author: MILLS, Judge. WENTWORTH, Judge,

text:
    JERRY CHAPMAN, INC. and Security Insurance Company, Appellants, v. William IVEY and Division of Workers’ Compensation, Appellees.
    No. AV-176.
    District Court of Appeal of Florida, First District.
    March 6, 1984.
    Rehearing Denied April 18, 1984.
    Susan J. Silverman of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellants.
    Alfred D. Bieley, Miami, for appellees.
   MILLS, Judge.

In this workers’ compensation action, the employer/carrier appeal from a deputy commissioner’s order awarding claimant’s attorney a fee of $2,500. Because the deputy commissioner erred in denying the employer/carrier’s motion to dismiss for failure to prosecute pursuant to Workers’ Compensation Rule of Procedure 11(b), we reverse.

It is apparent from the record that no action contemplated by WCRP 11(b) took place on the claim for attorney’s fees from 2 February 1981 through 2 March 1983, the day the employer/carrier filed a motion to dismiss for failure to prosecute. Claimant had already been awarded benefits and all that remained was for claimant’s attorney to request a hearing on attorney’s fees within two years of the last action taken on the claim. When the employer/carrier moved to dismiss after the two-year period expired and claimant’s attorney failed to show good cause why the claim should remain pending, the deputy commissioner had no choice but to dismiss. Regal Wood Products, Inc. v. Mendez, 432 So.2d 141 (Fla. 1st DCA 1983).

Claimant’s attorney contends negotiation with counsel for the E/C concerning a fee constituted “action” within the meaning of WCRP 11(b). The examples of action set out in 11(b), however, are affirmative acts more definite than mere preliminary negotiation between the parties. To consider such negotiation action contemplated by 11(b) would pervert the meaning of the rule.

For purposes of clarity, we note there is no question compensation to the claimant was paid within two years preceding the E/C’s motion to dismiss. But this compensation was paid on the claim for benefits, not on the claim for attorney’s fees and is therefore irrelevant.

REVERSED.

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

WENTWORTH, J., dissents with written opinion.

WENTWORTH, Judge,

dissenting.

I respectfully disagree with the conclusions on appeal that no action contemplated by WCRP 11(b) took place from 2 February 1981 through 2 March 1983, and that claimant failed to show good cause for the deputy’s denial of the motion as required by the rule and by Regal.

The text of Rule 11(b) states a standard for such activity differing from that required by the comparable civil rule. From the apparent intent of the framers, shown by the omission of any requirement for record activity and by the general nature of the stated examples of “action ... taken” from which we may define the terms “or otherwise” in applying the rule, I would find that the deputy properly denied dismissal based on evidence of negotiations between counsel during the period. The deputy could certainly conclude that such action was a good faith effort to avoid further hearing by agreement on the amount of the fee required by the previous order and mandate of this court. In addition, the record here clearly reflects a payment of compensation within the two years preceding the motion. Under the terms of the rule that activity in connection with the primary claim from which the fee derives would also, in my opinion, permit affirmance.

      . (b) Any claim, or any petition to modify, in which it affirmatively appears that no action has been taken by request for hearing, filing of pleadings, order of Deputy Commissioner, payment of compensation, provision of medical ¿are, or otherwise for a period of two years, is subject to dismissal for lack of prosecution. Upon motion to dismiss filed by any interested party, or upon request of the Deputy Commissioner before whom the action is pending, the file shall be forwarded to the appropriate Deputy Commissioner who shall, after reasonable notice to the parties and opportunity for hearing, dismiss the claim or petition, unless a party shows good cause why the claim or petition should remain pending, [c.s.]

      . Rule 1.420. Dismissal of Actions
      (c) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order Of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute. [e.s.]


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM.

license: Public Domain

text:
    DIVISION OF ADMINISTRATION, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Appellant, v. CONSOLIDATED-TOMOKA LAND COMPANY, INC., et al., Appellees.
    Nos. 82-1462, 82-1622.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.
    Rehearing Denied April 25, 1984.

      Alan E. DeSerio and Robert I. Scanlan, Tallahassee, for appellant.
    Larry Klein, West Palm Beach, and John Brennan of Brennan, McAliley, Hayskar & McAliley, Fort Pierce, for appellees.
   PER CURIAM.

Reversed and remanded for a new trial. While it appears that the evidence was undisputed that the appellee land owner lost all access to its land from the east, west and north by virtue of the appellant’s taking, we do not believe the evidence was sufficiently undisputed as to access available from the south to authorize the trial court to take the issue of loss of access and its consequences away from the jury. Cf. In re Division of Admin. v. St. Regis Paper Co., 402 So.2d 1207 (Fla. 1st DCA 1981). Because we are vacating the final judgment we also reverse the award of attorney’s fees predicated thereon.

ANSTEAD, C.J., HURLEY, J., and WES-SEL, JOHN D., Associate Judge, concur.

OPINION ON REHEARING

PER CURIAM.

Although we deny the petition for rehearing we grant the request of the parties for clarification to the extent that we acknowledge that our opinion should not be taken as precluding the jury’s consideration upon retrial of any applicable and valid laws or ordinances affecting the use of the property in question.

ANSTEAD, C.J., and HURLEY, J., and WESSEL, JOHN D., Associate Judge, concur.


author: PER CURIAM.

text:
    SARASOTA INVESTMENT COMPANY, INC., Appellant, v. MORTGAGE BARON, INC., Appellee.
    No. 83-1715.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.
    C. Eugene Jones of Ginsburg, Byrd, Jones & Dahlgaard, Sarasota, for appellant.
    Gerald M. Taylor, Tampa, for appellee.
   PER CURIAM.

Affirmed. See Sapp v. Warner, 105 Fla. 245, 141 So. 124 (1932).

HOBSON, A.C.J., and RYDER and LE-HAN, JJ., concur.


author: SMITH, Judge. NIMMONS, Judge, specially

text:
    Elario S. SANAME, Appellant, v. STATE of Florida, Appellee.
    No. AT-37.
    District Court of Appeal of Florida, First District.
    March 13, 1984.
    Rehearing Denied April 11, 1984.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen.-, Tallahassee, for appellee.
   SMITH, Judge.

In Sanante v. State, 427 So.2d 1083 (Fla. 1st DCA 1983), this court remanded this cause to the trial court with directions to either vacate the order retaining jurisdiction over appellant’s sentence for second-degree murder or to state the reasons for retaining that jurisdiction with individual particularity. The opinion specifically cites Abbott v. State, 421 So.2d 24 (Fla. 1st DCA 1982), another appeal from the same trial judge, in which we held that simply referencing such things as “the circumstances surrounding this offense,” without citing any of the facts or circumstances of the crime, were insufficient to meet the requirement of Section 947.-16(3)(a) that justification for retention of jurisdiction be stated with individual particularity. Accord, Wilson v. State, 414 So.2d 512, 513 (Fla. 1982); Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1981). Once again, and contrary to this court’s explicit directions, the trial judge has justified his retention of jurisdiction by simply citing “the circumstances surrounding this offense and the characteristics of the Defendant’s propensity for criminal involvement.” His incorporation by reference of defense counsel’s memorandum regarding sentencing and appellant’s presentence investigation in no way cures this deficiency, for to hold that it did would render meaningless the express statutory requirement that the reasons be stated with particularity. In light of this failure to enter an appropriate order setting out the particular facts and circumstances which justify the retention of jurisdiction, we vacate the retention of jurisdiction.

REVERSED.

WIGGINTON, J., concurs.

NIMMONS, J., specially concurs with opinion.

NIMMONS, Judge, specially

concurring.

As I recently observed in my concurring opinion in Wilson v. State, 449 So.2d 822 (Fla. 1st DCA 1984):

I am not as convinced as my colleagues that the statute contemplates review by appellate courts of the sufficiency of the reasons stated by the trial court for retention. See Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1981) (Cowart, J., specially concurring); compare Mobley v. State, 409 So.2d 1031, 1038 (Fla.1982) (failure of trial court to make any findings justifying retention vacated and cause remanded so that findings may be made). In view of this court’s previous decisions in retention appeals, e.g. Abbott v. State, 421 So.2d 24 (Fla. 1st DCA 1982), and Saname v. State, 427 So.2d 1083 (Fla. 1st DCA 1983), I concur in the court’s decision to reverse on this ground. However, I favor certifying to the Supreme Court the following question as one of great public importance:
Do the appellate courts of this State have jurisdiction to review the sufficiency of the reasons stated by trial courts for retention of jurisdiction under Section 947.16(3)(a)?

I adhere to those sentiments and, although concurring in the court’s opinion, would again favor certifying to the Supreme Court the above question as one of great public importance.


text:
    UNITED COMPANIES FINANCIAL CORPORATION, Appellant, v. Ronald Wayne WHITSETT and Judy Whitsett, Appellees.
    No. AT-377.
    District Court of Appeal of Florida, First District.
    March 13, 1984.
    Rehearing Denied April 16, 1984.
    Thomas M. Brady, of Wells, Brown & Brady, P.A., Pensacola, for appellant.
    Robert R. Kimmel, of Robert R. Kimmel, P.A., Pensacola, for appellees.
   PER CURIAM.

Our review of the record in this case clearly shows that the jury’s verdict incorporated in the final judgment is fully supported by the evidence.

We find no merit to appellant’s challenges that there was error in the trial court’s failing to apply the parol evidence rule and that there was a lack of consideration to support a separate oral agreement.

However, as to appellant’s final point, we note that at the charge conference appel-lees moved to amend their counterclaim to conform with the evidence showing appel-lees’ reliance to their detriment upon appellant’s promise to renegotiate the contract. The judge did not rule on that motion at the conference but granted appellees’ requested instruction that would allow them to argue to the jury that their building of a superior quality house constituted consideration for the oral agreement. Following the jury’s verdict favoring appellees, and in the order denying appellant’s motion for a new trial, the trial judge granted appellees’ motion to amend their counterclaim.

This Court is cognizant that the trial was permeated with testimony relating to the separate contract theories as well as the consideration that supported them. Appellant has shown neither error in law nor prejudicial error to its case by the court's reserved ruling. Accordingly, the final judgment is AFFIRMED.

THOMPSON, WIGGINTON and ZEH-MER, JJ., concur.


author: BASKIN, Judge.

text:
    Martina SCHEIN, Appellant, v. Thomas Fred SCHEIN, Appellee.
    No. 83-440.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied April 23, 1984.

      Daniels & Hicks and Louis H. McMurray, Miami, for appellant.
    Payton & Rachlin and Guy W. Turner and Harry Payton, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

In this appeal from a Final Judgment Dissolving Marriage, the wife challenges: the trial court’s award of primary custody of the children to the husband; the trial court’s award of exclusive possession of the marital residence to the husband; and the trial court’s refusal to award her a special equity in funds brought into this country in her name, but determined by the court to belong to the husband. The husband appeals the amount of permanent alimony awarded to the wife.

Concerning the question of custody, we find that the record reveals substantial competent evidence in support of the trial court’s decision that the best interests of the children were served by placing them in the father’s custody. We therefore affirm on this point. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975).

Regarding the trial court’s denial of a special equity, we hold that the trial court’s award to the wife of lump sum alimony of $25,000 and permanent alimony of $2,500 a month is supported by the record and will not be disturbed on appeal. Shaw v. Shaw, 334 So.2d 13 (Fla.1976). The trial court’s plan to conduct an equitable distribution of marital assets may not be disturbed in the absence of a demonstration of abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Examining the wife’s claim to a special equity in light of the total distribution, we find no merit in her position. Accordingly, we affirm the trial court’s distribution of the assets of the parties.

The next challenge is to the award of exclusive possession of the marital residence to the husband. The marital residence consisted of two Key Biscayne condominiums joined into a single residence. During the marriage the parties owned one unit as tenants by the entireties; the husband was sole owner of the other unit. In the final judgment the trial court awarded the husband exclusive possession of the entire residence until the children attain majority, but declared the parties to be tenants in common of the unit they formerly owned by the entireties, requiring the husband to pay the mortgage. The wife asserts that, absent a finding of a duty on her part to support the children, the court erred in awarding the husband rent-free possession of the marital residence. We agree and remand the cause for a determination of the amount of rent to be paid by the husband during the period of his exclusive occupancy. Cf. Duncan v. Duncan, 379 So.2d 949 (Fla.1980). In addition, the final judgment should be amended to require partition of the residence upon the husband’s remarriage, as he conceded to be appropriate.

Affirmed in part; reversed in part; remanded with directions.


text:
    Harvard J. HART and Shirley Marie Hart, Appellants, v. SEABOARD COASTLINE RAILROAD COMPANY and Wickes Corporation, d/b/a Wickes Lumber Company, Appellees.
    No. 82-371.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.
    Edna L. Caruso, P.A., and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellants.
    Claire L. Hamner and Harry W. Haskins of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for ap-pellee Wickes Lumber Co.
   PER CURIAM.

Affirmed. See Chorak v. Naughton, 409 So.2d 35 (Fla. 2d DCA 1982).

SCHEB, A.C.J., and DANAHY and CAMPBELL, JJ., concur.


author: JOANOS, Judge.'

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. CAREER SERVICE COMMISSION, Respondent.
    No. AV-163.
    District Court of Appeal of Florida, First District.
    March 16, 1984.
    Leonard Helfand, Dist. Legal Counsel, Fla. Dept, of Health & Rehabilitative Services, Miami, for petitioner.

      William H. Ravenell, Dept, of Legal Affairs, Dorothy Roberts, Appeals Coordinator, Career Service Com’n, Tallahassee, and Steven Abramowitz, Miami, for respondent.
   ON PETITION FOR WRIT OF CERTIO-RARI OR PROHIBITION

JOANOS, Judge.'

The Department of Health and Rehabilitative Services (“HRS”) petitions for a writ of certiorari or prohibition, challenging a Career Service Commission order accepting jurisdiction of Figueiral’s appeal. Were we to treat this as a petition for certiorari, the petition would be untimely, since it was not filed within 30 days of rendition of the order to be reviewed. Review pursuant to Section 120.68(1) would also have provided an appropriate remedy subject to a 30 day filing requirement, see Shevin v. PSC, 333 So.2d 9 (Fla.1976). However, Fla.R.App.P. 9.030(b)(3) also provides that this court may issue a writ of prohibition not subject to the 30 day filing requirement, and the language in Rule 9.030(b)(3), unlike the language in Rule 9.030(a)(3), does not restrict the district courts’ ability to issue writs of prohibition to courts. See 32 F.S.A. Rule 9.030 1980 Committee Notes. “The question of jurisdiction has historically been one that is immediately reviewable by extraordinary writ or interlocutory review,” Department of Environmental Regulation v. Career Service Comm., 344 So.2d 1292, 1293 (Fla. 1st DCA 1977). Since the present case involves a question of subject matter jurisdiction, we have determined it is appropriate to consider the case pursuant to our original jurisdiction to issue extraordinary writs.

The issue to be resolved is whether Figueiral achieved permanent employee status prior to his termination, giving him the right to appeal the termination to the Career Service Commission. Figueiral was hired by HRS in provisional status on November 6, 1981. He became a probationary employee on January 1, 1982, and was terminated on May 5, 1982, pursuant to notification of termination given by letter dated April 27, 1982. Even assuming Figueiral was given credit for his provisional status (November 6, 1981, to January 1, 1982) towards his six month probationary period, he did not achieve permanent status and is not entitled to review of his termination by the Career Service Commission.

Respondent relies upon Fla.Admin.Code Rule 22A-7.04(1) which provides:

An employee who has been legally appointed in accordance with this chapter and granted probationary status shall attain permanent status upon completion of six months of satisfactory service in the class ....

Figueiral was notified by letter dated April 27, 1982, that his employment would be terminated effective on May 5, 1981, at 5 p.m., thus he was effectively terminated before he achieved permanent employee status. Our conclusion is based on the authority of Department of Administration v. Career Service Comm., 388 So.2d 14 (Fla. 1st DCA 1980), and Department of Environmental Regulation v. Career Service Comm., supra, from which we are unable to distinguish the present case.

The petition for writ of prohibition is granted and the Commission’s order accepting jurisdiction over Figueiral’s appeal is quashed.

ERVIN, C.J., and SHIVERS, J., concur.

      . HRS’s motion for rehearing of the non-final order accepting jurisdiction was not authorized by statute or rule (Rule 22M-2.13 applies to rehearing of final order), thus the time for filing the petition for certiorari was not tolled, see Department of Corrections v. Career Service Comm., 429 So.2d 1244 (Fla. 1st DCA 1983).


text:
    David Allan WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1764.
    District Court of Appeal of Florida, Second District.
    March 16, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Sullivan v. State, 303 So.2d 632 (Fla.1974); Carter v. State, 435 So.2d 900 (Fla. 1st DCA 1983).

OTT, C.J., and SCHOONOVER and LE-HAN, JJ., concur.


text:
    Curtis SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. AX-122, AX-223.
    District Court of Appeal of Florida, First District.
    March 19, 1984.

      P. Douglas Brinkmeyer, Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for respondent.
   PER CURIAM.

We have before us an appeal of the order denying appellant’s Rule 3.800(a), Fla.R. Crim.P. motion to correct sentence. Appellant has pending as well a petition for writ of habeas corpus in which petitioner alleges that he is being illegally required to remain on probation. We elect to consolidate these cases for purposes of disposition and treat the habeas corpus petition as appellant’s initial brief and the response to our show cause order as respondent’s answer brief. Upon consideration of the probation order we find it to be valid, and affirm.

Appellant was convicted by a jury of the second degree misdemeanor of trespass in a structure. At the subsequent sentencing proceeding, the court adjudged appellant guilty and placed him on six months’ probation. As a condition of probation, the court required that appellant spend sixty days in the county jail, and, upon release, serve eight weekends of alternative community service. Appellant then filed the motion to correct sentence herein appealed, which was denied. Subsequent to his appeal of the order, but prior to filing the petition for habeas corpus, appellant completed the 60 days jail time condition of his probation. Appellant points out that § 775.082(4)(b), Florida Statutes (1983), sets the maximum sentence for a second degree misdemeanor at 60 days. He contends that, since he has been required to serve that period as a condition of his probation, he cannot properly be required to remain on probation and that the order requiring him to do so, including community service requirements, should be reversed. We cannot agree.

A court may properly impose a period of incarceration as a condition of probation. Section 948.03(1), Florida Statutes (1983), establishes certain specified terms and subsection (4) of that statute provides: “The enumeration of specific kinds of terms and conditions shall not prevent the court from adding thereto such other or others as it considers proper.” The courts have also approved the use of a split sentence probation alternative. In State v. Jones, 327 So.2d 18 (Fla.1976), the court held that a term of incarceration for a specific period of time within the maximum allowable sentence was a proper condition of probation, so long as, in the event probation was revoked, the defendant was given credit for any period of time spent in jail pursuant to the split sentence probation order. Id. at 25. In Villery v. Florida Parole and Probation Commission, 396 So.2d 1107, 1110 (Fla.1980), the court modified the Jones holding, finding that:

incarceration, pursuant to the split sentence alternative found in sections 948.-01(4) and 948.04(2) [now 948.01(8) and 948.03(4), respectively], which equals or exceeds one year is invalid. This ap plies to incarceration as a condition of probation....

Id. at 1111 (e.s.). Villery, then, apparently finds permissible the requirement of up to, but not including, one year of incarceration as a condition of probation; the 60-days incarceration imposed as a condition of probation herein is within this limit, which limit is, of course, also subject to the maximum term of incarceration prescribed for the specific offense in question. The fact that the period of incarceration required herein equals the maximum allowable sentence for appellant’s offense is not fatally objectionable, as it is clear that incarceration as a condition of probation does not constitute a sentence. Villery, supra at 1110. The court explained:

A sentence and probation are discrete concepts which serve wholly different functions. Imposed as a sentence, imprisonment serves as a penalty, as a payment of defendant’s ‘debt to society.’ Imposed as an incident of probation, imprisonment serves as a rehabilitative device to give the defendant ‘a taste of prison’ in order to graphically demonstrate what is likely to happen to him should he violate the terms of that probation.

Id. at 1110 (citation omitted).

One final objection to this order must be addressed. Section 948.06, Florida Statutes (1983), provides that, on revocation of probation, the court shall “impose any sentence which it might originally have imposed before placing” defendant on probation. Villery, supra, directs that “in revoking probation and sentencing the probationer, credit must be given for time spent incarcerated pursuant to a split sentence probation order.” Id. at 1107. It might be argued that, because appellant, as a condition of probation, has already spent the maximum amount of time in jail to which he could have been sentenced under § 775.082(4)(b) (60 days), the lower tribunal would have to discharge appellant upon a finding that he had violated his probation, i.e., because of the credit he would receive against any sentence for the time he has already served. We conclude that this is not the case. Section 775.-083(1), Florida Statutes (1983), provides, in part: “A person who has been convicted of an offense other than a capital felony may be sentenced to pay a fine in addition to any punishment described in § 775.082; ...” Subsection (l)(e) sets the maximum fine for a second degree misdemeanor at $500. Should appellant violate his probation, the court could not sentence him to a term of incarceration any greater than that already served and to be credited. However, the court could properly require payment of the fine which it could have imposed “in addition to any punishment described in § 775.082 [60 days imprisonment].” We therefore find nothing illegal in the probation order entered here, whatever objections may be raised to the disproportionate length of the incarceration period for rehabilitation purposes. Cf, Winkle, infra.

We certify, pursuant to Art. V, § 3(b)(4), Florida Constitution (1983), that this decision is in direct conflict with that of the Second District Court of Appeal in Winkle v. State, 422 So.2d 984 (Fla. 2d DCA 1982). That case involved a factual situation identical to the one herein. Appellant had received a six-month period of probation, and, as a condition thereof, was required to serve 60 days in jail, the maximum sentence allowable for his crime. The court found controlling the decision in State v. Holmes, 360 So.2d 380 (Fla.1978), which held that, when a defendant is sentenced to a period of incarceration followed by a period of probation (split sentence), “the combined periods at the time of the original sentence cannot exceed the maximum period of incarceration provided by statute for the offense charged.” Id. at 383. The Winkle court found Holmes equally applicable to the situation before it and held that, “the combined periods of incarceration and probation imposed as a split sentence probation alternative must be within the maximum term of imprisonment provided by the statute for the crime involved.” Winkle, at 985. We do not find Holmes controlling, in view of the fact that the court therein addressed a sentence of a term of incarceration followed by probation and not, as here, a period of incarceration as a condition of probation. We therefore do not follow the Winkle decision, and affirm the probation order herein appealed.

MILLS and WENTWORTH, JJ., and McCORD (Retired), Associate Judge, concur.

      . 948.03 Terms and conditions of probation or community control.—
      (1) The court shall determine the terms and conditions of probation or community control and may include among them the following, that the probationer or offender in community control shall:
      (a) Report to the probation and parole supervisors as directed.
      (b) Permit such supervisors to visit him at his home or elsewhere.
      (c) Work faithfully at suitable employment insofar as may be possible.
      (d) Remain within a specified place.
      (e) Make reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court. The court shall make such reparation or restitution a condition of probation, unless the court determines that compelling and extraordinary reasons exist to the contrary.
      (f) Support his legal dependents to the best of his ability.
      (g) Make payment of the debt due and owing to the state under s. 960.17, subject to modification based on change of circumstances.
      (h) Pay any attorney’s fees and costs assessed under s. 27.56, subject to modification based on change of circumstances.
      (i) Not associate with persons engaged in criminal activities.


text:
    Michael ROWE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-546.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker and Howard Blum-berg, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Knight v. State, 394 So.2d 997 (Fla. 1981); Shanks v. State, 429 So.2d 1366 (Fla. 1st DCA 1983).


text:
    M.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1929.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Williams v. State, 403 So.2d 430, 431-33 (Fla. 3d DCA 1981).


author: PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    Ann P. MACHADO and Joseph A. Machado, Jr., Appellants, v. JORDAN MARSH, INC., A DIVISION OF ALLIED STORES, and Liberty Mutual Insurance Company, a foreign corporation, Appellees.
    No. 82-2468.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.

      Richard A. Sherman, Miami, Robert J. Galamaga, South Miami, for appellants.
    Daniels & Hicks and Elizabeth K. Clarke, Miami, Richard E. Hardwick, Coral Gables, for appellees.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Plaintiffs appeal a summary final judgment entered in favor of the defendants in a negligence action for damages sustained by plaintiff as a result of a fall which occurred in the store of the defendant, Jordan Marsh, Inc.

Our review of the record convinces us that there are genuine issues of material fact presented which preclude the entry of a summary judgment. Phillips v. Hartford Casualty Ins. Co., 373 So.2d 415 (Fla. 4th DCA 1979); Byrnes v. Publix Super Markets, Inc., 272 So.2d 218 (Fla. 4th DCA 1973); Holl v. Talcott, 191 So.2d 40 (Fla. 1966).

Reversed.

DANIEL S. PEARSON, Judge,

dissenting.

While I concede that there is ample evidence that the defendant’s floor was slippery, the defendant has conclusively shown the absence of any evidence that the slippery floor caused the plaintiff’s fall. Therefore, I would affirm the summary judgment for the defendant.


text:
    Jose MEDINA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1611.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Bennett H. Brummer, Public Defender and David J. Finger, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. State v. Murray, 443 So.2d 955 (Fla.1984); Cobb v. State, 376 So.2d 230 (Fla.1979); D’Agostino v. State, 334 So.2d 99 (Fla. 3d DCA 1976); Machin v. State, 213 So.2d 499 (Fla. 3d DCA 1968).


text:
    Erwin E. SIMMONS, Appellant, v. Janet SIMMONS, Appellee.
    No. 83-1870.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Edward C. Vining, Jr., Miami, for appellant.

      Kanner, Brown & Lambert and Stephen Murty, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellants, v. Henry G. CHADBOURNE, Appellee.
    No. AT-213.
    District Court of Appeal of Florida, First District.
    March 21, 1984.
    William A. Frieder, Division of Retirement, Tallahassee, for appellants.
    Walter G. Campbell, Jr. of Krupnick & Campbell, P.A., Fort Lauderdale, for appel-lee.
   PER CURIAM.

AFFIRMED. Kennedy v. Wiggins, 368 So.2d 454 (Fla. 1st DCA 1979).

ERVIN, C.J., and BOOTH and ZEH-MER, JJ., concur.


text:
    Arthur J. HARRISON, Appellant, v. R.W. HARRIS, Appellee.
    No. AT-131.
    District Court of Appeal of Florida, First District.
    March 22, 1984.
    Rehearing Denied April 13, 1984.
    Calvin W. Wilson, Pensacola, for appellant.
    Artice L. McGraw of Cetti, McGraw, Bearman & Eddins, Pensacola, for appellee.
   PER CURIAM.

This cause comes to us on appeal from an order of the trial court denying appellant’s motion to vacate a default judgment entered against him on an action to quiet title to certain real estate. Examination of the record before us establishes that the default judgment entered against appellant should be vacated and the appellant allowed to plead. There is a meritorious defense (forgery), and circumstances relied on to show excusable neglect create a reasonable doubt which should be resolved in favor of allowing a trial on the merits. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

ERVIN, C.J., and BOOTH and ZEH-MER, JJ., concur.


author: BOOTH, Judge.

text:
    Michael RUSH, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PODIATRY, Appellee.
    No. AT-257.
    District Court of Appeal of Florida, First District.
    March 22, 1984.
    Barry Richard of Roberts, Baggett, La-Face, Richard & Wiser, Tallahassee, for appellant.
    Bruce D. Lamb, Staff Atty., Tallahassee, for appellee.
   BOOTH, Judge.

This appeal arises from a final order of the Board of Podiatry suspending appellant’s license to practice for six months and placing appellant on probation for three years. The Board’s action was taken pursuant to Section 461.013(l)(c), Florida Statutes (1981), which cites as grounds for disciplinary action:

(c) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of podiatry or the ability to practice podiatry.

The appellant was convicted in federal court of conspiracy to possess and import marijuana in violation of Title 21, United States Code (1981), Section 841(a)(1). Dr. Rush’s involvement in this conspiracy consisted of furnishing money to individuals who subsequently utilized the funds to purchase marijuana. The conviction was affirmed by the United States Court of Appeals. United States v. Rush, 666 F.2d 10 (2d Cir.1981).

Also enacted in 1979 was Section 461.001, Florida Statutes, entitled “Legislative findings; intent; scope,” which provides in part:

The sole legislative purpose for enacting this chapter is to insure that every podiatrist practicing in this state meet minimum requirements for safe practice. It is the legislative intent that podiatrists who fall below minimum competence or who otherwise present a danger to the public health be prohibited from practicing in this state, [emphasis added]

In determining whether Dr. Rush’s conviction for conspiracy to import marijuana is directly related to the practice or ability to practice podiatry, we are mindful that where statutes provide for revocation or suspension of licenses, these provisions should be strictly construed and followed because the statute is penal rather than regulatory in nature. State v. Pattishall, 99 Fla. 296, 126 So. 147 (Fla.1930). Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). A statute designed to protect the general welfare is to be liberally construed to advance that purpose, but this does not justify a construction which would include conduct not clearly proscribed by the statute or a construction which would deny the licensee the right to know in advance what conduct is proscribed by reading the language of the statute. Lester v. Department of Professional and Occupational Regulation, State Board of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA 1977).

A podiatrist is one of six categories of licensed professionals allowed to prescribe, administer, and dispense controlled substances by the State of Florida. Section 893.02(14), Florida Statutes (1981). The Legislature has invested a trust and confidence in these six categories of licensees by permitting them to dispense drugs which have a high potential for abuse. The actions of Dr. Rush, which culminated in his conviction, constitute a breach of that trust and confidence which the people, through the Legislature, have placed in him. Dr. Rush’s conduct shows a lack of honesty, integrity, and judgment, and an unwillingness to abide by the Laws of the State of Florida which cannot be tolerated of a professional licensed to dispense dangerous drugs.

The importation of marijuana, a drug that the Florida Supreme Court has described as “a harmful mind-altering drug which endangers the health of the user and which is highly detrimental to the public welfare,” Raines v. State, 225 So.2d 330 (Fla.1969), presents a danger to the public health and does not correspond to that level of professional conduct expected of one licensed to practice podiatry in this state. By confining the convictions upon which disciplinary action may be based to those directly related to the practice of podiatry, the Legislature has not limited the grounds for disciplinary action to only those crimes which relate to the technical ability to practice podiatry or to those which arise out of misconduct in the office setting. A conviction for a crime, such as importing marijuana, which presents a danger to the public welfare will be adequate basis for disciplinary action to be taken against a practitioner.

Our conclusion that Dr. Rush’s conviction is one which is directly related to the practice or ability to practice podiatry is further buttressed by a reading of Section 893.11 of the Florida Comprehensive Drug Abuse Prevention and Control Act. That statute provides in part:

Upon conviction ... of any practitioner ... of a violation of any of the provisions of this chapter which constitutes a felony, the clerk of said court shall send a certified copy of the judgment of conviction to the board or officer by whom the convicted defendant has been licensed to practice his profession.... Such board or officer may suspend or revoke the license or registration of a convicted defendant to carry on his business.

Dr. Rush was not convicted of a violation of Chapter 893, Florida Statutes, but of a federal violation; thus, we do not rest our holding upon'this statute. However, we do gather from it that a felony conviction for conspiracy to import a dangerous drug is within the scope of “those crimes which directly relate to the practice or ability to practice podiatry,” upon which a disciplinary action may rightfully be based.

Accordingly, we hold that appellant’s conviction for conspiracy to import marijuana is one which presents a danger to the public health and, as such, is directly related to the practice or ability to practice podiatry. The sanctions imposed upon appellant were well within the permissible range available to the Board under Section 461.013(2) and will not be disturbed.

AFFIRMED.

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

      . Prior to its amendment in 1979, the predecessor to the current provision, Section 461.-08(l)(b) provided that a podiatrist could be disciplined when "the podiatrist has been convicted in a court of competent jurisdiction of a felony.” From this amendment it is evident that the Legislature intended to narrow the class of crimes upon which disciplinary action may be based to those which directly relate to the practice or ability to practice podiatry, rather than any felony.


text:
    Leroy EURICE, Appellant, v. STATE of Florida, Appellee.
    No. 83-1530.
    District Court of Appeal of Florida, Second District.
    March 23, 1984.
    Jerry Hill, Public Defender, Paul C. Helm, Asst. Public Defender, and Gerald 0. Johnson, Certified Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Cleaves v. State, 450 So.2d 511 (Fla. 2d DCA 1984).

BOARDMAN, A.C.J., and SCHEB and RYDER, JJ., concur.


author: NIMMONS, Judge.

text:
    In re ESTATE OF Evelyn Agnes BARKER, Deceased. Margaret FRANKENBERG, as Personal Representative of the Estate of Evelyn Agnes Barker, Deceased, Appellant, v. Jack E. BROUGHTON and Mrs. Jack Lewis, Appellees.
    No. AS-115.
    District Court of Appeal of Florida, First District.
    March 27, 1984.
    Rehearing Denied April 23, 1984.

      William H. Maness of Maness & Kacher-gus, Jacksonville, for appellant.
    Wayne E. Flowers of Flowers, Hould & Westling, Jacksonville, for appellees.
   NIMMONS, Judge.

Margaret Frankenberg, the personal representative of the Estate of Evelyn Agnes Barker, appeals from an order of the lower court denying Frankenberg’s petition seeking an order- admitting to probate the residuary clause from a prior will which clause she claims was inadvertently omitted from her later probated will. We affirm.

Evelyn Agnes Barker (decedent) died on July 3, 1982. Her will, executed on October 22, 1980, was admitted to probate by order of the lower court on July 12, 1982. The will was a rather brief, straightforward document in proper form and executed in accordance with the statutory self-proving form authorized under Section 732.503, Florida Statutes (1979). It contained a provision “revoking any and all wills heretofore made” by the decedent. It provided for certain specific bequests of jewelry and other personalty to Franken-berg (a niece) and Shirley Carmichael (a grandniece). Article Sixth recited that the decedent had prepared a list of additional personal items and effects and directed the personal representative to distribute such property to the persons indicated on such list. The record does not indicate any description of the items listed or of the names of the listed beneficiaries. Article Seventh consisted of $1.00 bequests to each of four other relatives of the decedent (a nephew, a niece and two grandnephews). The will contained no residuary clause. Franken-berg was named as personal representative.

After the October, 1980, will was admitted to probate, Frankenberg filed a “petition to establish lost or destroyéd will.” The petition included a copy of an earlier will purportedly executed by the decedent on August 20, 1980. In support of the petition, Frankenberg filed an affidavit of attorney S. Gordon Blalock who drafted the will and supervised its execution, and an affidavit of his secretary who was one of the witnesses. Both affidavits identified the document as a copy of the earlier will executed by the decedent. Apparently, the original of the earlier will could not be located.

The earlier will was very similar to the latter will, but differed in these respects: (1) the earlier will made no bequests or other provision for the four relatives who were named in the latter will as recipients of the $1.00 bequests; (2) the earlier will contained a residuary clause with Franken-berg and her daughter, Shirley Carmichael, named as beneficiaries thereof in equal shares; and (3) the earlier will directed that the personal representative employ Mr. Blalock to perform the necessary legal work in connection with the estate’s administration.

The gist of the affidavits submitted in support of Frankenberg’s petition was that the absence of a residuary clause from the second will was a mistake. Attorney John London Arnold stated in his affidavit that the decedent came to his office and requested that he prepare a will for her. He further stated that the decedent told him the new will should be the same as the earlier will except that “certain persons were to get only $1.00 because she had heard this was necessary,” and that the new will should not include the requirement that Mr. Blalock be employed for the legal work in administering the state. Arnold further stated in his affidavit that, in the preparation of the new will, the residuary clause contained in the earlier will was inadvertently omitted, that he did not see the finished product and that he was not present when Barker returned and executed her new will.

Frankenberg’s petition asserted that the omission of the residuary clause from the second will would result in the distribution of the residual estate (approximately $50,-000 in real estate and $37,200 in personalty) by intestacy to eleven heirs including the four recipients of the $1.00 bequests instead of to Frankenberg and Franken-berg’s daughter, all of which, she says, is contrary to the decedent’s intent.

Subsequent to the filing of Franken-berg’s petition and supporting affidavits, the lower court entered an order requiring the interested parties to show cause why the earlier will should not be admitted to probate for the purpose of disposing of the residual estate in accordance with the residuary clause of the earlier will. The court held a hearing at which counsel for some of the decedent’s heirs at law (including appellees) appeared and opposed Frank-enberg’s petition. No evidence was presented at the hearing, the hearing consisting solely of arguments of law, the parties apparently content to assume the truth of the facts stated in the affidavits.

Subsequently, the court entered its order finding that the purported copy of the earlier August 20, 1980, will was indeed a true copy of the original which had been executed by the decedent but that the later will effectively revoked the August 20 will in its entirety and that neither the doctrine of dependent relative revocation nor any other legal theory operated to revive the residuary clause of the August 20 will. The court ruléd that it would be improper to consider the assertions in Arnold’s affidavit regarding the decedent’s intent but that even if the court could consider such affidavit, the contents thereof would be insufficient to overcome the presumption that the testatrix understood and approved the terms of the second will when she executed it.

Nothing in the law precludes a testator from disposing of only a portion of his estate by will and allowing the balance to be distributed according to the laws of intestate succession. In Re Stephan's Estate, 142 Fla. 88,194 So. 343 (1940); Pelton v. First Savings & Trust Co., 98 Fla. 748, 124 So. 169 (1929); 18 Fla.Jur. 2nd Decedent’s Property § 383; Annot. 80 A.L.R. 140. Frankenberg is not benefitted in this case by the principle that the law favors any reasonable construction of a will that disposes of all of the testator’s property over an interpretation that results in partial intestacy. See In Re Smith, 49 So.2d 337 (Fla.1950); In Re Gregory’s Estate, 70 So.2d 903 (Fla.1954). There are simply no conflicting provisions of the second will which require construction.

The lower court was quite correct in holding that it was not at liberty to consider extrinsic evidence of the testator’s intent regarding revocation of the earlier will. The provisions of the decedent’s second will do not necessarily indicate that she did not wish her residuary estate to be distributed to her legal heirs as intestate property. In other words, the $1.00 bequests in her second will to four of her legal heirs do not necessarily indicate an intent to “disinherit” even those four, much less the remaining heirs who were not named either in the $1.00 bequests or otherwise.

But even if we were to construe the provisions of the decedent’s second will as exhibiting an intent to disinherit the four $1.00 beneficiaries, such construction would be unavailing to appellant. As stated in In Re Levy’s Estate, 196 So.2d 225, 229 (Fla. 3rd DCA 1967):

The remaining question to be determined is whether the testator’s son was precluded by law from taking the lapsed legacies as next of kin because the testator in his will stated he “made no provision” for his issue and had never seen him.
In order to cut off an heir’s right to succession a testator must do more than merely evince an intention that the heir shall not share in the estate — he must make a valid disposition of his property. Cases so holding are collected in an annotation in 100 A.L.R. 325, where, commenting thereon, it was said (at page 327):
Except as respects the rights of a surviving spouse, the common law gives a testator substantial freedom to dispose of his property by will as he sees fit, without regard to any claims of those who might otherwise take under the rules as to descent and distribution of intestate property. The courts seem to be agreed, however, that this power to disinherit can be exercised only in one way — by making a testamentary disposition of the property inconsistent with the normal course of descent. Accordingly, where some of the property is not disposed of by will, either because of the lapse of proposed legacies or for other reasons, the cases hold that the undisposed-of property will pass to those entitled under the statutes of descent, both where language in the will attempts to exclude such persons altogether from the benefits of the estate, and where the testator does make some provision for the person in question but specifies that such provision shall be all that such person is to receive.

See also In Re Estate of Reid, 399 So.2d 1032 (Fla. 1st DCA 1981).

In any event, without the aid of the proffered extrinsic evidence (principally, attorney Arnold’s affidavit) as to what the decedent’s intent was, her will is clear as to its meaning and needs no interpretation in order to be implemented.

[I]t is the intention of the testator as expressed in the will that the court should carry into effect, and where the meaning of the words used by the testator is clear, it must be adopted, whatever the inclination of the court may be. The court may not alter or reconstruct a will according to its notion of what the testator would or should have done. Moreover, in the absence of clear legislative intent, the courts will not create or destroy testamentary disposition on the theory that the result accords with the natural desires of the deceased. The court must assume that the testator meant what was said in his will. It is not the purpose of the court to make a will or to attempt to improve on one that the testator has made. Nor may the court produce a distribution that it may think equal or more equitable.

18 Fla.Jur.2d Decedent’s Property § 358 at p. 216. See also In Re Estate of Lesher, 365 So.2d 815 (Fla. 1st DCA 1979). Stated another way, the inquiry is not what the testatrix meant to say, but what she meant by what she did say. See In Re Estate of Fairley, 159 N.W.2d 286 (Iowa 1968). Further, appellant’s reliance upon Section 732.-6005(2), Florida Statutes, dealing with testamentary intent regarding after-acquired property is misplaced. That section has no application to the case at bar.

Frankenberg asserts that the doctrine of dependent relative revocation is applicable because of a mistake, the decedent mistakenly executing a will in which the residuary clause was inadvertently omitted by the draftsman. We disagree that this is a proper case for the application of that doctrine. One would need to rely upon extrinsic evidence in determining the threshold question of whether there had been a mistake. Such is not permitted. As was stated by the Supreme Court in In Re Pratt’s Estate, 88 So.2d 499, 503 (Fla.1956):

There are no conflicting provisions of testamentary papers necessarily before the court [emphasis in original] as in the case of a will and codicils, which might form a basis for the admission of parol evidence for its bearing upon the testamentary intent. We know of no principle of law which would authorize us to look beyond the probated will for testamentary intent in such a case. We do not understand that the “dependent relative revocation” doctrine, useful and salutary as it is in a proper case, carries with it the authority to disregard so well-established a rule as that which forbids us to write a new will for the testator in the face of a clear intent expressed in a proper instrument.
In the much-cited article to which we have alluded, Warren, Dependent Relative Revocation, the author states in part [33 Harv.L.R. at pp. 348-9]:
“A will cannot be set aside for mistake in either the United States or in England where the testator knew and approved its contents. By the same token a revocation absolute on its face, the words of which the testator knows and approves, will not be set aside because the reasons which induced it are found to be based on false assumptions of fact or law. The testator is dead, and it is too dangerous to inquire what motives induced his action. This was to be done for the construction of the document; it should not be resorted to for alteration of it.”

See also In Re Lubbe’s Estate, 142 So.2d 130 (Fla. 2nd DCA 1962); In Re Estate of Fairley, supra; but cf. In Re Jones, 352 So.2d 1182 (Fla. 2nd DCA 1977).

AFFIRMED.

ERVIN, C.J., and SMITH, J., concur.


author: ERVIN, Chief Judge.

text:
    Joseph Gerard LEDUC, Appellant, v. STATE of Florida, Appellee.
    No. AS-439.
    District Court of Appeal of Florida, First District.
    March 27, 1984.

      Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.

      . Fla.R.Crim.P. 3.270 provides:
      RULE 3.270. Number of Jurors
      Twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases.

   ERVIN, Chief Judge.

LeDuc, a person over the age of 18, was convicted of two counts of sexual battery upon persons under the age of eleven in violation of Section 794.011(2), Florida Statutes (1981), and one count of lewd and lascivious, indecent assault upon a child. For the two sexual battery convictions, he received sentences of life imprisonment, including a minimum mandatory 25 years before becoming eligible for parole, pursuant to Section 775.082(1), Florida Statutes (1981), as to each count. Appellant raises two issues on appeal: (1) Whether the trial court erroneously denied LeDuc a twelve-' person jury since sexual battery is designated as a capital offense by section 794.-011(2), and (2) whether the trial court erred in imposing the two 25-year minimum mandatory sentences in that death is no longer a permissible penalty for violation of section 794.011(2). We affirm as to both issues.

Our recent decision in Cooper v. State, 453 So.2d 67 (Fla. 1st DCA, 1984), is dispositive of the first point. Cooper holds that the procedural requirement of a twelve-person jury in all “capital cases” is not applicable once the capital feature of the crime, the possibility of the penalty of death, has been eliminated. As the crime of sexual battery under section 794.011(2), for which LeDuc was on trial, is no longer punishable by death, Buford v. State, 403 So.2d 943 (Fla.1981), the trial court properly denied LeDuc a twelve-person jury since sexual battery is no longer a “capital” offense for which a jury so composed would be required.

We find the reasoning set forth in Rusaw v. State, 429 So.2d 1378 (Fla. 2d DCA 1983), to be persuasive as to the second issue, and hold that the penalty under section 775.082(1) of life imprisonment, with a 25-year mandatory minimum prescribed by section 794.011(2), remains applicable for the crime of sexual battery regardless of the elimination of the death penalty for that crime. See Buford v. State; Donaldson v. Sack, 265 So.2d 499 (Fla.1972); Duke v. State, 444 So.2d 492 (Fla. 2d DCA 1984); State v. Jimenez, 443 So.2d 204 (Fla. 3d DCA 1983); State v. Mendoza, 444 So.2d 570 (Fla. 3d DCA 1984). But see, Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983).

Accordingly, the judgment of the trial court is AFFIRMED.

We certify, however, to the Supreme Court of Florida the following as questions of great public importance, pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v):

I: IN A PROSECUTION FOR SEXUAL BATTERY UNDER SECTION 794.-011(2), WHERE DEATH IS NOT A POSSIBLE PENALTY BECAUSE OF THE HOLDING IN BUFORD V. STATE, 403 So.2d 943 (Fla.1981), IS THE DEFENDANT ENTITLED TO A 12-MEMBER JURY?
II: 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)?

LARRY G. SMITH and NIMMONS, JJ., concur.

      . Section 775.082(1), Fla.Stat. provides: 775.082 Penalties.—
      (1) A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, and in the latter event such person shall be punished by death.

      . Section 794.011(2) provides:
      (2) A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in ss. 775.082 and 921.141. If the offender is under the age of 18, that person shall be guilty of a life felony, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.


author: BARFIELD, Judge.

text:
    PENSACOLA WINE AND SPIRITS DISTILLERS, INC., Appellant, v. GATOR DISTRIBUTORS, INC., Appellee.
    No. AV-84.
    District Court of Appeal of Florida, First District.
    March 27, 1984.

      Bruce A. McDonald of Emmanuel, Sheppard & Condon, Pensacola, for appellant.
    John Zingarelli of Reeves, King & Rit-chie, Pensacola, for appellee.
   BARFIELD, Judge.

Pensacola Wine and Spirits Distillers, Inc. (Pensacola Wine) appeals a non-final order determining that Gator Distributors, Inc. (Gator) is entitled to immediate possession of leasehold property and requiring Pensacola Wine to immediately vacate the property. We reverse.

Gator sued for eviction of Pensacola Wine from a warehouse owned by Gator on property leased from Burlington Northern Railroad. Pensacola Wine asserted that it was an equitable owner of the warehouse by reason of the exercise of an option to purchase, and therefore, eviction was not a proper remedy. Pensacola Wine contends that Gator must proceed in ejectment because Pensacola Wine is no longer a tenant under the lease agreement. The trial court correctly concluded that a lease is terminated when an option to buy is exercised. The vendee then becomes an equitable owner of the property pursuant to an executory contract. Atlantic Beach Improvement Corp. v. Hall, 143 Fla. 778, 197 So. 464 (1940). Where the trial court erred was in construing Bailey v. Bailey, 114 So.2d 804 (Fla. 1st DCA 1959), to say that the court may treat an action for eviction as an action in ejectment without allowing the party in possession to plead affirmative defenses to ejectment.

The record before us suggests the trial court was correct in finding that an exercise of the option to buy had taken place, although it is not entirely clear that such was the case. Having thus concluded that ejectment was the proper cause of action for Gator, the trial court should have allowed Gator to amend and allowed Pensacola Wine to answer and assert its affirmative defenses. Turner v. Trade-Mor, Inc., 252 So.2d 383 (Fla. 4th DCA 1971); David Miller Distributing Co. v. Florida National Bank, 342 So.2d 856 (Fla. 1st DCA 1977); and Seltzer v. Grine, 79 So.2d 688 (Fla.1955). It remains to be seen whether any affirmative defenses can be raised that are not already before the trial court.

Bailey v. Bailey, supra, was an action filed as eviction in the chancery side of the court. After default and judgment was entered against the occupant of the property, the occupant within ninety days filed a claim for betterment which would be proper if the action had been in ejectment. What the court said was that the wrong label had been attached to the original action, and it should have been in the law side of the court. Since the default was entered and the appeal was dismissed on procedural grounds, nothing could be done to treat the original action for what it really was, i.e., ejectment. However, the court would not allow this misnomer of a cause of action to deprive the former occupant of the right to seek recovery for betterment.

REVERSED.

MILLS and WENTWORTH, JJ., concur.


text:
    Walter F. JARVIS, Sr., Appellant, v. Joyce F. JARVIS, Appellee.
    No. AV-274.
    District Court of Appeal of Florida, First District.
    March 27, 1984.
    Paul M. Harden of Smith, Davenport, Bloom & Harden, Jacksonville, for appellant.
    Sharon H. Tanner of the law offices of John Paul Howard, Jacksonville, for appel-lee.
   PER CURIAM.

AFFIRMED. See Clayton v. Clayton, 442 So.2d 310 (Fla. 1st DCA 1983); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

WENTWORTH, WIGGINTON and ZEH-MER, JJ., concur.


text:
    James R. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. AV-455.
    District Court of Appeal of Florida, First District.
    March 27, 1984.
    Appellant pro se.
    Jim Smith, Atty. Gen., and T. Edward Austin, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

The trial court’s order of 19 October 1983, denying appellant’s Rule 3.850 motion dated 27 July 1983, is affirmed. The Rule 3.850 motion is not in substantial compliance with the provisions of the Rule in that it is not under oath and fails to contain the information required by paragraphs (b) and (c) of the Rule. See Catlett v. State, 367 So.2d 735 (Fla. 4th DCA 1979).

AFFIRMED.

MILLS and WENTWORTH, JJ., and McCORD (Retired), Associate Judge, concur.


text:
    ANDERSON CONTRACTING COMPANY, INC., Appellant, v. ZURICH INSURANCE COMPANY, Fireman’s Fund Insurance Company, et al., Appellees.
    No. AW-79.
    District Court of Appeal of Florida, First District.
    March 27, 1984.
    Paul M. Harden, of Smith, Davenport, Bloom & Harden, Jacksonville, for appellant.
    James B. Fensom, of Barron, Redding, Boggs, Hughes, Fite, Bassett & Fensom, Panama City, for appellee Zurich Ins. Co.
    David A. Sapp, of Bell, Hahn & Schuster, Pensacola, for appellee Fireman’s Fund.
   BARFIELD, Judge.

Anderson Contracting Company, Inq. (Anderson) appeals a summary judgment in favor of Zurich Insurance Company (Zurich) in which Zurich was awarded immediate possession of property. We have jurisdiction under Rule 9.130(a)(3)(C)(ii), Florida Rules of Appellate Procedure. We do not have jurisdiction to review the summary judgment granted to Fireman’s Fund Insurance Company (Fireman’s Fund) because the notice of appeal was not timely filed. We affirm the summary judgment for Zurich.

The issues raised on this appeal are whether the trial court erred in (1) failing to apply the law of Louisiana in determining the property rights of the parties; (2) granting a motion for summary judgment in favor of defendants on their respective “counterclaims” when no notice of hearing on the motion was given to plaintiff; and (3) granting a summary judgment as to Zurich simultaneously with the filing of the counterclaim and motion for summary •judgment thereon. We find no merit in Anderson’s arguments as to issues (2) and (3). As to issue (1), our affirmance of the trial court's holding that Florida law applies is based on the public policy of Florida.

Each of the appellees, Zurich and Fireman’s Fund, insured a Caterpillar tractor. Both of the tractors were stolen in Texas and were sold to Southeast Equipment Company (Southeast), a Louisiana company which sells used heavy equipment. Southeast subsequently sold both tractors to Ring Power Corporation (Ring Power), which sells new and used heavy Caterpillar equipment. Ring Power had the tractors transported to Florida where they were sold to Anderson. The insurance companies paid the claims on the stolen tractors.. When the tractors were found in Florida, this litigation ensued.

Anderson argues that, under the rule of comity, the trial court should have applied Louisiana law, which Anderson asserts would require the true owner to reimburse the subsequent purchaser upon recovery of the stolen property. Comity does not require Florida public policy to be supplanted by foreign law. Comity is not., a rule of law, but of practice, convenience and expediency. Where it would be contrary to the statutory law or contravene some established and important policy of the forum state, it is not applied. See Gillen v. United Services Automobile Association, 300 So.2d 3 (Fla.1974) (New Hampshire’s law enforcing “other insurance” clauses in auto policies contrary to Florida public policy against such clauses); Cerniglia v. C. & D. Farms, Inc., 203 So.2d 1 (Fla.1967) (contract not to compete repugnant to Florida’s public policy, therefore unenforceable in Florida); Sherbill v. Miller Manufacturing Company, 89 So.2d 28 (Fla.1956) (waiver of homestead exemption as to debt contrary to policy of Florida’s exemption laws); Dorado Beach Hotel Corp. v. Jernigan, 202 So.2d 830 (Fla. 1st DCA 1967) and Young v. Sands, Inc., 122 So.2d 618 (Fla. 3d DCA 1960) (both concerned with gambling debts unenforceable in Florida).

It has generally been held by Florida courts that the old English common law principle of title acquired by purchase and sale in open market does not apply in this country and that, in the absence of some intervening principle of estoppel, one cannot convey a better title than he has and conversely, one cannot claim a better title than he, in fact, receives. Dicks v. Colonial Finance Corporation, 85 So.2d 874 (Fla. 1956); Commercial Credit Co. v. Parker, 101 Fla. 928, 132 So. 640 (1931); Federal Insurance Company v. Mercer, 237 So.2d 243 (Fla. 4th DCA 1970); Avis Rent-A-Car System, Inc. v. Harrison Motor Company, 151 So.2d 855 (Fla. 2d DCA 1963); R.S. Evans Motors of Jacksonville, Inc. v. Hanson, 130 So.2d 297 (Fla. 2d DCA 1961).

Where an owner has voluntarily parted with possession of his chattel, even though induced by a criminal act, a bona fide purchaser can acquire good title, under the theory that where one of two innocent parties must suffer because of the wrongdoing of a third person, the loss must fall on the party who by his conduct created the circumstances which enabled the third party to perpetuate the wrong. Southeast Foods, Inc. v. Penguin Frozen Foods, 203 So.2d 39 (Fla. 3d DCA 1967); Joel Strick land. Enterprises, Inc. v. Atlantic Discount Company, 137 So.2d 627 (Fla. 1st DCA 1962). However, no such estoppel argument can be advanced against an owner of property that is stolen and subsequently sold to an innocent purchaser. It is the public policy of Florida that one in possession of stolen property, even if he has innocently purchased it from a “dealer”, has no possessory or ownership right to the property as against the rightful owner from whom the property was stolen, since the dealer could convey no better title than he received from the thief.

AFFIRMED.

MILLS and WENTWORTH, JJ., concur.


author: ZEHMER, Judge.

text:
    CITY OF PENSACOLA, Appellant, v. Christopher G. STAMM and Barbara Ann Stamm, husband and wife, and Historic Pensacola Preservation Board, Appellees.
    No. AR-307.
    District Court of Appeal of Florida, First District.
    March 30, 1984.
    Rehearing Denied April 26, 1984.

      Joe J. Harrell and Robert C. Palmer, III of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    Richard P..Warfield of Levin, Warfield, Middlebrooks, Mabe, Thomas, Mayes & Mitchell, Pensacola, for appellees.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellee/cross-appellant.
   ZEHMER, Judge.

Barbara Stamm, while attending an arts festival at a public park in downtown Pensacola, walked across a strip of grass located between a park sidewalk and the adjoining street that had been closed for the festival in order to purchase food at a concession stand. The stand was parked in the street next to the curb and had an open service window facing the grass strip. As she left the concession stand, Mrs. Stamm turned and walked several steps to a large trash container located on the grass strip, stepped into a concealed hole directly in front of the container, and broke her ankle.

Mrs. Stamm filed a complaint alleging negligence against the City of Pensacola, which owned the property; the Historic Pensacola Preservation Board, which had a long-term lease on the park; and the Pensacola Arts Council, which had a short-term lease on the park for purposes of the arts festival. The jury returned a verdict in favor of plaintiff and her husband in the amount of $75,000 and, further, found that the city of Pensacola was seventy percent negligent and the Preservation Board was thirty percent negligent. The jury found the Pensacola Arts Council not guilty of negligence. The city of Pensacola appeals the final judgment, and the Preservation Board cross-appeals.

Initially, the city of Pensacola argues that it cannot be held liable for the injury occurring within the grass strip between the sidewalk and the street because it was not under an affirmative duty to maintain that area for public use. We must disagree under the peculiar facts of this ease. Here, it was reasonably foreseeable that members of the public would walk on the grass area in question to enter or leave the park. The city approved the closing of the adjacent street so that persons might walk freely upon it. There was ample evidence from which the jury could conclude that the city had constructive, if not actual, knowledge of the existence of the concealed hole many months prior to the accident. City workmen had apparently removed a tree, resulting in the hole, and city employees continued to maintain the grass strip up to the date of the accident.

The city relies upon numerous cases which hold that a municipal corporation does not have a duty of care to maintain grass strips located in swales or parkway areas. City of Miami Beach v. Quinn, 149 Fla. 326, 5 So.2d 593 (1942); Kitchen, et al. v. City of Jacksonville, 158 Fla. 621, 29 So.2d 441 (1947); Dramstadt v. City of West Palm Beach, 81 So.2d 484 (Fla.1955); Musetto v. City of Miami Beach, 82 So.2d 595 (Fla.1955); Lisk v. City of West Palm Beach, 160 Fla. 632, 36 So.2d 197 (1948); Kass v. City of Miami Beach, 436 So.2d 1086 (Fla. 3d DCA 1983). All of these cases are distinguishable. None involve, as does this case, a grass area upon which the injured person was virtually invited to walk. The grass areas in these cases were not intended to be used by pedestrians.

Appellant also argues that the trial court erred in determining that plaintiff was an invited licensee rather than an uninvited licensee. According to Post v. Lunney, 261 So.2d 146 (Fla.1972), and Wood v. Camp, 284 So.2d 691 (Fla.1973), there are three classifications of persons who are entitled to reasonable care from a landowner: (1) business invitees, (2) public invitees, and (3) licensees by invitation. With respect to these three classes of people, a landowner must keep his property reasonably safe and must protect the visitor from dangers of which the landowner is or should be aware. Post v. Lunney, supra. The trial court determined that plaintiff was an invited licensee on the city’s property. We prefer to classify the plaintiff as a public invitee; but since the standard of care is identical with respect to each classification, the trial judge’s ruling on this issue is not reversible error.

The final point raised by the city of Pensacola is that section 375.251, Florida Statutes (1981), which provides a limitation on the liability of persons making property owned by them available to the public without charge for recreational purposes, should be applied to the city to relieve it of liability. We reject this contention because, as was held by the Second District in Chapman v. Pinellas County, 423 So.2d 578 (Fla. 2d DCA 1982), a governmental entity is not a “person” within the meaning of this statute. In our opinion, section 375.251 is intended to encourage private persons or entities to make their property available for public recreational use without being subject to liability for unknown hazardous conditions. The motivation of private persons to offer their property for recreational use by the public free of charge is the obvious purpose of this statute. A governmental body, on the other hand, needs no such motivation because its principal purpose for owning public park land is to make the park available for public use.

On cross-appeal, the Historic Pensacola Preservation Board argues that it should not be held liable to Mrs. Stamm because her injury did not occur on property leased to the Board. The evidence shows that the property described in the Board’s long-term lease did not extend to the adjacent street but extended only to the edge of the sidewalk along the grass strip. Mrs. Stamm argues that the Preservation Board should nevertheless be held responsible for her injury because the area of the accident was immediately adjacent to the leased premises constituting an approach into or out of the park property that was frequently used by park visitors and, further, because the Board actually participated in maintaining the entire park, including the grass strip in question, and knew or should have known of the dangerous condition. We agree with Mrs. Stamm’s argument and affirm the judgment against the Preservation Board. The Board cites Margrabe v. Graves, 97 So.2d 498 (Fla. 1st DCA 1957), and Britz v. Le-Base, 258 So.2d 811 (Fla.1972) in support of its position. Those cases, however, are distinguishable because in the present case Mrs. Stamm was clearly invited to walk across adjacent premises that were actually maintained by the Board.

The Board also argues that Mrs. Stamm was not an “invited licensee” as to the Preservation Board because she was not injured on property being leased by the Board. We disagree. Mrs. Stamm was a public invitee and was invited onto the park property being leased by the Board. The adjacent strip of grass upon which the injury occurred was maintained by the Board and constituted property that was reasonably expected to be used as an entrance to or exit from the park.

The final point made by the Board is that section 375.251, Florida Statutes (1981), should be applied to relieve it of liability to appellees. We reject this contention because the Board is a governmental entity charged with the responsibility of acquiring and maintaining property for the general welfare of the people and their use and enjoyment of such property for recreational purposes. § 266.101, Fla.Stat. (1981). As previously stated, section 375.-251 is intended to encourage private persons and entities to open their private lands for public recreational use; it is not intended to protect governmental entities already charged with that responsibility. Chapman, supra.

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.


author: WENTWORTH, Judge.

text:
    STORAGE TECHNOLOGY CORP. and Travelers Ins. Co., Appellants, v. Bonnie PHILBROOK, Appellee.
    No. AT-384.
    District Court of Appeal of Florida, First District.
    March 30, 1984.

      Robert G. Brightman, Travelers Insurance Co., Orlando, for appellants.
    Bruce W. Jacobus, of Wolfe, Kirschenbaum, Caruso, Mosley & Kabb-oord, Cocoa Beach, for appellee.
   WENTWORTH, Judge.

Employer/carrier seek review of a workers’ compensation order by which claimant was awarded wage loss benefits. We affirm the deputy’s award based on his determination that claimant did not voluntarily limit her income.

In March 1982 claimant sustained an industrial injury which was subsequently diagnosed as a ruptured intervertebral disc. Dr. Seig treated claimant conservatively for several months, during which time her objective symptomatology stabilized with a normal range of motion. A CAT scan was performed, and revealed disc bulging consistent with herniation. Dr. Seig thought that claimant reached MMI in September 1982, and suggested that she avoid strenuous activity, bending, stooping, twisting, and heavy lifting. Although claimant continued to complain of pain and the inability to sit or stand for prolonged periods, Dr. Seig nevertheless felt that claimant could return to her former employment as an office worker and the doctor released claimant to do so. Claimant thereafter did attempt to return to her former job, but found that her employment activities were too strenuous and produced disabling pain. Dr. Seig was contacted and he provided a modified work release limited to four hours per day. Although she attempted to comply with the release, claimant testified that she was physically incapable of continuously performing even this limited amount of work. Without attempting to modify claimant’s work responsibilities to accomo-date her reported symptoms, the employer terminated claimant’s employment due to her failure to perform in accordance with the terms of her work release.

Claimant thereafter made a work search and sought wage loss benefits; employer/ carrier controverted, taking the position that claimant had voluntarily limited her income by failing to return to her former employment in accordance with the terms of her work release. A hearing was held, and the deputy commissioner expressly declined to accept Dr. Seig’s opinions “as they pertain to the extent of claimant’s injuries and her physical limitations.” The deputy found that claimant had sustained a herniated disc and, although she tried, was physically unable to consistently work four hours per day in accordance with her work release. The deputy therefore awarded wage loss based on findings as follows:

I find that the Claimant was injured when she stepped out of a temporary trailer at her place of employment and fell to the ground as the stairways leading to the temporary structure had been removed for maintenance_ ' Dr. Seig was of the opinion that the Claimant sustained a herniated disc at L5, SI. Dr. Seig was further of the opinion that she sustained a 5 percent permanent impairment in accordance with the AMA Guides. I accept his opinion as it relates to the Claimant sustaining a permanent impairment. However, Dr. Seig did release the Claimant to go back to work on a limited basis on September 2, 1982, suggesting that she work 4 hours per day with no lifting.... I do not accept Dr. Seig’s opinions as they pertain to the extent of the Claimant’s injuries and her physical limitations. Dr. Seig, in July of 1982, appeared to have made up his mind as to the extent of the Claimant’s ability to return to work. Dr. Seig did not recede from his July 1982 opinions as to the Claimant’s ability after receiving the August 23, 1982 report of the positive CAT scan and her continuing severe complaints consistent with the results of the CAT scan. Dr. Seig performed no further diagnostic testing, nor did he change the restrictions on the Claimant’s ability to work. The Claimant did return to work and tried to work 4 hours a day and testified that she had considerable difficulty in doing so. She was unable to work some days and could only work an hour on other days.... Claimant did not refuse to perform work that was in her physical capability, but was faced with an inflexible standard set up by her employer that she was unable to meet.... Based upon the Claimant’s testimony as to the continuing problems that she has with the injury to her back and based upon the job search that she undertook .after being terminated by the Employer, ... I find that the Claimant is entitled to wage loss benefits....

The deputy may reject, in whole or in part, uncontroverted testimony which he disbelieves, see John Caves Land Development Co. v. Suggs, 352 So.2d 44 (Fla.1977), and our cases hold that:

... lay testimony is of probative value in establishing matters such as the existence and l&cation of pain ... and the inability of a claimant to perform certain work.... “disability is not a purely medical question: it is a hybrid quasi-medical concept, in which are comingled in many complex combinations the inability to perform, and the inability to get, suitable work.” [emphasis supplied]

Sanlando Utility Corp. v. Morris, 418 So.2d 389 (Fla. 1st DCA 1982), fn. 2. The opinion in Decks, Inc. of Fla. v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980), recognizes that:

... reasonable medical probability may be established by medical or lay testimony. Orange County Board of County Commissioners v. Brenemen, 233 So.2d 377 (Fla.1970); Aerospace Fabrication, Inc. v. Dodge, 8 FCR 339 (1974).... ‘Lay testimony is of probative value in establishing such simple matters as the existence and location of pain, sequence of events and actual ability or inability of the claimant to perform work.’ Id. at 340-41. We construe this language to mean that lay testimony can establish the necessary relationship as to conditions and symptoms which are within the actual knowledge and sensory experience of the' claimant, [emphasis supplied]

As indicated in Square G. Construction Co. v. Grace, 412 So.2d 397, 399 (Fla. 1st DCA 1982), quoting Mendivil v. Tampa Envelope Manufacturing Co., 233 So.2d 5 (Fla.1970):

Florida workers’ compensation law ... has always recognized: That, in proper circumstances, temporary medical or functional disability may be proved by lay testimony: ... lay testimony is often sufficient to sustain a compensation award, even though it conflicts with medical testimony ... (emphasis supplied) See also Crowell v. Messana Contractors, 180 So.2d 329, at 330 (Fla.1965).

And Grace notes, at footnote 3, that:

With respect to a claimant who testified that back pain and immobility prevented work, in conflict with a physician’s opinion that he was physically able • to work, the Court has found that the trier of fact ‘had a right, as a matter of law, to accept the opinion of the Tampa physician on this point or to reject it and base his conclusions on the testimony of the claimant ...’ Star Fruit Co. v. Canady [159 Fla. 488], 32 So.2d 2, at p. 4 (Fla.1947). [emphasis supplied]

An unreasonable refusal to attempt offered employment within the terms of a medical release may of course constitute a voluntary limitation of income under § 440.15(4)(b), Florida Statutes, see Paul Lawhon Plumbing Co. v. Cave, 427 So.2d 1093 (Fla. 1st DCA 1983), and “bare complaints of continued pain” generally do not of themselves obviate the need for a work search or employment effort. See e.g., Lindsley Home Care Centers v. Faster, 413 So.2d 810, 811 (Fla. 1st DCA 1982). However, in the present case the claimant did unsuccessfully attempt employment, and her testimony as to those facts is sufficient to sustain the compensation award. To the extent that Kyle v. Davis, 435 So.2d 918 (Fla. 1st DCA 1983), and Harper Plumbing & Heating v. Boyd, 418 So.2d 396 (Fla. 1st DCA 1982), suggest a contrary result, those opinions do not address the rationale of the decisions above noted. In the present case, unlike Harper and Kyle, the deputy specified his reasons for rejecting the physician’s testimony as to work capacity, and there is no evidence that claimant acted arbitrarily or irresponsibly. Also in this case the doctor qualified his opinion by expressly noting that “I have no way of knowing what her pain threshold might be and what she might be able to tolerate or not,” and further, “I think she did have residual pain and I had no reason to believe that her pain was not real.” He also testified that AMA Guides permit rating pain as a residual.

Affirmed.

MILLS and BARFIELD, JJ., concur.


author: FERGUSON, Judge.

text:
    JOHN ALDEN LIFE INSURANCE COMPANY, a Minnesota corporation, Appellant, v. HOME STATE FINANCIAL SERVICES, INC., an Ohio corporation and Combanks Corporation, a Florida corporation, Appellees.
    No. 83-2044.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Paul, Landy, Beiley & Harper and Robert M. Sondak, Miami, for appellant.
    Kenny, Nachwalter & Seymour and Thomas Seymour and Sandra I. Tart, Miami, for appellees.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

The issue in this appeal is whether a provision in a written agreement is so ambiguous as to preclude a summary judgment. The questioned paragraph of the stock-purchase agreement reads:

Equitable Consideration. Buyers jointly and severally agree that if, in the period from the date of this Agreement through March 31, 1982, any member(s) of the group purchasing FNB Stock of which they are a part purchases shares of FNB Stock in addition to those owned by such group on the date hereof (but excluding Sellers’ Shares) and if either (a) any such additional shares of FNB Stock are acquired pursuant to a public tender offer at a price greater than $22.00 per share or (b) the average price per share of all such additional shares acquired during such period exceeds $22.00 per share, then Buyers will pay to Sellers an amount equal to the product of the number of Sellers’ Shares times the difference between $22.00 and the greater of (i) such tender offer price or (ii) such average purchase price. Payment of such additional amount shall be made on March 31, 1982 in cash or by certified or bank cashier’s check or bank wire transfer.

Appellants contend, inter alia, that the above paragraph, critical to a resolution of the lawsuit, is confusing. More specifically, it is argued that the first word “Buyers” is defined elsewhere in the agreement, but that definition does not apply, contrary to the trial court’s interpretation, to the phrase “any member(s) of the group purchasing FNB Stock,” and further that the word “they” has no intelligible reference to previously defined persons or entities. We agree that important language in the contract, construction of which is disputed, is reasonably susceptible to more than one interpretation. An issue of fact is thus presented which cannot be resolved by summary judgment. See Quayside Associates, Ltd. v. Harbour Club Villas Condominium Association, Inc., 419 So.2d 678, 679 (Fla. 3d DCA 1982).

Reversed and remanded.

HENDRY, J., dissents.


text:
    TROY DESK MANUFACTURING COMPANY, INC. and Liberty Mutual Insurance Company, Appellants, v. Jack TROY, Appellee.
    No. 83-1934.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Robert H. Gregory, Miami, for appellants.
    George F. Taylor, Jr., Miami, for appel-lee.
    Before BARKDULL and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the order granting the claimant-appellee’s rule nisi application under Section 440.24(1), Florida Statutes (1981), for enforcement of a workers’ compensation order regularly entered by the Deputy Commissioner. The order, which required that weekly permanent and total disability payments be made to the claimant during his lifetime, was in full force and effect at the time of the rule nisi application. Thus, the Circuit Court had jurisdiction and, indeed, was required to enforce the order as written, see Venne v. Kleuver, 435 So.2d 350 (Fla. 3d DCA 1983); Lillard v. City of Miami, 220 So.2d 413 (Fla. 3d DCA 1969); Phoenix Assurance Co. of New York v. Merritt, 160 So.2d 552 (Fla. 2d DCA 1963), cert. denied, 168 So.2d 147 (Fla.1964), notwithstanding the appellant-carrier’s contention that under Section 440.15(l)(d), it was justified in unilaterally suspending compensation to the claimant where subsequent to the entry of the order the claimant had become rehabilitated to the extent that his earnings from employment disentitled the claimant to either compensation payments or any wage loss benefits under Section 440.15(3)(b).

The carrier, in reliance upon the statement in Lister v. Walker, 409 So.2d 1153, 1155 (Fla. 1st DCA 1982), that “the off-set [for established earning capacity] is self-executing,” argues that, in a case such as this, it may unilaterally suspend compensation payments and that it is incumbent upon the claimant to seek relief from any wrongful suspension of payments by applying to the Deputy Commissioner rather than seeking enforcement in the Circuit Court of the original order. We believe, to the contrary, that the carrier’s unilateral set-off cannot unilaterally modify the order so as to oust the Circuit Court from its jurisdiction to enforce the order and that the claimant is entitled to have such order enforced until the order has been modified by the Deputy Commissioner pursuant, here, to an application by the carrier. See § 440.28, Fla.Stat. (1981).

Affirmed.


author: WENTWORTH, Judge. MILLS, Judge,

text:
    WHITEHALL CORP. (Crystek Corp.) & Travelers Ins. Co., Appellants, v. Raymond Levie DAVIS, Appellee.
    No. AT-346.
    District Court of Appeal of Florida, First District.
    April 3, 1984.

      Peter C. Burkert, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
    Ronnie Klein Witlin, of Witlin & Witlin, Miami, for appellee.
   WENTWORTH, Judge.

Employer/carrier seek review of a workers’ compensation order by which claimant was awarded wage loss benefits for the period between November 1981 and April 1983. We affirm because we find that the record contains sufficient evidence of a good-faith work search, and that the deputy did not err in concluding claimant is limited in his employability and in excusing late filing of wage loss forms.

Claimant sustained industrial injury in November 1979 upon inhaling toxic chemical fumes while using triclorethylene to clean machinery. He suffered permanent neurological damage and an “electrically unstable brain,” reaching maximum medical improvement in November 1980 with a later assessed AMA Guides rating of 25-40% permanent impairment. Continuing symptomatology included frequent severe disabling headaches, chest pains and dizzy spells, sensitivity to bright light, and occasional numbness in his hand. Claimant currently receives various medications which the order found to have soporific effects.

Claim was made on October 15, 1982, for wage loss benefits commencing in October 1981, and a hearing was held in May 1983. At the hearing claimant detailed numerous specific unsuccessful employment contacts which he had made, but could identify only four specific potential employers among the many contacts he said he made between November 1981 and October 1982. He did testify as to frequent visits to Florida State Employment Service throughout this period of time, as well as general efforts prompted by “help wanted” ads in the classified section of the newspaper.

The adequacy of a job search is of course dependent upon the particular circumstances affecting the period in question and is essentially a factual issue for the deputy’s determination. See Clay Hyder Trucking v. Persinger, 416 So.2d 900 (Fla. 1st DCA 1982). While the work search evidence in the present case borders on the limits of specificity referenced in recent opinions, we conclude that the record factors above recited support the deputy’s finding that no voluntary limitation of income was shown because under the circumstances “claimant has made an adequate job search ... [and] has not refused any work.”

The order appealed is affirmed.

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

MILLS, J., dissents with opinion.

MILLS, Judge,

dissenting in part:

I dissent in part. I would reverse the deputy’s award of wage loss for the periods of November 1981 through November 1982 and April 1983. Otherwise, I join the majority in affirming the deputy’s award.

From November 1981 through October 1982, Davis made only four potential employment contacts. In November 1982 and April 1983, he made no employment contacts other than visiting the state employment service. This meager effort on the part of Davis was inadequate and failed to satisfy the job search requirement. Dave’s Oyster Bar et al. v. Dicks, 444 So.2d 527 (Fla. 1st DCA 1984) [9 FLW 235].

      . The order finds that "the employer/carrier objects to the wage loss request forms not being filed. To this, the employee testified that since the final hearing previously held the carrier has not furnished such forms to him nor instructions for completing them. In the interim the claimant has changed attorneys. The claimant has obtained wage loss request forms with the assistance of the State rehabilitation nurse and has recently been filing them."

      . Temporary disability compensation had been controverted and, after hearing, awarded from February through November 1980, and paid thereafter until May 1981. Wage loss for June and July 1981 was controverted and, after hearing, awarded with penalties in October 1981.

      . The order, dated May 24, 1983, found "claimant has made an adequate job search which is well-documented for the last six months or so and credible for the period before that. The claimant has availed himself assiduously of the limited facilities available through the Florida State Employment Service as well as pursuing other job announcements. He has not refused any work. In the prior Order I expressed the opinion, which I still hold, that this claimant is employable and is not permanently and totally disabled and that he should be able to find work. He has been truthful with respect to prospective employers about the disabling con-dilion of his permanent impairment and has not overstated his problems. The claimant has worked closely with the State rehabilitation nurse.”

        . Cf., Regency Inn v. Johnson, 422 So.2d 870, 877 (Fla. 1st DCA 1982):
      We submit ... that consideration of the factors [claimant’s actual physical impairment, age, industrial history, training and education, motivation, work experience, work record, diligence and the like] is still required, as in the past, in determining the adequacy and good faith of the job search, and in determining under the 1979 amendments whether the employee has voluntarily limited his employment or failed to accept employment commensurate with his abilities.

        Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982), notes:
      We observe that the Supreme Court of Florida has quite recently and explicitly reemphasized the rule that when the claimant affirmatively demonstrates that ‘some effort' was made to obtain employment within his limitations, the burden shifts to the employer to demonstrate that suitable work is in fact available. Wright v. Gulf and Western Food Products, 401 So.2d 1316, 1318 (Fla.1981). It follows that when the burden has properly been shifted to the E/C, and the E/C has Tailed to carry that burden at the initial hearing, then an award based on wage earning capacity loss is justified.