. On the same day, but after, the final judgment was filed with the clerk of the court, Stephen moved to set aside the default. Eight days later, Stephen moved to set aside the final judgment, arguing the trial court lacked subject matter jurisdiction over the custody of his child. After a hearing, both motions were denied.

Glenda’s petition for dissolution, filed April 26, 1982, contains no factual allegation of any sort relating to Joseph. The prayer for relief requests support for “the Husband’s minor child which she cares for, ...” but does not name the child nor make any reference to or request an award of custody of that child. The voluntarily executed agreement, signed on May 18, 1982, settled all financial and property issues between Glenda and Stephen, and in addition, made the following agreement concerning custody of Stephen’s child:

The Husband has a child from a previous marriage, Joseph L. Freeman, d.o.b. January 4, 1975. The Husband recognizes that the best interests of the child will be served by permitting the Wife to retain custody of the minor child, and therefore, the Wife shall have the permanent care, custody and control of the Husband’s son, Joseph L. Freeman, subject to the Husband’s right of reasonable visitation upon reasonable notice....

On May 20, 1982, two days after the signing of the agreement, a motion for default judgment was filed and a default was entered by the clerk.

The written agreement was file marked by the clerk and placed in the court file on July 30,1982. At the brief final hearing on September 8, 1982, of which the husband received no notice and did not attend, the following casual reference was made to the child and the parties’ agreement concerning custody:

Q. Let me show you this agreement which has been filed with the Court on July 30th, 1982. Now is that the agreement you and your husband entered into?
A. Yes.
Q. And did your husband have a child prior to this marriage?
A. Yes.
Q. And was that Joseph L. Freeman whose date of birth was January 4th, 1975?
A. Yes.
Q. And have you raised that child since his birth?
A. Yes.
Q. And have you and your husband discussed the fact that you would have custody of this little boy and take care of him?
A. Yes, sir.
Q. And you’ve agreed on that?
A. Yes, we have.
MR. GRIFFITH: Judge, I would like to have this agreement marked as Petitioner’s Exhibit Number One.

The court’s final judgment, entered September 8, 1982, the same date as the first hearing, approved and incorporated the agreement by reference, and ordered the parties to comply with it. No other reference was made to the child, nor to the matter of custody. As can be seen from the foregoing, at no time was the trial court presented with any pleading stating any grounds for depriving the natural father of the right of custody of his child. A defendant against whom a default is entered admits only the well-pleaded facts and acquiesces only in the relief specifically prayed for. Williams v. Williams, 227 So.2d 746 (Fla. 2nd DCA 1969). The award of relief not sought by the pleadings is error. Hernandez v. Hernandez, 444 So.2d 35 (Fla. 3rd DCA 1983). The jurisdiction of the court can be exercised only within the scope of the pleadings. Fine v. Fine, 400 So.2d 1254 (Fla. 5th DCA 1981).

Stephen’s out-of-court agreement did not excuse Glenda’s failure to plead facts justifying the court’s exercise of jurisdiction over the child. Nothing in the agreement placed the uncounselled husband on notice that a court order would be sought by the wife effecting severe restrictions on his parental rights and imposing upon him the burden of showing changed conditions in order to regain his parental control and custody over the child. Glenda’s contention that the agreement substituted for a pleading is not well taken. As an agreement between the parties, unlike a pleading filed in the ease, the same remained subject to repudiation or modification by either or both of the parties at any time, without the necessity of complying with any rule, or seeking leave of court. We note that agreements to transfer custody of a minor child are generally held against public policy and are not binding on the parties. Hernandez v. Thomas, 50 Fla. 522, 39 So. 641 (1905); DiGiorgio v. DiGiorgio, 153 Fla. 24, 13 So.2d 596 (1943).

If the agreement was indeed a “pleading” by the husband when signed by him, then the default was improperly entered, and the husband should have been notified of the final hearing. The agreement contains no waiver of notice of further hearings or proceedings in the case. Significantly, the agreement itself was treated and understood by the parties as evidentiary in nature and was not enforceable as to child custody until ratified by the court. As indicated previously, the agreement was not even placed in the court file until after the default judgment was entered by the clerk. Therefore, under the authorities already alluded to, there was nothing in the court file to confer jurisdiction over the child when the default was entered. Glenda’s contention that the child custody issue was tried by the express or implied consent of the parties (Rule 1.190(b), Florida Rules of Civil Procedure) is unavailing, since the husband received no notice of the final hearing, and appellee could not introduce a new cause of action without notice to and service upon appellant.

The errors in this proceeding were timely brought to the attention of the trial judge, and it was an abuse of discretion for the trial judge to fail to set aside the judgment with respect to child custody. Accordingly, the final judgment is REVERSED as to its award of child custody and the trial court is further directed that either party may be permitted to proceed with further litigation concerning custody as he or she might deem advisable, with due regard for the procedural and substantive requirements applicable in such cases.

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


author: SMITH, Judge.

text:
    TRI-PROPERTIES, INC., Appellant, v. MOONSPINNER CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. AT-307.
    District Court of Appeal of Florida, First District.
    March 16, 1984.

      Robert B. Staats of Staats, Overstreet & White, Panama City, for appellant.
    John D. O’Brien, Panama City, for appel-lee.
   SMITH, Judge.

Appellant, a management company, appeals from a final judgment denying relief in its breach of contract action against ap-pellee-condominium homeowners association. Appellant essentially contends that the association should be liable for damages for wrongful cancellation of the contract in the absence of proof that the contract was breached by appellant, or was unfair or unreasonable. The trial court ruled, and we agree, that it was unnecessary for the association to prove breach of contract, or that it was unfair or unreasonable, in order to exercise the right of-cancellation under Section 718.302, Florida Statutes (1981).

The facts, briefly, are that appellant entered into a contract with the association on June 4, 1982, for management of the condominium operated by the association. At the time the contract was entered into the association was under the control of the developers. On December 11, 1982, unit owners other than the developer owned in excess of 75 percent of the units in the condominium. On that date, by vote of the owners of more than 75 percent of the non-developer owned units, the owners can-celled appellant’s management contract with the association. At the final hearing before the trial judge there was no proof of any breach of contract by appellant, nor was there any contention that the contract was not fair and reasonable. Appellee relied solely upon the provisions of Section 718.302, Florida Statutes (1981), as giving it the right to cancel the contract.

The statute, in pertinent part, provides:

718.302 Agreements entered into by the association.—
(1) Any grant or reservation made by a declaration, lease, or other document, and any contract made by an association prior to assumption of control by the association by unit owners other than the developer, that provides for operation, maintenance, or management of a condominium association or property serving the unit owners of a condominium shall be fair and reasonable, and may be can-celled by unit owners other than the developer:
(a) If ... unit owners other than the developer own not less than 75 percent of the units of the condominium, the cancellation shall be by concurrence of the owners of not less than 75 percent of the units other than the units owned by the developer.... (emphasis supplied)

The trial court interpreted the above statutory provision as granting to the requisite number of unit owners the right to cancel any operation, maintenance, or management contract between the association and a third party, without regard to whether there has been any breach or nonperformance by the third party, and without regard to whether the contract is fair and reasonable. Appellant maintains that the statute does not relieve the owners from the burden of proving that the contract is not “fair and reasonable,” or that there has been a breach by the management company, in order to avoid liability for damages upon cancellation. Appellee, on the other hand, contends that the requirement that such contracts must be “fair and reasonable,” and the provision authorizing cancellation by owners of 75 percent of the non-developer owned units, are separate and independent.

We conclude that the trial judge’s interpretation was correct. It is apparent that this statutory provision, among others contained in Chapter 718, Florida Statutes, addresses the need of developers to provide for the operation, maintenance and management of condominium projects, and to enter into contracts for these purposes, and the need for protection of unit owners with respect to such contracts. The provision at issue here governs certain contractual rights of developers and unit owners with respect to operation, maintenance and management during the period of transition between developer control and unit owners’ control of the association operating the condominium. The legislature has simply determined that when 75 percent of the units in a condominium complex are non-developer owned, those unit owners should be free to reject operation, maintenance, and management contracts previously made by the developer-controlled association. The statute spells out other circumstances under which owners other than the developer may cancel contracts with third parties, and contains provisions also for the making of new contracts by the association. The intent of the Legislature to confer upon unit owners other than the developer cancellation rights in addition to rights they would have under ordinary contract law is apparent from a reading of other provisions of Section 718.-302(1). For example, subparagraph (e)l. provides that notwithstanding the provisions of subsection (1), certain vending equipment contracts “shall not be subject to cancellation as provided herein ...,” provided the contract meets certain criteria enumerated in subparagraphs a through f, inclusive, all of which are designed to afford protection of unit owners other than the developer.

Finally, appellant recognizes the difficulty in asserting an impairment of contract claim under the federal or state constitutions, since the statute relied upon by appellee as its sole defense was in effect prior to and at the time of execution of the contract under consideration. Further, although appellant urges the general applicability of constitutional principles in the interpretation of statutes, citing 10 Fla. Jur.2d, Constitutional Law, §§ 69-73, the constitutionality of the statute was not directly challenged in the trial court, and constitutional questions have not been briefed nor argued for our review on appeal.

Accordingly, the judgment appealed from is AFFIRMED.

ERVIN, C.J., and NIMMONS, J., concur.

      . “In Florida, condominiums are creatures of statute and as such are subject to the control and regulation of the Legislature. That body has broad discretion to fashion such remedies as it deems necessary to protect the interests of the parties involved." Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So.2d 128, 133 (Fla.1978).

      . In order for a statute to offend the prohibition against impairment of contracts, Article I, Section 10, United States Constitution, Article I, Section 10, Florida Constitution, it must have the effect of changing the substantive rights of the parties to an existing contract. Manning v. Travelers Insurance Company, 250 So.2d 872 (Fla.1971). Further, the laws in force at the time of the making of the contract enter into and form a part of the contract as if they were expressly incorporated into it. See, State v. Coral Gables, 72 So.2d 48 (Fla.1954); 10 Fla. Jur.2d, Constitutional Law, § 315. Any attempt to retroactively apply the cancellation rights conferred by Section 718.302 to existing contracts would, however, be constitutionally suspect. Cf. Rebholz v. Metrocare, Inc., 397 So.2d 677 (Fla.1981).

      . The questions presented on appeal call for interpretation and application of the statute. Constitutional issues, other than those constituting fundamental error, are waived unless timely raised. Sanford v. Rubin, 237 So.2d 134 (Fla.1970). Appellant suggests without citation of particular constitutional provisions or case authority, that although the Legislature might have the authority to confer the right of cancellation of a contract and thus eliminate the remedy of specific performance (an interpretation of Section 718.302 urged by appellant, cf., Point East One Condominium v. Point East Developers, Inc., 348 So.2d 32 (Fla. 3rd DCA 1977)), constitutional issues might be implicated in the Legislature’s denial of the right to seek recovery of damages for such cancellation. This does not sufficiently raise a constitutional question for decision by this court. See, State v. Miami Coin Club, 88 So.2d 293 (Fla.1956). A party asserting the invalidity of a statute is charged with the burden of proving that it is invalid. Milliken v. State, 131 So.2d 889 (Fla.1961); Metropolitan Dade County v. Bridges, 402 So.2d 411 (Fla.1981); Fulford v. Graham, 418 So.2d 1204 (Fla. 1st DCA 1982).


text:
    Trella MARTINEZ, Appellant, v. Leo MARTINEZ, Jr., Appellee.
    No. AT-360.
    District Court of Appeal of Florida, First District.
    March 16, 1984.
    Lyman T. Fletcher of Fletcher & Fletcher, Jacksonville, for appellant.
    John F. Stroud, Jacksonville, for appel-lee.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Holbrook v. Holbrook, 383 So.2d 981 (Fla. 4th D.C.A.1980).

SMITH, WIGGINTON and NIMMONS, JJ., concur.