author: WIGGINTON, Judge. SMITH, Judge, NIMMONS, Judge,

text:
    STATE of Florida, Appellant, v. Lewis Abayomi TEAGUE, Appellee.
    No. AV-292.
    District Court of Appeal of Florida, First District.
    May 22, 1984.
    Rehearing Denied June 27, 1984.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellant.
    Harold C. Arnold, of Hooten, Donohoe & Arnold, Jacksonville, for appellee.
   WIGGINTON, Judge.

The State appeals an order granting ap-pellee’s motion to dismiss the charge against him of carrying a concealed firearm. We affirm.

The State first argues that since it filed a traverse to appellee’s motion to dismiss, alleging disputed material facts, the trial judge was obligated to deny the motion. State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979). However, contrary to the State’s contention, its traverse failed to controvert any specific material allegation of the motion to dismiss and, in fact, appel-lee accepted the facts alleged therein as correct. Thus, the trial judge was not required to deny automatically the motion. State v. Holliday, 431 So.2d 309 (Fla. 1st DCA 1983).

The State’s second argument presents the novel question of whether a weapon can be considered concealed, pursuant to section 790.001(2), by the mere fact that it was not visible through the tinted windows of an automobile. The undisputed facts show that on June 18, 1983, at approximately 9:35 p.m., Officer Leaptrot of the Duval County Sheriff’s office stopped ap-pellee for driving without headlights. Ap-pellee exited his vehicle and met the officer behind it. When the officer requested to see his driver’s license, appellee unhesitatingly opened the left rear door of his car to retrieve the license from the pocket of some clothing there. When appellee opened the door, Officer Leaptrot saw the muzzle portion of a rifle, which was lying uncovered on the front seat of the car.

The sole alleged probable cause for arresting appellee and charging him with carrying a concealed firearm, pursuant to section 790.001(2), Florida Statutes, was the fact that the car had tinted windows through which in the “ordinary sight of another person,” the firearm could not be seen. In his motion, appellee asserted that the above facts did not establish a prima facie case of guilt, to which the State responded in its traverse that the question of concealment is one for the trier of fact. The State relies upon such cases as Ensor v. State, 403 So.2d 349 (Fla.1981) and State v. Hankerson, 430 So.2d 517 (Fla. 2d DCA 1983) in which the courts determined that the question of whether a partial concealment of a weapon was within the “ordinary sight of another person” within the meaning of section 790.001(2) should be deferred to the trier of fact.

We decline to apply the principles of En-sor and Hankerson to the facts of the instant case. Unlike the defendants in those cases, appellee undisputedly did not have his gun covered in any manner but instead merely had it lying openly on the front seat of his car. Only the tinted windows obstructed it from view. A certain degree of tinting on motor vehicle windows has been approved by the Florida Legislature. Chapter 316, Fla.Stat. The record before us contains no allegation or evidence that appellee’s tinted windows failed to meet the specifications of chapter 316. Therefore, we must assume that appelleé was driving a “legal” vehicle.

We are appreciative of law enforcement’s proven fears concerning the use of tinted glass on vehicles, and are reluctant to endorse the legislature’s approval of darkly tinted windows on motor vehicles. Nonetheless, we decline to rule that, by the mere fact of appellee’s vehicle sporting “legal” tinted windows, his act of carrying a firearm openly on the front seat of his car, in a manner that would be legal in a car that did not have tinted windows, could constitute the crime of carrying a concealed weapon.

The trial judge was correct in granting appellee’s motion to dismiss under the circumstances. However, we certify the following question to the Supreme Court of Florida as one of great public importance under Fla.App.R. 9.030(a)(2)(A)(v):

DOES THE CARRYING OF A FIREARM BY THE OCCUPANT OF A MOTOR VEHICLE HAVING TINTED WINDOW GLASS WHICH PREVENTS THE FIREARM FROM BEING VISIBLE WITHIN THE ORDINARY SIGHT OF PERSONS OUTSIDE THE VEHICLE, ALTHOUGH THE FIREARM IS OTHERWISE IN CLEAR VIEW AND UNCONCEALED, CONSTITUTE THE OFFENSE OF CARRYING A CONCEALED FIREARM UNDER SECTION 790.01(2), FLORIDA STATUTES? AFFIRMED.

SMITH, J., concurs specially with written opinion.

NIMMONS, J., dissents with written opinion.

SMITH, Judge,

specially concurring.

I concur in the result reached in Judge Wigginton’s opinion, and write only to express briefly the basis upon which I feel the trial court’s ruling should be affirmed.

First, I find some merit in the state’s position that one carrying an otherwise openly visible firearm within easy reach inside a vehicle with darkly tinted windows may be considered as “carrying” a “concealed weapon.” I am unpersuaded by the argument that since darkness would prevent one from seeing inside a car even with clear windows, the tinted windows on this occasion did not conceal the weapon from ordinary view. The same argument could be made of a person carrying a weapon inside a coat or trousers pocket, in the dark. Although persons ordinarily do not see in the dark, the offense may nevertheless be committed in one’s presence, but simply remain undetected until such time as sufficient light from some source or another — headlights, streetlight, flashlight — makes it possible to determine that the carried weapon is not visible. It is noted that in Ensor v. State, 403 So.2d 349 (Fla.1981), the police officer’s after-dark observation of the gun was made possible only by the use of his flashlight.

I am also unpersuaded by the fact that tinted windows are “legal.” Coats and trousers are also “legal,” but this does not legalize the carrying of weapons concealed within either.

However, there are other reasons for affirmance. I would conclude, first, that .the term “concealed,” as used in the statutory definitions, Section 790.001(2) and (3)(a), and in Section 790.01 (Florida Statutes), defining the offense itself, was intended to be read and interpreted in accordance with its usual and ordinary meaning. A review of the decided cases in Florida discloses that the issue, so far as “concealment,” is concerned, has been viewed as one of determining whether there has been a hiding of the weapon itself in some manner, such as by covering with some material or object, or by placing it in a container or within the clothing, or by placing the weapon in or about some object near but accessible to the person so as to be hidden from ordinary view. See, for example, Powell v. State, 369 So.2d 108 (Fla. 1st DCA 1979) (handle of firearm protruding from rear pants pocket); State v. Riocabo, 372 So.2d 126 (Fla. 3rd DCA 1979) (portion of pistol observed inside defendant’s purse); McGraw v. State, 387 So.2d 444 (Fla. 1st DCA 1980) (pistol partially covered by wet suit on front seat of car); Ensor v. State, supra (portion of what proved to be a derringer protruding from under car seat).

We would seem to be taking a giant leap should we expand the scope of this statutory offense, the crux of which is concealment of the weapon itself, to encompass circumstances under which the weapon is deemed “concealed,” because the carrier himself is “concealed.” I do not believe that expansion of the offense to embrace the latter circumstance is warranted under the statute as presently written.

I am mindful of and deeply concerned that the roving, opaque-windowed motor vehicle is potentially one of the most convenient instruments of crime that could ever be set loose in our society. On the other hand, a great many law-ab.iding citizens obviously find that darkly tinted glass in their vehicles serves desirable and legitimate purposes. I do not feel that it was envisioned by the legislative body at the time the concealment statute was passed, nor at the time of its most recent amendments, that refinements such as the blacked-out car window would have the effect of transforming the otherwise lawful possession of a firearm into a felony of the third degree. I further conclude that the issue is not simply a matter of technical, legal interpretation, but is one in which policy considerations would weigh heavily, no matter what the final answer might be. The matter would seem to be one peculiarly within the province of the legislature, and it would seem to me to be one of such magnitude and importance that it is not likely to be long ignored on the state, or possibly even on the national level. But in any event? it would seem to me that the multitudes of owners who have darkened windows on their cars, vans or trucks, should have the benefit of the increased notoriety that would attend a legislative enactment so severely restricting their right to the otherwise lawful carrying of firearms or other weapons within their vehicles.

I have some reservations concerning our decision to affirm the trial court because of the language found in the Supreme Court’s opinion in Ensor v. State, supra, 403 So.2d at page 355, quoted in footnote 1 above. The emphasized wording seems to support the state’s position here. Notwithstanding this language used by the court, which would seem to furnish an appropriate guide under most circumstances, it would appear to me that a prosecution based upon the state’s “darkened window” theory should be governed by law, and not left to the triers of fact on a ease-by-case basis. For that reason I also concur with Judge Wig-ginton that the question posed in his opinion be certified pursuant to Florida Appellate Rule 9.030(a)(2)(A)(v).

NIMMONS, Judge,

dissenting.

I respectfully dissent.

I have no difficulty, based upon applicable statutory and case authority, in concluding that a person who operates a motor vehicle with a firearm on the front seat which firearm, by reason of darkly-tinted windows, is hidden from the ordinary sight of another person, is in violation of Section 790.01(2) which proscribes carrying a concealed firearm.

The instant case presents an issue to be resolved by the trier of fact, that is, whether the firearm was hidden or concealed from the ordinary sight of a person outside the vehicle. As the court in Ensor v. State, 403 So.2d 349, 355 (Fla.1981), observed:

The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case. (Emphasis supplied.)

What would be our decision if the defendant had been walking around carrying a darkly-tinted glass or plastic container with a firearm inside? Of course, he would be guilty of carrying a concealed firearm. Cf. Rogers v. State, 336 So.2d 1233 (Fla. 4th DCA 1976) (carrying closed briefcase containing firearm). Why should it be any different simply because he carries the firearm on the front seat of his automobile which he has chosen to equip with darkly-tinted windshields? Like Judge Smith, I am unimpressed by the argument that a certain degree of windshield tinting has been approved by the Florida Legislature and that the record in this case does not indicate whether the defendant’s windows met the specifications of Chapter 316. To me, whether the windows met such specifications is irrelevant to the issue of whether the defendant was carrying a firearm which was hidden from the ordinary sight of another person situated or standing outside the vehicle.

I share the majority’s concern for the safety and security of police officers who are called upon to confront vehicles with darkly-tinted windows under a variety of circumstances. Traffic stops and automobile detentions are high-risk encounters for police officers. According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963). The study says that of police officers shot in connection with vehicle stops, about half were shot by persons seated in or concealed in a car, about a third by persons standing outside the car talking to the police, and the rest by persons then exiting the car or fleeing the scene. See also 3 LaFave, Search & Seizure § 9.4 (1984 Supp.); Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924 n. 3, 32 L.Ed.2d 612 (1972); Michigan v. Long, — U.S. -, - n. 13, 103 S.Ct. 3469, 3479 n. 13, 77 L.Ed.2d 1201, 1219 n. 13, (1983). I am aware of no studies which have considered the additional factor involving motor vehicles with darkly-tinted windows. However, it seems obvious that the risks attendant to vehicular stops are appreciably greater where vehicles with darkly-tinted windows are involved. The majority’s decision, which is in my view erroneous, will, I fear, only compound the problem by placing the court’s imprimatur upon the practice of carrying a firearm on the front seat of a motor vehicle even though the windows are so dark that the firearm is hidden from the ordinary sight of a person standing outside the vehicle, a situation which I believe to be proscribed by Section 790.01 as construed by the Supreme Court in Ensor, supra.

I would reverse the trial court’s order granting the defendant’s motion to dismiss and remand for trial. I do, however, concur with the majority’s decision to certify the issue as one of great public importance.

      . See, Ensor v. State, 403 So.2d 349 (Fla.1981), in which the court stated (at page 355):
      The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case, (emphasis supplied)

      . Not only does the possession of weapons inside such vehicles pose a threat to law enforcement personnel in the ordinary discharge of their duties — not to mention the danger to the unsuspecting citizen — but the identification of persons inside suspect vehicles is rendered extremely difficult, if not impossible. The countless cases in which alert police officers have been able to spot and apprehend criminal violators speeding away from crime scenes bears witness, I believe, to the impediment to law enforcement presented by these darkened windows.

      . Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity. Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).


source: Caselaw Access Project

author: WIGGINTON, Judge. MILLS, Judge,

license: Public Domain

text:
    STAINLESS EQUIPMENT COMPANY and Central Mutual Insurance, Appellants, v. James McCASLIN and Division of Workers’ Compensation, Appellees.
    No. AV-464.
    District Court of Appeal of Florida, First District.
    May 22, 1984.
    Rehearing Denied June 27, 1984.
    John F. McMath, Miami, and Mary Ann Stiles, of Stiles & Allen, P.A., Tampa, for appellants.
    Ronnie Klein Witlin, of Witlin & Witlin, Miami, for appellees.
   WIGGINTON, Judge.

Appellants, employer/carrier, appeal the deputy commissioner’s order awarding to appellee temporary total disability benefits until April 22, 1982, ordering payment of a hospital bill in the amount of $5,132, ordering payment for future medical care and treatment for appellee in the town in which he now lives, and reserving jurisdiction to determine an attorney’s fee. Having carefully reviewed the record and having given employer/carrier’s arguments due consideration, we affirm the deputy commissioner’s order in all respects except for the reservation to determine an attorney’s fee, which we strike since no basis exists under chapter 440, Florida Statutes, for a fee to be awarded by the deputy commissioner in this case. However, appellee’s motion for an attorney’s fee on appeal is granted pursuant to section 440.34(5), Florida Statutes, in the sum of $2,000.

SHIVERS, J., concurs.

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

MILLS, Judge,

concurring in part and dissenting in part:

I agree with the majority except that I would reverse that part of the deputy commissioner’s order requiring the E/C to pay the hospital bill of $5,132, and I would award appellee’s attorney a fee of $750 rather than $2,000 for services rendered in this appeal.

The record reflects that the E/C has paid $2,098 of the hospital bill. It should receive credit for this payment. Also, it appears that the balance of the bill probably includes charges for treatment of problems such as diabetes, ulcer, bronchitis and alcoholism which are unrelated to the industrial injury. I would reverse and remand with instructions that the deputy commissioner separate and remove the noncompensable charges from the hospital bill. Sam L. Rudd Leasing U.S.A. v. Beck, 399 So.2d 97 (Fla. 1st DCA 1981).


author: RYDER, Judge.

text:
    MARINE CONTRACTORS, INC., Appellant, v. ARMCO, INC., Auto-Owners Insurance Company, Progressive Contractors, Inc., George Allen, as Trustee, and Morstar Utilities Corporation, Appellees.
    No. 83-2063.
    District Court of Appeal of Florida, Second District.
    May 23, 1984.

      Ernest S. Marshall, Bradenton, for appellant.
    F.J. Manuel, Jr. of Welbaum, Zook, Jones & Williams, Orlando, for appellee Auto-Owners.
    Anthony J. Abate of Abel, Band, Brown, Russell & Collier, Chartered, Sarasota, for appellees Allen and Morstar.
    No appearance for appellee Progressive.
   RYDER, Judge.

Appellant Marine Contractors, Inc. (Marine), the subcontractor, seeks review of an order dismissing its cross-claims filed against appellees Progressive Contractors, Inc. (Progressive), the general contractor; Auto-Owners Insurance Company (Auto-Owners), Progressive’s surety; and George Allen, as trustee for two individuals, and Morstar Utilities Corporation (Morstar), the joint owners of the construction site. In short, the issue before ús is whether we will give effect to the notice of voluntary dismissal filed by the plaintiff below, Arm-co, Inc. (Armco), but not served on a named defendant who subsequently filed cross-claims. We hold the voluntary dismissal was a nullity and therefore reverse the trial court’s ruling that it lost jurisdiction over the cross-claim because of the voluntary dismissal.

On January 14, 1983, Armeo, a construction materials supplier, filed in accordance with Chapter 713, Florida Statutes (1981) a complaint against Marine, Progressive, and Auto-Owners to recover damages because of nonpayment for materials delivered to the construction site. Marine was served with Armco’s complaint on January 25, 1983. Thereafter, Marine filed a motion to strike and a motion to dismiss the complaint on February 11. The certificate of service relating to these combined motions indicated that Ernest S. Marshall was the attorney for Marine. Prior to March 4, Armco entered into a settlement agreement with Progressive and Auto-Owners. Marine was not informed of the settlement. On March 7, before a hearing was held on Marine’s motions, Armco filed a “Notice of Voluntary Dismissal” to dismiss “this action with prejudice.” The notice’s certificate of service stated that a copy had been furnished on March 4 to David L. Evans, the attorney for Progressive. The certificate did not indicate any other parties were furnished copies of the notice of voluntary dismissal, and it is not disputed that Marine in fact was never served with such notice.

On April 7, 1983, Marine filed multi-count cross-complaints against Progressive, Auto-Owners, Morstar, and the trustee to recover damages it incurred in supplying labor and materials to the construction project. Copies of the cross-complaints were furnished by mail on April 7 to Progressive and Auto-Owners. On April 25, Morstar and Allen jointly filed a motion to dismiss the cross-complaints as to them contending, in part, the trial court did not acquire personal jurisdiction over them or subject matter jurisdiction over the cause of actions asserted in the cross-complaints. Subsequently, on May 2, both Progressive and Auto-Owners filed motions to dismiss the cross-claims and quash service of the cross-claims on the grounds that the trial court had lost jurisdiction over them because of the voluntary dismissal taken by Armco after Armco entered into a settlement with them. On May 19, formal notice and summons of the cross-complaints were served on Progressive and Auto-Owners. Auto-Owners then filed a second notice to dismiss the cross-claims after it received formal notice.

After an unrecorded hearing on the cross-defendants’ motions to dismiss and quash service was held on June 17, 1983, the trial court entered an “order of dismissal” on June 30. The trial court found that the original cause of action filed by Armco had been previously dismissed with prejudice because of the voluntary dismissal, and, therefore, it was without subject matter jurisdiction to hear the cross-claims. Marine then filed a motion for rehearing, but the trial court entered an order denying this motion after a hearing. Marine then timely filed notice of appeal.

Florida Rule of Civil Procedure 1.420(a), which deals with voluntary dismissals, provides in relevant part:

(1) By Parties. Except in actions wherein property has been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court (i) by serving or during trial, by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if such motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action_(Emphasis added).

Thus, the first method for taking a voluntary dismissal under subsection (l)(i) clearly allows a party seeking affirmative relief an almost absolute right to dismiss his entire action once without a court order by serving a notice of dismissal at any time before a hearing on a motion for summary judgment. Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla. 1978). However, before the notice of voluntary dismissal can become operative, it is equally clear that the party seeking affirmative relief must effect service of the notice. Hibbard v. State Road Department of Florida, 225 So.2d 901, 902 (Fla. 1969); Gull Construction Co. v. Hendrie, 271 So.2d 775 (Fla. 2d DCA 1973). See generally H. Trawick, Florida Practice and Procedure § 21-2, p. 262 (1983 ed.). Service under rule 1.420(a)(l)(i) is to be accomplished in accordance with Florida Rule of Civil Procedure 1.080(b). Gull at 776, n. 1.

The question specifically presented by this case and not answered by rule 1.420 or any other rule or procedure is what effect should be given to a notice of voluntary dismissal which is not served upon at least one of the co-defendants, here Marine, who files cross-complaints against the remaining co-defendants unaware that the plaintiff is seeking a voluntary dismissal. First, it is well-settled that “[ojnly an entire action may be voluntarily dismissed under Fla.R.Civ.P. 1.420(a)(1); there can be no partial dismissal, no dismissal of less than all causes of action.” E.g., Deseret Ranches of Florida, Inc. v. Bowman, 340 So.2d 1232 (Fla. 4th DCA 1976), cert. denied, 349 So.2d 155 (Fla. 1977). Second, Armco did not attempt to delete or withdraw less than all counts from the pleading by seeking an amendment to the pleadings pursuant to Florida Rule of Civil Procedure 1.190. E.g., Deseret Ranches; Shannon v. McBride, 105 So.2d 16 (Fla. 2d DCA 1958). Furthermore, Armco did not attempt to specifically “drop” from the action less than all parties named as co-defendants in the complaint. Hinton v. Iowa National Mutual Insurance Co., 317 So.2d 832 (Fla. 2d DCA 1975), cert. denied, 328 So.2d 842 (Fla. 1976). See also Fla.R.Civ.P. 1.250(b); Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970). Accordingly, we hold under the facts of this case that because the plaintiff sought to dismiss the entire action as to all parties the notice of dismissal could not be legally effective unless and until all named co-defendants were served with a copy of the notice of voluntary dismissal. Requiring service on all defendants by a party seeking affirmative relief insures that all defendants are put on notice that the plaintiff has removed his case from the jurisdiction of the court and thus places all defendants in the same procedural posture with respect to preserving and protecting their legal rights.

Therefore, we hold the voluntary dismissal was a nullity and the trial court was not divested of jurisdiction over Arm-co’s complaint because Marine was not served. Consequently, the trial court also had subject matter jurisdiction over Marine’s cross-complaints which were timely filed against Progressive and Auto-Owners. Additionally, fairness dictates that the statute of limitations as applied to these parties was tolled at the time of the inoperative voluntary dismissal taken by Armco on March 7, 1983. Thus, the parties are entitled to file other claims against one another if the actions are instituted within the appropriate time limits.

In summation, we nullify the effect of Armco’s voluntary dismissal, direct the trial court to reinstate Armco’s complaint and Marine’s cross-complaints, and instruct the trial court to exercise jurisdiction over all other timely filed complaints regarding the construction project.

REVERSED and REMANDED for proceedings consistent with this opinion.

OTT, C.J., and LEHAN, J., concur.

      .Because Armco apparently did not name Morstar or the trustee as defendants in its complaint, they cannot technically be named and served by Marine as cross-defendants. However, we treat Marine’s cross-complaints against Morstar and the trustee as third party complaints filed pursuant to Florida Rule of Civil Procedure 1.180. See Florida Rules of Civil Procedure 1.010, 1.110(a). Nevertheless, we are unable to determine whether our holdings herein can be applied to these party defendants because the record is unclear as to whether Marine properly served them under Florida Rules of Civil Procedure. Therefore, the trial court is directed on remand to resolve this apparently unanswered question. If the trial court determines the parties were properly served, it can exercise jurisdiction over these parties and Marine's causes of action against them.

      . One possible exception is where the party taking the voluntary dismissal perpetrates a fraud on the court. Select Builders of Florida, Inc. v. Wong, 367 So.2d 1089 (Fla. 3d DCA 1979).

      . Under the former rule, filing of a notice of dismissal anytime before service by the adverse party of an answer or of a motion for summary judgment or decree was sufficient to automatically dismiss the action. Fla.R.Civ.P. 1.135 (1954). See generally Authors’ Comments, West’s Florida Statutes Annotated, Rule 1.420, Florida Rules of Civil Procedure (1967).

      . The record indicates that Armco only served notice of its voluntary dismissal on Progressive; however, Auto-Owners, Progressive’s surety and a party to the settlement, did not argue below that it did not receive notice of the dismissal.

      . We note, however, that Armco is not precluded from filing on remand a notice of voluntary dismissal and having that notice treated as its first dismissal since a hearing on a motion for summary judgment has not been held. Should Armco’s complaint be voluntarily dismissed on remand, the cross-complaints and any other timely filed complaints are to remain in effect for independent adjudication by the trial court.


author: MILLS, Judge.

text:
    Philip SHAPIRO, Appellant, v. Sandra G. SHAPIRO, Appellee.
    No. AT-248.
    District Court of Appeal of Florida, First District.
    May 23, 1984.
    Rehearing Denied June 27, 1984.
    Albert Datz of Datz, Jacobsen & Lembcke, Jacksonville, for appellant.
    Lyman T. Fletcher, Fletcher & Fletcher, Jacksonville, for appellee.
   MILLS, Judge.

Eight issues are raised in this appeal and cross-appeal from a final judgment dissolving Philip and Sandra Shapiro’s twenty-two year marriage. Two issues merit discussion.

In 1980, Philip’s mother transferred approximately $60,000 of her money to Philip and filed a gift tax return thereon. Philip and Sandra both testified the money was given with the understanding that it be used for Philip’s mother’s support until her death, and only afterward by Philip personally. Philip kept the money in an account separate from his joint accounts with Sandra. He paid income taxes on the interest the money earned by deducting the amount of tax from the account. Apart from $3,700 used to pay for a trip Philip and Sandra made to Israel, and which Philip admits he owes to the account, there was no evidence Philip used any of the money for purposes other than his mother’s support. The trial judge nevertheless considered these funds in making an equitable division of assets and in determining Philip’s ability to pay alimony and child support.

Sandra argues the trial judge could properly consider the money as Philip’s. She contends that even if the court-imposed support obligations cause Philip to use funds provided by his mother for his mother’s support to instead support his children and former wife, there is no error. We cannot agree.

A husband’s capital assets should be considered in determining his ability to pay. Firestone v. Firestone, 263 So.2d 223 (Fla.1972). But, a husband’s support of his mother is also relevant in determining his financial status. Lyons v. Lyons, 208 So.2d 137, 139 (Fla. 3d DCA 1968). The money in question is not really available to Philip until his mother dies because Philip, at the very least, has a moral obligation to use the money to support his mother. The money, therefore, is less like a capital asset and more like an expectancy not properly considered by the trial judge in a dissolution action. Traylor v. Traylor, 214 So.2d 15 (Fla. 1st DCA 1968); McCloskey v. McCloskey, 359 So.2d 494 (Fla. 4th DCA 1978). The trial judge erred when he considered these funds.

The second issue meriting discussion relates to the trial judge’s award to Sandra of a special equity in the former marital home. Following the final judgment in this case, the Florida Supreme Court decided Landay v. Landay, 429 So.2d 1197 (Fla. 1983), setting out the formula to be applied to determine a spouse’s special equity in entireties property where that spouse furnishes some, but not all, consideration from separate funds. If Sandra is to receive a special equity in the former marital home, it must be based on the Landay formula.

Although we consider the other issues raised on appeal meritless, we recognize the trial judge’s duty to fashion an integrated decree just to all parties concerned. The final judgment is therefore reversed in all respects relating to asset division, alimony and child support, and remanded to the trial court for reconsideration in view of the foregoing rulings. If deemed necessary by the trial judge, additional evidence may be taken to determine the purchase price of the former marital home.

SMITH and NIMMONS, JJ., concur.


author: PER CURIAM. JOANOS, Judge.

text:
    Paul Timothy WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. AT-430.
    District Court of Appeal of Florida, First District.
    May 23, 1984.
    On Motion to Modify Opinion June 15, 1984.

      Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Washington, a person over the age of eighteen, was convicted of one count of sexual battery upon a person of the age eleven or younger contrary to Section 794.-011, Florida Statutes (1981), and two counts of attempted lewd assault upon persons under the age of fourteen contrary to Section 800.04, Florida Statutes (1981). For the sexual battery conviction, he received sentence of life imprisonment, with a minimum mandatory twenty-five years before becoming eligible for parole. Washington raises four issues for review: (1) Whether the trial court erroneously denied Washington’s request for disclosure of police reports; (2) Whether individual, sequestered voir dire should have been allowed; (3) Whether the trial court erred in allowing videotaped testimony by the victim eleven years of age or younger; and (4) Whether the trial court erred in imposing a life sentence with a minimum mandatory twenty-five years before becoming eligible for parole. We affirm on all issues.

There was no abuse of discretion by the trial judge in sealing the police reports which contained no exculpatory evidence and no information which would be helpful to the defense. The reports do not fit the criteria required by Florida Rules of Criminal Procedure 3.220(a)(l)(ii) to make them discoverable.

Washington’s request for sequestered voir dire is addressed to the discretion of the trial court. Stone v. State, 378 So.2d 765, 768 (Fla.1979). There was no abuse of discretion in this proceeding.

We do not accept Washington’s argument that expert testimony must establish the necessity of videotaping testimony of a victim under the age of eleven. Section 918.17, Florida Statutes, gives the trial judge discretion to allow videotaping of a sexual battery victim eleven years of age or under when “[tjhere is a substantial likelihood that such child will suffer severe emotional or mental strain if required to testify in open court.” Here there is evidence that the victim was under a severe emotional strain, reacting physically and emotionally when informed of having to testify in court. It was within the trial judge’s permissible discretion to have his testimony videotaped and presented.

The penalty under Section 775.-082(1), Florida Statutes (1981), of life imprisonment with a minimum mandatory twenty-five years before becoming eligible for parole is the applicable sentence for the crime of sexual battery under Section 794.-011(2). Leduc v. Stat,e, 448 So.2d 32, (Fla. 1st DCA, 1984).

Accordingly, the judgment and sentence of the trial court is affirmed, but in accord with Leduc v. State, supra, we certify to the Supreme Court the following question:

MUST A DEFENDANT CONVICTED OF SEXUAL BATTERY IN VIOLATION OF SECTION 794.011(2), BE SENTENCED TO LIFE IMPRISONMENT WITH THE REQUIREMENT THAT HE SERVE NO LESS THAN 25 YEARS BEFORE BECOMING ELIGIBLE FOR PAROLE, AS PROVIDED IN SECTION 775.082(1)?

BOOTH, SHIVERS and JOANOS, JJ., concur.

ON MOTION TO MODIFY OPINION

JOANOS, Judge.

State of Florida’s motion to modify our previous opinion is granted. In light of the recent decision in Rusaw v. State, 451 So.2d 469, [9 FLW 195] (Fla.1984), our prior opinion is modified by deleting our certification to the Supreme Court of the question set forth in the last paragraph of the opinion. In all other respects our previous opinion remains unchanged.

BOOTH and SHIVERS, JJ, concur.


author: PER CURIAM.

text:
    Pamela WILSON, Appellant, v. STATE of Florida, Appellee.
    No. AU-326.
    District Court of Appeal of Florida, First District.
    May 23, 1984.
    Rehearing Denied July 2, 1984.
    David A. Davis, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen, Tallahassee, for appellee.
   PER CURIAM.

Wilson appeals a final order of probation ordering payment of $930.00 as restitution for the rental value of a television set. Wilson entered into a rental agreement to pay $930.00 in regular rental payments to Curtis Mathes Home Entertaining Center. She made nine regular payments, then moved, leaving no forwarding address, taking the television set, and making no further payments. Following a plea of nolo contendere to the charge of grand theft, Wilson was placed on probation and ordered to pay $930.00 restitution.

Wilson argues that the $930.00 restitution improperly exceeds the damage caused, citing Fresneda v. State, 347 So.2d 1021 (Fla.1977). The State concedes that the payments Wilson made should be considered in determining the amount of restitution.

“[A] condition of probation requiring a probationer to pay money to, and for the benefit of, the victim of his crime cannot require payment in excess of damage the criminal conduct caused the victim.” Fresneda, at 1022. Wilson’s theft of the rented television caused Curtis Mathes to lose the rental receipts it would have received under the rental agreement. Restitution for these lost receipts would be a permissible condition of probation within the scope of Fresneda. However, the restitution or condition of probation cannot exceed the damage caused, therefore, the $930.00 should be reduced by the amount of the regular payments made by Wilson.

Accordingly, the trial court’s order is affirmed insofar as it imposes the condition of payment of damages caused. The ordered amount of $930.00 is reversed and this cause is remanded for redetermination of the amount of payment in light of Fresneda.

BOOTH, SHIVERS and JOANOS, JJ., concur.


author: SHIVERS, Judge.

text:
    Jesus HERNANDEZ, Appellant, v. EQUIPMENT COMPANY OF AMERICA, ADJUSTO, INC., formerly known as Corporate Group Service, and Division of Workers’ Compensation, Appellees.
    No. AU-409.
    District Court of Appeal of Florida, First District.
    May 23, 1984.
    Rehearing Denied June 27, 1984.
    Guy A. Gladson, Jr., of Gladson & Sullivan, Miami, for appellant.
    Steven Kronenberg, of Adams, Kelley & Kronenberg, Miami, for appellees.
   SHIVERS, Judge.

In this workers’ compensation case, claimant, Hernandez, appeals an order of the deputy commissioner which denies catastrophic loss benefits. Although the order awards temporary total disability benefits, appellant contends that he also is entitled to catastrophic loss benefits pursuant to section 440.15(2)(b), Florida Statutes (1979). Because we find that the deputy commissioner applied an incorrect standard of law, we reverse and remand on this issue.

Hernandez was injured in a compensable accident on March 25, 1980, when a punch press crushed his left hand. Dr. Coll, an orthopedic surgeon and the only physician to testify in the case, described the injury as a crushing, mangling injury to the ulnar border of the left hand. Claimant sustained ragged lacerations over the hypothe-nar eminence, including the little finger and palm. There were fractures of the fourth and fifth metacarpal. Most of the hypothenar muscles were crushed and were debrided at surgery. The little finger had to be amputated. Nerve injury to the digital nerves over the ring and little fingers were also surgically repaired. Dr. Coll affirmed that these nerves were part of the peripheral nervous system. Additional surgeries were performed January 8, 1981, May 5, 1981, May 28, 1981, and August 6, 1981. As a result of the development of neuromas in the injured areas, any light touch was either painful or extremely uncomfortable.

Dr. Coll opined that during the first six month period of treatment, claimant was temporarily totally disabled. He felt claimant was incapacitated and unable to perform “any kind of function” because of the time appellant spent in physical therapy. Dr. Coll noted that claimant was engaged in intensive rehabilitation during this time because of the multiple surgical procedures. When asked whether the temporary total disability was due to an injury to the peripheral or central nervous system, Dr. Coll replied that a significant component of the injury was due to damage to the peripheral nerves.

After several hearings, the deputy commissioner entered his order awarding temporary total disability benefits but denying catastrophic loss benefits. The order states:

Although the employee was disabled and unable to work during the six months immediately following his accident and even though he developed neu-romas in his hand, I find that this is not a catastrophic loss involving the central nervous system and, therefore, he is not entitled to catastrophic loss benefits for the six months immediately after the date of accident, March 25, 1980.

Appellant points out that the word “central” was deleted from section 440.15(2), Florida Statutes, in 1975 and argues that the deputy commissioner, therefore, applied an incorrect legal standard. Appellee admits that, under the applicable law, catastrophic loss benefits are not dependent upon damage to the “central” nervous system. The correct standard for cases, such as the one sub judice, which fall under the 1979 Workers’ Compensation Law was set forth and discussed in E. B. Malone Corp. v. Johnson, 425 So.2d 622 (Fla. 1st DCA 1983). Under E. B. Malone, an award for catastrophic loss is appropriate where an employee sustains the loss of an arm, leg, hand, or foot, or total loss of use of such member because of organic damage to the nervous system. Unlike the claimant in E. B. Malone, who sustained only fractures of three fingers and various abrasions without any organic damage to the nervous system, appellant here has sustained organic damage to the nervous system. See Marriott In-Flite Services v. Garcia, 450 So.2d 569 (Fla. 1st DCA 1984); Santiago v. Orr Industries, Inc., 407 So.2d 1026 (Fla. 1st DCA 1981); Van Eyk v. R. N. Hicks Construction Co., 377 So.2d 793 (Fla. 1st DCA 1979).

Appellee contends, however, that the denial of catastrophic loss benefits should be upheld because appellant failed to prove that he lost the use of his hand because of organic damage to the nervous system. We consider this a factual issue which should be determined by the deputy commissioner. The order sub judice contains no finding on this issue. Therefore, we reverse and remand to the deputy commissioner to determine in light of this opinion whether appellant sustained the total loss of use of his hand because of organic damage to the nervous system.

MILLS and WIGGINTON, JJ., concur.

      . See Chapter 75-209, section 6, Laws of Florida (1975).


author: JOANOS, Judge.

text:
    UNIVERSITY OF NORTH FLORIDA, Appellant, v. CAREER SERVICE COMMISSION and John Walton, Appellees.
    No. AV-156.
    District Court of Appeal of Florida, First District.
    May 23, 1984.
    Cindy L. Anderson of Corbin & Dickinson, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., William H. Rave-nell, Asst. Atty. Gen., Tallahassee, for ap-pellee Career Service Com’n.
    Elizabeth L. White and Wm. J. Sheppard, Law Office of Wm. J. Sheppard, P.A., Jacksonville, for appellee John Walton.
   JOANOS, Judge.

University of North Florida (UNF) appeals from a Career Service Commission (Commission) order reducing Walton’s dismissal to a suspension. On July 21, 1982, Walton, a postal administrator with UNF, received notice of proposed action to terminate him for falsification of records. Recommendation that Walton be terminated followed the discovery of his improperly charging back postage due and business reply mail on July 19, 1982. Attached to the notice were memoranda substantiating the charges of falsification of records and recommending termination. The attached memoranda also made reference to prior written reprimands Walton received for falsification of records. Walton responded by conceding possible human error due to extremely heavy mail volume. He specifically addressed a previous charge concerning falsification of a time card which resulted in one of the prior written reprimands. Thereafter, UNF provided Walton a predetermination hearing on July 29, 1982, after which he was notified by letter that his employment would be terminated on August 3, 1982. Walton timely appealed his termination, again raising the time card falsification charge for consideration before the Commission. At the initial hearing, the parties stipulated that Walton received timely notice of and reason for his termination. UNF proffered the two prior written reprimands to show progressive discipline. The Commission chairman disallowed any reference to the prior reprimands, restricting inquiry to the July 19, 1982, incident. Walton was found guilty of the charge, but his dismissal was reduced to a suspension due to extenuating and mitigating circumstances. The Commission found that Walton was never warned or told to discontinue the improper practice.

UNF argues that the Commission improperly excluded the prior written reprimands which would rebut the finding of mitigating circumstances. Walton and the Commission contend there was no notice that the prior reprimands would be considered.

Florida Administrative Code Rule 22A-10.042(3)(a) and (b) requires that the notice of proposed action shall include the date the agency proposes to take final action and the specific charges or reasons for the action, with identification of any documents on which the charges are based included. Both of these requisites were met. The notification letter to Walton informed him of the date of the proposed action, August 3, 1982, and the reason for his termination, falsification of records. The letter specifically referred to an attached memorandum in which the prior written reprimand for falsification of records was a basis for recommending termination following the incident on July 19, 1982.

While this court has held there was no abuse of discretion when the Career Service Commission limits evidence to the allegations of which an employee has had notice, Department of Natural Resources v. Sheffield, 420 So.2d 892 (Fla. 1st DCA 1982), here, Walton received notice of termination with identification and attachment of the documents supporting the agency action. The prior written reprimands were not physically attached to the notification letter, but two separate references regarding them were in the attached memoranda. Most notable is Walton’s specific reference to the falsification of time cards in his memorandum defending his actions and in his notice of appeal to the Commission. Clearly, Walton had proper notice to prepare a defense against the prior reprimands. See, Department of Corrections v. Barry, 438 So.2d 874 (Fla. 1st DCA 1983).

Section 120.58(l)(a), Florida Statutes provides that “[irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.” Considering this less stringent rule of admissibility of evidence and that one of the purposes of a commission hearing is to determine whether the disciplinary action was appropriate under the factual circumstances, Fla.Admin.Code Rule 22M-2.-03(l)(d), the Commission could not make a proper determination in which all of the relevant evidence was considered when it precluded any reference to the prior reprimands which were a basis for Walton’s termination.

The Commission has discretion to reduce a dismissal to a suspension upon a finding that just cause for discipline existed, but did not justify the severity of the action taken. Section 110.309(4), Florida Statutes (1981). Without all of the relevant evidence, however, the Commission could not determine if just cause for the severity of the action existed.

Accordingly, the Commission’s order is reversed and this cause is remanded for reconsideration, allowing the introduction of the prior reprimands.

BOOTH and SHIVERS, JJ., concur.


text:
    Richard J. FINOCCHI, D.D.S., Appellant/Cross Appellee, v. Robert J. NIES, Jr. and Nies Management Company, Appellees/Cross Appellants, Mark T. Martin, Shirley Martin, Charolais of Florida, Inc., C.F.I. Lands, Inc. and Nat H. Hunter, Appellees.
    No. 83-1409.
    District Court of Appeal of Florida, Second District.
    May 25, 1984.
    Rehearing Denied June 27, 1984.

      Terry A. Smiljanich of Blasingame, For-izs & Smiljanich, St. Petersburg, for appellant/cross appellee.
    Walt Logan of Stolba, Logan, Conklin & Verona, P.A., St. Petersburg, for ap-pellees/cross appellants.
    No appearance for appellees.
   RYDER, Judge.

In May 1983, this case went to trial on three counts: conversion of cattle; violation of the Florida Securities Act; and common law fraud and misrepresentation. At the close of the evidence, the trial court directed verdicts against Richard J. Finoc-chi, the plaintiff below, on the counts alleging Florida Securities Act violations and fraud and misrepresentation. As to the count for conversion, the jury returned a verdict against Finocchi and in favor of appellees Robert J. Nies and Nies Management Company (NMC), but awarded damages to Finocchi against several of the other appellees.

In this appeal, Finocchi attacks the trial court’s entry of the directed verdicts. Nies and NMC cross-appeal claiming that the trial court erred by allowing certain expert testimony, and by allowing the use of excerpts from a deposition.

Finocchi and Nies became involved in 1975. Nies advised Finocchi in the investment of money in a cattle operation as a tax shelter. Nies solicited additional investments from Finocchi; Finocchi invested in a second cattle breeding program. Testimony indicated that Nies advised Finoc-chi; assisted Finocchi in investing in tax shelters; represented to Finocchi that Fi-nocchi was paying fair market value for the cattle; and represented that Finocchi could not lose on the transactions. Nies admitted that the sale to Finocchi of participation in the cattle programs was the sale of securities. Nies is a registered stockbroker and a member of the National Association of Securities Dealers.

Finocchi testified that he was strongly influenced in his decision to invest in the cattle programs by Nies’ representations of the cattle’s fair market value. Finocchi was not given a prospectus describing either investment although he had signed a statement indicating that he did receive one such prospectus.

Eventually, the cattle were “lost in the shuffle.” Finocchi stated that he never gave authority for the sale of his cattle, and he received no money from any such sale.

From these facts, litigation resulted. We agree with Finocchi that it was error for the trial court to direct verdicts on the counts alleging securities violations and fraud and misrepresentation.

Chapter 517, Florida Statutes (1983), is the Florida Securities Act. Section 517.-301, Florida Statutes (1983), provides that it is a violation of the Florida Securities Act for any person:

(1) In connection with the offer, sale, or purchase of any security, including any security exempted under the provisions of s. 517.051 and including any security sold in any transaction exempted under the provisions of s. 517.061, directly or indirectly:
(a) To employ any device, scheme, or artifice to defraud;
(b) To obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or
(c) To engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
(2) To publish, give publicity to, or circulate any notice, circular, advertisement, newspaper, article, letter, investment service, communication, or broadcast which, though not purporting to offer a security for sale, describes such security for a consideration received or to be received directly or indirectly from an issuer, underwriter, or dealer, or from an agent or employee of an issuer, underwriter, or dealer, without fully disclosing the receipt, whether past or prospective, of such consideration and the amount thereof.
(3) In any matter within the jurisdiction of the department, to knowingly and willfully falsify, conceal, or cover up, by any trick, scheme, or device, a material fact, make any false, fictitious, or fraudulent statement or representation, or make or use any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry.

We have not been favored with those portions of the transcript reflecting argument to the trial court or the reasons for which the trial court directed a verdict on the alleged Securities Act violations; nevertheless, our review of the record causes us to conclude that a directed verdict on this issue was erroneous. The evidence presented during trial may reasonably be interpreted in a manner which would allow the factfinder to determine that the appellees have violated the Florida Securities Act and that appellant is entitled to relief. Reinhart v. Seaboard Coast Line Railroad Co., 422 So.2d 41 (Fla. 2d DCA 1982), petition for review denied, 431 So.2d 988, 989 (Fla.1983); Professional Computer Management, Inc. v. Tampa Wholesale Liquor Co., Inc., 374 So.2d 626 (Fla.2d DCA 1979). The trial court thus erred by directing a verdict in favor of the appellees on the alleged violations of the Florida Securities Act.

Similarly, evidence was presented dealing with Finocchi’s allegations of common law fraud and misrepresentation. Factual questions and inferences remained for resolution and determination by the jury; a directed verdict on this point also was erroneous. Reinhart; Professional Computer Management, Inc. See also Shee-Con, Inc. v. Al Seim Appraisal Service, Inc., 427 So.2d 311 (Fla. 5th DCA 1983); Amazon v. Davidson, 390 So.2d 383 (Fla. 5th DCA 1980).

We have considered the two issues raised in the cross-appeal by Nies and NMC. No reversible error has been shown as to those issues.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent herewith.

OTT, C.J., and BOARDMAN, J., concur.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    HIGHLANDS COUNTY HOSPITAL DISTRICT, et al., Appellants, v. DEPARTMENT OF INSURANCE, et al., Appellees. SOUTHEAST VOLUSIA HOSPITAL DISTRICT, et al., Apellants, v. DEPARTMENT OF INSURANCE, et al., Appellees.
    Nos. AS-52, AU-134.
    District Court of Appeal of Florida, First District.
    May 29, 1984.
    Rehearing Denied July 5, 1984.
    Peter J. Winders and Jacob D. Varn, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa; John D. Buchanan, Jr., of Henry, Buchanan, Mick & English, Tallahassee; and Adams, Ward, Hunter, An-gones & Adams, Miami, for appellants Highlands County Hospital District, et al.
    G. Bruce Hill, of Adams, Hill & Fulford, Orlando; Scott R. McMillen, of Mateer, Harbert, Bechtel & Phalin, Orlando; and Ben H. Wilkinson, Neil H. Butler and Cathi C. O’Halloran, of Pennington, Wilkinson & Dunlap, Tallahassee, for appellants Southeast Volusia Hospital District, et al.
    David A. Yon, Legal Department, Department of Insurance, Tallahassee, for ap-pellee Department of Insurance.
    Richard B. Collins and Craig A. Dennis, of Perkins & Collins, Tallahassee; Talbot D’Alemberte and Jeffrey B. Crockett, of Steel, Hector & Davis, Miami, for appellee Florida Patient’s Compensation Fund.
   THOMPSON, Judge.

This is an appeal by a number of hospitals from an order of the Department of Insurance (Department) denying a request by the hospitals that the Department conduct a formal administrative hearing for the purpose of setting additional fees to be charged by the Florida Patients’ Compensation Fund (Fund), § 768.54, Fla.Stat., for the fiscal years 1976-77 and 1979-80, consolidated with an appeal from an order of the Department levying assessments against the hospitals and other fund members for the fiscal years 1976-77 and 1979-80. The hospitals contend they were entitled to notice and an opportunity to be heard regarding the setting of additional fees and that the Department did not set actuarially sound additional fees for the fiscal years 1976-77 and 1979-80. We affirm.

Although we agree with the hospitals that they were entitled to notice and an opportunity to be heard before additional fees for each fiscal year are determined by the Insurance Commissioner (Commissioner), we find that the hospitals are barred by laches from raising these issues at this late date. Due process requires that notice and an opportunity to be heard be given to parties before additional fees or assessments are determined by the Commissioner but these rights must be promptly asserted. There is no evidence that any of the hospitals timely requested a hearing nor that any of them timely attempted to bring an independent action to compel a hearing. The hospitals may have sustained damage but to give them the relief they seek now would adversely affect and result in an injustice to many other parties, including other Fund members and medical malpractice claimants, as a result of the hospitals’ neglect to timely act.

AFFIRMED.

BARFIELD, J., concurs.

ERVIN, C.J., specially concurs.

ERVIN, Chief Judge,

specially concurring.

It may seem somewhat anomalous to refrain from requiring an administrative hearing when the hospitals did not obtain a clear point of entry into the administrative process at the time fees were set for the fiscal years 1976-77 and 1979-80. Nevertheless, I concur, under the unique circumstances of this case, with the conclusion reached. Florida courts have generally recognized that if administrative remedies are inadequate, the exhaustion doctrine may be dispensed with. See State ex rel Dept. of General Services v. Willis, 344 So.2d 580, 591 (Fla. 1st DCA 1977). Federal courts, moreover, have often declined to require adherence to the exhaustion doctrine if it is determined that the prescribed administrative procedure is clearly inadequate to prevent irreparable injury. American Federation of Government Employees, Local 1904 v. Resor, 442 F.2d 993, 994-95 (3d Cir.1971); accord, Renegotiation Board v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 24, 94 S.Ct. 1028, 1040, 39 L.Ed.2d 123 (1974).

The hospitals before us were aware, under the statutory scheme establishing the Patient’s Compensation Fund, section 768.-54(3)(c), Florida Statutes (1977), that additional assessments might thereafter be made if the fees established for a given fiscal year proved inadequate. Certainly they understood that assessments might be imposed several years after the year in question. Knowing all of this they should also have comprehended that the rights of others — physicians and injured plaintiffs— might be affected if they delayed an attack on the amount of the fees originally charged until an assessment was made. I therefore agree that appellants received all that they were entitled to under the Administrative Procedure Act: a section 120.57(1) hearing following the levy of the assessments.


text:
    Sheran PORR, Individually and as Personal Representative of the Estate of Robert Ray Ward, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. AO-289.
    District Court of Appeal of Florida, First District.
    May 30, 1984.
    Rehearing Denied June 28, 1984.
    Michael H. Weiss and Thomas W. Davis of Barton, Cox & Davis, Gainesville, for appellant.
    W.C. O’Neal of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, for appellee.
   PER CURIAM.

Porr’s minor son, Robert Ray Ward, was fatally injured in an automobile accident in August, 1981. He was a passenger in a truck owned by Porr and being driven by Glenn Spradlin, a friend of Robert’s. Spradlin’s negligent operation of the truck caused an accident which resulted in the death of both young men. At the time of the accident, Robert resided with his mother, appellant.

Porr appeals from an order granting the motion of State Farm Mutual Automobile Insurance Company (State Farm) to dismiss Porr’s complaint for failure to state a cause of action. The complaint sought recovery: (1) for personal injury protection (PIP) benefits under a State Farm policy covering the truck which was involved in the subject accident; and (2) for uninsured motorist benefits under the policy covering the truck and under two other State Farm policies covering two additional automobiles owned by Mrs. Porr. We affirm the dismissal order regarding the PIP benefits claim and the uninsured motorist claim as to the policy issued on Porr’s truck but reverse the dismissal order regarding uninsured motorist coverage under the policies issued on Porr’s other two vehicles.

Each of the three policies of insurance provided that there was no liability coverage for bodily injury to “any insured or any member of an insured’s family residing in the insured’s household.” That provision and the uninsured motor vehicle provisions are virtually identical to the policy provisions quoted and discussed in the recent case of Curtin v. State Farm Mutual Automobile Insurance Company, 449 So.2d 293 (Fla. 5th DCA 1984). In fact, the ease at bar is on “all fours” with the Curtin case with respect to the issues regarding the uninsured motorist claims. We agree with and adopt the reasoning of the Fifth District in Curtin.

The PIP benefits issue concerns appellant’s claim of entitlement under Section 627.736, Florida Statutes, to compensation by reason of the decedent’s loss of income and earning capacity as a result of his death. Appellee’s position is that the trial court correctly ruled that the policy covering Porr’s truck did not provide for disability benefits or loss of earning capacity for the period after death.

This court has held that the Florida Automobile Reparations Act, Sections 627.-730-627.741, Florida Statutes, does not contemplate coverage for loss of income or earning capacity resulting from death. Benton v. State Farm Mutual Automobile Insurance Company, 295 So.2d 344 (Fla. 1st DCA 1974); Griffin v. Travelers Indemnity Company, 328 So.2d 207 (Fla. 1st DCA 1976). The only question is whether the policy afforded such coverage.

The no-fault portion of the policy provides in part:

We will pay in accordance with the No-Fault Act for bodily injury to an insured, caused by an accident resulting from the ownership, maintenance or use of a motor vehicle:
1. Medical Expenses. ' * *
2. Income Loss. 60% of loss of income and earning capacity due to the insured’s inability to work caused by his or her bodily injury during the time the insured is not able to work. If the benefit is subject to federal income tax, we will pay 80% of such loss of income or earning capacity.
3. Replacement Services Loss. * ⅜ *
4. Funeral Expenses. * * *

Porr relies upon the definition elsewhere in the policy of “bodily injury”:

Bodily Injury means bodily injury to a ' person and sickness, disease or death which results from it.

Porr asserts that the inclusion of the phrase “bodily injury” in the above Income Loss paragraph of the policy means that coverage was intended for loss of income or earning capacity after death.

The insurance policy in Griffin v. Travelers Indemnity Company, supra, included a definition of “bodily injury” similar to the above quoted definition of that phrase appearing in Mrs. Porr’s policy. Griffin argued that the policy provided for payment for loss of earning capacity resulting from death since bodily injury was defined as including death and, unlike the situation in Benton v. State Farm Mutual Automobile Insurance Company, supra, the phrase bodily injury was incorporated in all specified PIP benefit categories including the income loss provision. Determinitive in the Griffin court’s decision was the inclusion of the phrase at the beginning of the income loss provision: “with respect to the disability of the injured person...,” and this was deemed moré significant than the provision’s incorporation of the phrase “bodily injury.”

The policy in the case sub judice provides for “60% of loss of income ... due to the insured’s inability to work caused by bodily injury during the time the insured is not able to work.” (e.s.) We are of the view that the subject policy’s income loss provision contemplated that the policy would provide lost income benefits to an injured insured only until the insured recovered or died. Since the phrase “during the time the insured is not able to work” contemplates the injured insured’s recuperative period, the presence of the term “bodily injury” in the paragraph is controlled by the former phrase.

For the above reasons, the trial court’s dismissal order is Affirmed in part and Reversed in part, and this cause is Remanded for reinstatement of that portion of the complaint which seeks recovery under the uninsured motorist provisions of the policies insuring Porr’s two vehicles other than her truck.

SMITH, JOANOS and NIMMONS, JJ., concur.


author: NIMMONS, Judge.

text:
    Joseph WESTON, Appellant, v. STATE of Florida, Appellee.
    No. AS-470.
    District Court of Appeal of Florida, First District.
    May 31, 1984.
    Michael Allen, Public Defender, and Charlene V. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen. for appellee.
   NIMMONS, Judge.

Appellant was convicted of grand theft of merchandise from a department store. He complains that the trial court erred in overruling his objections to the state’s eliciting from the arresting officer the fact that Weston gave him a false name, “James Dotson,” when the officer apprehended him across the street from the store ten minutes after Weston fled the scene. Appellant claims that such testimony was an impermissible and prejudicial use at trial of an “alias.” We disagree. Clearly, the state was entitled to present this testimony as evidence of a consciousness of guilt of the offense which had just been committed. Cf. Brown v. State, 391 So.2d 729 (Fla. 3rd DCA 1980); Finlay v. State, 424 So.2d 967 (Fla. 3rd DCA 1983).

The defendant also claims that the trial court failed to make the requisite findings in connection with his sentence to an extended term under the habitual offender law, Section 775.084, Florida Statutes (1981). With this contention we agree. In order for a defendant to be sentenced to an extended term under this.law, the sentencing court must make findings of fact, stated on the record in open court if not in writing, showing on their face that an extended term is necessary for the protection of the public from further criminal activity of the defendant. Section 775.084(3)(d); Eutsey v. State, 383 So.2d 219, 226 (Fla.1980); Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979); Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976). The trial judge made no such findings. He merely stated, upon imposing sentence, his conclusion that an extended term was necessary for the protection of the public from further criminal activity by the defendant. A seven-year term was imposed, two years of which was an enhanced penalty over and above the statutory maximum for second degree grand theft.

The state contends that since the defendant’s attorney did not make an objection in the trial court to the court’s failure to make the requisite findings, the defendant is precluded from raising the issue on appeal. Inasmuch as we have not long ago so ruled in a similar case, Walker v. State, 442 So.2d 977 (Fla. 1st DCA 1983), we would ordinarily accept the state’s position. However, the Florida Supreme Court has recently issued its opinion in State v. Rhoden, 448 So.2d 1013 (Fla.1984), which we feel is controlling and dictates a contrary result.

In Rhoden, the trial court sentenced the juvenile defendant as an adult without making the findings required by Section 39.111(6), Florida Statutes (1981), which sets forth the criteria pertaining to the suitability of adult sanctions. Section 39.-lll(6)(d) requires the court to render written findings of fact and the reasons for the decision to impose an adult sentence. In Rhoden, after imposition of sentence, defense counsel, as in the case sub judice, did not interpose an objection to the court’s failure to make the requisite findings of fact. The Supreme Court rejected the state’s contention that Rhoden’s failure to object precluded him from asserting such error on appeal. The Supreme Court stated:

Further, with regard to the respondent’s failure to contemporaneously object to the trial judge’s failure to follow the statute in sentencing respondent, we agree with the reasoning of Judge Sharp in her dissent in Glenn v. State [411 So.2d 1367 (Fla. 5th DCA 1982)]. Judge Sharp pointed out that it is difficult, if not impossible, for counsel to contemporaneously object to the absence of a written order at the sentencing hearing “since counsel at that stage does not know for sure what the written sentence may be, and a written order pursuant to section 39.111 may indeed be subsequently filed” 411 So.2d at 1368. The contemporaneous objection rule, which the state seeks to apply here to prevent respondent from seeking review of his sentence, was fashioned primarily for use in trial proceedings. The rule is intended to give trial judges an opportunity to address objections made by counsel in trial proceedings and correct errors. See Simpson v. State, 418 So.2d 984 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978). The rule prohibits trial counsel from deliberately allowing known errors to go uncorrected as a defense tactic and as a hedge to provide a defendant with a second trial if the first trial decision is adverse to the defendant. The primary purpose of the contemporaneous objection rule is to ensure that objections are made when the recollections of witnesses are freshest and not years later in a subsequent trial or a post-conviction relief proceeding. The purpose for the contemporaneous objection rule is not present in the sentencing process because any error can be corrected by a simple remand to the sentencing judge. If the state’s argument is followed to its logical end, a defendant could be sentenced to a term of years greater than the legislature mandated and, if no objection was made at the time of sentencing, the defendant could not appeal the illegal sentence.

State v. Rhoden, supra at p. 1016.

Section 39.111(6)(d), with which the Rho-den case dealt, specifically provides for the right of appellate review of the trial court’s determination to impose an adult sentence. Similarly, Section 775.084(3)(d) provides for appellate review of the court’s decision to impose an extended term upon an habitual offender.

The fact that Section 39.111(6) findings must be in writing whereas Section 775.084 findings may be stated on the record in open court if not made in writing, Eutsey v. State, supra at p. 226, is not a basis for any meaningful distinction between Rho-den and the instant case, particularly in view of the rationale articulated in the Rhoden opinion for not requiring an objection in the trial court as a prerequisite to appellate review.

We, therefore, affirm the judgment of guilt but reverse the sentence insofar as the extended term imposed under the habitual offender law and remand for reconsideration of the imposition of an extended term in compliance with the provisions of Section 775.084 and this opinion.

Affirmed in part and Reversed in part and Remanded.

THOMPSON and BARFIELD, JJ., concur.


text:
    Dale Eugene HADDOCK, Appellant, v. HARDWOODS OF ORLANDO, INC. and Nationwide Insurance Company, Appellee.
    No. AT-404.
    District Court of Appeal of Florida, First District.
    May 31, 1984.
    Rehearing Denied June 27, 1984.
    William G. Berzak, Law Office of Lawrence H. Hornsby, Orlando, for appellant.
    Ronald S. Webster, Whittaker, Stump & Webster, Orlando, for appellee.
   MILLS, Judge.

In this workers’ compensation action, the claimant appeals from the deputy commissioner’s order finding the accident noncom-pensable. We reverse.

The claimant, Dale Haddock, worked as a carpenter’s helper for Hardwoods of Orlando, Inc., a producer of custom furniture and other wood items. On 20 December 1982, Haddock was using the 15-minute morning break, given all employees, to build a manger as part of a Nativity scene his wife was putting together for Christmas. While using a table saw in the workshop to cut a piece of wood for the manger, Haddock severely cut his thumb and hand.

The employer/carrier denied compensa-bility, contending the injury did not arise out of and in the course of employment. The deputy commissioner agreed.

It was company policy to allow employees to use equipment in the workshop for their own purposes after hours, during lunch breaks and during other breaks, including the morning break. Haddock was paid for the morning break and employees were free to do whatever they wanted during that time.

Sometimes, photographs of items created by employees during breaks and after work were included in an album available for perusal by the employer’s customers. If a customer wanted to purchase an item pictured in the album, the employer would custom-build one and sell it to the customer. If, however, the cost of custom production by the employer was prohibitive, the employer would encourage the customer and the employee who created the item pictured to agree on a price for the item which the employee would then build on his own time and sell to the customer. The employer received a ten percent commission from such an arrangement. Although the album also served as an employee morale booster, it was clearly used to increase the employer’s business.

If an injury occurs “within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in something incidental to it,” the injury arises out of and in the course of employment. Hill v. Gregg, Gibson & Gregg, Inc., 260 So.2d 193, 195 (Fla.1972)(quoting Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495, 496 (1940)).

Haddock was injured within the period of his employment because the injury occurred on an authorized paid break during normal working hours. His injury occurred at a place where he could reasonably be because all employees, including Haddock, were authorized to use the equipment in the workshop during breaks. Although building a manger for his wife was not a duty of Haddock’s employment, it was certainly incidental to it in the sense it benefited the employer.

By allowing breaks and by allowing employees to use the workshop during breaks, the employer received the indirect benefit of increased employee morale. More importantly, profits and commissions from sales stimulated by photographs in the album were attributable to items created by employees during breaks. In this respect, workshop work during breaks was directly beneficial to the employer and, therefore, incidental to the employment.

REVERSED.

SHIVERS and WIGGINTON, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Fernando QUINTANA, Appellant, v. STATE of Florida, Appellee.
    No. AU-157.
    District Court of Appeal of Florida, First District.
    May 31, 1984.

      Michael E. Allen, Public Defender and Carl L. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Chief Judge.

In this appeal from a conviction for first degree murder, appellant, Fernando Quin-tana, contends the trial court erred in excluding proffered evidence pertaining to the reputation of and specific instances of prior violence by the victim when such evidence was offered in support of Quintana’s theory of self-defense. We agree and reverse.

Quintana, a slightly built inmate in the custody of the Florida prison system, who speaks only Spanish, stabbed and killed a fellow inmate, Jerome Harold, on July 14, 1982. The state’s evidence discloses that on that morning Harold, while on his way to breakfast, went to Quintana’s cell and there slapped him. Harold then left, proceeded on to breakfast, and returned to the cell block some thirty minutes later accompanied by two of his friends. As he passed Quintana’s cell, Quintana ran out, shouted something in Spanish, and fatally stabbed Harold.

Quintana, relying on a theory of self-defense, 'proffered testimony outside the jury’s presence to the effect that Harold had a reputation within the prison population for sexually assaulting inmates. Quin-tana had personally witnessed such assaults by Harold, aided by two of his friends, on two prior occasions. In addition, Quintana had himself been subjected to Harold’s sexual advances, which occurred in the communal showers, the gymnasium and the prison classrooms. On one particular evening approximately fifteen days before the homicide, Harold had attempted such an assault on Quintana in the prison television room. Quintana, testifying through a court-appointed interpreter, as to the events immediately preceding the fatal encounter, related that on the morning of July 14, Harold came to his cell, grabbed his neck, and then left. Harold returned from breakfast a short time later joined by two of his friends, one of whom, according to Quintana, was armed. Seeing the three men signaling to each other, Quintana believed they were coming to his cell to assault him sexually. He therefore armed himself with a knife and when Harold walked by his cell, Quintana stabbed him, saying in Spanish that he would show Harold how he could fight. His intentions, however, were only to “pinch” or hurt him, but not to kill him.

The defense also proffered the testimony of one of the prison guards who heard one of the inmates say that Harold “deserved what he got,” as well as testimony from two inmates who knew of Harold’s reputation for sexual assaults and violent behavior, in that they had witnessed such sexual assaults on prior occasions, and, more specifically, had seen Harold’s sexual overtures to Quintana in the showers and television room, as well as the slapping incident on the morning of July 14. At the conclusion of the defense proffer, the trial court ruled that evidence of Harold’s reputation for violence and his prior acts of sexual assault would be inadmissible, and that Quintana would be limited to testifying only as to his version of the events of July 14. Given that ruling, the defense rested without presenting any evidence, and Quintana was convicted of first degree murder.

It has been recognized that when the defense of self-defense is raised, evidence of the victim’s reputation may be admissible to show his “propensity for violence and the likelihood that the victim was the aggressor”, while evidence of prior specific acts of violence may be admissible to show “the reasonableness of the defendant’s apprehension at the time of the slaying.” Smith v. State, 410 So.2d 579, 580-581 (Fla. 4th DCA 1982). See also Section 90.404, Florida Statutes (1979). But, a prerequisite to the introduction of such evidence is the laying of a “proper predicate ... by the showing of some overt act by the deceased at or about the time of the slaying that reasonably indicated a need for action by the defendant in self-defense.” Williams v. State, 252 So.2d 243, 247 (Fla. 4th DCA 1971). Accord Smith v. State;. Williams v. State, 238 So.2d 137 (Fla. 1st DCA 1970); Garner v. State, 28 Fla. 113, 9 So. 835 (1891).

Whether the evidence presented by the defense will be sufficient to satisfy this prerequisite will of course depend on the factual circumstances of each case. Two recent cases, however, persuade us that the predicate laid by Quintana was sufficient. First, in Hager v. State, 439 So.2d 996 (Fla. 4th DCA 1983), when an elderly defendant, having been subjected to verbal abuse and threats by his young neighbor, armed himself, the latter advanced on the defendant in a manner which was not life-threatening, urging the defendant to go ahead and shoot. The defendant responded to those taunts by doing just that. In reversing the conviction, the Fourth District found the predicate to have been sufficient to allow introduction of evidence of the victim’s reputation for violence and of specific acts of such violence. Next, in Reddick v. State, 443 So.2d 482 (Fla. 2d DCA 1984), the same result was reached on evidence disclosing the victim had broken into the defendant’s home, threatening to kill the defendant. The next morning, armed with a stick and evidently expecting another confrontation with the victim, the defendant went to see a friend. His expectation was realized and when the victim lunged at him the defendant hit him with the stick, killing him. We find the proffered testimony of Quintana in this case to be as compelling as that in Hager and Reddick and therefore conclude that the defense here laid a predicate sufficient to meet the test set out in Williams.

We are further persuaded by the line of cases holding that the fact that a claim of self-defense may be tenuous should not bar introduction of evidence of the victim’s reputation for violence or of his prior specific acts of violence, if such evidence will explain or otherwise give “meaning, significance, or point to, the conduct of the deceased at the time of the killing.” Hunter v. State, 378 So.2d 845, 846 (Fla. 1st DCA 1979). See also Anderson v. State, 362 So.2d 361 (F.la. 4th DCA 1978). As this court has previously stated, where there is even the “slightest evidence" of an overt act by the victim “which may be reasonably regarded as placing the accused apparently in imminent danger of losing his life or sustaining great bodily harm,” all doubts as to the admissibility of evidence bearing on his theory of self-defense must be resolved in favor of the accused. Hawthorne v. State, 377 So.2d 780, 787 (Fla. 1st DCA 1979) (e.s.).

Judgment of conviction is REVERSED and this cause is REMANDED for purposes of a new trial.

WENTWORTH, J., concurs.

BOOTH, J., dissents.

      . We note that Quintana's attempt to proffer his testimony was hampered by the use of two interpreters who continually paraphrased both the questions posed and Quintana’s answers, thus making it difficult to understand what actually occurred between Quintana and Harold on the morning in question.

      . Because of our disposition of appellant's first point on appeal, we need not reach the merits of the second point, urging that the trial court erred in denying the motion for mistrial made after the court, in the presence of the jury, stated that it did not think the defense’s opening statement of the evidence it intended to present was properly before the jury because the statement, as it related to evidence of Harold's reputation for violence and of his prior acts of sexual assault, would be immaterial. While it is true that a trial court must avoid making any remark which may, either directly or indirectly, convey to the jury the court’s view of the case or the evidence, Flicker v. State, 374 So.2d 1141, 1142 (Fla. 5th DCA 1979), it is also true that when such comments are considered within the context in which they were made any error may simply be harmless. See Woodside v. State, 206 So.2d 426 (Fla. 3d DCA 1968); Hamilton v. State, 261 So.2d 184 (Fla. 3d DCA 1972). At any event the basis of the court’s comments was due to its belief that such evidence was irrelevant. Since we have held to the contrary, we feel confident that such comments will not recur.


text:
    FLORIDA WELDING & ERECTION SERVICE and U.S. Fidelity & Guaranty Company, Appellants, v. Jerald MARTIN, Appellee.
    No. AV-165.
    District Court of Appeal of Florida, First District.
    May 31, 1984.

      John R. Gierach of Gierach & Ewald, P.A., Orlando, for appellants.
    J. David Parrish of Hurt & Parrish, Orlando, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   SHIVERS, Judge.

In this workers’ compensation case, the employer/carrier appeal two orders of a deputy commissioner. One order awards evaluation and treatment, if necessary, by Dr. F. DeWitt Stanford, and the other order awards wage-loss benefits. We affirm.

Appellants first contend that the deputy commissioner erred in awarding evaluation and treatment by Dr. Stanford, an orthopedic surgeon, because claimant had already been seen and treated by two orthopedic surgeons and there was no conflict in the medical opinions of those two doctors. Appellants cite section 440.-25(3)(b), Florida Statutes (1983) and K-Mart Corp. v. Nasoni, 377 So.2d 821 (Fla. 1st DCA 1979). We think, however, that sufficient conflict existed in the respective deposition testimonies of Drs. Urbach and Pearson to justify the evaluation by Dr. Stanford pursuant to section 440.25(3)(b). Dr. Urbach testified that he found no specific pathology which could be directly related to the industrial accident. Dr. Pearson, however, opined that claimant had an acute lumbosacral sprain resulting from his industrial accident. Therefore, we find Na-soni inapplicable.

Competent substantial evidence supports the deputy commissioner’s finding that claimant sustained a permanent impairment as a result of the industrial accident. Dr. Stanford testified that claimant had an overall permanent physical impairment of 37% to the body as a whole based on the AMA Guides. He testified that 2% of this permanent impairment was causally related to the industrial accident of February 15, 1980. The fact that Dr. Stanford relied upon the history provided by claimant in making his assessment does not render the doctor’s opinion incompetent. The factual assumptions upon which Dr. Stanford based his opinion are supported by record evidence in the form of claimant’s testimony.

Because the deputy commissioner did not err in awarding wage-loss benefits, there is no error in the award of costs and in the reservation of jurisdiction for the determination of a reasonable attorney’s fee.

AFFIRMED.

MILLS and WIGGINTON, JJ„ concur.


text:
    THOMPKINS & SONS LAWN SPRAY and Home Insurance Company, Appellants, v. James BROOKS, Appellee.
    No. AW-4.
    District Court of Appeal of Florida, First District,
    May 31, 1984.
    C. Randall Morcroft, Fort Lauderdale, for appellants.
    John Walkden, Fort Lauderdale, for ap-pellee.
   MILLS, Judge.

In this workers’ compensation appeal, the employer/carrier challenge the deputy commissioner’s award of permanent total disability benefits on the ground of inadequate job search. We affirm.

The claimant is a mentally retarded adult whose educational level is estimated at fourth grade and whose prospects for fur: ther educational development aré bleak. The industrial accident caused permanent injury to both legs, preventing the claimant from standing or sitting for more than one hour at a time. During the two years and one month between maximum medical improvement and the hearing before the deputy commissioner concerning permanent total disability benefits, the claimant attended institutional home management and service courses at a vocational center. He also studied reading and math at the vocational center. In addition, he contacted or was provided interviews with fifteen potential employers. Four potential employers actually gave him a job, but each time he was unable to complete a full-day’s work because of his injuries.

The deputy commissioner found the claimant “is not able uninterruptedly to do even light work due to physical limitation.” If supported by competent substantial evidence, such a finding means a job search is unnecessary. Lancaster Youth Development Center v. Waters, 381 So.2d 1156 (Fla. 1st DCA 1980). The deputy commissioner also found the claimant made an adequate job search.

We find it unnecessary to decide whether a job search was completely excused because the search actually conducted, although somewhat limited, was adequate considering the claimant’s abilities and restrictions. Drummond v. Plumbing Corp. of America, 428 So.2d 741 (Fla. 1st DCA 1983).

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


author: SMITH, Judge.

text:
    YALE OGRON MANUFACTURING COMPANY, INC., Appellant, v. MUSIC AND WORTH CONSTRUCTION COMPANY, INC., Appellee.
    No. AX-238.
    District Court of Appeal of Florida, First District.
    May 31, 1984.
    R. Hugh Lumpkin, Miami, for appellant.
    James W. Prevatt, Jr., of Airth, Sellers, Lewis & Decker, Live Oak, for appellee.
   SMITH, Judge.

This appeal is from an order denying a motion for change of venue in a contract action. We affirm.

Music and Worth Construction Company, Inc. (Music), sued Yale Ogron Manufacturing Company, Inc. (Yale) in Suwannee County for damages occasioned by Yale’s delay in delivery of windows and screens to a public school being constructed by Music in Union County. The complaint alleged that the contract called for the windows and screens to be furnished to the job site in Union County, and had attached to it as an exhibit the purchase order prepared by Music under its letterhead accepting Yale’s bid' “TO FURNISH MATERIAL TO JOB SITE, .... ” The purchase order was signed by Music’s representative, and in accordance with directions stated therein a copy was signed by Yale’s representative and returned to Music.

Upon consideration of the briefs and arguments, we conclude that no error has been shown in the trial court’s order denying Yale’s motion to change venue to Dade County, where Yale’s office and place of business is located. Neither Yale’s motion nor the supporting affidavit of Yale’s vice president compel a different conclusion. The purchase order, execution of which is admitted, speaks for itself. Contrary to the arguments made by Yale, there was ample basis upon which the trial court could find that the cause of action accrued in Union County, where delivery of the windows and screens was to be made. Palatka Abstract and Title Guaranty, Inc. v. Citizen’s Commercial Bank of Tallahassee, 392 So.2d 348 (Fla. 1st DCA 1981).

Yale’s reliance upon the fact that in actually performing the contract it shipped the products F.O.B. its plant in Dade County is not controlling. Yale urges Speedling, Inc. v. Krig, 378 So.2d 57 (Fla. 2d DCA 1979), as authority for its position. We disagree, since the facts in Speedling are quite different from those here. In Spee-dling, the court held that venue was proper in the county where the seller had its place of business, and in which the seller had always made delivery of all products sold to the buyer. No reference to place of delivery was specified in the contract except for the notation: “method of payment — net ten days — all prices f.o.b. production area.” As the Speedling court stated, and we agree, there was nothing in that case upon which the court could base venue in the plaintiff/buyer’s home county.

Under the circumstances presented here, we further find no abuse of discretion in the trial court’s granting of Music’s ore tenus motion to transfer venue to Union County.

AFFIRMED.

JOANOS and ZEHMER, JJ., concur.


author: THOMPSON, Judge.

text:
    STATE of Florida DEPARTMENT OF BANKING AND FINANCE, ex rel. Gerald LEWIS, as Comptroller and Head of the Department, Appellant, v. STANDARD FEDERAL SAVINGS AND LOAN ASSOCIATION, and K-Mart Corporation, Appellees.
    No. AY-237.
    District Court of Appeal of Florida, First District.
    May 31, 1984.
    Walter W. Wood and Albert T. Gimbel, Asst. Gen. Counsel, Office of the Comptroller, Tallahassee, for appellant.

      Charles P. Schropp and David T. Knight, of Shackleford, Parrior, Stallings & Evans, Tampa, for appellees.
   THOMPSON, Judge.

The Department of Banking and Finance (Department) filed an emergency petition for writ of prohibition and a motion to vacate a temporary restraining order (TRO), alleging that the circuit court had no jurisdiction to entertain appellees’ motion for a TRO. This court entered an order that the petition would be treated as an appeal of the TRO and that the petition would be treated as the Department’s initial brief. We affirm the order of the circuit court.

The Department notified appellees on March 28, 1984 that it was entering an immediate emergency final order pursuant to Section 120.59(3), Florida Statutes (1983) (on finding an immediate danger to public health, safety or welfare, the agency head can issue an immediate final order), requiring appellees to cease and desist selling certificates of deposit with unregistered brokers in violation of Section 517.12, Florida Statutes (1983). On the same day, ap-pellees filed a motion pursuant to Section 120.59(3) in an injunctive action pending in circuit court in Leon County, seeking to enjoin the Department from enforcing the cease and desist order. The circuit court found that it had jurisdiction to entertain the motion and granted a TRO enjoining the Department from enforcing the cease and desist order.

The Department filed with this court a petition for writ of prohibition and a motion to vacate the TRO entered by the circuit court, which were treated as an appeal of the TRO. The Department argued only that the circuit court did not have jurisdiction to enter the TRO and that appellees’ proper recourse was to appeal to, or seek an injunction from, this court, citing to Section 120.68, Florida Statutes (1983) and to Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 400 So.2d 66 (Fla. 1st DCA 1981), aff'd in part and rev’d in part, 427 So.2d 153 (Fla.1983). The appel-lees argue that the circuit court did have jurisdiction based on the provisions of Section 120.59(3), Florida Statutes (1983). We agree with appellees.

Section 120.59(3) provides:

If an agency head finds that an immediate danger to the public health, safety, or welfare requires an immediate final order, it shall recite with particularity the facts underlying such finding in the final order, which shall be appealable or enjoinable from the date rendered, (emphasis added)

The order in question is an immediate final order, and the only type of order which is appealable or enjoinable pursuant to specific statutory authority in Chapter 120, Florida Statutes (1983). Key Haven is distinguishable in that it did not involve an immediate final order. The circuit court therefore correctly found that it had jurisdiction to enter a TRO enjoining the Department from enforcing the cease and desist order.

Assuming arguendo that, under most circumstances, Section 120.68 would bar ap-pellees from seeking injunctive relief in the circuit court, we would hold under the facts of this case that appellees could properly seek relief in that forum. On January 30, 1984, appellant itself sought a permanent injunction in circuit court against appellees to prevent violation of Sections 658.74 (banking by unauthorized persons) and 665.1001 (dealing with savings banks with principal offices outside Florida). A TRO was granted against appellees, but a preliminary injunction was denied and the TRO vacated. It was only after this nonadministrative effort to halt appellees’ activities had failed that appellant entered the subject emergency cease and desist order pursuant to Section 120.59(3). Since appellant itself has gone outside the Administrative Procedures Act in the course of these proceedings, it will not now be heard to argue that it is improper for appel-lees to do so.

The court is riot unmindful of the somewhat unusual circumstances by which this appeal is before it. We note, however, that, despite our order stating that the petition for writ of prohibition, which addressed only the issue of jurisdiction, was to be treated as an appeal and as the initial brief of appellant, appellant made no attempt to supplement the petition with any argument on the merits of the appealed TRO. Appellant evidently assumed that the court would deal with the appeal in a piecemeal fashion, addressing the jurisdictional issue now and the merits at a later time. Because no issue was raised by appellant as to the merits of the TRO, we do not consider the merits, but affirm the TRO based on the jurisdictional arguments that were presented.

Based on the foregoing, the order of the circuit court is affirmed.

WIGGINTON, J., concurs.

ERVIN, C.J., concurs in result only, without opinion.


text:
    Aurelio PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1838.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Michael J. Nei-mand, Asst. Atty. Gen., and Lawrence G. Price, Certified Legal Intern, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   PER CURIAM.

The judgment of conviction and sentence under review is affirmed upon a holding that: (a) the trial court committed a technical error in admitting the hearsay testimony complained of on appeal, see Privett v. State, 417 So.2d 805, 806 (Fla. 5th DCA 1982), (b) the said error, however, was harmless in the context of this case as the evidence of guilt was overwhelming and the cause was tried non-jury. See First Atlantic National Bank of Daytona Beach v. Cobbett, 82 So.2d 870, 871-72 (Fla.1955); § 924.33, Fla.Stat. (1983).

Affirmed.