text:
    Winston YOHE, Appellant, v. STATE of Florida, Appellee.
    No. 83-142.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.

      Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We agree that there was no evidence to support the finding that appellant violated his probation by failing to pay his costs of supervision. Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947). Upon remand the trial court is instructed to correct this finding which was probably the result of a clerical error.

The appealed order is manifestly supported by other violations on the part of appellant and no other error has been demonstrated.

We particularly find that no error was committed by the trial court in requiring Yohe to identify himself as the probationer. State v. Heath, 343 So.2d 13 (Fla.1977) and Watson v. State, 388 So.2d 15 (Fla. 4th DCA 1980).

Affirmed and remanded with instructions.

ANSTEAD, C.J., and DOWNEY and WALDEN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re FORFEITURE OF ONE 40' FIBERGLASS BOAT, WHITE IN COLOR WITH BLACK BOTTOM, FLORIDA REGISTRATION FLO346EM, HULL NO. PER 40014M1C, together with Three 200 Horsepower Mercury Black Max Outboard Motors and all Gear, Equipment, Radios, and other Personal Property found thereon.
    No. 83-2090.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Wesley R. Harvin of Harvin & Geary, P.A., Palm City, for appellant Corsa Boats, Inc.
    James F. Littman of James F. Littman, P.A., Stuart, for appellee James D. Holt, as Sheriff of Martin County.
   PER CURIAM.

Affirmed. This is an appeal from a forfeiture order. The trial court determined after trial that the appellant was not the owner of the property in question, contrary to appellant’s claim. The two issues raised on appeal concern only whether a crime was committed and whether the property was utilized in the commission of the crime. Appellant’s standing to challenge the forfeiture is predicated on its ownership claim to the property. Since no issue has been raised as to the court’s finding on the ownership issue, any determination we make as to the issues actually raised would be moot. Accordingly, we decline to resolve those issues and affirm the trial court’s order.

ANSTEAD, C.J., DOWNEY, J., and RODGERS, EDWARD, Associate Judge, concur.


author: NIMMONS, Judge.

text:
    Martha H. FREEMAN and Jerry R. Freeman, Appellants, v. MANPOWER, INC., and MacDonald Services, Inc., d/b/a Manpower Temporary Services, et al., Appellees.
    No. AU-290.
    District Court of Appeal of Florida, First District.
    July 25, 1984.
    Louis K. Rosenbloum of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellants.
    John M. Fite of Barron, Redding, Boggs, Hughes, Fite, Bassett & Fensom, P.A., Panama City, for appellees.
   NIMMONS, Judge.

Appellant Martha H. Freeman was injured in an automobile accident in which her vehicle was struck by one operated by Robert McLaney. Mrs. Freeman and her husband sued McLaney and McLaney’s liability insurer. Subsequently, the Freemans filed an amended complaint adding as a party defendant MacDonald Services, Inc., a licensee of Manpower, Inc., d/b/a Manpower Temporary Services (hereinafter referred to as “Manpower”) claiming that McLaney was an employee of Manpower and that, at the time of the accident, McLa-ney was acting within the scope of his employment. Manpower admitted that McLaney was one of its employees but denied that he was acting within the scope of his employment at the time of the accident.

The Freemans appeal from a summary judgment entered favor of Manpower. We affirm.

The facts relevant to the issues on appeal are not in dispute. Manpower was in the business of providing temporary help to businesses requesting specific services. McLaney had worked “off and on” for a while with Manpower prior to the accident. The procedure followed by Manpower for work assignments was that if a Manpower worker wanted to work on a particular day, he would call Manpower that morning. If work was available, Manpower would call the worker back and advise him when and where to report for the work assignment. Manpower workers provided their own transportation and received no mileage or travel allowances. They were paid only for time spent working at the job site. Manpower provided the worker with a time sheet which was completed by the supervisor for whom the work was being performed that day. The worker would return the completed time sheet to Manpower which would in turn mail the worker a check.

On the day of the accident, McLaney called Manpower at about 7:00 a.m. to inquire about the availability of work. Manpower called him back and told him to report to the Lewis Bear Company to do general labor work. McLaney had not previously worked at that company. On the way to the job site in his own vehicle, McLaney’s vehicle struck Mrs. Freeman’s vehicle in the rear. McLaney did not report the accident to Manpower and the first knowledge that Manpower had of the accident was when Manpower was joined in the suit as a defendant.

On these facts, the trial court concluded that there was no genuine issue of material fact as to whether McLaney was within the course and scope of his employment at the time of the subject accident and that Manpower was entitled to judgment as a matter of law. We agree.

An employer is, of course, liable to third parties for injury or damage caused by the negligence of his employee when committed within the scope of his employment. 2 Fla.Jur.2nd Agency and Employment § 209. Nevertheless, it is equally well settled that an employee driving to or from work is not within the scope of employment so as to impose liability on the employer. Foremost Dairies, Inc. of the South v. Godwin, 158 Fla. 245, 26 So.2d 773 (1946); Standley v. Johnson, 276 So.2d 77 (Fla. 1st DCA 1973); Weiss v. Culpepper, 281 So.2d 372 (Fla. 3rd DCA 1973). And this is true even though the vehicle was used in the work and partly maintained by the employer. Foremost Dairies, Inc. of the South v. Godwin, supra.

In urging reversal, appellants rely heavily upon Eady v. Medical Personnel Pool, 377 So.2d 693 (Fla.1979). Although a workers’ compensation case, it has been recognized that such cases decided under the “arising out of and in the course of employment” standard of workers’ compensation are instructive in determining the limits of the common law doctrine of respondeat superior. See Saudi Arabian Airlines Corp. v. Dunn, 438 So.2d 116, 122 (Fla. 1st DCA 1983). See also Thurston v. Morrison, 141 So.2d 291, 294 (Fla. 2nd DCA 1962). Nevertheless, appellants fare no better under the Eady case as an analysis of that decision will demonstrate.

In Eady, the claimant was a nurse who worked for Medical Personnel Pool, a temporary manpower service that provided nurses and other trained medical personnel. Mrs. Eady was subject to being called at any time on special request jobs, even after having just completed a scheduled eight-hour assignment. On such special request jobs, the employee was always paid for at least four hours work even if the assignment took less time than that. After working a regular eight-hour assignment on the day of the accident, Eady’s employer called her at home and asked her to proceed to the home of a client to do an intravenous administration. She soon completed the assigned task and returned home. Later that evening, the same client called Eady and asked her to return to change the intravenous bottle. En route to the client’s home, Eady was injured in an automobile accident. The Supreme Court held that Eady qualified for compensation under the special errand exception to the going and coming rule about which the court observed:

Strictly speaking then, there is no on-call exemption because compensation is based not on the employee’s on-call status but on the circumstance that at the time of injury he was on a special errand in response to a call from his employer. The going and coming rule does not apply to employees on special errands or missions for the employer. Moody v. Baxley, 158 Fla. 357, 28 So.2d 325 (1946). Special errands often arise in the context of an afterhours call from the employer. See Feltner v. Southern Bell Tel. & Tel. Co., 274 So.2d 530 (Fla.1973). As a practical matter, the irregularity and suddenness of a call from the employer will almost always qualify it as a special errand exempt from the going and coming rule.

377 So.2d at 693.

A number of factors lead us to the conclusion that this is not a proper case for application of the special errand exception to the going and coming rule. The journey was not a substantial part of the service performed for the employer. For example, this is not a case where the employee has as part of his job the duty to return to the job site to perform a task which consumes relatively little time. See 1A. Larson, The Law of Workmen’s Compensation § 16.00 (1978); Eady, supra, at 696; Gray v. Dade County School Board, 433 So.2d 1009, 1011 (Fla. 1st DCA 1983). Also, the time and length of the journey involved in the case at bar appear to be no greater than the vast majority of instances involving workers reporting to their job sites in the community in which they reside. •

The Eady court appeared to place significant reliance upon the suddenness of the employer’s call and the burden on the employee responding to such call “even when the call is a regular part of the job or nominally voluntary,” Id. at 696. In the first place, there is no suggestion from the evidence that a person on an unskilled labor pool list of the kind involved in the instant case would feel any significant pressure to accept the employer’s assignment. But more important, it was not the employer who initiated the call to McLaney. Instead, McLaney called Manpower and requested assignment. It can hardly be said that the suddenness of the employer’s assignment is a factor in this case weighing in favor of employer liability.

Additionally, the job involved in the instant case did not require any travel, see Tampa Ship Repair & Dry Dock Co. v. Young, 421 So.2d 706 (Fla. 1st DCA 1982), and there was no arrangement or understanding for employer reimbursement of McLaney’s use of his car. McLaney had not yet started the day’s work, Foremost Dairies, Inc. of the South v. Godwin, supra 26 So.2d at 774, he was on his way to a regular eight-hour work day and was to be paid only while working at the job site. Further, Manpower assumed no control over McLaney with respect to his trip to the job site or the route that he was to take.

The fact that McLaney was proceeding to a job site which was “irregular or perhaps even unfamiliar,” Eady, supra at 697, is hardly sufficient to outweigh the other factors which clearly indicate the applicability of the going and coming rule: The trial court was correct in entering the summary judgment in favor of Manpower.

AFFIRMED.

THOMPSON and BARFIELD, JJ., concur.


author: BARFIELD, Judge.

text:
    LOUISIANA-PACIFIC CORP., a Delaware corporation, Appellant, v. David H. MIMS, Appellee.
    No. AV-417.
    District Court of Appeal of Florida, First District.
    July 25, 1984.
    DuBose Ausley of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, and George Ralph Miller, DeFuniak Springs, for appellant.
    Lynn C. Higby and Jack G. Williams, of Bryant, Higby and Williams, Panama City, for appellee.
   BARFIELD, Judge.

Louisiana-Pacific Corporation appeals from a final judgment obtained by David H. Mims in a personal injury claim. We reverse.

Mims is a truck driver who injured his back while descending from his wood chip trailer. The trailer was manufactured and sold to defendant/appellant Louisiana-Pacific in 1978. Louisiana-Pacific leased the trailer to Williams Service Company, Mims’ employer, but Louisiana-Pacific had the responsibility to service and maintain the trailer.

Mims’ trailer had ladders on front and back. The ladders were used by the driver to get into the trailer to pull a tarp over the load as required by state regulations. Mims used the front ladder because he loaded the trailer front to back to improve the handling of his truck. When loaded this way, use of the back ladder was difficult or impossible. The front ladder had a total of six rungs; the lower three rungs were missing for two to four weeks prior to the injury. Mims testified that he asked Louisiana-Pacific’s mechanic on three occasions to repair the ladder (the mechanic testified that it was twice). According to the mechanic, he did not make the repairs because it would have taken Mims’ truck out of commission and thereby reduced the driver’s income. Mims stated that the mechanic told him that he either did not have the time or the materials to make the repairs, or that management was not allowing the shop to manufacture parts for the trailer. It was undisputed that repairing the ladder would have taken 45 minutes to an hour and cost approximately $25 to $30.

The only medical testimony in the case was from plaintiff’s physician. He opined that Mims would have permanent scarring of muscle tissue, and on a scale of one to ten, it was eight or nine that he will have some difficulty for the rest of his life. He would be given a zero disability rating, however.

A defense motion for directed verdict on punitive damages was denied. The defense’s objection to the introduction of mortality tables was overruled.

During trial, a request was made for the jury to have pencil and paper. Defense objected, and the judge advised defense counsel that he would either let the jury have pencil and paper or any charts used during the trial. Defense objected to both, and the court ruled that he would allow charts to go to the jury. During closing arguments, plaintiff’s counsel used an easel and pad to make a suggested award presentation. The judge sent this back with the jury as a court’s exhibit with an instruction that it was not evidence.

The jury returned a verdict finding Louisiana-Pacific seventy-five percent negligent and Mims twenty-five percent negligent, and it awarded compensatory damages and punitive damages.

The appellant presents several theories for reversal. We find that three of these theories require discussion, and that two of them have merit.

First, the trial court was correct in allowing mortality tables into evidence. Dr. Rohan’s testimony was sufficient on the question of permanent injury to allow the jury to consider life expectancy in awarding damages. Plaintiff is not required to conclusively prove the permanency of his injuries.

We find, however, that trial court erred in allowing the chart prepared and used by plaintiff as an aid in closing argument to remain with the jury during deliberations. The effect of this error can be removed only by the granting of a new trial. The use of the chart during argument is not a matter of right but discretionary with the judge. It is a widely accepted practice, but when the argument is concluded the chart must be promptly removed from the jury’s observation. Ratner v. Arrington, 111 So.2d 82 (Fla. 3d DCA 1959). The designation of the chart as a court’s exhibit, lending to it the sanction and influence of the judge, is an error far more grievous than leaving it in view of the jury during phases of the trial for which its use is unnecessary. Ballard v. Rowe, 268 S.C. 517, 234 S.E.2d 890 (1977).

Finally, the trial court also erred in denying Louisiana-Pacific’s motion for directed verdict on punitive damages. The facts are sufficient to establish that Louisiana-Pacific was negligent but are not so egregious as to impose a civil punishment. Mobil Oil Corp. v. Patrick, 442 So.2d 242 (Fla. 4th DCA 1983). If the evidence of Louisiana-Pacific’s negligence at the new trial does not differ substantially from that presented in the original trial, defendant shall be entitled to a directed verdict on punitive damages.

REVERSED and REMANDED for a new trial.

THOMPSON and NIMMONS, JJ., concur.


author: PER CURIAM. SIMONS, STUART M., Associate Judge,

text:
    David WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-190.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Grace M. Gonzalez, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

HURLEY and DELL, JJ., concur.

SIMONS, STUART M., Associate Judge, dissents with opinion.

SIMONS, STUART M., Associate Judge,

dissenting:

The Defendant was convicted of stealing a purse from a woman in a shopping mall. The testimony of the victim was clear as to placing the Defendant in the role of the perpetrator. The Defendant’s defense was alibi and he testified that he was at work on the day and hour in question. The records of his employer supported this. The sole witness with personal knowledge of the Defendant’s whereabouts at the time of the crime was his supervisor at work. Although under subpoena to appear for the trial and although assuring the Defendant’s attorney that he would appear at trial, the supervisor failed to appear. The Court refused to continue the trial and refused to allow the Defendant to proffer the missing witness’ testimony.

Although the subpoena was delivered to the witness’ wife, it is proper service. Section 48.031, Florida Statutes (1976). This missing witness was an alibi witness whose testimony would have been highly probative of the ultimate fact, i.e., whether the Defendant committed the crime. Without the proffer I am unable to discern what, in fact, the missing witness would have said.

The record reflects that a motion for continuance was made at the time of trial, although it was done in rather imprecise terminology. The ground for the continuance was the missing testimony of the supervisor. I find this denial to be an abuse of discretion since the missing witness was an alibi witness whose testimony would have been highly probative of the fact of whether the defendant committed the crime. The Defendant should have been entitled to produce any witness who could place him elsewhere at the time of the crime. Green v. State, 377 So.2d 193 (Fla. 3d DCA 1979). Therefore, I would reverse and grant the defendant a new trial.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Ruth WILENSKY, Appellant, v. CRAZY HORSE TAVERN, INC., etc., Jacknob Corporation, et al., Appellees.
    No. 83-1867.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appel-lee-Epco, Inc.
   PER CURIAM.

Affirmed.

DOWNEY and WALDEN, JJ., concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

Although I agree that summary judgment was proper on appellant’s negligence claim, I believe the appellant should have been allowed an opportunity to amend her pleadings to attempt to state a cause of action for breach of warranty and strict liability. See, e.g., New River Yachting Center v. Bacchiocchi, 407 So.2d 607 (Fla. 4th DCA 1981).


text:
    Luis Guillermo FLORES, Appellant, v. STATE of Florida, Appellee.
    No. 84-1329.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Luis Guillermo Flores, appellant pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed.

DOWNEY and WALDEN, JJ., concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

I believe the limited record before us supports the appellant’s entitlement to an evidentiary hearing on his motion for post-conviction relief. Appellant claims that he entered a plea of guilty in exchange for a promise of a sentence not to exceed five years although with a minimum mandatory term of three years. He received an eight year sentence with á three year mandatory minimum. The record reflects that at the initial plea hearing the prosecutor advised the court: “We want him to plead open to five years with a minimum mandatory of three.” There is additional dialogue which appears to indicate that instead of a five year cap the court would have discretion as to the maximum sentence. However, this is far from clear, and nowhere in the record is the appellant specifically advised of the precise terms of the plea agreement and asked to confirm his understanding and agreement thereto. In addition, reference is made to a written agreement but that is not in the record. Finally, I note that appellant filed this motion immediately after he was given the eight year sentence and there advised by the judge that if he thought anything was wrong with the sentence he should file such a motion. It may be that the evidentiary hearing will completely contradict appellant’s claim as to his oral and written dealings with his attorney, the prosecutor and the court, but, in view of the lack of clarity in the record, I think he is at least entitled to that hearing.


text:
    Luis A. VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 81-1556.
    District Court of Appeal of Florida, Fifth District.
    July 26, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

On remand, we find that sufficient evidence was presented below to support Vazquez’ conviction for assault. As to all remaining points raised, we likewise find no error and AFFIRM.

COBB, C.J., and FRANK D. UP-CHURCH, Jr. and SHARP, JJ., concur.

      . See Vazquez v. State, 427 So.2d 1125 (Fla. 5th DCA 1983), quashed State v. Vazquez, 450 So.2d 203 (Fla.1984).


author: SHARP, Judge.

text:
    Clinton SHEPHERD, Appellant, v. STATE of Florida, Appellee.
    No. 83-561.
    District Court of Appeal of Florida, Fifth District.
    July 26, 1984.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Scott M. Swain, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Shepherd appeals from his convictions for simple battery and resisting a police officer with violence. He presents two issues: whether the trial court violated his constitutional rights by excluding him from the courtroom during his jury trial, and whether the court erred in excluding all evidence relating to Shepherd’s possible insanity at the time the charged offenses were committed. We think error occurred on the latter ground and we reverse for a new trial.

Based on psychological reports of two doctors who saw Shepherd in jail that concluded that although he was competent to stand trial, he was extremely hostile and possibly violent, the trial judge had Shepherd bound and cuffed when he appeared in the courtroom during his trial. Shepherd steadfastly demanded that he be furnished a lawyer to represent him and he ignored the public defender who was appointed as his defense counsel. Although the disruptive character of his behavior is not apparent from reading the record, Shepherd repeatedly said he did not want to be present in the courtroom at his trial.

One of a criminal defendant’s most basic rights is the right to be present in the courtroom at every stage in the proceedings. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). This right may be lost if he behaves in a disorderly, disruptive or disrespectful manner in the courtroom. 21 Am.Jur.2d Criminal Law § 700 (1981); Standards for Criminal Justice 6-3.8 (1980). It may also be lost if he voluntarily waives the right to be present. See Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973). In this case Shepherd’s behavior does not appear sufficient by itself to have merited his exclusion from the trial, but his repeated requests to leave the courtroom justified the court in allowing him not to be present. We find no error occurred on this ground.

The second ground, exclusion of all argument and testimony regarding Shepherd’s possible insanity defense, presents a more difficult problem. See Briseno v. State, 449 So.2d 312 (Fla. 5th DCA 1984); Patterson v. State, 419 So.2d 1120 (Fla. 4th DCA 1982), petition for review denied, 430 So.2d 452 (Fla.1983). Exclusion of defense evidence may impinge upon a defendant’s sixth amendment rights. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Whether ex-elusion can be upheld in a case where the state is prejudiced, and the defense willfully delinquent is not clearly settled. However, where no prejudice is found by the court to the state, and the failure on the part of defense counsel is a technical failure to comply with the criminal rules, exclusion is too harsh a sanction. Bradford v. State, 278 So.2d 624 (Fla.1973); Richardson v. State, 246 So.2d 771 (Fla.1971).

In this case the defense counsel failed to file a notice of intent to, rely upon an insanity defense, pursuant to Florida Rule of Criminal Procedure 3.216. The court granted the state’s motion in limine to exclude any testimony of any witness or argument of counsel and any mention of Shepherd’s having just broken out of a mental hospital in Tampa. It refused defense counsel’s motions for a continuance and to require the state to show prejudice, and further refused to accept a belated filing of the required notice. The court warned defense counsel not to violate this ruling, or be held in contempt.

At the trial the defense established through the police officers who subdued and arrested Shepherd, that at the time of his arrest Shepherd was acting in an extremely bizarre manner. Officer Harrison testified he first saw Shepherd at night on foot in the middle of the road in Ocoee, Florida, causing a disturbance as cars were swerving to miss hitting him. Harrison stopped his patrol car, and tried to get Shepherd to move to the side of the road. Shepherd resisted him and hit him. A fight ensued and Harrison called for a backup car. Officers Wilson and Clinger arrived on the scene, and had to brake suddenly to avoid hitting Shepherd. Wilson testified Shepherd was running down the middle of the road hooting loudly like an owl.

It took the three police officers five minutes to subdue Shepherd and handcuff him. When they got him to the police station, he was quiet, but appeared dazed and lost. He asked for his mother, and said he needed to be locked up again. The police officer was prevented from testifying Shepherd meant he needed to be returned to a mental hospital from which he had just departed. Nor was defense counsel allowed to ask the police officers whether they thought Shepherd was acting in a normal manner. Further, Shepherd’s mother was prevented from testifying about her son’s lengthy mental problems, numerous institutionalizations and severe psychological disorder. These exclusions were all based on the court’s prior ruling on the motion in limine.

Both the state and defense counsel were aware that Shepherd’s insanity would be an issue at trial. Defense counsel filed a motion to have Shepherd examined by two experts to determine whether he was competent to stand trial. Both experts concluded that Shepherd was competent, although while in jail Shepherd hit a corrections officer and set fire to a paper plate in his cell. He was also violent and hostile and refused to be examined by any psychiatrist.

Defense counsel also moved the court to appoint an expert to assist the defense in proving Shepherd was insane at the time of the charged offenses. Dr. Tell filed a report with the court in which he said Shepherd could be suffering from a strong paranoid type of disorder of possibly psychotic proportions. He suggested Shepherd be stabilized by treatment and medicated and then reevaluated. He was unable to make such an evaluation at the jail because Shepherd was violent and out of control when he tried to interview him. The court refused defense counsel’s motion to evaluate Shepherd further.

At the sentencing hearing, the court said it thought the defendant was “dangerous not only to himself but to others in the community” and that he would need close confinement in prison, and possibly psychiatric treatment. Defense counsel presented a lengthy history from Shepherd’s mother of Shepherd’s hospitalizations for mental problems and his bizarre behavior. The defense renewed a motion for new trial based on the grounds presented in this appeal, but it was denied.

In this case we think the trial court erred in excluding Shepherd’s possible insanity defense by ruling on the state’s motion in limine without making an inquiry pursuant to Richardson. See Briseno; Clair v. State, 406 So.2d 109 (Fla. 5th DCA 1981); Dorry v. State, 389 So.2d 1184 (Fla. 4th DCA 1980); cf. Patterson. The error cannot be deemed harmless in any event in this case because it appears lack of prejudice to the state could have been found and further, there was evidence defense could have offered to establish an insanity defense.

Accordingly, the judgment is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

COBB, C.J., and DAUKSCH, J., concur.

      . § 784.03, Fla.Stat. (1983).

      . § 843.01, Fla.Stat. (1983).

      . See Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71 (1974); Note, The Preclusion Sanction—a Violation of the Constitutional Right to Present a Defense, 81 Yale L.J. 1342 (1972); see abo United States ex rel. Veal v. DeRobertis, 693 F.2d 642 (7th Cir.1982); Alicea v. Gagnon, 675 F.2d 913 (7th Cir.1982); United States v. Davis, 639 F.2d 239 (5th Cir.1981).


author: DAUKSCH, Judge. SHARP, Judge,

text:
    STATE of Florida, Appellant, v. Dalpathbhai N. PATEL, Appellee.
    No. 83-626.
    District Court of Appeal of Florida, Fifth District.
    July 26, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
    J.F. Johnson, Jr., Bushnell, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order under Rule 3.190(c)(4) Florida Rules of Criminal Procedure, dismissing a criminal charge of manslaughter. The state alleges appellee drove his car in a culpably negligent fashion and caused the death of a child who had crossed the roadway after having been dropped off by a school bus.

An order dismissing an information pursuant to a (c)(4) motion is similar to a summary judgment in a civil case. It should be granted sparingly and only when no factual basis exists which could establish a prima facie case of guilt. It is not a substitute for a directed judgment of acquittal at trial nor is it a test of the weight to be given to witness testimony or other evidence. Here there was evidence in the form of deposition testimony and the sworn motion and traverse which indicates ap-pellee was travelling a busy highway, S.R. 50, behind a truck which was behind a school bus; that the bus stopped, flashed its caution lights and displayed its stop sign; that appellee could or did see the bus, passed it notwithstanding the stop indicator, and struck the child. There are other facts in the record regarding distances, speeds and times which all should go to a trier of fact to determine whether appellee is guilty of the crime charged, or some lesser included offense, but all the facts in the record do require a trial. See State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981).

REVERSED and REMANDED.

COBB, C.J., concurs.

SHARP, J., concurs in part, dissents in part with opinion.

SHARP, Judge,

concurs in part; dissents in part.

Degrees of culpability are difficult to measure with uniformity and accuracy, and the measure will necessarily vary from case to case with the size of the trial judge’s yard stick, or that of the reviewing appellate panel’s majority. However, making such a measure is the duty and function of the court, whether it is in the context of a directed verdict, or in ruling on a (c)(4) motion. See State v. Pastorius, 419 So.2d 1137 (Fla. 4th DCA 1982).

I agree with the majority that only a prima facie case need be shown by the state in the context of a (c)(4) motion. State v. Horne, 399 So.2d 49 (Fla. 3d DCA 1981). However, viewing the record in this case in the most damaging light to Patel, I do not think it prima facie establishes conscious reckless conduct on his part sufficient to constitute “culpable negligence” as required by the criminal manslaughter statute. § 782.07, Fla.Stat. (1981).

Our supreme court has indicated such conduct must be so wanton as to be tantamount to willful conduct. See Cannon v. State, 91 Fla. 214, 107 So. 360 (Fla.1926). Where only one or two factors were proven, such as speeding or being on the wrong side of the road, the courts have held that culpable negligence was not proven.

In this case the only factor established for purposes of the (c)(4) motion was that Patel passed a school bus on a two lane highway that had its caution lights on and its stop sign displayed. Patel was following a semi-truck that passed the school bus before the stop sign came on. The truck obscured the vision of Patel’s station wagon by the bus driver, who did not see Patel until after she had opened the door and the child jumped out. The child was hit three seconds later. The state did not show that Patel saw the child victim exit the bus and run in front of it. Patel saw the child only microseconds before impact with his car. Prior to the accident Patel had not been speeding, and he was not intoxicated.

In my view the (c)(4) motion should have been granted as to the charge of criminal manslaughter, but denied as to the lesser included offense of vehicular homicide. § 782.071, Fla.Stat. (1981). Vehicular homicide only requires proof of reckless conduct in the operation of a motor vehicle. McCreary v. State, 371 So.2d 1024 (Fla.1979); State v. Sheppard, 401 So.2d 944 (Fla. 5th DCA 1981). That, at the most, was all the record established in my view.

      . We note the motion was not sworn to by the defendant, but the state did not object to this defect. See State v. Mayle, 406 So.2d 108 (Fla. 5th DCA 1981).

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

      . See Smith v. State, 65 So.2d 303 (Fla.1953); Graives v. State, 127 Fla. 182, 172 So. 716 (1936); Scarborough v. State, 188 So.2d 877 (Fla. 2d DCA 1966); Jackson v. State, 100 So.2d 839 (Fla. 1st DCA 1958). Compare Filmon v. State, 336 So.2d 586 (Fla.1976); Tegethoff v. State, 220 So.2d 399 (Fla. 4th DCA 1969). But see Franklin v. State, 120 Fla. 686, 163 So. 55 (Fla.1935).


author: COBB, Chief Judge.

text:
    In re the Interest of C.B., a child. Mary K. BURK, Appellant, v. DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellee.
    No. 83-668.
    District Court of Appeal of Florida, Fifth District.
    July 26, 1984.
    Charles J. Roberts of Holcomb, Teriac & Amari, Merritt Island, for appellant.
    Douglas E. Whitney, Dist. Counsel, Dept, of Health & Rehabilitative Services, Orlando, for appellee.
   COBB, Chief Judge.

The appellant challenges the trial court’s order severing her parental rights to her daughter upon a finding of abuse. Contrary to the appellant’s position, we find that the order is supported by clear and convincing evidence and that the lack of a factual finding in the initial dependency order did not invalidate the subsequent proceedings below. The appellant’s third contention is that the Department of Health & Rehabilitative Services (H.R.S.) was statutorily required to enter into a performance agreement with her before proceeding with permanent commitment efforts, and having failed to do so the order severing her rights is invalid. We reject this position for the reasons hereinafter stated.

An understanding of the relevant statutes, to-wit: part III of Chapter 39 and section 409.608, Florida Statutes (1983), is pertinent to a determination of this issue. Part III of Chapter 39 sets forth the procedures by which the state may intervene to protect a child. Upon the filing of a petition for dependency, the circuit court conducts an adjudicatory hearing at which time it determines whether the child is dependent. Making a finding that the child is not dependent, the court dismisses the case. Upon a finding of dependency, the court may conclude that no action other than supervision of the home is required. However, the court, having found a child dependent and not electing home supervision, has full authority to provide for the dependent child as set forth in section 39.-41, Florida Statutes (1983). These disposi-tional powers include committing the child to the temporary legal custody of H.R.S. or, upon a finding of abandonment, abuse or neglect and the best interests of the child, permanently committing the child to H.R.S. for subsequent adoption.

Section 409.168, Florida Statutes (1983), provides, in relevant part:

(1)The Legislature finds that seven out of ten children placed in foster care do not return to their biological families after the first year and that permanent homes could be found for many of these children if their status were reviewed periodically and they were found eligible for adoption. It is the intent of the Legislature that permanent placements with their biological or adoptive families be achieved as soon as possible for every child in foster care and that no child remain in foster care longer than one year. It is the intent of the Legislature, therefore, to help insure a permanent home for children in foster care by requiring a performance agreement and a periodic review and report to the court on their status.
(2) As used in this section:
* * * * * *
(d) “Foster care” means care provided a child in a foster family or boarding home, group home, agency boarding home, child care institution, or any combination thereof.
* * * * * *
(3)(a) In each case in which the custody of a child has been vested either voluntarily or involuntarily in the social service agency and the child has been placed in foster care, a performance agreement shall be prepared within 30 days after the placement and shall be submitted to the court.
1. The purpose of a performance agreement shall be to record the actions to be taken by the parties involved in order to quickly assure the safe return of the child to his parents or, if such return is untenable, the permanent commitment of the child to the Department or licensed child-placing agency for the purpose of finding a permanent adoptive home.

The appellant maintains that once the state takes physical custody of the child even by placing the child in an emergency shelter, that child is in “foster care” and therefore the Department must arrange for a performance agreement. H.R.S. responds that section 409.608 contemplates such agreements only upon a circuit court committing a child to H.R.S. custody at a disposition hearing as provided by section 39.41; that is, when a circuit court, presented with various statutory methods of disposition, chooses to temporarily commit the dependent child to H.R.S. rather than to return the child to his own home or to permanently commit the child to H.R.S.. The appellant’s interpretation would produce absurd results. For example, notwithstanding a clear case of child abuse or abandonment, the consequence of which would be inevitable permanent commitment, H.R.S. would have no choice but to enter into a performance agreement. Accordingly, we hold that a performance agreement is not a prerequisite to permanent commitment. However, in light of the serious nature of permanent deprivation of parental rights and the legislative concern expressed in both Chapter 39 and section 409.168 for placement in the biological family, we certify the following question as one of great public importance:

WHETHER EITHER A PERFORMANCE AGREEMENT OR A PERFORMANCE PLAN AS PRESCRIBED BY SECTION 409.168 IS A PREREQUISITE TO PERMANENT COMMITMENT PROCEEDINGS PURSUANT TO SECTION 39.41(1)(f)1.a.

The order severing the appellant’s parent rights is

AFFIRMED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.

      . Section 39.08(1), Florida Statutes (1983).

      .Section 39.01(9), Florida Statutes (1983), provides:
      "Child who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:
      (a) To have been abandoned, abused, or neglected by his parents or other custodians.
      (b) To have been surrendered to the Department or a licensed child-placing agency for purpose of adoption.
      (c) To have consistently run away from his parents or legal guardian.
      (d) To be habitually truant from school while being subject to compulsory school attendance.
      (e) To have persistently disobeyed the reasonable and lawful demands of his parents or other legal custodians and to be beyond their control.

      .Section 39.409, Florida Statutes (1983).

      . Nor do we read section 409.168(3)(a), Florida Statutes (1983), as mandating the state to have a performance plan as a condition precedent to a permanent commitment. Such a plan under this section is contemplated when a performance agreement otherwise would be utilized but the parents refuse or are unable for some reason to enter into such agreement.


author: COBB, Chief Judge. SHARP, Judge,

text:
    Barbara Yvonne ORR, Appellant, v. STATE of Florida, Appellee.
    No. 83-1102.
    District Court of Appeal of Florida, Fifth District.
    July 26, 1984.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Chief Judge.

Barbara Orr’s probation was revoked based on her failure to reside at an approved address and her failure to comply with written instructions to attend a meeting at the probation office. There was no evidence presented that Orr was made aware of the requirement that she’ live at an approved address. Orr testified that she had no knowledge of the condition, or even that she was on probation. The probation officer admitted that as far as he knew no one informed her of the requirement. Under these circumstances, a revocation on this basis is improper. Morgan v. State, 341 So.2d 201 (Fla. 2d DCA 1976). See also Hiers v. State, 440 So.2d 71 (Fla. 5th DCA 1983).

Orr was made aware, however, by written notice, of the requirement that she report to the probation office. She acknowledged at the revocation hearing that she received this notice and ignored it. She testified that she did not know she was on probation. But she was present in court to hear the recitations in the order originally placing her on probation for one year. Subsequently, that order was modified to change the condition that she serve fifty-one months in the county jail and providing her the opportunity to complete her incarceration in a residential treatment center in DeLand, Florida. She left the treatment center and went home to Apopka prior to expiration of the probationary period. Therefore, there was evidence that Orr’s disregard of the probation notice constituted a deliberate violation, for which the trial court could justify revocation. See Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980).

We are unable to determine whether the trial judge would have revoked the probation and imposed the sentence he did based solely on Orr’s disregard of the order to appear. Therefore, we reverse the order of revocation and remand the cause to permit the court to consider whether that violation alone warrants revocation. See Jackson v. State, 449 So.2d 309 (Fla. 5th DCA 1984); Holterhaus v. State, 417 So.2d 291 (Fla. 2d DCA 1982); Watts v. State, 410 So.2d 600 (Fla. 1st DCA 1982).

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., J., Concurs.

SHARP, J., concurs in part; dissents in part, with opinion.

SHARP, Judge,

concurring in part; dissenting in part.

I agree there was no evidence that Barbara Orr knew she had to live at an approved address as a condition of her probation. However, I also think there was no evidence that she knew she had to obey all the instructions given her by the probation officer in this case as an additional condition of her probation.

Orr’s defense attorney and the state prosecutor, who were present at the original sentencing before Judge Baker, both agreed at the probation revocation hearing that it was never the intent of the sentencing judge to put her on probation. She was sentenced to fifty-one weeks in the county jail and fifty-one weeks on probation in order to send her directly from jail to an alcoholic rehabilitation residential program as soon as an opening occurred. Her lawyer explained it was his understanding that that her probation would end at the same time she got out of jail or such program. She did reside in a rehabilitative center in DeLand, but testified that she was ordered to leave after an argument.

The probation officer testified he did not even know she was in the DeLand program. At no time did any probation officer or court officer talk with Orr about the conditions of her probation, and she was not assigned a probation officer. She was not given a copy of the probation order, and there was no proof the trial judge explained to her any condition of probation. After Orr returned from DeLand to Apop-ka, she did receive a letter from a probation supervisor informing her that she would be in violation of probation if she did not keep an appointment at his office. Although she called the office acknowledging she received the letter, she did not keep the appointment because she did not think she was on probation.

The second trial judge acknowledged that except for the letter belatedly sent by the probation office, Orr was not notified of any conditions of the probation. He also noted she has serious mental and physical health problems. Notwithstanding these facts, the judge revoked her probation and sentenced her to four years in prison. The logic and justice of holding that Orr willfully breached a condition of probation she knew nothing about escapes me. The state must bear some of the blame in this case. I would reverse for failure to establish a willful and substantial breach of any condition of her probation. Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980).


text:
    Karl W. HOFF, Jr. and Glenna J. Hoff, his wife, Appellants, v. Arthur J. SCOTT and Mary Eliza Scott, his wife, Appellees.
    No. 83-1186.
    District Court of Appeal of Florida, Fifth District.
    July 26, 1984.
    Dock Blanchard, of Tucker, Branne, Blanchard & Stillwell, P.A., Ocala, for appellants.
    John Montgomery Greene, Ocala, for ap-pellees.
   SHARP, Judge.

The Hoffs (owners of a twenty foot express easement for ingress and egress) appeal from the circuit court’s refusal to require the Scotts (owners of the servient tenement) to remove mobile homes, concrete pads, and a shed from the easement area. The trial court construed the easement as being a grant for ingress and egress “over” the twenty feet, but only as to a width reasonably necessary to allow the Hoffs to pass by; and that the Hoffs’ needs for a private drive were met by the twelve foot unobstructed balance of the twenty foot area. We disagree and reverse.

In 1960, common grantors of the Hoffs’ and Scotts’ lands deeded to a predecessor of the Hoffs title an easement over the common grantors’ remaining lands, later owned by the Scotts. The easement was created by a recorded deed. It was described as follows:

A private roadway over, across, and upon a strip of land 20 feet wide along the West side of the lands of the grantors herein, which lies South of the land hereby conveyed, from the South line of the property above-described to State Road 40, such strip of land to be used in common for the right of ingress and egress.

After an earlier hearing, the lower court entered a final judgment finding that this easement was conveyed to the Hoffs and it located the easement on the West 20 feet of the Scotts’ land:

this property being a twenty foot strip of land running North and South and running parallel to an immediately adjacent to on the Eastern side of Hilltop Road and deviating from Hilltop Road and continuing to run in the North-South direction where Hilltop Road turns West.

The court also ordered the Scotts to remove any improvements within the easement area which they constructed and which interfered with the Hoffs’ use of the easement area for ingress and egress. At the earlier hearing, the location of the easement was the primary issue. It appears the location found by the court had not been the route used by prior owners of the Hoffs’ land. This judgment was not appealed.

At the time of the final judgment and thereafter, the Scotts placed three mobile homes and concrete pads at an angle in the twenty foot easement area, fence posts, and a shed. The Hoffs had at most the west twelve feet of the original twenty feet unblocked by permanent obstructions, and had to drive around fence posts planted at various points five to twelve feet from the west side of the easement strip. The court refused to enforce its final judgment by requiring removal of these obstructions through contempt procedures. In doing so, it relied upon Robinson v. Feltus, 68 So.2d 815 (Fla.1953).

We do not think Robinson is controlling in this case. The encroachments in Robinson could be viewed as de minimus: a stairway which protruded at most (2.15) two point fifteen feet at one point into a twelve foot easement. However, the court found the grant of the easement ambiguous as to whether the full twelve feet was intended as the easement area, or only so much of the twelve feet as was reasonably necessary to afford the easement owner reasonable ingress and egress. The grant in Robinson read: “together with an easement over the south 12'.... ” Such grants are generally not construed as providing a way as broad as the area referred to.

In this case the easement granted was “over, across, and upon a strip of land 20 feet wide ... such strip of land to be used in common for the right of ingress and egress.” (Emphasis supplied). The language of this deed is not ambiguous, and we are unable to read it as merely giving a right to travel somewhere over the twenty foot area. It is clear from the wording of the deed that the whole strip was set aside for ingress and egress. How else could the twenty foot strip of land be used “in common” by the owners of the servient and dominant tenements?

The servient owner has no right to place permanent obstructions in the described easement area that would prevent the dominant tenement owner from freely passing over any part of the easement. Such obstructions are viewed as nuisances and they may be removed by resort to contempt proceedings. Considerations about what may be reasonably necessary for the dominant tenement owner’s use or needs is not appropriate or relevant in this case.

Accordingly, the judgment refusing removal of the obstructions is reversed, and this cause is remanded.

REVERSED AND REMANDED.

DAUKSCH and COWART, JJ., concur.

      . 25 Am.Jur.2d Easements and Licenses § 78 (1966).

      . 28 CJ.S. Easements §§ 75 & 77 (1941).

      . 28 CJ.S. Easements, supra note 2, at §§ 77 & 91.

      . Monell v. Golf View Rd. Assoc., 359 So.2d 2 (Fla. 4th DCA 1978); 28 C.J.S. Easements, supra note 2, at §§ 96 & 97; 2 G.W. Thompson, Commentaries on the Modern Law of Real Property, §§ 426, 427, 431 (1980).

        .See McCorquodale v. Keyton, 63 So.2d 906 (Fla.1953); 28 C.J.S. Easements, supra note 2, at § 77.


author: ORFINGER, Judge.

text:
    Walter Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1609.
    District Court of Appeal of Florida, Fifth District.
    July 26, 1984.
    Jack T. Bridges, of Cleveland & Bridges, Sanford, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Jones appeals from a judgment of conviction for the crimes of filing a false and fraudulent insurance claim and grand theft. We affirm.

Only one issue warrants discussion. Jones contends that the trial court erred in not permitting the insurance adjuster to testify about a favorable polygraph examination administered to defendant at the insurance company’s request. Appellant contends that his due process rights were violated because the test results were exculpatory, so excluding the evidence denied him a fair trial.

The State contends that even if otherwise admissible, because the polygraph operator was not called as a witness, any testimony of the insurance adjuster concerning the test results would be inadmissible hearsay. Without reaching the hearsay issue, it is clear that the trial court correctly ruled that the polygraph evidence was inadmissible.

In support of his argument, appellant cites to Newton v. State, 178 So.2d 341 (Fla. 2d DCA 1965), in which the court stated the general proposition that a state prosecutor “has no right or duty to conceal or suppress evidence favorable to an accused ...” Id. at 344. Appellant also looks to Goldberg v. State, 351 So.2d 332 (Fla.1977) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) for support. In Goldberg, the court held that it was error for the State to knowingly fail to disclose details of a State witness’s testimony in another related case in that such details were essential to preparing a defense. Id. at 336. Brady v. Maryland stands for the proposition that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. Id. 83 S.Ct. at 1196-1197.

Newton, Goldberg, and Brady can all be easily distinguished. Those cases involved the State’s withholding of evidence favorable to the defense after the defense had made a request for such evidence. In the instant case, the State was not withholding anything exculpatory. The defense was aware of the polygraph results and desired on cross-examination to get them into evidence. The State objected and the court rejected the proffered testimony.

It is well settled in Florida that the results of a polygraph examination, absent consent by both the State and defendant, are inadmissible into evidence because they have not been shown to be reliable. Delap v. State, 440 So.2d 1242, 1247 (Fla.1983). Even when the results appear to be favorable to the defendant, the same rule applies. Delap; Walsh v. State, 418 So.2d 1000 (Fla.1982).

In Delap, at a hearing on defendant’s motion to suppress statements and confessions, appellants attempted to introduce the testimony of a public defender investigator on the results of a polygraph exam administered to the defendant. The State objected on the ground that such testimony was incompetent and wholly inadmissible. On appeal, Delap argued that the rule that stipulation or consent was required before such testimony on the results would be admitted was an '“arbitrary evidentiary rule which operate[d] to deny him a full and fair hearing on the voluntariness of his confession by preventing him from adducing important favorable evidence regarding the effect of the officer’s interrogation tactics.” The supreme court disagreed, stating that:

The Florida rule of inadmissibility reflects state judgment that polygraph evidence is too unreliable or too capable of misinterpretation to be admitted at trial. However, the court does recognize that parties may waive their evidentiary objection. Defendant’s constitutional rights have not been violated by the exclusion of inadmissible polygraph evidence.

Id. at 1247.

Thus, evidence concerning the giving or the result of the polygraph test was not admissible. There being no error demonstrated, the judgment of conviction is

AFFIRMED.

DAUKSCH and COWART, JJ., concur.


author: COWART, Judge.

text:
    Marcia B. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1795.
    District Court of Appeal of Florida, Fifth District.
    July 26, 1984.
    James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

This case involves the discretion of a trial judge in revoking probation.

Defendant pled guilty to obtaining public assistance by fraud (§ 409.325(1), Fla. Stat.), and adjudication of guilt was withheld and she was, on October 1, 1979, placed on probation for four years and ordered to pay within that time $1,571 restitution as directed by her probation officer.

On September 29, 1983, two days before the probationary period was due to expire, a probation violation affidavit was filed alleging defendant had failed to pay $971 of the ordered restitution. At the probation violation hearing the restitution delinquency was acknowledged and the defendant testified as to her financial circumstances over the four year probationary period including as to her husband’s failure to pay support for three minor children, as to her usual expenses for food, rent, electricity, telephone, car payments, maintenance and gasoline and as to her various jobs and earnings. As usual there was not enough money for every need. Restitution of $290 was paid from 1979 through 1982 and $310 during 1983 leaving the balance of $971. The trial judge found that the probation had been violated and, after deliberation, revoked probation, adjudicated defendant guilty of the original offense and again placed her on probation for an additional three years ordering payment of the remaining restitution as well as payment of the public defender’s lien and monthly supervision costs.

Defense counsel argues on appeal that probation cannot be revoked for failure to make monetary payments unless there is evidence supporting a factual finding that the probationer had the ability to pay and that the evidence does not support that conclusion in this case. It is also argued that the probation violation must be willful as well as substantial to support a revocation and that where a probationer has made reasonably good faith efforts to comply with probation conditions, a failure is not willful and the probation cannot be found to have been violated. Because the trial judge seemed most concerned that defendant should be given enough additional time to make restitution it is now argued that the trial judge should not have revoked the probation and adjudicated guilt but should have only modified and extended the term of probation.

We cannot agree with defendant’s arguments. The evidence clearly shows that during the initial four year probationary period the probationer possessed adequate money to pay the sum ordered as restitution and that she did not pay as ordered. Whether or not the probationer's use of her money for matters other than payment of restitution was to be considered justified or excusable was up to the discretion of the trial judge. In such circumstances it is generally held that the evidence is sufficient if it satisfies the conscience of the court that the probation was violated. See Evans v. State, 427 So.2d 1082 (Fla. 1st DCA 1983). When probation has been violated it is likewise within the judgment and discretion of the trial judge as to revoking, modifying, or continuing the probation, as to adjudication of guilt, and as to a proper disposition within the lawful alternatives available.

In making a sentencing disposition in a criminal case, within the alternatives provided by law, it is the responsibility of the sentencing judge to do justice. When justice requires that a poor person make restitution of ill-gotten gains, the sentencing judge has a tough job. He needs, and should have, authority and discretion as broad as his responsibility.

AFFIRMED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: LETTS, Judge.

text:
    Vivian REED, as Personal Representative of the Estate of Yvette Dione Reed, Appellant, v. GOOD SAMARITAN HOSPITAL ASSOCIATION, INC., Appellee.
    No. 82-2325.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.
    Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellant.
    Steven R. Berger, P.A. and Bernard & O’Brien of Fort Lauderdale, for appellee.
   LETTS, Judge.

The question considered is whether a hospital is liable for the tortious acts committed on its premises by a physician in private practice to whom it has granted staff privileges. The trial judge directed a verdict in favor of the hospital. We agree.

This case involves tragic facts which tug at the heart strings. A young black girl, already known by her family and private physician to be suffering from sickle-cell anemia, took a turn for the worse and was taken to the emergency room by her sister. Upon her arrival, her private physician’s group was contacted and various delays and uncertainties were encountered before the private physician’s decision to admit her to the hospital was finally made, which delay may well have contributed to her death some four hours later.

Several arguments are made in support of liability on the part of the hospital, the most compelling of which is that the sister took the sick child to the hospital and looked to the hospital not her doctor for assistance. However, the law is clear that if the doctor is “an independent contractor, that shield[s] the hospital from vicarious liability.” Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55, 56 (Fla. 4th DCA 1982). Notwithstanding, Irving is cited by the child’s estate because of an instruction given in it that read in part:

Patients entering the hospital through the Emergency Room could properly assume that the treating doctors and staff of the hospital were acting on behalf of the hospital. Id. at 57, n. 2(c).

With regard to the above quoted instruction from Irving, the child’s estate urges it upon us as a rule of law which should be applied here. However, this urging ignores the fact that the question of negligence on the part of the emergency room physician working at the hospital did go to the jury in the case before us now and the jury found none. Moreover, the Irving case, supra, on its facts, makes it abundantly clear that it was concerned with the negligence of the emergency room physician who was paid a salary by the hospital and possessed of no private patients. This same vital distinction is constant throughout the cases cited by the appellant. In the instant case the child’s estate presented no evidence from which it could be concluded that the physician with staff privileges was either an agent or an employee of the hospital. Thus, there only remains the question of vicarious liability on the part of the hospital for the negligence of an independent contractor.

We, therefore, hold, in accord with the Supreme Court case of Wilson v. Lee Memorial Hospital, 65 So.2d 40 (Fla.1953), and our own Irving case, supra, that under the facts presented here, the hospital is not vicariously liable for the tortious acts of an independent contractor such as a physician in private practice to whom it has merely granted staff privileges.

We have considered the other points on appeal and find them without merit.

AFFIRMED.

HURLEY, J., and VOCELLE, L.B., Associate Judge, concur.


author: HERSEY, Judge.

text:
    Thomas Jackie FANN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1564.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.

      Patrick C. Rastatter of Glass, Rastatter & Tarlowe, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

We affirm. The transactions sought to be severed were clearly and directly connected in an episodic sense. Williams v. State, 409 So.2d 253 (Fla. 4th DCA) pet. for review denied, 417 So.2d 331 (Fla.1982). The untested packets alleged to contain contraband were relevant under Section 90.402, Florida Statutes (1983), and admissible. Asmer v. State, 416 So.2d 485 (Fla. 4th DCA 1982). Comments by the prosecutor during closing argument either were cured by cautionary instruction, Perry v. State, 146 Fla. 187, 200 So. 525 (Fla.1941), were waived by failure to move for mistrial, Clark v. State, 363 So.2d 331 (Fla.1978), or were harmless, State v. Murray, 443 So.2d 955 (Fla.1984).

LETTS and HURLEY, JJ., concur.


text:
    Spencer MANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1672.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Richard L. Jorandby, Public Defender, and Stephen W. Benedict, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, ,Asst. Atty. Gen., West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

This Court’s opinion of July 11, 1984, is withdrawn and shall be substituted with the following:

The record does not appear to contain a written order of revocation of probation, nor is it apparent which particular condition or conditions of probation have been violated. Accordingly, under the rationale of Smith v. State, 449 So.2d 415 (Fla. 2d DCA 1984), we remand for the entry of an appropriate order.

In all other respects, the cause is affirmed.

LETTS, HURLEY and WALDEN, JJ., concur.


author: WATSON, Justice. DIXON, Chief Justice CALOGERO, Justice,

text:
    AUDUBON INSURANCE COMPANY v. Edward FARR and Allstate Insurance Company.
    No. 84-C-0247.
    Supreme Court of Louisiana.
    June 25, 1984.

      Michael K. Springmann, Dillon & Cam-bre, New Orleans, for plaintiff-respondent.
    James L. Donovan, Jr., Donovan & Lawler, Metairie, for applicant-defendant.
   WATSON, Justice.

Can a subrogee recover the amount paid its insured from the tortfeasor’s insurer, despite a compromise subsequent to the subrogation between the damaged party and the tortfeasor’s insurer?

A residence at 600-602 Louisa Street, New Orleans, was struck by a hit and run driver, Edward Farr, around June 1, 1978. There were two repair estimates, one for $5,260 and one for $5,350. Audubon Insurance Company, the homeowner’s insurer of Donna M. Paul, paid her $4,412 for the damages. She executed a proof of loss for Audubon showing the “whole loss and damage” to be $4,512, less a $100 deductible. After giving Audubon a subrogation receipt for its payment, Paul accepted a $4,000 settlement from Farr’s insurer, Allstate Insurance Company. Allstate’s check had a notation “in payment of property damage of 6-1-78” but contained no other release language. Audubon’s draft was paid on August 18, 1978, and Allstate’s draft was paid on August 21, 1978. Audubon did not receive any notice of coverage by Allstate until March of 1979, and Allstate was unaware of Audubon’s subrogation rights when it settled with Paul.

Audubon obtained a trial court judgment against Allstate and Farr for $4,412 and defendants Farr and Allstate were awarded a third party judgment against Paul for $4,000. The court of appeal affirmed, Audubon Ins. Co. v. Farr, 443 So.2d 733 (La.App. 4 Cir.1983) and a writ was granted to review the judgment. 446 So.2d 306 (La., 1984).

The court of appeal decided that: Audubon’s subrogation rights vested prior to Allstate’s payment; since Audubon was ignorant of the identity of the tortfeasor and his insurer at the time of its payment, Audubon was entitled to judgment on the subrogation claim. The court of appeal relied on American Bankers Insurance Co. of Fla. v. Costa, 107 So.2d 76 (La.App. Orl.1958), disagreed with Pennsylvania Fire Insurance Company v. Harrison, 94 So.2d 92 (La.App. 1 Cir.1957) and distinguished Voss v. Mike & Tony’s Steak House, 230 So.2d 470 (La.App. 1 Cir.1969). Costa stated that the insured’s release of the tortfeasor, even if valid, did not release the insured’s subrogee. Harrison decided that an insured’s recovery from a tort-feasor of additional damages exceeding the actual loss paid by his insurer made the insured a trustee for the insurer as to the excess. Voss followed Harrison, holding that an insured who collected twice for the same item of damages kept the balance in trust for his insurer which had previously reimbursed the loss.

Was Audubon entitled to a judgment against the tortfeasor and Allstate, even though Allstate had already paid the approximate amount of the damage to Audubon’s insured? In other words, as between the two insurance companies, which is going to have the burden of trying to recoup from Paul that portion which represents a double recovery by her? Although Allstate’s insured was the tortfeasor, the problem was caused by Audubon’s insured, who breached the subrogation agreement with Audubon, thereby enriching herself to the detriment of her insurer.

Despite the absence of a specific release, there is no question that an accord and satisfaction took place between Paul and Allstate when she negotiated Allstate’s draft. There was a disputed claim, a tender of a certain amount in settlement of that claim and an acceptance. Henriques v. Vaccaro, 220 La. 216, 56 So.2d 236 (1951). LSA-C.C. art. 3071, in pertinent part, defines a compromise as an agreement for preventing a lawsuit by which parties adjust their differences in writing. The only formal essential for a compromise is a writing. Antoine v. Smith, 40 La. Ann. 560, 4 So. 321 (1888). The check here recites that the insured is Edward Farr and the claimant Donna Paul; and it was issued “in payment of property damage of 6-1-78” in the amount of $4,000. It was signed by an agent of Allstate Insurance Company and endorsed by Donna Paul. It is clearly a written compromise of Paul’s claim against Allstate. By endorsing and negotiating Allstate’s draft, Paul compromised her claim against that company and its insured. Frazier v. Louisiana Central Lumber Company, et al, 144 La. 599, 80 So. 890 (1919). There is no indication of error, fraud, or violence which would prevent Paul from being bound by the compromise. LSA-C.C. art. 3079. Compare Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963).

In any event, the transaction between Paul and Allstate cannot be opposed by Audubon, an interested party not directly bound by that transaction. LSA-C.C. art. 3077. A compromise cannot be collaterally attacked. Oglesby v. Attrill, 105 U.S. 605, 26 L.Ed. 1186 (1882); Russ v. Union Oil Co., 113 La. 196, 36 So. 937 (1904). The compromise between Allstate and Paul is not subject to collateral attack by Audubon Insurance Company.

The next question is the effect of the compromise on Audubon’s suit against Farr and Allstate.

In the subrogation receipt Audubon received from Paul, Paul agreed not to settle with or release anyone responsible for her loss without Audubon’s consent. Under Louisiana law, a subrogated insurer has the same right as its insured to a direct action against liability insurers of third parties. Home Ins. Co. v. Highway Ins. Underwriters, 222 La. 540, 62 So.2d 828 (1952). However, if Audubon’s insured had discharged Allstate and Farr before the payment by Audubon, Paul would have had no rights to which Audubon could be subro-gated. Pace v. Cage, 419 So.2d 443 (La., 1982).

Paul violated the terms of the sub-rogation agreement by settling with Allstate without the consent of Audubon. Audubon was aggrieved by its insured. Harrison, supra, correctly held that Audubon’s remedy is against that insured who holds the excess recovery as trustee for Audubon. The insured, rather than a stranger to the contract of insurance, is responsible to the insurer for breach of the contract. Audubon’s recourse is against Paul, not Allstate and Farr.

The compromise settlement by Allstate and Farr with Paul “without knowledge or notice that the latter had assigned its claim” to Audubon bars this suit by Audubon. Jackson, Etc. v. Shreveport Producing & Ref. Corp., 6 La.App. 216 at 218 (1927). Allstate had no notice of Audubon’s subrogation rights and should not be penalized for its good faith settlement with Paul.

American Banker’s Insurance Co. of Fla. v. Costa, supra, is disapproved.

For the foregoing reasons, the judgment of the court of appeal is reversed. Plaintiffs claim against Edward Farr and Allstate Insurance Company is dismissed, as well as the latter’s third party claims against Paul.

REVERSED.

MARCUS, J., concurs.

DENNIS, J., concurs with reasons assigned by DIXON, C.J.

DIXON, C.J., concurs and assigns reasons.

CALOGERO, J., dissents and assigns reasons.

BLANCHE, J., dissents for reasons assigned by CALOGERO, J.

LEMMON, J., dissents for reasons assigned by Justice CALOGERO.

DIXON, Chief Justice

(concurring).

I respectfully concur in the reasoning used by the majority; however, the result is more appropriately mandated by C.C. 2644 which provides:

“If previous to notice having been given of the transfer to the debtor, either by the transferrer or by the transferree, the debtor should have made payment to the transferrer, the debtor is discharged of the debt.”

In this case, Paul transferred her rights against Farr to Audubon in exchange for $4412. She gave no notice to Allstate. Allstate’s subsequent payment was therefore prior to any notice of the assignment, and its debt to Paul and/or Audubon was thereby discharged.

CALOGERO, Justice,

dissenting.

I dissent from the dismissal of Audubon’s claim against Farr and Allstate, for the following reasons.

The accident giving rise to this litigation, where Farr drove his automobile into Ms. Paul’s home, occurred on June 1, or 2, 1978. Both Audubon, Ms. Paul's homeowner’s insurer, and Allstate, Farr’s automobile liability insurer, quickly and diligently commenced settlement negotiations with Ms. Paul. However, neither insurer knew of the existence or the actions of the other, and Ms. Paul informed neither that she was in communication with the other. Thereafter, on July 5, 1978, Audubon issued a draft to Ms. Paul for the agreed upon property damages she sustained, less the $100.00 deductible, in the amount of $4,412.00. That draft was not paid through the bank until August 18, 1978. In the interim, on July 20, 1978, Allstate, also in good faith, issued a draft to Ms. Paul for the same property damages, in the amount of $4,000.00. Allstate’s draft was paid through the bank on August 21, 1978. It was stipulated at trial, by counsel for all parties, that Allstate did not obtain a release from Ms. Paul.

Allstate did not receive a notice of subro-gation from Audubon until March 23, 1979. By that time, Allstate had long since paid Ms. Paul the $4,000.00 for property damages by the issuance of the July 20th draft, which was paid on August 21, 1978. Nonetheless, Audubon insisted that Allstate and Farr owed it reimbursement for the $4,412.00 it had paid Ms. Paul, and eventually filed the instant suit for that amount.

La.C.C. art. 2644 provides:

If, previous to notice having been given of the transfer to the debtor, either by the transferrer or by the transferree, the debtor should have made payment to the transferrer, the debtor is discharged of the debt.

At the time Allstate, in good faith, issued its draft to Ms. Paul for the property damage she sustained, it had not been notified of the subrogation agreement between Ms. Paul and Audubon. In fact, Allstate was not notified of that agreement until some nine months later, in March of 1979. Since Allstate made payment to Ms. Paul in the amount of $4,000.00 prior to notification of the assignment of the claim to Audubon, under La.C.C. art. 2644, its debt for Ms. Paul’s property damage was to that extent discharged by this payment.

However, because Allstate and Farr did not obtain a release from Ms. Paul when it made the $4,000.00 payment, they cannot be totally exonerated from the debt by that payment. La.C.C. art. 2644 only provides for a discharge of the debt to the extent payment was made. Accordingly, Audubon’s claim against Allstate and Farr for the remaining $412.00 it paid to Ms. Paul (over and above the $4,000.00 for which Allstate is discharged) should be maintained. Accordingly, I dissent from the majority opinion dismissing Audubon’s suit against Allstate and Farr.

      . As to the deductible portion of Paul’s claim, there was, of course, no duplication. She was entitled to obtain this portion of the damages in preference to her insurer. Southern Farm Bureau Cas. Ins. v. Sonnier, 406 So.2d 178 (La., 1981). "[T]he claim of the partially subrogated insurer is subordinate to the insured's claim.” 43 La.L.Rev. at 725. LSA-C.C. art. 2162.

      . Transaction and compromise are synonymous terms in the Civil Code. Hill v. Hill, 173 La. 574, 138 So. 107 (1931).

      . The Audubon policy states:
      "Subrogation. This Company may require from the insured an assignment of all right of recovery against any party for loss to the extent that payment therefor is made by this Company.”
      The subrogation receipt, which is stamped August 13, 1978, provides:
      “In consideration of and to the extent of said payment the undersigned hereby subrogates said Insurance Company, to all of the rights, claims and interest which the undersigned may have against any person or corporation liable for the loss mentioned above, and authorizes the said Insurance Company to sue, compromise or settle in the undersigned’s name or otherwise all such claims and to execute and sign releases and acquittances and endorse checks or drafts given in settlement of such claims in the name of the undersigned, with the same force and effect as if the undersigned executed or endorsed them. "Warranted no settlement has been made by the undersigned with any person or corporation against whom a claim may lie, and no release has been given to anyone responsible for the loss, and that no such settlement will be made nor release given by the undersigned without the written consent of the said Insurance Company and the undersigned covenants and agrees to cooperate fully with said Insurance Company in the prosecution of such claims, and to procure and furnish all papers and documents necessary in such proceedings and to attend court and testify if the Insurance Company deems such to be necessary but it is understood the undersigned is to be saved harmless from costs in such proceedings.”

      . See Continental Ins. Co. v. Weinstein, 37 Tenn. App. 596, 267 S.W.2d 521 (1953); American Automobile Ins. Co. v. Clark, 122 Kan. 445, 252 P. 215 (1927); Home Ins. Co. v. Bernstein, 172 Misc. 763, 16 N.Y.S.2d 45 (1939); Allstate Ins. Co. v. Dye, 113 Ohio App. 90, 17 Ohio Ops.2d 85, 85 Ohio L.Abs. 17, 170 N.E.2d 862 (1960); Universal Ins. Co. v. Millside Farms, Inc., 119 N.J.L. 534, 197 A. 648 (1938); Illinois Auto Ins. Exch. v. Braun, 280 Pa. 550, 124 A. 691, 36 A.L.R. 1262 (1924); Melick v. Stanley, 174 N.J.Super. 271, 416 A.2d 415 (1980), affirmed 181 N.J.Super. 128, 436 A.2d 954 (1981).

      . Allstate and Farr were released by the compromise from all claims for property damage to the Paul residence on June 1, 1978. Audubon’s contention that it should recover at least the $412 differential is without merit.

      . In all likelihood, the two drafts were presented for payment simultaneously, but the Allstate draft took an extra day to clear through the bank, thus not marked paid until Monday, August 21, 1978, while the Audubon draft was marked paid on Friday, August 18, 1978.

      . The majority concludes that the draft issued to Ms. Paul, containing only the notation "in payment of property damage of 6-1-78,” and Ms. Paul’s endorsement on that draft fullfill the requirements of La.C.C. art. 3071, that a compromise be in writing to be valid. I disagree with this conclusion for two reasons: mainly, because it was stipulated at trial that Allstate did not obtain a release from Ms. Paul; but secondly, because in the absence of any language indicating the payment was made in "full” settlement or "complete” settlement, etc. there is no intent to settle on the part of either party evidenced by this document. See Felder v, Georgia Pacific Corp., et al, 405 So.2d 521 (La.1981).


author: LEMMON, Justice. WATSON, J.,

text:
    Joseph BAILEY v. CAJUN INSULATION, et al.
    No. 84-CA-0467.
    Supreme Court of Louisiana.
    June 25, 1984.

      Carolyn A. Ingraham, Lafayette, for defendant-appellant.
    G. Don Irby, Leonard K. Fisher, Jr., Lul-ing, for plaintiff-appellee.
    William E. Crawford, Denise A. Nagel, James McGraw, Baton Rouge, Louisiana Dept. Of Labor, for respondent-appellee.
   LEMMON, Justice.

This is an action to recover unemployment compensation benefits. Plaintiff’s petition for judicial review was filed in the district court more than 15 days after the mailing of notice that the board of review had denied his application for appeal from the decision of the appeal tribunal. When defendant raised the issue of the timeliness of the petition, the district court refused to dismiss the action, holding unconstitutional the notice provisions of La.R.S. 23:1630 and 1634. The matter is now before this court on direct appeal. La. Const. Art. V, § 5 (1974).

The principal issue on appeal is whether the pertinent statutes reasonably provide an employee who seeks judicial review in an unemployment compensation proceeding with notice and an opportunity to be heard.

The copy of the decision of the board of review, which was received by plaintiff at his post office box listed on the document, contained the notation that the decision was mailed on September 2, 1983. The notice also contained the following statement:

“FURTHER APPEAL RIGHTS: This decision becomes final unless an appeal is filed in the district court in the parish where the claimant resides, or last resided, within fifteen (15) days after the mailing date of this decision.”

Plaintiff filed a petition for judicial review in the district court on October 4, 1983. Defendant filed an exception of prescription, urging that the petition, filed more than 15 days after the mailing of the decision, was untimely. At the trial on the exception, plaintiff testified that he did not receive the notice until the last week in September, after the delay for applying for judicial review had elapsed. The trial court overruled the exception on the basis that La.R.S. 23:1630 and 23:1634 were unconstitutional, observing that the statutes did not provide for adequate notice or an opportunity to be heard. Defendant then filed an application for supervisory writs. We granted the application and docketed the case as an appeal, since the trial court had held a statute unconstitutional.

La.R.S. 23:1630 provides the procedures (1) when the board of review initiates a review of a decision by an appeal tribunal or allows an appeal from the decision by any party and (2) when the board of review denies an application for appeal from the decision of the appeal tribunal. Section 1630 further provides that an application for judicial review of the decision of the board of review may be filed within 15 days of the date of notice of the decision. La.R.S. 23:1634 provides the procedure for judicial review when filed “[wjithin the time period specified in R.S. 23:1630”.

Plaintiff first contends that his petition, filed within 15 days of his receipt of the notice, was timely. He argues that “date of notice” in the last sentence of Section 1630 means date of receipt, rather than date of mailing. We disagree.

The first portion of Section 1630 regarding notice (underscored in footnote 2), refers to the situation in which the board of review either reviews a decision of an appeal tribunal or grants an appeal requested by a party. After a decision by the board of review under such circumstances, the statute expressly provides that the delay for applying for judicial review begins to run from the date of mailing of the notice of the decision of the board of review. On the other hand, the last portion of Section 1630 regarding notice refers to the situation in which the board of review denies a party’s application for appeal. Under the circumstances, the statute provides that the appeal tribunal’s decision is deemed to be the decision of the board of review, but that the delay for initiating judicial review begins to run from notice of the board’s denial, rather than from notice of the appeal tribunal’s decision.

There is no justification for a conclusion that the Legislature intended that the 15-day delay in Section 1630 should run from date of mailing of decisions of the board of review in some instances and from date of receipt in others. Indeed, a contrary conclusion is indicated by the fact that most statutes and court rules in cases which provide for notice by mail provide for delays which begin to run from the date of mailing of notice. See, e.g., La.C.C.P. Art. 2123(3) (suspensive appeal); :La.C.C.P. Art. 2087(3) (devolutive appeal); La.C.C.P. Art. 1974 (new trial); Uniform Rules, Courts of Appeal, Rule 2-18.2(b) (rehearing in appellate court); Louisiana Supreme Court Rules, Rule X, § 4(b) (application for writ of certiorari); Louisiana Supreme Court Rules, Rule IX, § 1 (rehearing in supreme court).

Plaintiff next contends that these notice provisions do not provide him with due process of law, as required by the federal and state constitutions. Due process requires “at a minimum ... that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case”. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-7, 94 L.Ed. 865 (1950). Mullane involved a question of notice to beneficiaries of a common trust fund when the trustee filed his accounts. The challenged state law provided that a court could issue its final decree accepting the trustee’s accounts after notice was published for four successive weeks in a local newspaper. Once the court issued a final decree accepting the trustee’s accounts, the beneficiaries’ rights to complain of improper management during the accounting period were terminated. Balancing the state’s interest in bringing issues to final settlement against the individual interests protected by the Fourteenth Amendment, the Supreme Court held that this publication constituted sufficient notice to beneficiaries whose interest or addresses were unknown to the trustee, but that due process required mailing of notice by regular mail to each of the known beneficiaries at his record address. The Court stated:

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. at 314, 70 S.Ct. at 657 (Citations omitted.)

The import of the Mullane decision is that the notice required by the statute under consideration must be reasonably calculated, under all the circumstances, to inform the parties of their rights. The Court noted that personal service is not an indispensable requirement and that due process does not necessarily require that the notice actually reach the parties, but only requires a method reasonably calculated to inform the parties. The Court further explained that the notice in the newspaper to known beneficiaries was inadequate, “not because in fact it fail[ed] to reach everyone, but because under the circumstances it [was] not reasonably calculated to reach” them. Id. at 319, 70 S.Ct. at 660.

Using the Mullane principle of balancing the interests of the state against those of the individual, we conclude in the present case that the statutory notice by regular mail is reasonably calculated to give notice to plaintiff. The statute does not exclude the possibility that delayed delivery of a notice could cause a party to lose his right of review before he even receives notice that the delay for applying has begun to run. Indeed, this case may be an example. Nevertheless, the method of notice required by the statute is reasonably calculated to inform interested parties of the event which commenced the period for exercising their rights and to afford them an opportunity to make their appearance. As the Court stated earlier in Blinn v. Nelson, 222 U.S. 1, 7, 32 S.Ct. 1, 2, 56 L.Ed. 65 (1911) and reiterated in Mullane, 339 U.S. at 319, 70 S.Ct. at 659:

“Now and then an extraordinary case may turn up, but constitutional law, like other mortal contrivances, has to take some chances, and in the great majority of instances, no doubt, justice will be done”.

Plaintiff also contends that the statute’s lack of a requirement of mailing of the notice to his attorney rendered the notice procedure unconstitutional. He points out that he was represented by an attorney before the appeal tribunal and that his attorney requested that notice of the decision be sent to him.

A provision for notice to the attorney of record may have been beneficial to this plaintiff, but it is not constitutionally required. Due process does not require that the attorney be notified, because notice sent to the interested party is reasonably calculated to give him notice.

As to the merits of the exception, defendant at the hearing introduced the copy of the decision which the plaintiff admittedly received at the post office box indicated on the document. The decision also • contained the notation “Decision Mailed: 9/2/83”. This notation gives rise to a presumption that the notice was mailed on September 2, since public officials are presumed to have performed their duties correctly.. Vaughan v. Dowling, 243 La. 390, 144 So.2d 371 (1962); Sweet v. Brown, 125 So.2d 261 (La.App.3d Cir.1960).

Plaintiff correctly argues that the presumption is rebuttable, but the evidence he offered to rebut the presumption consisted solely of his own testimony that he had checked his mailbox every day and that he did not receive the letter until the last week in September. This evidence, although tending to prove the date of receipt and to raise the inference that the date of mailing was later than September 2, was weakened by the fact that plaintiff did not produce the envelope which contained the decision. Presumably the postmark or other markings on the envelope would have been evidence as to the date of mailing. Moreover, plaintiff admitted he received the notice, that it was properly addressed, and that he had received timely all other notices in the proceedings at the same post office box. Therefore, we conclude that plaintiff failed to rebut the presumption that the notice was mailed on September 2. His appeal, filed more than 15 days thereafter, was untimely.

Accordingly, the judgment of the trial court is reversed, the exception is maintained, and the petition for judicial review is dismissed as untimely.

DIXON, C.J., dissents.

WATSON, J.,

dissents believing 15 days from mailing a notice is too short a period to reasonably afford a person an opportunity to pursue his constitutional right to proceed in a court of law.

      . The more appropriate exception was res judi-cata. The petition sought review of an administrative decision which allegedly became definitive when the petition for judicial review was not filed within the 15-day period. Nevertheless, this incorrect label for the exception is not fatal, because the Code of Civil Procedure does not favor harsh technical rules of pleading, but rather requires that pleadings be construed so as to do substantial justice. La.C.C.P. Art. 865.

      . La.R.S. 23:1630 in its entirety provides:
      “The board of review may on its own motion, within fifteen days after the date of notification or of mailing of a decision of an appeal tribunal, initiate a review of such decision or allow an appeal to be filed by any party entitled to notice of such decision. An appeal filed by any such party shall be allowed as of right if such decision was not unanimous, or, if the determination was not affirmed by the appeal tribunal. Upon review on its own motion or upon appeal, the board of review may, on the basis of the evidence previously submitted in such case, or upon the basis of such additional evidence as it may direct be taken, affirm, modify or reverse the findings and conclusions of the appeal tribunal. The board of review may remove to itself or transfer to another appeal tribunal the proceedings on any claims pending before an appeal tribunal. Any proceedings so removed to the board of review prior to the completion of a fair hearing shall be heard by the board of review in accordance with the requirements of this Subsection with respect to proceedings before an appeal tribunal. The board of review shall make a determination and notify all parties of its decision, including its findings and conclusions in support thereof, within sixty days from the date an appeal is received or initiated by the board. Should the board of review, within sixty days from the date an appeal is received or initiated, direct that additional evidence be taken, the board of review shall make a determination and notify all parties of its decision, including its findings and conclusions in support thereof, within sixty days from the date it receives the additional evidence. Such decision shall be final unless within fifteen days after the mailing of notice thereof to the party’s last known address, or in the absence of such mailing, within fifteen days after the delivery of such notice, a proceeding for judicial review is initiated pursuant to R.S. 23:1634. Provided, that upon denial by the board of review of an application for appeal from the decision of an appeal tribunal, the decision of the appeal tribunal shall be deemed to be a decision of the board of review within the meaning of this Section for purposes of judicial review and shall be subject to judicial review within the time and in the manner provided for with respect to [the] decision of the board of review, except that the time for initiating such review shall run from the date of notice of the order of the board of review denying the application for appeal.’’ (Emphasis supplied.)