author: MILLS, Judge.

text:
    Emmett MASSIE, Appellant, v. UNIVERSITY OF FLORIDA and Division of Risk Management, Appellees.
    No. AY-12.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1985.
    Rehearing Denied Feb. 20, 1985.
    Terence J. Kann of Davis, Tabano, Weiss & Kahn, Gainesville, for appellant.
    James E. Clayton of Clayton, Johnston, Quincey, Ireland, Felder & Gadd, Gaines-ville, for appellees.
   MILLS, Judge.

Massie appeals from a workers’ compensation order finding that he is not entitled to PTD for his disabling condition of multiple sclerosis because there is no evidence that during his employment by the University of Florida he was exposed to hazards greater than those to which the public is generally exposed. We affirm.

Massie contends the evidence shows that his job subjected him to a greater than normal stress level and that his nondis-abling pre-existing multiple sclerosis was aggravated or accelerated by this factor which is peculiar to his employment by the University of Florida.

The University of Florida argues that the evidence shows that stress was not peculiar to Massie’s job and that generally job stress is not unusual.

Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980) established the factors necessary to prove injury by repeated exposure: (1) prolonged exposure, (2) the cumulative effect of which is injury or the aggravation of a pre-existing condition, and (3) the claimant is subject to a hazard greater than the general public.

Massie argues that the deputy acted contrary to cumulative, uncontroverted evidence in finding that he had not shown exposure to an extraordinary hazard. The cases relied on by Massie to support this argument are ineffective in this case. McCandless v. M.M. Parrish Construction, 449 So.2d 830 (Fla. 1st DCA 1984), stands for the proposition that “it is an abuse of discretion for the deputy to reject uncontroverted medical testimony without a reasonable explanation.” Weaver v. Gold Kist, Inc., 449 So.2d 829 (Fla. 1st DCA 1984), held that “the deputy should offer a sufficient reason for rejecting expert medical testimony, especially if such testimony is unrefuted.” However, there was no medical testimony stating that Mas-sie’s job stress was an extraordinary hazard uncommon to the public in general. The medical testimony went primarily ^ to the element of causation, i.e., could the particular stress Massie underwent exacerbate his multiple sclerosis. Assuming that unrefuted medical testimony demonstrates that stress caused the exacerbation within a reasonable medical probability, that does not fulfill the required element that the stress was a “hazard greater than that to which the general public is exposed.” Fes-ta, supra.

The inquiry must be, therefore, whether there was competent substantial evidence to support the deputy’s finding that Massie failed to fulfill that element. There was. Massie’s job placement expert stated that stress was “inherent in technical areas” and that “stress at work causes everyone to have difficulties.” He further stated that “stress on the job is not unusual,” and that for engineers “stress was part of the normal responsibility” of the job. Massie offers no evidence to the contrary, saying only that the job stress at the University of Florida was greater than he had ever had in a job. This contention does not support a finding that the stress was greater than the general public had in jobs, especially when considering that Massie came to the University from a sheltered work environment where “8 to 5” hours were strictly observed.

It is difficult to qualify stress, an emotional condition. Previous cases have dealt with physical hazards over and above those experienced by the general public. See Lake v. Irwin Yacht & Marine Corp., 398 So.2d 902 (Fla. 1st DCA 1981), (bronchitis from acetone chemicals and fiberglass not commonly found in the environment); Food Machinery Corp. v. Shook, 425 So.2d 163 (Fla. 1st DCA 1983), (hearing loss from factory machinery noise). However, because there was expert testimony that Mas-sie’s stress was not “unusual” and that job stress causes “everyone” to have difficulty, we must hold that the deputy’s holding was supported by competent substantial evidence. i

AFFIRMEJ).

JOANOS and BARFIELD, JJ., concur.


source: Caselaw Access Project

author: ERVIN, Chief Judge.

license: Public Domain

text:
    JOHN DEERE INSURANCE COMPANY, Appellant, v. STATE of Florida, DEPARTMENT OF INSURANCE, Appellee.
    No. AY-247.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1985.
    John K. Aurell, John Radey and Michael L. Rosen of Holland & Knight, Tallahassee, for appellant.

      David A. Yon and Daniel Y. Sumner, Department of Ins., Tallahassee, for appel-lee.
    Vincent J. Rio, III and Ada Agusti Hammond, Jacksonville, for amicus curiae State Farm Ins. Companies.
    J. Stephen O’Hara, Jr. of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for amicus curiae Mission Ins. Group, Inc.
   ERVIN, Chief Judge.

Appellant, John Deere Insurance Company, appeals from a final order of the Department of Insurance (Department); requiring appellant to refund monies pursuant to Section 627.215, Florida Statutes (1981), the Workers’ Compensation Excessive Profits Law (WCEPL). We affirm in part and reverse in part.

In March 1983, the Department advised appellant that pursuant to the WCEPL (1981), and on the basis of data submitted by appellant for the period August 1, 1979 to December 31, 1981, the Department intended to issue an order requiring the refund of excessive profits totaling $497,583. Appellant filed a timely request for a section 120.57 formal hearing. Prior to the hearing, the parties resolved factual disputes concerning the amount of excessive profits yielded by application of the statutory formula, and agreed that if the refund order were appropriately entered, the amount of refund would be $362,182. Appellant then withdrew its petition for a formal hearing and the parties agreed to an order directing a refund in the stipulated amount, but expressly preserving for appeal both constitutional and nonconstitu-tional legal issues.

Appellant first argues that the instant refund order, insofar as it is based in part on the authority of the WCEPL, as originally enacted in 1979, cannot be sustained because the 1979 WCEPL was an unlawful delegation of legislative authority. We need not reach that issue for two reasons: First, the Department issued the instant refund order pursuant to the 1981 WCEPL, which included the 1980 amendments. Chapter 80-236, Section 21, Laws of Florida. The Department did not apply the allegedly unconstitutional provisions of the 1979 WCEPL in issuing the instant refund order, since the 1980 amendments revised those provisions. Compare Section 627.215(6), (7) and (8), Florida Statutes (1979) with Section 627.215(6), (7) and (8), Florida Statutes (1981). Second, the 1979 WCEPL remained unchallenged and in full force from its August 1, 1979 effective date to July 1, 1980, the effective date of the 1980 amendments. Even if we were to hold the 1979 WCEPL unconstitutional, appellant was put on notice by the 1979 WCEPL that any excessive profits were subject to a refund order; therefore, appellant did not obtain a vested right to such funds after August 1,1979. United States Fidelity and Guaranty Company v. Department of Insurance, 453 So.2d 1355, 1361 (Fla.1984) [hereinafter: U.S.F. & (?.]; Department of Insurance v. Teachers Insurance Company, 404 So.2d 735, 742 (Fla. 1981). Under this reasoning, appellant does not have a vested right to excessive profits earned between August 1, 1979 and July 1, 1980.

Appellant also argues that the 1981 WCEPL is unconstitutional because it violates due process and is an excessive delegation of legislative authority. As to the latter ground, at issue is the calculation of “anticipated underwriting profit”, a key element in the determination of whether an insurer has realized an excessive profit. Section 627.215(2)(a), Florida Statutes (1981). Section 627.215(2)(b), Florida Statutes (1981), states in pertinent part:

As used in this section with respect to any 3-year period, “anticipated underwriting profit” means the sum of the dollar amounts obtained by multiplying, for each rate filing of the insurer group in effect during such period, the earned premiums applicable to such rate filing during such period by the percentage factor included in such rate filing for profit and contingencies, such percentage factor having been determined with due recognition to investment income from funds generated by Florida business.

(e.s.) Appellant contends that the term “due recognition to investment income”, unexplained by the statute and not refined by the Department through administrative rule, grants the Department unbridled discretion to manipulate the amount of anticipated underwriting profit and ultimately the amount of excessive profit.

The Motor Vehicle Excessive Profits Law (MVEPL), Section 627.066, Florida Statutes (1983), contains language identical to Section 627.215(2)(a). In U.S.F. & G., the court examined the term “due recognition to investment income”, as used in the MVEPL, section 627.066(3)(b), stating:

Some of the appellants also argue that the statute is unconstitutionally vague and ambiguous. Specifically, they claim that the terms “due recognition of investment income” and “loss development factor” are so vague that persons of common intelligence must guess at their meaning. However, there was evidence that these terms denote actuarial concepts that have a specific meaning. Because these concepts can be specifically defined and consistently applied, they are not unconstitutionally vague or ambiguous.

453 So.2d at 1362. Even though the U.S.F. & G. appellants challenged the statute there in question on vague and ambiguous grounds, instead of on unlawful delegation grounds, U.S.F. & G. is highly persuasive authority for upholding the statute here under attack. The supreme court recognized that “due recognition to investment income” is an actuarial concept that can be specifically defined and consistently applied. Similarly, the Department, in determining the insurer’s “anticipated underwriting profit”, merely looks to the insurer’s original rate filing and uses the same percentage factor utilized by the insurer for determining its profit and contingencies at the time the latter files its rate with the Department. The Department’s interpretation, then, falls within the ambit of the provisions of Section 627.215(2)(b), Florida Statutes. Given the specific meaning of the term, “due recognition to investment income”, together with the lack of evidence that the Department inconsistently applied the concept and the complexity of rate regulation, we conclude that the WCEPL contains sufficient standards to enable the Department and the courts to determine whether the Department is carrying out the legislature’s intent. Cf Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815, 819 (Fla.1983). To require constant legislative supervision of the technical determination of “anticipated underwriting profit” is neither practical nor required by the constitution. Id. at 820.

Appellant’s first due process argument is that the means employed by the WCEPL (1981) do not bear a reasonable relationship to the goal of protecting “policyholders and the public against the adverse effects of excessive ... insurance rates”. Section 627.031(2), Florida Statutes. A similar argument was raised against the MVEPL in U.S.F. & G. The supreme court rejected the argument, stating:

[Ajppellants argue that section 627.066 is not reasonably related to the legislative goal of protecting policyholders from exorbitantly high rates. They contend that the statute may actually cause high rates by encouraging inefficient management and discouraging competition. The fact that a statute may not actually accomplish its intended goals is not a sufficient reason for declaring the statute unconstitutional. The test is whether the legislature at the time it enacts the statute has a reasonable basis for believing that the statute will accomplish a legitimate legislative purpose_ In this case the legislature believed that because of changes in the insurance laws, some insurers would benefit greatly and earn profits far in excess of what was anticipated when their rates were approved. We find the legislature had a reasonable basis for believing that authorizing the department to order refunds of such excess profits would protect policyholders from paying exorbitantly high rates.

453 So.2d at 1362. In enacting the WCEPL, the legislature believed that with the 1979 changes in the Workers’ Compensation Law, including the legislation creating wage loss which drastically reduced scheduled compensation benefits previously available, some workers’ compensation insurers would earn profits excessively higher than those anticipated when their rates were approved. The legislature reasonably believed, as it did with the MVEPL, that refunds would protect policyholders and the public. Thus, the WCEPL is reasonably related to the stated goal of protecting policyholders and the public. Further, appellant’s argument that the WCEPL is based on the premise that excessive profits reflect excessive premiums has no merit according to U.S.F. & G., 453 So.2d at 1362.

Appellant’s second due process contention concerns that provision in Section 627.-215(7), Florida Statutes (1981), which requires that excessive profits be refunded to “policyholders of record of the insurer group on December 31 of the final compilation year.” The argument is that the WCEPL arbitrarily advantages some policyholders, while disadvantaging others, because it conditions entitlement to refunds to one’s status as a policyholder on the last day of the three-year reporting period. We disagree. At the outset we note that no issue of appellant’s standing to challenge the provision has been raised by the Department. Although the general rule is that the constitutionality of a provision of a statute cannot be contested by a party whose rights or duties are not affected by it, an exception is recognized if the provision is of such nature that it renders invalid another provision or provisions of the statute which directly affect the party’s rights or duties. State ex rel. Clarkson v. Phillips, 70 Fla. 340, 70 So. 367 (1915). If we were to hold the policyholder of record provision invalid, the result would prevent the legislative intent of the WCEPL from being accomplished. The refund mechanism is not severable from the remainder of the WCEPL, since without it, the statute could not state which policyholders are entitled to refunds. Thus, any such action would render invalid those portions of the WCEPL that do affect appellant’s rights and duties. Eastern Air Lines, Inc. v. Department of Revenue, 455 So.2d 311, 317 (Fla.1984). Accordingly, we address the issue raised.

The test to determine whether the WCEPL refund mechanism violates the due process clause is whether it bears a reasonable relationship to the statute’s objectives and is not discriminatory or arbitrary. Johns v. May, 402 So.2d 1166, 1169 (Fla. 1981). We find that the refund mechanism bears a reasonable relationship to the objective of protecting policyholders from the adverse effects of excessive insurance rates by providing an orderly mechanism that is administratively reasonable for both the Department and insurers. Admittedly, an individual who holds a policy every day but the last day of the three-year reporting period would not receive a refund under the WCEPL. Courts, however, do not require perfection in statutory classifications; indeed practical, but unscientific accommodations often are necessary. “Some inequality in result is not enough to vitiate on due process grounds a legislative classification grounded in reason.” Lasky v. State Farm Insurance Company, 296 So.2d 9, 17 (Fla.1974). The December 31 record date requirement coincides with the three-year reporting period used to calculate whether an insurer has earned an excessive profit. We cannot say under the circumstances that there is no rational basis for the refund mechanism.

We now turn to the question of whether the instant refund order is valid for non-constitutional reasons, i.e., under the plain language of the WCEPL (1981). Appellant argues that the Department erred in applying the WCEPL to profits earned during any part of 1979. The effective date of the WCEPL, as originally enacted, was August 1, 1979, but the statute expressly states that the accident year 1979 is the first year to be reported and considered. Section 627.215(3), Florida Statutes. The supreme court in Teachers, 404 So.2d at 742, discussed a similar apparent inconsistency in the MVEPL, as originally enacted in 1977. Teachers first required that the Department not include any part of 1979 in its computation of excess profits, since appellant could be deprived of profits earned from contracts entered into or renewed pri- or to August 1, 1979. Teachers, however, permitted inclusion of 1979 in the Department’s calculations if such inclusion would work to the benefit of appellant. In the case at bar, appellant has denied that it would receive any such benefit.

A further consideration is the formula used by the Department in the instant case, but apparently not present in Teachers. Rather than use all of 1979 in its final calculations, the Department multiplied 1979 totals by ¾2⅛ (based upon the statute’s effective date of August 1, 1979) and used the resulting amount, along with the totals for 1980 and 1981, to calculate excessive profits. There are two faults with using the 6/i2’s formula. First, the Teachers rule would serve to prohibit the Department’s revised amount for 1979, insofar as it includes profits from contracts entered into or renewed before August 1, 1979. Second, the WCEPL expressly requires the Department to calculate excessive profits from data, of “the three most recent calendar years ”. Section 627.215(2)(a), Florida Statutes (1981) (e.s.). Using two and 6/i2’s years of data as was done here, falls short of the three-year statutory mandate. Therefore, the Department’s inclusion of any 1979 profits in its calculations was error. Since the Department’s calculation of appellant’s excessive profits violates the plain language of the WCEPL, the final refund order is invalid and must be reversed.

AFFIRMED in part and REVERSED in part and remanded for further consistent proceedings.

MILLS and ZEHMER, JJ., concur.

      . Ch. 79-40, § 128 Laws of Fla., as amended by Ch. 79-312, § 24 Laws of Fla.


author: PER CURIAM.

text:
    Lapinell MOBIL and Fireman’s Fund American Insurance Companies, Petitioners, v. The Honorable David L. TRASK, Deputy Commissioner, State of Florida, Department of Labor and Employment Security, Division of Workers’ Compensation, District K, Respondent.
    No. AM-338.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1985.
    Rehearing Denied March 8, 1985.

      Barry A. Pemsler of Richard, Tharp & Pemsler, Miami, for petitioners.
    Jerold Feuer, Miami, for claimant, Carlos Miguel Coronardo.
   ON PETITION FOR WRIT OF PROHIBITION

PER CURIAM.

Petitioner (employer/carrier) has filed a petition for writ of prohibition seeking to preclude the deputy commissioner from presiding over further proceedings regarding a claim of Carlos Coronado. The deputy denied petitioner’s “motion to recuse,” filed pursuant to § 38.10, Florida Statutes (1981). We deny the petition.

Claimant was injured in a shooting incident which occurred at the gas station where he was employed as an attendant. A hearing was conducted by the deputy on a claim for compensation benefits. Apparently a fact in issue at the hearing was whether the shooting was related to claimant’s employment or was the result of a personal dispute between claimant and the attacker. Petitioner’s motion alleged the deputy made certain remarks during the course of the hearing which indicated he had pre-judged the case and was prejudiced against petitioner.

The subject remarks occurred prior to completion of the testimony of claimant before the employer/carrier presented its witnesses. According to affidavits submitted in support of the motion, the deputy went off the record, turned to employer/carrier’s attorney and said:

I don’t see how you can’t find this accident compensable. If I was sitting at my desk and a man came in here with a gun and shot me, it is an on-the-job accident.

The motion was accompanied by a “deposition/statement” of the court reporter which recited the above statement made when the proceedings were “off the record,” an affidavit of the movant (the employer/carrier’s representative at the hearing), supporting affidavits of two citizens of the county, and a certificate of good faith executed by petitioner’s attorney.

The deputy denied the motion on grounds “that the facts alleged, assuming them to be true and taken in the best light to the moving party are legally insufficient to allow this deputy commissioner to enter an order of recusal.” On denial of the motion, the employer/carrier filed the instant petition for writ of prohibition.

A petition for writ of prohibition is an appropriate vehicle to prevent judicial action when a judge or deputy commissioner has improperly denied a motion to disqualify. State ex rel Bank of America v. Rowe, 96 Fla. 277, 118 So. 6 (1928); and R.P. Hewitt & Associates v. Hurt, 411 So.2d 266 (Fla. 1st DCA 1982).

However, in the instant case, we agree with the deputy’s ruling that the facts alleged by the employer/carrier were legally insufficient to justify the granting of the motion. We would note that, in so ruling, the deputy did not improperly rule on the truth or falsity of the facts alleged in the motion, see Bundy v. Rudd, 366 So.2d 440 (Fla.1978). He simply held that the statement was not sufficient to establish that he had pre-judged the ease or was prejudiced against petitioner. The alleged offensive statement seems to us to be of that variety of statement or question not infrequently posed to counsel in order to stimulate a response which would better enable the judge or deputy to adjudicate the compensability of the claim. A judge is not required to abstain from forming mental impressions and opinions during the course of the presentation of evidence. Cf. City ofPalatka v. Frederick, 128 Fla. 366, 174 So. 826 (1937). The remarks in question are not such as to indicate that the deputy had made a final decision on the issue of compensability. Compare LeBru-no Aluminum v. Lane, 436 So.2d 1039 (Fla. 1st DCA 1983) (Ervin, C.J., dissenting) (Deputy stated he had decided to award benefits; when counsel for the employer/carrier asked if he would still be allowed to present witnesses, the deputy replied, “You can put them on if you want to take up the court’s time.”).

Accordingly, the rule to show cause is discharged and the petition for writ of prohibition is denied.

SHIVERS, JOANOS and NIMMONS, JJ., concur.

      . As we agree with the decision of the deputy that the facts alleged are insufficient to support disqualification, we do not reach the issue raised by respondent of whether the motion meets the technical requirements of § 38.10, Fla.Stat. Nor do we find it necessary to consider whether the ‘‘deposition/statement" of the court reporter was properly before the deputy. We ha”e examined all affidavits filed in support of the motion in determining that the facts were insufficient to justify disqualification of the deputy.


text:
    VANTAGE POINTE and State Farm Fire & Casualty Company, Appellants, v. David SOWERS, Appellee.
    No. BA-133.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1985.
    Rehearing Denied Feb. 27, 1985.

      Delia Doyle Rose of Haas, Boehm, Brown, Rigdon & Secrest, Daytona Beach, for appellants.
    Edward H. Hurt of Hurt, Parrish & Dalton and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   MILLS, Judge.

Vantage Pointe appeals from a workers’ compensation order awarding Sowers wage loss benefits from December 1983 to March 1984 and costs. It contends the deputy commissioner erred because Sowers failed to demonstrate an adequate job search and because he voluntarily limited his income. We agree and reverse.

A claimant who is not physically disabled to work must search for work conscientiously and effectively. Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982). Without medical evidence indicating inability to work, an award of wage loss benefits can be made only if claimant shows a good faith job search. Piccadilly Cafeteria v. Polite, 433 So.2d 591 (Fla. 1st DCA 1983).

On 15 June 1983, Sowers’ physician released him for return to his job as a manager of a condominium unit with no restrictions except heavy weight lifting. He found no orthopedic reasons for Sowers’ complaints of pain.

Although this court has recognized that no precise definition of an adequate job search can be devised, for one to be deemed sufficient, claimant should present evidence including the names of businesses contacted, the types of work sought, the number of contacts made, and the time frame within which the work is sought. D & R Builders, Inc. v. Quetglas, 449 So.2d 988 (Fla. 1st DCA 1984).

Between 15 June 1983, date of MMI, and October 1983, Sowers conducted no job search. After October 1983, he did no more than read classified ads and inquire about one condominium management position for which he did not apply.

The claimant has the burden of going forward with evidence showing an adequate and good faith attempt to secure employment commensurate with his abilities. D & R, supra.

In October 1983, Sowers was employed as a part-time maintenance worker at a trailer park managed by his wife. Although there was more than four hours work a day available, he worked only four hours because of pain in his shoulder. He cleaned the restrooms and maintained the grounds.

The facts in this case clearly demonstrate that Sowers did not conscientiously and effectively search for work. In fact, he made no search.

Sowers reliance on Stahl v. Southeastern X-Ray, 447 So.2d 399 (Fla. 1st DCA 1984), to excuse his lack of a job search after accepting part-time work, is misplaced. Sowers contends that Stahl stands for the proposition that he is not required to forfeit wage loss benefits when he stops an active job search after part-time employment. In Stahl, however, the claimant stopped his search at the request of his fulltime employer after three months of good faith search without success. Sowers never made a search after accepting part-time employment. A claimant who seeks wage loss benefits is not excused from the continuing duty of testing his employability simply because he has taken a job with which he is satisfied. Sharp Construction Co., Inc. v. Perez, 429 So.2d 367 (Fla. 1st DCA 1983).

To be eligible for an award of wage loss benefits, a claimant must show not only that he has conducted a good faith work search but that he has not voluntarily limited his income. Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982). In Sharp Construction Co., Inc., supra, the claimant was released to return to his former job upon reaching MMI, with the only proviso being that he wear special shoes. The claimant, after a brief job search accepted a part-time job doing lawn maintenance and odd jobs at $4.00 an hour. He did not thereafter seek a better position. The court found he had voluntarily limited his income.

In this case, Sowers was released at MMI, with the only restriction being the amount of weight which could be lifted with his right arm. After no job search at all, he accepted a part-time job doing maintenance work at $3.35 an hour. He has made no attempt to seek a better position.

Under these facts and applying Sharp, Sowers voluntarily limited his income.

The findings of the deputy were not supported by competent substantial evidence. Sowers did not make a good faith search for work and he voluntarily limited his income. We are compelled to reverse the wage loss benefits awarded Sowers as well as the costs assessed for him against the employer/carrier.

JOANOS and BARFIELD, JJ., concur.


text:
    Charles Lee DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. AY-264.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1985.

      Michael E. Allen, Public Defender, and Kenneth L. Hosford, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appel-lee.
   PER CURIAM.

Appellant pleaded nolo contendere to sale of marijuana, was adjudicated guilty, and was sentenced to 30 months of imprisonment. The trial court determined that appellant had three prior felony convictions; consequently, the 30-month sentence was within the guidelines range.

At the sentencing hearing, appellant raised objection to the sentencing score-sheet, claiming he had only one prior felony conviction. Where the defendant disputes the truth of hearsay statements contained in pre-sentence investigation reports, which would be material to the statutory findings which the trial court is required to make, the court must require the state to produce corroborating evidence. Eutsey v. State, 383 So.2d 219 (Fla.1980). We find this standard applies to sentencing guidelines cases.

The pre-sentence investigation report indicated appellant had four prior felony convictions. The trial court threw one out because it was a duplicate. Of the other three, two were verified by defendant’s probation officer in Nebraska. The third was not addressed, as evidenced by the State Attorney’s comment, “I wasn’t working on that one so I’m not positive on that. So, Your Honor, that would cut one felony off of the three.”

Because the third felony conviction was not corroborated in any way, the trial court’s determination that appellant had three prior felony convictions was, under Eutsey, supra, error, resulting in a longer sentence based on the higher guidelines range, and is therefore reversed.

The cause is remanded for a new sentencing hearing and such resentencing as may be required thereafter.

BOOTH and SHIVERS, JJ., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


author: DANIEL S. PEARSON, Judge.

text:
    CITY OF MIAMI, Officer J. O’Neil and Officer Jewitt, Appellants, v. Charles CORNETT, a/k/a Willie Williams, Appellee.
    No. 81-85.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Rehearing Denied March 5, 1985.
    Lucia Allen Dougherty, City Atty., Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy and Gre-gor M. Gaebe, Miami, for appellants.
    Steel, Hector & Davis, Miami, and Talbot D’Alemberte, Tallahassee, as court-appointed amicus curiae, for appellee.

      Janet Reno, State Atty., and Ira N. Lo-ewy, Asst. State Atty., for State Attorney as amicus curiae.
    James C. Burke, Miami, for Dade County Black Lawyers’ Association, Inc., as amicus curiae.
    Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The sole question on this appeal is whether the exercise of peremptory challenges in civil proceedings is subject to the rule announced in State v. Neil, 457 So.2d 481 (Fla.1984), a criminal case, that both parties may challenge the alleged improper use of peremptory challenges to exclude from jury service prospective jurors solely on the basis of race. We conclude that the principle upon which Neil is founded — that parties have a right to an impartial jury— applies with equal force to a civil jury trial. We thus unhesitatingly affirm the order under review.

Charles Cornett, a black man, instituted suit against the City of Miami and two of its police officers for damages sustained when he was shot in the back while being apprehended by the officers. This alleged use of excessive force left Cornett totally paralyzed from the waist down. An all-white jury returned a verdict for the defendants.

The trial judge granted Cornett a new trial, setting forth his reasons in a written order from which this appeal is taken. The order states in pertinent part:

“This trial commenced shortly after verdicts had been returned in two other much publicized cases. In the latter of the two cases, the county’s school superintendent, a black, was indicted, suspended from office, then convicted of grand theft. The Superintendent was tried before an all-white jury after a number of blacks had been challenged peremptorily. In the earlier case, an all-white jury acquitted several white officers of murder and manslaughter charges in the beating death of a black insurance agent — the infamous ‘McDuffie Case’. All prospective black jurors had been challenged, some for cause, most peremptorily. Moments following the verdict in that case there was a civil disturbance in the community resulting in millions of dollars of property damage and several deaths. Those killed included whites and blacks, and in a few instances the motives were clearly racial. Judicial notice is taken of these background circumstances as they shed light on community tensions in general at the time of this trial and the probable effect on the conduct of this trial. Some white prospective jurors admitted that they couldn’t be fair. At least one admitted to being fearful and asked to be excused.
“At a pre-trial conference the parties were limited to four challenges each. Afterwards the venire was seated with four blacks among their number. Counsel for the plaintiff then approached the bench to voice a premature objection to the defendant’s exercise of his peremptory challenges to remove black members of the venire. The objection was raised again during the jury selection process and again after the last challenge had been exercised. As was predicted by plaintiff, defense counsel exercised each of its four peremptory challenges against blacks thereby insuring an all-white jury. The objections were eventually overruled without a hearing.
“As one ground in support of the Motion plaintiff contends essentially that because of an improper exercise of the peremptory challenge by the defendant he was deprived of a fair and impartial trial by a jury which included members of his ethnic group....
“The misuse of the peremptory challenge to eliminate identifiable groups contributes to an undermining of the integrity of the justice system. Unquestionably there are cases where the outcome of the trial has been determined by the composition of the jury — with results contrary to the weight of the evidence. The existence of such an unimpaired ability to manipulate the outcome of a trial is a legitimate reason for doubt as to fairness. It then becomes the responsibility of the court to minimize that potential for abuse by imposing some reasonable limitations on the exercise of the challenge. This is essential if the community is to have confidence in the jury trial process. The facts, the issues raised, and the timing of the trial are circumstances which in combination made this case an extremely sensitive one. The appeal to biases were more overt than subtle, though not necessarily the doings of counsel.”

Other portions of the order indicate that the trial judge, apparently of the belief at the time of trial that Swain v. Alabama proscribed inquiry into whether the defendants’ peremptory challenges were being exercised solely on the basis of race, became persuaded after the trial that the constraints of Swain, being shed elsewhere, would some day be shed in Florida. The Florida Supreme Court’s decision in State v. Neil proved him to be correct.

In Neil, the court, finding that further adherence to the test established in Swain v. Alabama would impede rather than further the right to a fair and impartial trial guaranteed by the Florida Constitution, held that the test to be thereafter applied in Florida courts was this:

“Instead of Swain, trial courts should apply the following test. The initial presumption is that peremptories will be exercised in a nondiscriminatory manner. A party concerned about the other side’s use of peremptory challenges must make a timely objection and demonstrate on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race. If a party accomplishes this, then the trial court must decide if there is a substantial likelihood that the peremptory challenges are being exercised solely on the basis of race. If the court finds no such likelihood, no inquiry may be made of the person exercising the questioned peremptories. On the other hand, if the court decides that such a likelihood has been shown to exist, the burden shifts to the complained-about party to show that the questioned challenges were not exercised solely because of the prospective jurors’ race. The reasons given in response to the court’s inquiry need not be equivalent to those for a challenge for cause. If the party shows that the challenges were based on the particular case on trial, the parties or witnesses, or characteristics of the challenged persons other than race, then the inquiry should end and jury selection should continue. On the other hand, if the party has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool.”
457 So.2d at 486-87 (footnotes omitted).

We now turn to the question of whether Neil applies to civil cases. Neil focused on Article I, Section 16 of the Florida Constitution, which guarantees to an accused in a criminal case the right to a trial by an impartial jury. The civil analogue applicable to this case is Article I, Section 22 of the Florida Constitution, which provides that “[t]he right of trial by jury shall be secure to all and remain inviolate.” While Section 22 does not expressly grant civil litigants the right of trial by an impartial jury, we believe that anything less than an impartial jury is the functional equivalent of no jury at all. As the United States Supreme Court said in Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181, 1184-85 (1946):

“The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to' the democratic ideals of trial by jury.”

See State v. Silva, 259 So.2d 153, 160 (Fla.1972). Thus, it is wholly immaterial that Article I, Section 16 of the Florida Constitution and the Sixth Amendment to the United States Constitution expressly call for an impartial jury while their counterpart provisions applicable to civil cases, Article I, Section 22 and the Seventh Amendment, do not; — the requirement of impartiality inheres in any provision granting the right to a jury trial. Neil’s declaration that Swain impedes, rather than furthers, the guarantee of impartiality necessarily applies to civil cases. See Holley v. J & S Sweeping Co., 143 Cal.App.3d 588, 192 Cal. Rptr. 74 (1983) (holding in People v. Wheeler applies to civil case); Terrio v. McDonough, 16 Mass.App. 163, 450 N.E.2d 190, rev. denied, 453 N.E.2d 1231 (Mass.1983) (strongly suggesting that holding in Commonwealth v. Soares would apply in civil case).

Cognizant of Neil’s view that the judge attending the voir dire is in a better position than a reviewing court to determine whether there is a “substantial likelihood” that peremptory challenges are being exercised on the basis of race, and considering the trial judge’s order in its entirety, we conclude that the comments in the order, although not presciently couched in the language of the later-decided Neil, can be fairly read as the equivalent of a “substantial likelihood” finding. Under Neil, such a finding must be followed by inquiry, and where none occurs, a new trial is required. A new trial, of course, is precisely what the trial judge ordered, and his ruling must, accordingly, be affirmed.

Affirmed.

      . The question of Neil's applicability to trials which concluded before the decision in Neil was rendered has already been resolved. Despite the statement in Neil that "we do not hold that the instant decision is retroactive," 457 So.2d at 488, the Florida Supreme Court’s later action in the substantially identical case of Andrews v. State, 459 So.2d 1018 (Fla.1984), quashing 438 So.2d 480 (Fla. 3d DCA 1983), establishes that Neil applies to cases, as the present one, in which the issue was raised at trial and which were pending when Neil was decided. See Safford v. State, 463 So.2d 378 (Fla. 3d DCA 1985). Cf. Hoberman v. State, 400 So.2d 758 (Fla.1981) (applying holding in State v. Sarmiento, 397 So.2d 643 (Fla.1981), to case pending on áppeal).

      . 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

      . Swain placed the burden on the defendant to prove that the prosecutor's systematic use of challenges against blacks was purposeful discrimination. As Neil noted, that burden was seldom, if ever, met.

      .The trial court’s order cites to Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), and People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978).

      . In Neil, the court, holding that both the state and the defense may challenge the allegedly improper use of peremptories, flatly declared that "[tjhe state, no less than a defendant, is entitled to an impartial jury.” 457 So.2d at 487. Since the Florida Constitution does not expressly provide that the state is entitled to an impartial jury, Neil itself is authority for the proposition that the basic right to a jury trial for any litigant includes the right that the jury be impartial.

      . In Malvo v. J. C. Penney Co., 512 P.2d 575, 580 n. 7 (Alaska 1973), the court observed that although neither the Seventh Amendment to the United States Constitution nor Article I, Section 16 of the Alaska Constitution pertaining to civil suits, specified that the juries must be impartial, if systematic exclusion of blacks from the jury venire in a civil case were shown, the denial of due process would be the same as in the criminal case.

      .The fact that the trial judge additionally expressed the belief, based on the Wheeler-Soares rule, not adopted in Neil, that a prima facie case of systematic exclusion was established when the defendants used all of their peremptory challenges to eliminate all blacks from the ve-nire, does not change our view.


text:
    ATLANTIC BAY, INC., Appellant, v. TROPICAL RESTAURANTS, INC., Aetna Casualty and Surety, Co., Appellees.
    No. 83-793.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Rehearing Denied March 6, 1985.
    Daniels & Hicks, Louise H. McMurray, Miami, for appellant.
    Frank B. Pridgen, Miami, Ress, Gomez, Rosenberg & Howland, North Miami, and Steven A. Edelstein, Miami, for appellees.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

Affirmed. See Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 (Fla.1977); Ferslew v. Relaford, 351 So.2d 368 (Fla. 1st DCA 1977); Keith v. Amrep Corporation, 312 So.2d 234 (Fla. 1st DCA 1975); Donnelly v. Marriott Corporation, 266 So.2d 183 (Fla. 3d DCA 1972).


text:
    H.R.J. BAR-B-Q, INC., d/b/a/ Chuck Wagon Bar-B-Q, Inc., H.J.U. Sales and Investments, Inc., and Hy Uchitel, individually, Appellants, v. Ralph SHAPIRO, Appellee.
    No. 84-1029.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Rehearing Denied March 5, 1985.
    Evan J. Langbein, Miami, for appellants.
    Greenfield & Duval and Leo Greenfield, North Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We conclude that the evidence supports the jury verdict as to both liability and damages, see Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187 (Fla.1977); Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536 (Fla. 3d DCA 1974), cert. denied, 327 So.2d 32 (Fla.1976), and that evidence of an offer made to the plaintiff when he was “fired” by one of the defendants was not inadmissible as an offer of compromise under section 90.408, Florida Statutes (1983) because there was then, within the meaning of the statute, no existing “claim which was disputed as to validity or amount.” Allstate Ins. Co. v. Winnemore, 413 F.2d 858, 863 (5th Cir. 1969); Miller Yacht Sales, Inc. v. Lee, 368 So.2d 916 (Fla. 4th DCA 1979), cert. denied, 378 So.2d 347 (Fla.1979); Frank v. Ru-witch, 318 So.2d 188 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 725 (Fla.1976); McCormick on Evidence § 274 nn. 76-77 (2d ed. 1972); 4 Wigmore, Evidence § 1061 n. 1 (Chadbourn rev. 1972) (“We deal here with an offer to pay or settle after a controversy has arisen between the parties. Offers to pay or settle prior to controversy are distinguishable.” [e.o.]); 31A C.J.S. Evidence § 285 (1964) (“[T]here must be a controversy between the parties at the time of the alleged offer, for if there is no controversy there is nothing to compromise.”). The other points do not present error or require discussion.

Affirmed.

      . Compromise and offers to compromise.— Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    HAVANATUR, S.A., a Panamanian corporation, Appellant, v. 747 TRAVEL AGENCY, INC., a Florida corporation; Esperanza Valdez and Intercontinental Bank, a national banking association, Appellees.
    No. 84-1395.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Rehearing Denied March 5, 1985.
    Cesar R. Camacho, Miami, for appellant.

      Rubinstein & Kornik and Jeffrey D. Rubinstein, Miami, for appellees 747 Travel Agency, Inc. and Esperanza Valdez.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   PER CURIAM.

The final order denying the appellant Havanatur, S.A.’s motion to intervene below is affirmed because no showing has been made that the trial court abused its discretion in rendering this ruling. The motion to intervene was filed during the final stages of the litigation below, just three days prior to the entry of the final judgment, with no explanation given as to the reason for the untoward delay. At that time the appellant had a pending lawsuit against the interested parties herein which adequately protected its rights. Under the circumstances, we cannot fault the trial judge for denying the motion to intervene and requiring the appellant to pursue his remedies elsewhere. Idacon, Inc. v. Hawes, 432 So.2d 759, 761 (Fla. 1st DCA 1983) and cases collected.

Moreover, the motion to intervene was denied after the entry of final judgment; “the general rule — universally—is that intervention may not be allowed after final judgment,” save ‘in the interests of justice’ ”, Dickinéon v. Segal, 219 So.2d. 435, 436-37 (Fla.1969) (emphasis omitted) and cases collected; and there is no showing that the interests of justice required this intervention.

Affirmed.

SCHWARTZ, Chief Judge

(dissenting).

The appellee, 747 Travel Agency, purchased a certified check from the Intercontinental Bank payable to the appellant. After the check was lost or stolen and was thus not redeemed, the present action was brought by 747 against the bank alone to recover the amount of the check. The bank admitted it owed the funds to someone and did not resist the entry of judgment against it. In these circumstances, I find no basis for precluding the payee-appellant, which was the only actually adverse party involved, from intervening so that its rights to the proceeds could be adjudicated below. E.g., Riviera Club v. Belle Mead Development Corp., 141 Fla. 538, 194 So. 783 (1939), cert. denied, 305 U.S. 655, 59 S.Ct. 251, 83 L.Ed. 424 (1938) (intervention by interested party matter of right); Fla.R.Civ.P. 1.230; 39 Fla.Jur.2d Parties §§ 27-30 (1982).

Moreover, since the motion was filed and heard before the entry of the final judgment, I do not understand the majority’s invocation of the rule, reflected in both cases it cites, Dickinson v. Segal, 219 So.2d 435 (Fla.1969) and Idacon, Inc. v. Hawes, 432 So.2d 759 (Fla. 1st DCA 1983), that intervention may be denied if it is applied for after final judgment. Cases collected, 39 Fla.Jur.2d Parties § 30. (“A person claiming an interest in pending litigation may be permitted to intervene at any time. However, as a general rule it is too late to apply for intervention after a final decree is entered.”) Under the court’s view, a motion made immediately after the commencement of an action may be denied if the court simply fails to rule on it until after the litigation is over.

I would reverse.

      . “The fact that an intervenor has some other and adequate remedy for the protection of his property and rights is not a bar to his right to intervene.” 39 Fla.Jur.2d Parties § 29.


author: HENDRY, Judge.

text:
    Octavio Gomez DE MOLINA, Appellant, v. Barbara B. DE MOLINA, Appellee.
    No. 84-1487.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.

      William John Mason and Jill D. Touby, Miami, for appellant.
    Broad & Cassel and Harold Bluestein and Laurie L. Rosen, Miami, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   HENDRY, Judge.

Octavio Gomez de Molina appeals from a final order of the trial court adopting the findings of a general master and thereby denying his motion for downward modification of his alimony and support obligations and granting appellee/wife’s motion for contempt. We affirm upon a holding that: (1) the general master specifically found that appellant’s inability to pay his alimony and support obligations was occasioned by matters within his control and that appellant failed to sustain his burden of showing that the alleged changes in circumstances were involuntary and permanent in nature; and (2) the general master specifically found that appellant failed to sustain his burden of showing that he did not have or possess the present financial ability to pay the accumulated arrearages, and his burden of proof that his alleged present financial difficulties were not due to his own fault or neglect. Fair cloth v. Faircloth, 339 So.2d 650 (Fla.1976); Ball v. Ball, 440 So.2d 677 (Fla. 1st DCA 1983); Acosta v. Acosta, 409 So.2d 196 (Fla. 3d DCA 1982). Careful consideration of the briefs of counsel and the record on appeal reveals substantial, competent evidence to support the recommendations of the general master.

AFFIRMED.


text:
    Clement MOORE, Appellant, v. The STATE of Florida, Appellee. Ramon Jaime MASS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 84-1749, 84-1994.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Rehearing Denied March 4, 1985.

      Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

In separate cases, the defendants were convicted of criminal offenses and classified by the respective trial courts as youthful offenders pursuant to the Florida Youthful Offender Act. See ch. 958, Fla. Stat. (1979). Each defendant was sentenced to four years incarceration followed by two years community control. § 958.-05(2). While serving in the community control program, affidavits of violation of community control were filed in the circuit court against the respective defendants in December 1983 and May 1984. Both defendants moved to dismiss the affidavits on the ground that the circuit court lacked subject matter jurisdiction to revoke their community control. They argued that the provisions of chapter 958, Florida Statutes (1983), vested exclusive jurisdiction over the matter in the parole commission. After the denials of their motions, the defendants pled nolo contendere to the violations and appealed the jurisdictional question to this court. We affirm.

We find that the more specific provisions of section 958.14, Florida Statutes (1983), govern over the more general provisions of section 958.10, Florida Statutes (1983). Section 958.14 provides that alleged violations of a community control program shall subject the youthful offender to the provisions of section 948.06(1), Florida Statutes (1983). Section 948.06(1) deals with violations of probation and community control and specifically vests jurisdiction in “the court granting such probation or community control.” Loveless v. Bryson, 460 So.2d 942 (Fla. 2d DCA 1984) (on motion for rehearing); Bradley v. State, 462 So.2d 24 (Fla. 5th DCA 1984). All district courts that have considered the issue are now in agreement that the present statutes vest jurisdiction in the courts over community control violations. See Loveless; Bradley; Smith v. State, 455 So.2d 615 (Fla. 4th DCA 1984); Clem v. State, 462 So.2d 1134 (Fla. 4th DCA 1984) (on motion for rehearing granted); Sprulock v. State, 449 So.2d 973 (Fla. 5th DCA 1984).

Accordingly, we find the circuit court had jurisdiction and affirm the denial of the defendants’ motions to dismiss.

      . We note that in the second and fourth districts, the courts initially determined that the parole commission had exclusive jurisdiction over violations of community control following incarceration, Loveless v. Bryson, 9 FLW 1908 (Fla. 2d DCA Sept. 7, 1984); Clem v. State, 8 FLW 2135 (Fla. 4th DCA Aug. 31, 1983), but subsequently reversed their positions finding jurisdiction in the sentencing court. Loveless v. Bryson, 460 So.2d 942 (Fla. 2d DCA 1984) (on motion for rehearing): Clem v. State, 462 So.2d 1134 (Fla. 4th DCA 1984) (on motion for rehearing granted). The second district court, however, appears to adhere to the view expressed in Lollis v.

        State, 449 So.2d 430 (Fla. 2d DCA), cause dismissed, 453 So.2d 45 (Fla.1984), that the parole commission has exclusive jurisdiction over charges of violation of community control following'incarceration, if those charges were filed before October 1, 1983. See Loveless, 460 So.2d at 942; Ch. 83-131, § 20, Laws of Fla.


text:
    Antonio OWENS, Appellant, v. The STATE of Florida, Appellee.
    No. 85-11.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Antonio Owens, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The defendant filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 on the ground of ineffective assistance of counsel, stating:

My lawyer refused to let me testify in my own defense and did not object to the jury instructions which stated I had the burden of proof.

It appears that the defendant might be entitled to relief if the allegations are established. See Knight v. State, 394 So.2d 997 (Fla.1981). Despite this fact, the trial court summarily denied the motion finding the allegations legally insufficient to support the motion.

The numerous motions presented to trial courts under rule 3.850 allege a variety of reasons for which a defendant claims entitlement to relief. The resolution of these motions must fall within one of three enumerated categories: (1) the allegations in the motion are insufficient as a matter of law to support the relief prayed for, in which case the trial court should summarily deny the motion; (2) the allegations in the motion are sufficient on their face, but the record in the case indicates that the allegations, are unfounded or that the defendant is entitled to no relief, in which case the trial court must attach the relevant portion of the record to the order denying relief; or (3) the allegations in the motion are sufficient on their face and the record in the case does not conclusively show that the defendant is entitled to no relief, in which case the trial court must hold an evidentiary hearing, after which the court may rule on the motion.

Thus, where, as here, the defendant has alleged a legally sufficient basis for relief, the trial court must either hold an evidentiary hearing or attach the relevant portions of the record which support the denial of the defendant’s motion. While it is ultimately the trial court’s responsibility to have the relevant portion of the record attached to an order denying the motion in the second category of cases, it may, of course, delegate this task to the attorneys. By following this procedure, the parties as well as this court are apprised of the reason for the trial court’s action which serves to simplify and expedite the appellate process. A summary denial based upon legal insufficiency may not be substituted in place of these other alternatives. See Fla.R.Crim.P. 3.850; Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Sever v. State, 405 So.2d 474 (Fla. 5th DCA 1981).

Accordingly, we reverse and remand to the trial court to either attach the appropriate portions of the record to its order denying relief or hold an evidentiary hearing.


author: GUNTHER, BOBBY W., Associate Judge.

text:
    Brenda VOYNAR, as Personal Representative of the Estate of Wesley Voynar, deceased, Appellant, v. BUTLER MANUFACTURING COMPANY, a foreign corporation, Appellee.
    No. 83-1174.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1985.
    Rehearing or Certification Denied Feb. 28, 1985.

      Robert L. Donald of Pavese, Shields, Garner, Haverfield, Dalton & Cottrell, Fort Myers, and William S. Frates, II, of Frates & McCall, Palm Beach, for appellant.
    Marjorie Gadarian Graham, Charles H. Damsel, Jr., of Jones & Foster, P.A., West Palm Beach, for appellee.
   GUNTHER, BOBBY W., Associate Judge.

Wes Voynar, a construction worker, was fatally injured while working on the partially completed roof of a prefabricated steel building manufactured by appellee. During his fourth day on the job, Voynar stepped on an unsecured roof panel which buckled and slipped out from under him causing him to fall twenty feet to his death. Appellant, his ex-wife and mother of his son, sued appellee, the manufacturer of the prefabricated steel building, alleging causes of action in negligence and strict liability.

Appellant challenges the verdict and judgment in favor of appellee, contending the trial court erred when it excluded evidence of subsequent remedial measures and prior accidents, and when it denied a requested jury instruction. We find no reversible error.

Voynar’s employer, Tri-Cities Construction, Inc., purchased from appellee the prefabricated building kit containing the But-lerrib II roof panels from which the deceased fell. The roof panels were designed to be installed with a roof slope of one-half inch in every twelve inches. Prior to being packaged in bundles, each individual panel is coated with oil by the manufacturer to prevent corrosion during shipping. This oil makes the panels slippery while they are being installed. The instruction manual furnished by the appellee not only warns of the slippery nature of the panels, but also cautions the installer to walk only on or near the support purlins, and not to step on the major corrugations because the panel can buckle. Tri-Cities’ foreman warned Voynar of the dangers of slipping and buckling, and instructed him how and where to walk while the roof was under construction.

Subsequent to this accident, appellee began using an oil which evaporates upon exposure to air, and also began attaching warning flyers to each bundle of roof panels in addition to the warning in the instruction manual.

The trial court did not err in excluding evidence of these subsequent remedial measures as they related to either the negligence action or the strict liability action.

Section 90.407, Florida Statutes (1983), clearly makes such evidence inadmissible in negligence actions. It provides:

Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event.

Unlike Section 90.407, Federal Rule 407 specifically states certain exceptions which can result in the introduction of such evidence in negligence actions. Federal Rule 407

does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Although the Florida codification of this rule of evidence does not list any exceptions, our courts recognize and permit certain exceptions for the introduction of such evidence in negligence actions. E.g., Murray v. Almadén Vineyards, Inc., 429 So.2d 24 (Fla. 2d DCA 1983); Hethcoat v. Chevron Oil Co., 383 So.2d 931 (Fla. 1st DCA 1980); accord, Pensacola Inn, Ltd. v. Tut-hill, 4C4 So.2d 1173 (Fla. 1st DCA 1981); American Motors Cory. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981).

The record fails to support appellant’s contention that feasibility of change or any other factual questions were in controversy which would warrant the admission of evidence of subsequent changes as to the negligence cause of action. Nor was the evidence necessary for impeachment.

There is a split of authority in the various jurisdictions on the question of whether evidence of subsequent remedial measures is admissible in strict liability actions.

We are aware of Ault v. International Harvester Co., 13 Cal.3d 113, 528 P.2d 1148, 117 Cal.Rptr. 812 (1975), but prefer the reasoning of Werner v. Upjohn Co., 628 F.2d 848 (4th Cir.1980). We agree with the Fourth Circuit Court of Appeals:

The rationale behind Rule 407 is that people in general would be less likely to take subsequent remedial measures if their repairs or improvements would be used against them in a lawsuit arising out of a prior accident. By excluding this evidence defendants are encouraged to make such improvements. It is difficult to understand why this policy should apply any differently where the complaint is based on strict liability as well as negligence. From a defendant’s point of view it is the fact that the evidence may be used against him which will inhibit subsequent repairs or improvement. It makes no difference to the defendant on what theory the evidence is admitted; his inclination to make subsequent improvements will be similarly repressed.

Werner v. Upjohn Co., 628 F.2d at 857.

In American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981), the court did not squarely address the issue and make an absolute statement that subsequent changes are inadmissible in strict liability cases. However, when the entire opinion is read it is apparent that that case involved both negligence and strict liability claims and the court talked in general terms of such subsequent changes being generally inadmissible in that type of case. Thus, it appears that the court accepted the practical application of the rule without expressly addressing its applicability to a strict liability action.

Another factor influencing our decision is Section 90.403, Florida Statutes, which comes into play in the question of the. admissibility of subsequent changes:

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.

Strict liability requires that a manufacturer not put an unsafe product into the stream of commerce. It does not require the manufacturer to produce a foolproof product, or the safest possible product. See Clark v. Boeing Co., 395 So.2d 1226 (Fla. 3d DCA 1981). Thus, if a manufacturer permissibly chooses a “safe” product rather than a “safer” product, hindsight should not be employed to retroactively recharacterize this into a choice between a “safe” product and an “unsafe” product. Such evidence of subsequent changes would confuse and mislead the jury.

In the negligence count, the rule of exclusion clearly prohibits use of subsequent changes as a tacit admission of prior negligence. We see no justifiable reason why appellant in his strict liability action should be permitted to use the same evidence as a tacit admission that the lack of warning or the oiliness constituted a defect making the product unreasonably or inherently dangerous. In discussing the California Supreme Court’s decision in Ault, the Werner court said:

The court assumes that the product is defective, and thus overlooks the situation where the product is not defective but could be made better. The manufacturer who undertakes precautionary measures in this setting will face the risk of liability for an injury caused by the earlier nondefective version of the product based on evidence of his subsequent act which made the product safer but in no way supports an inference that the initial version of the product was defective.

Werner v. Upjohn Co., 628 F.2d at 857.

We believe the reasons supporting the exclusion of evidence of subsequent remedial measures or changes in cases involving negligence apply to causes of action in strict liability. We also acknowledge that the recognized exceptions are likewise applicable, but appellant failed to establish any exception that would permit the admission of subsequent changes and the trial court made no error in excluding such evidence.

The judge also properly excluded evidence of prior accidents. The proffer demonstrated that of the eight accidents sought to be introduced, only two involved the Butlerrib II panels. In both of these accidents, the panels were installed on a four in twelve slope — a slope eight times as steep as that involved here. Evidence of prior accidents is not admissible unless the proffer demonstrates they involved the use of the same type of equipment under substantially similar conditions. Lasar Manufacturing Co. v. Bachanov, 436 So.2d 236 (Fla. 3d DCA 1983).

The trial court did not commit reversible error in denying appellant’s requested special jury instruction. Appellant drafted the special instruction based upon the Supreme Court’s decision in Auburn Machine Works Co. v. Jones, 366 So.2d 1167 (Fla.1979), and it read as follows:

You are instructed that:

The manufacturer of a defective product is not necessarily relieved of liability to an injured party because a defect may have been open and obvious; however, the obviousness of a defect, if any, may be considered by you as one factor in determining whether the deceased himself used that degree of reasonable care required by the circumstances.
Appellee also requested three special instructions:
A supplier of a product who knows or has reason to know that the product is likely to be dangerous in normal use has a duty to warn those who may not fully appreciate the possibility of such danger. However, there is no duty to warn of an obvious danger.
[from Cohen v. General Motors Corp., 427 So.2d 389 (Fla. 4th DCA 1983).]
A knowing misuse of a manufacturer’s product creates no liability on the part of the manufacturer. Under that circumstance, the sole cause of the injury is the misuse of the product.
[from Clark v. Boeing Co., 395 So.2d 1226 (Fla. 3d DCA 1981).]
It is not itself a breach of duty to supply materials which are reasonably safe and customarily used, even though the material might conceivably be made more safe, nor must the manufacturer make his product “more” safe when the danger to be avoided is obvious to all.
[from Clark v. Boeing Co., supra.]

Of these four instructions, appellant wanted the trial court to give only her instruction and deny appellee’s three instructions, or give none of them. Appellant felt the instructions were inconsistent and that it would be less prejudicial to deny all than to give any of appellee’s requested instructions. The judge denied all four instructions.

The four instructions deal with related, but different legal issues and are not inconsistent. Furthermore, they are accurate statements of the law. To have given all instructions would have been the most correct course. Since the appellant requested that the trial court deny all instructions rather than give all instructions, she cannot now complain.

Even if the court had given appellant’s requested instruction alone, it could not have altered the outcome of the case. Since the jury specifically found that the product was not defective, this instruction would have been inapplicable because the instruction is predicated upon the product being defective.

Appellant has not demonstrated any reversible error.

AFFIRMED.

DOWNEY and GLICKSTEIN, JJ., concur.


text:
    Alphonse DELLA-DONNA, Appellant, v. GORE NEWSPAPERS COMPANY, a Delaware corporation authorized to do business in the State of Florida; and Hamilton C. Forman, Appellees.
    No. 83-2264.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1985.
    Rehearing and/or Clarification Denied March 4, 1985.
    Frates, Bienstock & Sheebe, Miami; Jonathan W. Lubell and Mary K. O’Melveny of Cohn, Glickstein, Lurie, Ostrin, Lubell & Lubell, New York City, and Robert J. O’Toole, Fort Lauderdale, for appellant.
    Karen Coolman Amlong of Holmes & Amlong, Fort Lauderdale; and Scott DiSal-vo of Fazio, Dawson & DiSalvo, Fort Laud-erdale, for appellee, Forman.
   PER CURIAM.

The summary judgment entered in this cause is reversed. Section 770.01, Florida Statutes (1983), does not apply to non-media defendants. Demolfetta v. American Sightseeing Tours, 450 So.2d 312 (Fla. 3d DCA 1984); Davies v. Bossert, 449 So.2d 418 (Fla. 3d DCA 1984); Bridges v. Williamson, 449 So.2d 400 (Fla. 2d DCA 1984). Accordingly, this cause is remanded for further proceedings.

REVERSED AND REMANDED.

DOWNEY, HURLEY and BARKETT, JJ., concur.


text:
    Betty VENTURA, Appellant, v. PALM SPRINGS GENERAL HOSPITAL, Liberty Mutual Insurance Company, and the Division of Workers’ Compensation, Appellees.
    No. AV-466.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1985.

      Lori E. Barrist of Pelzner, Schwedock, Finkelstein & Klausner, P.A., Miami, for appellant.
    R. Ty Hodges of Miller, Hodges & Ka-gan, P.A., Miami, for appellees.
   MILLS, Judge.

In this workers’ compensation case, Ven-tura appeals from an order denying her claim for a lump sum advance of permanent total disability (PTD) benefits. We affirm.

Ventura, a 57-year-old woman, had an industrial accident on 9 April 1981. After being accepted by the employer/carrier (E/C) as permanently and totally disabled, she requested a lump sum advance of all PTD benefits. The E/C opposed the request.

At the hearing, Ventura testified that if awarded the lump sum of approximately $100,000, she would purchase three townhouses in Panama City, one to live in and two to rent. The total cost to purchase the townhouses would be $98,700.

The E/C did not introduce evidence at the hearing, but cross-examined Ventura as to her knowledge of and experience in real estate investment and management. Ven-tura admitted she had no prior experience as a landlord.

The deputy denied the lump sum request on two grounds. First, she found the 26-week or $7,500 lump sum limitation enacted in 1983 as an amendment to Section 440.-20(13)(d), Florida Statutes (1981), governed Ventura’s claim. Because the claim exceeded the limitation, it had to be denied.

The second reason for denying the request was:

[Claimant's evidence submitted in support of her request for an advance does not override the statutory presumption that it is in the best interest of the claimant to receive her benefits in periodic payments. There is no showing that the claimant could not make the same purchase of real estate as she desires through mortgage financing and it is deemed ill advised to place every penny of her present and future assets in one investment in real estate, a field in which the claimant is admittedly inexperienced.

Ventura contends, and the E/C concede, the deputy erred in applying the 1983 amendment to Section 440.20(13)(d) retroactively. This statutory change applies prospectively only. Cone Brothers Contracting v. Gordon, 453 So.2d 420 (Fla. 1st DCA 1984). We affirm, however, based on the deputy’s second reason for denying the request.

Ventura contends the deputy’s second reason for denying the lump sum advance is not supported by competent substantial evidence. Citing Sanford v. Alachua County School Board, 425 So.2d 112 (Fla. 1st DCA 1982), and Herndon v. City of Miami, 224 So.2d 681 (Fla.1969), she argues that the E/C’s failure to present evidence showing the investment plan not in her best interests and materially prejudicial to the rights of the E/C precludes denial of a lump sum advance.

The E/C counter, arguing Ventura misconstrues the E/C’s evidentiary burden by suggesting the E/C’s failure to present evidence “against” a lump sum award prevents the deputy from finding such an award not in the claimant’s best interests. They assert the deputy is free to decide from the claimant’s evidence of her financial plan whether a lump sum award is in the claimant’s best interests.

Before awarding an advance payment in excess of $2,000, the deputy is required by statute to find the advance payment (1) for the best interests of the person entitled to compensation, (2) not materially prejudicial to the rights of the E/C, and (3) reasonable under the circumstances. Section 440.20(13)(d), Florida Statutes (1981). But nowhere in the statutes or the case law do we find a requirement that a deputy’s determination that one or all of these elements has not been satisfied must be based on evidence presented by the E/C.

In Sanford, the deputy denied a claim for a lump sum advance because he found it materially prejudicial to the rights of the E/C. This Court reversed that finding and remanded the case for a determination of whether the award was for the best interests of the claimant and reasonable under the circumstances.

In Herndon, the court reversed a decision of the Industrial Relations Commission denying a claim for a lump sum advance. The court disagreed with the IRC’s determination that the claimant was required to offer evidence of a property appraiser as to the value of the real estate to be purchased with the advance.

Neither Sanford nor Herndon supports the claimant’s position in this case. Ventura’s own testimony, revealing her lack of knowledge of and experience in real estate investment and management, was competent substantial evidence from which the deputy could conclude a lump sum advance was not in Ventura’s best interests.

AFFIRMED.

JOANOS and BARFIELD, JJ., concur.


author: SHIVERS, Judge.

text:
    David Lee MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. AX-361.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1985.

      Michael E. Allen, Public Defender, and Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Henri C. Caw-thon, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   SHIVERS, Judge.

Appellant, the defendant in the proceedings before the trial court, appeals the trial court’s order which placed appellant on probation. Appellant contends that the trial court erred in placing him in community control as a part of his probation. We agree and reverse and remand.

Appellant was charged with and initially pled not guilty to perjury: Appellant then changed his plea to guilty and elected to be sentenced under the sentencing guidelines, RCrP 3.701. Appellant’s sentencing guidelines scoresheet shows a total score of 13 points. This score resulted in a recommended/presumptive sentence of any non-state prison sanction.

At the sentencing hearing, the state prosecutor and defense counsel argued aggravating and mitigating factors, respectively, in regard to appellant’s recommended sentence. After hearing these arguments, the trial court found that it did not have clear and convincing reasons to depart from the guidelines recommended sentence and ordered that appellant be placed on probation for a five year period. As part of his probation, appellant is to spend 364 days in the Duval County jail to be followed by two years in a community control program.

Appellant contends that community control is not a nonincarcerative disposition as contemplated by the sentencing guidelines terms, “any nonstate prison sanction,” and, therefore, was an inappropriate sanction to be imposed sub judice. We disagree. The terms “any nonstate prison sanction” clearly apply to community control, as community control simply is not a state prison sanction. Community control is defined as a form of intensive, supervised custody in the community, including surveillance on weekends and holidays, administered by officers with restricted caseloads, and, further, defined as an individualized program in which the freedom of an offender is restricted within the community, home, or noninstitutional residential placement and specific sanctions are imposed and enforced. Section 948.001(1), Florida Statutes (1983). Section 948.01(4) states that the court may place an offender in a community control program, if it appears to the court that probation is an unsuitable dispositional alternative to imprisonment. Section 948.10(1) states that community control “shall offer the courts and the Parole and Probation Commission an alternative, community-based method to punish an offender in lieu of incarcera-tion_” (emphasis added). Clearly, community control is not to be regarded as incarceration and certainly is not to be regarded as a state prison sanction. Rather, it is apparent to us that community control is a nonprison custodial alternative that was developed by the legislature to alleviate prison overcrowding. See Chapter 83-131, Fla. Laws, section 2. Accordingly, we find and hold that community control is a proper sanction to be imposed under the sentencing guidelines category of “any nonstate prison sanction.”

Notwithstanding the above, we agree with appellant that the trial court erred in placing appellant in a community control program as part of his probation. Sub judice, the trial court ruled that community control could be imposed as a part of probation. However, RCrP 3.701(d)(13) specifically provides that community control “is a sanction which the court may impose upon a finding that probation is an unsuitable disposition.” See also section 948.01(4), Florida Statutes (1983). Based on this language, it is clear to us that for purposes of the sentencing guidelines probation and community control are to be regarded as two distinct concepts and that they are not to be imposed in conjunction with each other. See also our opinion in Williams v. State, 461 So.2d 1010 (Fla. 1st DCA 1984).

We do not reach the above conclusion without reservation. As noted by the trial judge in arriving at his conclusion that community control could be imposed as a part of probation, it seems illogical that an offender can be incarcerated as a condition of probation, yet not be placed in a community control program, a less restrictive sanction, as part of probation. Nonetheless, the intent of the framers of the guidelines seems clear to us, as noted, that probation and community control are to be treated as distinct concepts and are not to be imposed in tandem. We are not at liberty to alter or distort the plain meaning of the language in RCrP 3.701(d)(13).

Accordingly, the trial court’s order placing appellant on probation and in community control is hereby vacated and this cause is reversed and remanded for disposition in accord with the sentencing guidelines and this opinion.

REVERSED and REMANDED.

WENTWORTH and NIMMONS, JJ., concur.

      . As noted above, the trial judge announced at the sentencing hearing that he was placing appellant in community control as part of appellant’s probation. In the order committing appellant to the supervision of the Department of Corrections, the trial judge ordered in one part of the order that appellant be placed in community control for "five (5) years, then three (3) years probation," and ordered in another part of the order as conditions that appellant serve 364 days in the Duval County jail, to be followed by two years community control, with the balance of the sentence to be served as probation. We need not address the confusion created by these conflicting provisions in the written and oral pronouncements of disposition because of our decision that community control and probation may not be imposed in tandem.

      . We find unpersuasive appellant's further argument that community control should not be regarded as a nonstate prison sanction because the sentencing guidelines scoresheets list community control as an alternative to incarceration in the second guideline cell for each offense category. We do not find from the fact that the guidelines specifically list community control as an alternative to incarceration in the second guideline cell that community control is precluded from being used as a dispositional alternative under the first guideline cell category of "any nonstate prison sanction.” Rather, we infer that the framers of the guidelines intended that community control be a dispositional alternative for both the first and second guideline cells through their use of the broad terms "any nonstate prison sanction” in the first guideline cell and their specific reference to community control as a dispositional alternative to incarceration in the second guideline cell.


text:
    Jack E. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. BC-27
    District Court of Appeal of Florida, First District.
    Jan. 31, 1985.
    Jack E. Johnson, in pro. per.
    No appearance for appellee.
   PER CURIAM.

The order appealed is affirmed without prejudice to appellant’s ability to present the issues raised in a proper Fla.R.Crim.P. 3.850 motion. See Hurst v. State, 379 So.2d 434 (Fla. 1st DCA 1980); Carrin v. State, 459 So.2d 430 (Fla. 1st DCA, 1984).

ERVIN, C.J., and SMITH and NIM-MONS, JJ., concur.


text:
    Howard R. HARVELL, Appellant, v. SOUTHERN CRANE CO., INC., Appellee.
    No. AW-392.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1985.
    Paul Shimek, Jr., of Shimek & Sutherland, P.A., Pensacola, for appellant.
    Joe J. Harrell, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appel-lee.
   PER CURIAM.

AFFIRMED. Barrentine v. Vulcan Materials Company, 216 So.2d 59 (Fla. 1st DCA 1968) and Hamilton v. Largo Paint & Decorating, Inc., 335 So.2d 623 (Fla. 2d DCA 1976).

WENTWORTH, THOMPSON and WIG-GINTON, JJ., concur.


text:
    Raymond R. HAMLIN, Jr., Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. AX-284.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1985.
    W. Dexter Douglass of Douglass, Davey, Cooper & Coppins, Tallahassee, for appellant.
    Robert C. Crabtree and S. William Fuller, Jr. of Fuller & Johnson, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. U.S. Fire Insurance Co. v. Franko, 443 So.2d 170 (Fla. 1st DCA 1983); Miller Construction Company, Inc. v. First Baptist Church of Live Oak, 396 So.2d 281 (Fla. 1st DCA 1981).

WENTWORTH, THOMPSON and WIG-GINTON, JJ., concur.


text:
    SOUTHERN SANITATION and/or Central Disposal and American Motorists Insurance Company, Appellants, v. Jean R. DEBROSSE and Dan L. Parrish Trucking and Division of Workers’ Compensation, Appellees.
    No. AY-31.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1985.

      Jeffrey S. Breslow of Adams, Kelley & Kronenberg, Miami, for appellants.
    Stuart F. Suskin of Abrams, Suskin & Berglund, North Miami Beach, Bradley P. Goodman, P.A., of Simons, Simons, Tobin & Goodman, Fort Lauderdale, for appellees.
   MILLS, Judge.

Central Disposal and its workers’ compensation carrier, American Motorists, contend the deputy erred in entering an order finding Disposal to be a statutory employer of Debrosse under Section 440.10(1), Florida Statutes (1981). We do not agree and affirm.

Debrosse drove a truck for Parrish, an excavation firm. Disposal and Sanitation were wholly owned subsidiaries of Waste Management. Sanitation collects garbage. Disposal disposes of the garbage in a sanitary landfill. It hires outfits such as Parrish’s to haul dirt for the purpose of covering the garbage. Disposal had an oral agreement with Parrish, Debrosse’s employer, to haul dirt for this purpose. De-brosse’s job was to drive his truck to specified sites, pick up dirt, and return it to the landfill, where it would be dumped on the garbage.

While at one of these pick-up sites, De-brosse was run over by another truck while he was attempting to repair his own. He suffered fractures of his left arm and femur, as well as numerous broken ribs.

It was undisputed that Debrosse’s employer, Parrish, carried no workers’ compensation insurance. Debrosse proceeded against Disposal on the theory that it was his common statutory employer pursuant to Section 440.10(1), Florida Statutes (1981). This statute provides that if a contractor sublets contract work to a subcontractor, all employees of the contractor and subcontractor shall be deemed employees of one and the same business, and, unless the subcontractor has secured such payment, the contractor is liable for compensation for all employees. The issue before the deputy was whether Disposal was doing contract work, a portion of which it sublet to Parrish.

There was evidence indicating that at the time of the accident Debrosse was not picking up dirt pursuant to the oral agreement with Disposal, but rather for Parrish, for the purpose of constructing a parking lot for Parrish’s trucks. There was evidence, however, that he did not haul any dirt to the truck parking area nor drop any load in that area. Rather, all loads were dumped on the landfill on the date of the accident. It was also established that Parrish stated to Debrosse, in the presence of Debrosse’s attorney, that the party against whom De-brosse should proceed was Disposal because he had been working for Disposal on the date of the accident.

There was evidence that Disposal had no written contract with Broward County or any municipality within the county to dispose of their garbage, rather, it operated under a permit from the county. Disposal conceded, however, that its agreement with Waste Management and its municipalities was if they brought it to us, they paid us for disposing of it. Also, there was evidence that it was necessary to have material to cover up the garbage and that Disposal had to look to outside companies to haul sand and dirt for that purpose.

The function of Waste Management was to collect and dispose of solid waste from municipalities in Broward County. The collection and disposal by Disposal of residential and commercial garbage in Broward County was done pursuant to governmental contracts. Cover dirt was necessary to the landfill operation.

Section 440.10(1), Florida Statutes (1981), reads in pertinent part:

In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

A contractor under this statute is one under a contractual obligation to perform some work for another. Motchkavitz v. L. C. Boggs Industries, Inc., 407 So.2d 910, 914 (Fla.1981). In order for a company to qualify as a contractor, its primary obligation in performing a job or providing a service must arise out of a contract. Florida Power and Light Company v. Brown, 274 So.2d 558, 560 (Fla. 3d DCA 1973). The deputy here concluded that Disposal was providing the service of disposing of garbage for certain Broward County municipalities pursuant to a contract, and there is competent substantial evidence to support this holding.

The manager of safety and training for Waste Management, Disposal's parent corporation, stated that the garbage disposed of by Disposal was residential and commercial garbage in Broward County and was disposed of pursuant to governmental contract.

The second requirement for liability under the statute is that a portion of the contract be sublet to a subcontractor. To sublet is to pass on to another an obligation under a contract for which the person so subletting is primarily obligated. Street v. Safway Steel Scaffold Company, 148 So.2d 38, (Fla. 1st DCA 1962). There was evidence that covering the garbage was essential to its disposal and that Disposal had to hire outside companies such as Parrish to obtain and haul the cover dirt. Therefore, Disposal passed on to another the obligation of covering the garbage, an essential obligation of its contract with the municipalities of Broward County for garbage disposal.

The deputy adopted Debrosse’s testimony that he was not hauling dirt for Parrish on the date of the accident, but rather for the purpose of covering the landfill. Once again, it was the province of the deputy to evaluate the weight and credibility of these witnesses and this court should not disturb that evaluation.

AFFIRMED.

JOANOS and BARFIELD, JJ., concur.


text:
    Howard McGEE, Petitioner, v. STATE of Florida, Respondent.
    No. AZ-39.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1985.

      Howard McGee, pro se.
    Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Petitioner seeks a writ of habeas corpus alleging ineffective assistance of counsel in that his appellate counsel failed to raise on appeal the following issue: Whether, in order to prove a violation of section 790.162, Florida Statutes, defining the crime of threatening to discharge a destructive device, the state must show the actual existence of a destructive device or whether it is sufficient to merely show a threat to discharge a destructive device. In reviewing the ineffective assistance of counsel claim, we are guided by the four-part test set forth by the Florida Supreme Court in Knight v. State, 394 So.2d 997, 1001 (Fla.1981), the third part of which states that the petitioner must show that the alleged deficiency in representation was substantial enough to demonstrate a likelihood that the outcome of the proceeding would have been affected. In order to make such determination, we have reviewed the merits of the issue which appellate counsel failed to raise and have determined that the outcome of the case would not have been affected had such issue been raised on appeal. At the time we rendered our per curiam affirmance of petitioner’s conviction and sentence, the above issue had been decided contrary to petitioner’s position. Reid v. State, 405 So.2d 500 (Fla. 2d DCA 1981). Subsequent to rendition of our decision, this court followed the decision in Reid. Valdes v. State, 443 So.2d 221 (Fla. 1st DCA 1984). Accordingly, pursuant to the test set forth in Knight v. State, supra, petitioner has not been denied effective assistance of counsel.

The petition for writ of habeas corpus is DENIED.

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


text:
    Clarence SIMMONS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1371.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.

      Bennett H. Brummer, Public Defender and Henry H. Harnage, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

The final judgments of conviction and sentences under review are affirmed. We are unpersuaded that the trial court committed reversible error in allowing the prosecuting attorney to make certain comments to the jury, which comments are complained of in the sole point on appeal.

The defendant presented an alibi defense at trial through witness testimony and argument of counsel. The prosecutor responded to the defense, in closing argument to' the jury, by commenting on the defendant’s failure to call as a witness the person whom the defendant told the police he was going to meet at the time of his arrest for robbery — which arrest immediately followed the robbery and occurred in the immediate vicinity of the crime. Under these circumstances, we think the comment was entirely proper because (a) it was made in response to a defense of alibi asserted at trial by the defendant; (b) the witness was within the peculiar power of the defendant to produce as he was supposedly a friend of the defendant and (c) the witness’ testimony would have elucidated the transaction at hand and therefore constituted potentially competent testimony. The trial court committed no reversible error in overruling the defendant’s objection to this comment. See Buckrem v. State, 355 So.2d 111 (Fla.1978); Romero v. State, 435 So.2d 318 (Fla. 4th DCA 1983), pet. for review denied, 447 So.2d 888 (Fla.1984), and cases collected; Kindell v. State, 413 So.2d 1283, 1287-88 (Fla. 3d DCA 1982) (Pearson, J., concurring), and eases collected.

Affirmed.


text:
    Joseph BILINSKI and James Jones, Appellants, v. The STATE of Florida, Appellee.
    No. 83-748.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.

      Bennett H. Brummer, Public Defender and Samek & Besser and Lawrence Besser and Jeffrey Samek, Sp. Appointed Public Defenders, Robert Kalter, North Miami, for appellants.
    Jim Smith, Atty. Gen. and Randi Klayman Lazarus, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

The final judgments of conviction and sentences under review are affirmed. The trial court committed no error, as asserted, in denying the defendants’ respective motions to suppress the eyewitness identification in this case. The defendants were not unlawfully in custody when they were identified by the eyewitness at a prompt on-the-scene police show-up; nor was the show-up procedure impermissibly suggestive so as to give rise to a likelihood of irreparable misidentification. See State v. Vamedoe, 443 So.2d 201 (Fla. 3d DCA 1983); Cross v. State, 432 So.2d 780 (Fla. 3d DCA 1983); State v. Cromartie, 419 So.2d 757 (Fla. 1st DCA), ■pet. for review dismissed, 422 So.2d 842 (Fla.1982).

Affirmed.


author: BASKIN, Judge.

text:
    Marlon S. McCALL, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2698.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.

      Bennett H. Brummer, Public Defender; and Loren H. Cohen and Julian S. Mack, Sp. Appointed Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Michael Nei-man and Richard Doran, Asst. Attys. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   BASKIN, Judge.

The primary issue presented in this appeal from a robbery conviction and fifteen-year sentence is whether the unsolicited trial testimony of a police detective that he obtained a description of appellant from the “police rap sheet” mandated the granting of a mistrial. We affirm upon a holding that based upon the circumstances of this case and appellant’s failure to request a curative instruction, the comment did not rise to the level of prejudicial error requiring a mistrial.

The extent of possible prejudice arising from an improper comment must be evaluated in the context of the surrounding circumstances. Loftin v. State, 273 So.2d 70 (Fla.1973); D’Anna v. State, 453 So.2d 151 (Fla. 1st DCA 1984); Evans v. State, 422 So.2d 60 (Fla. 3d DCA 1982); Mancebo v. State, 350 So.2d 1098 (Fla. 3d DCA 1977), cert, denied, 359 So.2d 1217 (Fla. 1978). See Ferguson v. State, 417 So.2d 639 (Fla.1982). Cf. Harris v. State, 427 So.2d 234 (Fla. 3d DCA 1983) (detective’s testimony that defendant had prior felony past inadmissible and not rendered harmless where state’s case not overwhelming, given testimony of alibi witnesses). A witness’s comment “may be erroneously admitted yet not be so prejudicial as to require reversal.” Ferguson, 417 So.2d at 642. See Loftin; Encinosa v. State, 431 So.2d 705 (Fla. 2d DCA 1983). Cf Russell v. State, 445 So.2d 1091 (Fla. 3d DCA 1984) (although reference to mug shots not reversible error in all cases, reversible error where identity not issue at trial).

The victim of the robbery identified appellant as the man with whom she had struggled just before he took her belongings and disappeared in an automobile. She stated that she had previously seen the man in the same neighborhood and was certain that he was the individual who committed the crime. Her unequivocal identification rendered harmless any error which may have resulted from the improper statement. See Loftin; Encinosa.

Furthermore, appellant's failure to request a curative instruction precludes consideration of his argument that the prejudice was incurable. See Ferguson (in absence of defense request for instruction to jury to disregard testimony, trial court correctly denied motion for mistrial where any prejudice arising from remark about defendant’s prior incarceration could have been corrected by such instruction); Bell v. State, No. 82-2009 (Fla. 3d DCA Dec. 18, 1984) [10 FLW 69] (cautionary instruction to jury cured error of witness’s reference to police photo lineup); Evans (where eyewitness made identification, reference to mug shot does not require reversal because jury instruction, if requested, would have cured error); Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982) (jury instruction, if requested and given, would have cured error of witness’s statement that defendant’s photograph was obtained from police files). Cf Harris (cautionary instruction did not cure prejudicial impact of testimony of defendant’s prior felony past where jury not told testimony inadmissible or that testimony should be disregarded).

Appellant further asserts that he was limited in cross-examining the victim. The record reflects that the trial court sustained the state’s objection because the questions were repetitious. We agree. Finding no reversible error, we affirm.

Affirmed.