author: ZEHMER, Judge.

text:
    CISU OF FLORIDA, INC., for the Use and Benefit of AETNA CASUALTY and SURETY COMPANY, Appellant, v. Joan PORTER and Security Insurance Company of Hartford, Appellee.
    No. AX-89.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1984.
    John E. Houser, Jacksonville, for appellant.
    William T. Stone, of Coker, Myers & Schickel, P.A., Jacksonville, for appellee.
   ZEHMER, Judge.

This is an appeal from a final judgment dismissing appellant’s amended complaint with prejudice. We reverse.

The complaint alleges in a single count that appellant, CISU of Florida, Inc., leased a warehouse from appellee, Joan Porter, for storing carpets used in its business; that a covenant in the lease required Porter, as lessor, to keep the roof in good repair; that Porter contracted with a roofing company to repair the roof; and that during the course of such repairs the roof collapsed, damaging CISU’s property, for which appellant seeks damages from Porter and her insurer. After giving appellant three opportunities to amend its complaint against Porter, the trial court dismissed the action with prejudice.

The sole issue before us is whether the complaint states a cause of action against appellees. The complaint is not a model of clarity and does not clearly indicate whether appellant intended to sue in tort or in contract. At oral argument, however, appellant argued that it has sufficiently alleged a claim in contract for breach of the covenant to repair. The complaint alleges the making of the lease and the lessor’s covenant to keep the roof in good repair; the undertaking by the lessor, through the services of a roofing contractor, to keep the roof in good repair; a breach of that covenant by reason of the roof collapsing during the course of repairs due either to defects in the structure or to overloading of the roof by the contractor; and resulting damages to. the lessee’s property. These are all the elements necessary to state a cause of action for breach of contract. Cf., City of Miami Beach v. Ellis, 279 So.2d 335 (Fla. 3d DCA 1973); Ralston, Inc. v. Miller, 357 So.2d 1066 (Fla. 3d DCA 1978); 34 Fla.Jur.2d, Landlord and Tenant, § 74.

Appellees contend that the trial court correctly dismissed the complaint with prejudice because appellants repeatedly refused to allege that the owner had notice of the circumstances which caused the roof to collapse. They contend that an owner of property will not be liable for negligence of an independent contractor in making repairs or for latent defects created by the independent contractor if the condition was not known or discoverable by the owner, relying primarily upon Slavin v. Kay, 108 So.2d 462 (Fla.1959), Mai Kai, Inc. v. Coined, 205 So.2d 291 (Fla.1968), and other decisions involving actions based on negligence. Appellees argue that an owner’s liability for damages to another is not liability without fault, Green Springs, Inc. v. Calvera, 239 So.2d 264 (Fla.1970), and that Porter could not be held liable in the absence of allegations that she personally failed to use due care in connection with the roof repairs. But none of the cases cited by appellees involved liability premised on breach of a contractual duty owed by the defendant owner to the plaintiff; rather, the defendant owner was sued for breaching the common law duty to exercise reasonable care. These decisions are simply not applicable to the complaint here in question because appellants have not sued for negligence but for breach of contract.

Appellees conceded at oral argument that if Porter herself had been repairing the roof when the alleged damage occurred, she would have been liable. The fact that the roof collapsed while Porter was performing her contractual duty through an independent roofing contractor does not insulate Porter from liability; if a lessor agrees with its lessee to keep a roof in good repair, the lessor.is said to have created a contractual duty which cannot be delgated to an independent contractor. Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959), cert. denied, 119 So.2d 293 (Fla.1960). Cf. Easton v. Weir, 125 So.2d 115 (Fla. 2d DCA 1960); Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55, 59-60 (Fla. 4th DCA 1982); Levitz Furniture Co. v. Continental Equities, 411 So.2d 221 (Fla. 3d DCA 1982). We hold, therefore, that appellant’s amended complaint was sufficient to state a cause of action for breach of contract. We venture no opinion on ultimate liability as that determination must await consideration of plaintiffs’ proof and any affirmative defenses asserted by defendant.

Accordingly, the judgment is reversed and the case is remanded for further proceedings.

REVERSED and REMANDED.

SHIVERS and THOMPSON, JJ., concur.

      . We do not, therefore, decide whether the complaint is sufficient to allege a cause of action against Porter for negligence.

      . In Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676, 679 (Fla. 3d DCA 1980), the court observed:
      Holding a particular undertaking to be non-delegable means that responsibility, i.e., ultimate liability, for the proper performance of that undertaking may not be delegated. The term nondelegable does not preclude delegation of the actual performance of the task. ‘Nondelegable’ applies to the liabilities arising from the delegated duties if breached. Accord Restatement (Second) of Agency § 214 and Ch. 14 Title C. Introductory Note (1958); see Mills v. Krauss, 114 So.2d 817, 819 (Fla. 2d DCA 1959), cert, denied 119 So.2d 293 (Fla. 1960).


source: Caselaw Access Project

author: SHIVERS, Judge.

license: Public Domain

text:
    GRINER-WOODRUFF, INC. and Commercial Union Insurance Company, Appellants, v. Roger PAYNE, Appellee.
    No. AX-148.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1984.
    John J. O’Riorden, of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellants.
    Alex Lancaster, of Alex Lancaster, P.A., Sarasota, for appellee.
   SHIVERS, Judge.

The employer/carrier in this workers’ compensation case appeal the deputy commissioner’s order which awards claimant wage-loss benefits. We affirm.

Claimant injured his back in a compensa-ble accident on May 15, 1981. Dr. McCarthy, a treating physician, opined that claimant is 10% permanently impaired to the body as a whole as a result of his industrial accident. Dr. McCarthy also opined that, as a result of his accident, claimant is not capable of doing anything but light sedentary work, that claimant could not sit for more than an hour or two at a time, and that claimant is capable of walking only short distances.

The deputy herein accepted Dr. McCarthy’s opinion that claimant has a ratable permanent impairment in an order entered on November 12, 1982. In that same order, the deputy denied claimant’s claim for wage-loss benefits for the period of June 25, 1982, through October of 1982. The deputy found that claimant had voluntarily limited his employment during this period of time and that claimant did not make a good faith effort to return to work. No appeal was taken from that order.

Subsequent to the deputy’s order, claimant went through a rehabilitation program at Goodwill. Goodwill found claimant a full-time job with Apcoa working as a ticket taker and cashier at a local airport parking lot. This job allows claimant to stand and sit as he pleases. Claimant testified that he is capable of performing this job, although he still experiences pain. Claimant’s supervisor testified that she has observed claimant in pain while attempting to perform such tasks as inventorying the parking lot or putting on gates. She therefore does not require claimant to perform these tasks as part of his job. Claimant testified that he has not sought other employment since beginning his job with Ap-coa.

Claimant made claim for wage-loss benefits for the period of November of 1982 through November of 1983. The employer/carrier defended on the basis that claimant voluntarily limited his income during this period of time and that claimant made an inadequate work search. In the order on review, the deputy found that claimant satisfied his job search requirement by in fact looking for, finding, and accepting employment commensurate with his job skills, his physical ability, and the disability resulting from the industrial accident. The deputy found that the burden therefore shifted to the employer/carrier to show that claimant was not making the highest and best use of his skills within his disability or that claimant is not in fact disabled. Claimant was awarded the wage-loss benefits requested.

The employer/carrier contend that the deputy’s order is error. The employer/carrier assert that claimant had a duty to continue a job search for a position more in keeping with his prior salary and that because claimant admitted he had stopped searching for work after obtaining a job with Apcoa, it was established that claimant voluntarily limited his income. We disagree.

Section 440.15(3)(b)2, Florida Statutes (1980), provides that:

The amount determined to be the salary, wages, and other remunerations the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee, including earnings from sheltered employment. In the event the employee voluntarily limits his income or fails to accept employment commensurate with his abilities, the salary, wages, and other remuneration the employee is able to earn after the date of maximum medical improvement shall be deemed to be the amount which would have been earned if the employee did not limit his income or accepted appropriate employment. Whenever a wage-loss benefit as set forth in subparagraph 1. may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury.

Here, we find and hold that claimant met his burden of proof to establish that the wage loss claimed was the result of his compensable injury. See generally Topeka Inn Management v. Pate, 414 So.2d 1184 (Fla. 1st DCA 1982) (this court finding that a claimant’s claimed wage loss during two periods of time in which the claimant worked as a CETA secretary and a nurse’s aide, respectively, was the result of the claimant’s compensable injury, as both the jobs were within the claimant’s prescribed physical limitations and commensurate with the claimant’s abilities). Sub judice, the testimonies of claimant, claimant’s supervisor, and Dr. McCarthy, established a prima facie case that claimant had obtained employment commensurate with his ability and that he had not voluntarily limited his income. See Regency Inn v. Johnson, 422 So.2d 870, 876 (Fla. 1st DCA 1982), petition for rev. denied, 431 So.2d 989 (Fla.1983); See also Kyle v. Davis, 435 So.2d 918, 920 (Fla. 1st DCA 1983) (Ervin, J., concurring in part and dissenting in part). It was then incumbent upon the employer/carrier, if it wished to overcome claimant’s prima facie case, to show that claimant refused work or voluntarily limited his income. Id. The testimony of claimant that he had not looked elsewhere for work since obtaining the job at Apcoa, without more, did not satisfy the employer/carrier’s burden. Accordingly, the deputy’s order is AFFIRMED.

WENTWORTH and NIMMONS, JJ., concur.


author: PER CURIAM.

text:
    Manuel Francisco FERREY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2012.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Bennett H. Brummer, Public Defender and John H. Lipinsky, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
    Before NESBITT and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The defendant was charged with armed burglary of a structure, armed kidnapping, multiple counts of attempted armed robbery, and first-degree murder. He was convicted on one count of armed burglary of a structure and multiple counts of attempted armed robbery. We affirm the convictions.

The wife of the victim of the alleged murder identified her deceased husband as the victim, notwithstanding that he had been previously identified by a non-relative. Although erroneous, the admission of the wife’s testimony was harmless where, as here, her testimony was required as to other matters at issue in the case; the record fails to show that her demeanor was such as to unduly evoke the jury’s sympathy; and, most significantly, the jury did not convict the defendant on the murder charge. See Welty v. State, 402 So.2d 1159 (Fla.1981).

The admission of the defendant’s taped confession, even if error, is similarly harmless in light of the overwhelming evidence of defendant’s guilt, including an earlier confession, which was, as the defendant concedes, correctly admitted.

Although we affirm the convictions, we remand the cause for correction of the sentences imposed. A “trial court may not ... retain jurisdiction for the first one-third of each of the consecutive sentences imposed.” Goree v. State, 411 So.2d 1352, 1854 (Fla. 3d DCA 1982). Accordingly, the trial court must correct the written sentences to clarify that it retains jurisdiction over one-third of the total consecutive sentences. ' See Wicker v. State, 445 So.2d 583 (Fla. 2d DCA 1983); Wicker v. State, 438 So.2d 398 (Fla. 2d DCA 1983); Adams v. State, 435 So.2d 953 (Fla. 2d DCA 1983).

Judgment affirmed; remanded for correction of sentences.


text:
    John J. O’BRIEN, Appellant, v. BRICKELL TOWNHOUSE, INC.; Jerry A. Gross; Howard P. Gross and Alan Telisman, Appellees.
    No. 83-3042.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    John J. O’Brien, Miami, in pro. per.
    Podhurst, Orseck Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, for appellees.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

Following the rendition of our opinion, reported O’Brien v. Brickell Townhouse, 439 So.2d 982 (Fla. 3d DCA 1983), the matter recurred in the trial court on a petition for attorney’s fees filed by Brickell Townhouse pursuant to the provisions of Section 57.105, Florida Statutes (1983). The trial court granted the petition and entered an award of fees. This appeal ensued.

The appellant contends, first, that the trial court was required to take evidence to determine whether or not the appeal was frivolous, and second, that the record, in fact, demonstrated a justiciable issue of law. There is no requirement that a trial court must take evidence to determine whether a matter is frivolous, it may do it on the record alone. Strothman v. Henderson Medical Health Center, Inc., 425 So.2d 1185 (Fla. 4th DCA 1983). And third, it is clear in the instant case by virtue of the prior affirmance that the appellant was attempting to relitigate in the state courts identical issues which had been resolved, adverse to him, in the federal courts and therefore he did not plead any justiciable issue and the trial court was correct in the entry of the order here under review. See Debra, Inc. v. Orange County, 445 So.2d 404, 405 (Fla. 5th DCA 1984); Puder v. Raymond International Builders, Inc., 424 So.2d 78 (Fla. 3d DCA 1983); P.J. Constructors, Inc. v. Carter Electric Company, 410 So.2d 536 (Fla. 5th DCA 1982); New River Yachting Center v. Bacchiocchi, 407 So.2d 607 (Fla. 4th DCA 1982).

The order under review is hereby affirmed.

Affirmed.


text:
    The STATE of Florida, Petitioner, v. Earnell RICHARDS and Earsley Wilcher, Respondents.
    No. 84-1805.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Jim Smith, Atty. Gen. and G. Bart Billb-rough, Asst. Atty. Gen., for petitioner.
    Manuel Crespo, Joseph Kershaw, Miami, for respondents.
    Before NESBITT, DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

By this petition for writ of certiorari, the State seeks review of a trial court order refusing to compel Richards and Wilcher, persons who indisputably had been given use immunity pursuant to Section 914.04, Florida Statutes (1983), to testify at the trial of Wilcher’s brother. The announced basis for the trial court’s ruling was that it would not compel the witnesses to testify at trial unless the State granted the witnesses immunity from “prosecution for perjury as to all prior statements, including statements to the police and to the Grand Jury and as to use of testimony at trial to prove contradiction with prior sworn statements.” (emphasis supplied).

Protection from the use of their trial testimony is all the protection that the law requires, see Novo v. Scott, 438 So.2d 477 (Fla.3d DCA 1983), rev. denied, 446 So.2d 100 (Fla.1984), and such protection having been given, the respondents’ testimony must be compelled. While any testimony which, these witnesses give at trial under the grant of immunity may not be used as evidence against them in a prosecution for perjury by making inconsistent or contradictory statements, these witnesses are not entitled to immunity from prosecution. They may be prosecuted for committing perjury during their trial testimony providing only that their trial testimony is proved to be perjurious by independent proof rather than by merely showing that it conflicts with prior testimony, and they may be prosecuted for perjury for making any previous sworn statement so long as the statement is proved perjurious by other than the use of the witnesses’ immunized trial testimony. See The Florida Bar v. Doe, 384 So.2d 30 (Fla.1980); Menut v. State, 446 So.2d 718 (Fla. 4th DCA 1984).

Certiorari granted; order of July 11, 1984, quashed.


author: NIMMONS, Judge.

text:
    ORANGE COUNTY POLICE BENEVOLENT ASSOCIATION, Appellant, v. CITY OF CASSELBERRY and Florida Public Employees Relations Commission, Appellees.
    No. AS-43.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1984.

      Thomas J. Pilacek of Pilacek, Cohen & Sommers, Orlando, for appellant.
    Frank C. Kruppenbacher of Swann & Haddock, Orlando, for appellee City.
    Thomas W. Young, III, Tallahassee, for appellee PERC.
   NIMMONS, Judge.

The Orange County Police Benevolent Association (PBA) appeals from an order of the Public Employees Relations Commission (PERC) rejecting the hearing officer’s recommended order and holding that the City of Casselberry (City) was not guilty of an unfair labor practice in the process of negotiating a collective bargaining agreement for the bargaining unit’s City police officers. We agree with the hearing officer who concluded that the City committed an unfair labor practice under Section 447.-501(l)(a) and (c), Florida Statutes (1981) by insisting to the point of impasse upon the exclusion of disputes regarding discharge and demotion from a grievance procedure which ends in binding arbitration. We therefore reverse PERC’s order.

We summarize the facts which are taken from the hearing officer’s recommended order, as augmented in PERC’s final order. In August, 1981, PBA was certified as the bargaining agent for the City’s police officers, excluding sergeants, lieutenants, assistant chief, chief and non-sworn personnel. Bargaining for an initial contract commenced in October, 1981. There were approximately ten negotiating sessions over the next ten months. From the inception, and throughout the period of negotiations, PBA contended that the contract’s “grievance procedure culminating in binding arbitration,” a provision required by Section 447.401, Florida Statutes (1981), should in-elude disputes involving discharge or demotion. The City, however, consistently maintained that any agreed upon demotion and discharge provision should not be handled through the contract’s grievance procedure. Instead, it was the City’s position that such matters should be processed through the City’s existing civil service procedures. At one point, the City, as an alternative to its preferred position, offered to submit grievances regarding discharge or demotion to a panel of law enforcement officers similar to that provided for by Section 112.532, Florida Statutes (1981). This was not accepted. Also, there was discussion about a detailed definition of “cause” for discharge. However, no agreement was reached prior to impasse regarding any demotion or discharge provision or definition of cause.

During the course of negotiations, the parties reached agreement on such subjects as overtime, workweek, workshift, leaves of absence, compensation for injuries, equipment safety, life insurance and medical insurance. When PBA declared impasse on August 5, 1982, the issues regarding wages and demotion and discharge were still pending and in dispute. At no time did PBA ever volunteer to exclude disputes involving discharge or demotion from a grievance-to-arbitration provision. Following PBA’s declaration of impasse, the City proposed certain disciplinary provisions contained in existing collective bargaining agreements from two other municipalities. The PBA declined the offer because the provisions were not covered by a grievance-to-arbitration provision.

After the declaration of impasse on August 5, 1982, the parties continued to negotiate and eventually reached an agreement on October 7, 1982, the date of the eviden-tiary hearing on PBA’s unfair labor practice charge. The parties never utilized a special master or other procedures available under Section 447.403 for the resolution of impasses. The parties stipulated in the proceedings below that agreement on a contract did not render moot PBA’s unfair labor practice charge.

The basic question involved in this case is whether the City committed an unfair labor practice by insisting to the point of impasse upon a non-mandatory (or “permissive”) subject of bargaining as a condition to an agreement upon mandatory subjects. The employer and employee have the duty to bargain in good faith on the subjects of wages, hours and terms and conditions of employment. Each party is entitled to press its position on these mandatory subjects to the point of impasse (which in the public sector may lead to provisions imposed upon the parties through the statutory impasse procedures including resolution through legislative action, Section 447.403, Florida Statutes). NLRB v. Wooster, 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958); Latrobe Steel Co. v. NLRB, 630 F.2d 171 (3rd Cir.1980). On the other hand, there is no duty to bargain on non-mandatory (or permissive) subjects, and each party is free to bargain or not to bargain, or agree or not to agree as he sees fit. And a party’s insistence upon a non-mandatory subject as a condition to agreement on mandatory subjects amounts to a refusal to bargain and constitutes an unfair labor practice. Latrobe, supra, at 175; Palm Beach Junior College v. United Faculty of Palm Beach Junior College, 425 So.2d 133, 138 (Fla. 1st DCA 1983).

Demotion and discharge, including the definition of “cause” for discharge, are mandatory subjects of bargaining concerning which the parties are obligated to negotiate in good faith, and may do so to impasse. See Public Employees Relations Commission v. District School Board of DeSoto County, 374 So.2d 1005, 1013 (Fla. 2nd DCA 1979) (held that matters pertaining to the discharge of teachers are terms and conditions of employment.)

We hold that, under a proper construction of Chapter 447, Part II, the exclusion of demotion and discharge provisions from the grievance-to-arbitration provisions of the contract is a non-mandatory subject of bargaining even where the City has an existing civil service ordinance covering demotion and discharge. Section 447.401 (reproduced at footnote 3 supra) provides that the parties “shall negotiate a grievance procedure to be used for the settlement of disputes ... involving the interpretation or application” of the agreement and that such procedure shall provide for binding arbitration as its final step. That is not to say that a collective bargaining agreement which exempts its demotion and discharge provision from the operation of its grievance procedure in favor of existing civil service procedures is invalid or illegal. As this court held in American Federation of State, County & Municipal Employees, Local 1363 v. Florida Public Employees Relations Commission, 430 So.2d 481 (Fla. 1st DCA 1983) (hereafter “AFSCME, Local 1363”), Section 447.401 must be read in pari materia with Section 447.309(5), Florida Statutes (1981), which provides that collective bargaining agreements “shall contain all of the terms and conditions of employment ... except those terms and conditions provided for ... in applicable merit and civil service rules and regulations.” We, therefore, held in AFSCME, Local 1363 that such a contract, notwithstanding that it purports to exempt certain of its provisions from the grievance-to-arbitration provision required by Section 447.401, is valid where the parties voluntarily entered into it. But to say that a collective bargaining agreement which utilizes existing civil service procedures in lieu of the grievance-to-arbitration mechanism contemplated by Section 447.401 is valid is not to say that che public employer, in negotiating a contract, is at liberty to insist to impasse upon excepting demotion and discharge provisions from the statutorily required grievance procedure. That is still a protected non-mandatory subject of bargaining and has been recognized as such by PERC in its order in AFSCME, Local 1363, 8 FPER 1113278 and in its brief in the instant case.

PERC’s order points to the provisions of Section 447.203(14) which, while requiring the parties to negotiate the terms and conditions of employment, provides that “neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this part.” PERC’s reliance upon this provision is misplaced. That section does not alter the principles discussed above regarding the rights and obligations of the parties with respect to mandatory and non-mandatory subjects of bargaining.

In its appealed order, PERC relied upon the erroneous legal conclusion that the validity of PBA’s unfair labor practice charge was dependent upon the parties having reached agreement upon a demotion and discharge provision. PERC reasoned:

[Wjithout a contractual provision covering demotion and discharge, there can be no duty to agree to a grievance provision which includes the arbitration of demotion and discharge decision.

And PERC’s order, in rejecting the hearing officer’s view that the City had refused to bargain in good faith, observed that the hearing officer had “apparently” relied upon the conclusion that a demotion and discharge provision had been agreed upon prior to the declaration of impasse. In the first place, the hearing officer made no such finding of an agreement on a demotion and discharge provision. Indeed, such a finding would have been contrary to the evidence. But, secondly, agreement on such a provision was not a prerequisite to PBA’s unfair labor practice charge. In order to constitute an unfair labor practice, it was sufficient for PBA to establish that the City insisted to the point of impasse upon the exclusion of demotion and discharge from the statutorily required grievance-to-arbitration provision (a non-mandatory subject of bargaining) as a condition to the agreement upon mandatory subjects such as demotion and discharge provisions, definition of “cause” for discharge, and wages.

PERC’s order rejecting the recommended order was also predicated, in part, upon the fact that after the declaration of impasse the parties eventually reached agreement on a collective bargaining agreement without resorting to impasse proceedings before a special master as contemplated by Section 447.403. For purposes of the determination of whether a party has committed an unfair labor practice by insisting to the point of impasse upon a non-mandatory provision, the offending party is not insulated from responsibility for its conduct by reason of either the non-use of the statutory impasse procedures or the parties’ eventual post-impasse agreement. One court has referred to the talismanic invocation of the term “impasse” in the private sector thusly:

The concept of “impasse” is relevant in several contexts involving collective bargaining. In each context, however, its significance is somewhat different. “Impasse” may be used to describe that point at which there is a sufficient disagreement over a mandatory subject of bargaining to permit unilateral action by one of the parties on that subject, [eita-tions omitted] It may also be used to refer to a breakdown in all negotiations over either one or several issues, [citations omitted] In this latter sense, “impasse” is relevant to the Borg-Warner question. See page 180, infra, [citations omitted] We have grave doubts, however, as to the usefulness of the concept of “impasse” as a level of disagreement over a single issue where that issue is a non-mandatory subject of bargaining. As Borg-Warner [National Labor Relations Board v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823] makes clear, there can be no adverse consequence from a party’s failure to agree or even his failure to bargain about a non-mandatory subject of bargaining. What Borg-Warner prohibits is insistence upon a non-mandatory subject as a condition precedent to entering an agreement. 356 U.S. at 349, 78 S.Ct. at 722. This is the standard which must guide the inquiry, [citations omitted]

Latrobe Steel Company v. NLRB, supra at 179. We do recognize that the term “impasse” as used in the private sector is not identical with the same term under the public sector provisions of Chapter 447. “Impasse” is not defined under the National Labor Relations Act and its meaning is determined on a case-by-case basis. On the other hand, Section 447.403(1) defines the term. Under that section, impasse shall be deemed to have occurred when: (1) dispute still exists over the terms and conditions of employment after a reasonable period of negotiation; and (2) one of the parties declares in writing to the other party and to PERC that they are at impasse. It has been observed that “impasse” under Section 447.403(1) “is fundamentally dissimilar to the private sector concept because a statutory impasse occurs before the end of the parties’ obligations to participate in good faith bargaining.” Schulman, The Case of Frustrated or Unsuccessful Public Employee Collective Bargaining: A Review of the Developing Legal Concepts In Florida, Vol. 30 Fla.L.Rev. 867. And, as recognized in Hollywood Fire Fighters Local 1375 v. City of Hollywood, 8 FPER H 13333 (August 18, 1982) (Commissioner Reno-vitch, specially concurring), in order for parties to be considered at impasse under Section 447.403(1), the parties need not be at the point of “deadlock” as contemplated in .private sector impasse.

In any event, the hearing officer, based upon the evidence presented, found that the parties were deadlocked:

I have carefully considered whether the parties were in fact at impasse on this point when the PBA declared impasse, and I conclude that the parties were in fact deadlocked and at loggerheads.

Although PERC’s order did not take issue as such with the hearing officer’s above finding, appellees argue on appeal that the City did not insist to the point of impasse upon the non-mandatory subject. The hearing officer found otherwise, and his findings are supported by competent substantial evidence and the applicable law.

The City also asserts that reversal of PERC’s order will result in an unconstitutional application of Chapter 447 under Article III, Section 14, of the Florida Constitution which allows municipalities to establish their own civil service system. A similar predecessor provision existed prior to the 1968 Revision of the Florida Constitution. See Ison v. Zimmerman, 372 So.2d 431, 434 (Fla.1979). That provision was therefore in existence when the citizens of Florida adopted the revised 1968 Constitution which, for the first time, accorded public employees the same collective bargaining rights, with the exception of the right to strike, as those enjoyed by employees in the private sector. Article I, Section 6, Constitution of Florida, 1968 Revision; City of Tallahassee v. Public Employees Relations Commission, 410 So.2d 487, 489 (Fla.1982); Dade County Classroom Teachers’ Association, Inc. v. Ryan, 225 So.2d 903 (Fla.1969). Reading the two constitutional provisions in pari materia, we do not believe that Article III, Section 14, can reasonably be construed to deny the collective bargaining protections sought by the appellant in the case at bar which protections are guaranteed under Article I, Section 6.

Although neither the City nor PERC has relied upon or cited to Section 447.601, Florida Statutes (1981), we point out that we have considered its possible application and find that it does not conflict with our holding or analysis. That section provides:

447.601 Merit or civil service system; applicability. — The provisions of this part shall not be construed to repeal, amend, or modify the provisions of any law or ordinance establishing a merit or civil service system for public employees or the rules and regulations adopted pursuant thereto or to prohibit or hinder the establishment of other such personnel systems unless the provisions of such merit or civil service system laws or ordinances or rules and regulations adopted pursuant thereto are in conflict with the provisions of this part, in which event such laws, ordinances, or rules and regulations shall not apply, except as provided in s. 447.301(4).

As we have held in this opinion, under a proper construction of Chapter 447, Part II, the exclusion of demotion and discharge from the statutorily required grievance-to-arbitration provisions is a non-mandatory subject of bargaining even where the public employee has an existing civil service ordinance covering demotion and discharge. Given that holding along with the recognition that demotion and discharge are mandatory subjects of bargaining under Chapter 447, the City’s position that the existence of its civil service ordinance provisions entitles the City to insist upon the exclusion of demotion and discharge from the contract’s grievance provision is in conflict with a proper construction of Chapter 447. Indeed, if the effect of Section 447.601 were other than as we have suggested, we would perhaps then be confronted with a conflict between that section and Article I, Section 6.

In view of the foregoing, we reverse PERC’s order dismissing PBA’s unfair labor practice charge and remand for the entry of an order finding that the City committed an unfair labor practice. Inasmuch as PERC has not as yet considered the imposition of sanctions, it shall do so on remand and enter an appropriate order giving due consideration to the hearing officer’s recommended order with respect thereto. Likewise, since PERC denied PBA an award of attorneys’ fees because of its dismissal of the unfair labor practice charge, PERC shall also consider anew the question of attorneys’ fees and the hearing officer’s recommendation regarding same.

Reversed and Remanded.

SMITH and WIGGINTON, JJ„ concur.

      . PERC’s order and the hearing officer's recommended order are reported at 9 FPER ¶ 14120.

      . 447.501 Unfair labor practices.—
      (1) Public employers or their agents or representatives are prohibited from:
      (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.

      (c) Refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit.

      . 447.401 Grievance procedures. — Each public employer and bargaining agent shall negotiate a grievance procedure to be used for the settlement of disputes between employer and employee, or group of employees, involving the interpretation or application of a collective bargaining agreement. Such grievance procedure shall have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties. However, an arbiter or other neutral shall not have the power to add to, subtract from, modify, or alter the terms of a collective bargaining agreement. If an employee organization is certified as the bargaining agent of a unit, the grievance procedure then in existence may be the subject of collective bargaining, and any agreement which is reached shall supersede the previously existing procedure. All public employees shall have the right to a fair and equitable grievance procedure, administered without regard to membership or nonmembership in any organization, except that certified employee organizations shall not be required to process grievances for employees who are not members of the organization. A career service employee shall have the option of utilizing the civil service appeal procedure or a grievance procedure established under this section, but such employee cannot use both a civil service appeal and a grievance procedure.

      . We recognize as persuasive authority federal decisions construing the National Labor Relations Act to the extent that Chapter 447 and such Act are analogous. Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1977).

      . PBA desires, in view of the “unexpected rationale” of PERC’s order, to supplement the record on appeal by the submission of the agreement eventually reached after impasse which agreement purportedly includes a "proper cause” provision but which agreement was not received in evidence in the proceedings below. In view of our holding that the principal rationale of PERC's order was erroneous, it is unnecessary for us to consider the supplemental materials which PBA seeks to have included over appellees' objections. We therefore deny PBA’s motion to supplement.

      . PERC does not join the City in this argument. We also note that neither the hearing officer nor PERC addressed this argument.

      . After oral argument, Judge Joanos recused himself and was replaced on the panel by Judge Smith who has listened to the tape recording of the oral arguments.


text:
    Joseph MASSARO, Appellant, v. COLUMBIAN APARTMENTS and Aetna Casualty & Surety, Appellees.
    No. AX-151.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1984.
    Daniel B. Schuh, St. Petersburg, for appellant.
    Thomas T. Bopp of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellees.
   PER CURIAM.

We affirm the order appealed from below except that portion denying claimant payment for medical services provided by Dr. Aaron Schneider. When the employer/carrier (E/C) deauthorized the claimant’s first treating physician without authorizing alternative medical care, even when claimant requested such care, claimant was justified in seeking medical treatment from a physician of his own choosing. Gust K. Newberg Construction Co. v. Warren, 449 So.2d 934 (Fla. 1st DCA 1984); Sears, Roebuck and Co. v. Viera, 440 So.2d 49 (Fla. 1st DCA 1983). We find the E/C’s contention that it is entitled to ignore the request for alternative medical care of a claimant who is represented by counsel to be without merit. Accordingly, we modify the deputy commissioner’s order to require the E/C to pay the costs associated with Dr. Schneider’s orthopedic examination and evaluation of claimant. Otherwise, the order appealed from is AFFIRMED.

BOOTH, SMITH and THOMPSON, JJ., concur.


text:
    The SCHOOL BOARD OF COLLIER COUNTY, Florida, Appellant, v. Nancy SALTER, Appellee.
    No. AX-414.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1984.
    See also Fla.App., 440 So.2d 444.
    James H. Siesky, P.A., Naples, for appellant.
    Richard I. Cervelli, P.A., Naples, for ap-pellee.
   PER CURIAM.

The deputy’s order awarding claimant’s attorney a fee of $8,500.00 is reversed for failure to make a finding of the benefits obtained for claimant by the attorney and for failure to adequately explain how the factors in Lee Engineering and Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968), were applied to arrive at the fee awarded. Commercial Carrier Corp. v. Porter, 452 So.2d 125 (Fla. 1st DCA 1984); and Department of Health and Rehabilitative Services/Division of Blind Services v. Bean, 435 So.2d 967 (Fla. 1st DCA 1983). We hasten to add that this reversal should not be interpreted as an indication that we view the award of $8,500.00 as excessive and/or an abuse of discretion. The order simply does not contain the necessary findings to permit an orderly review by this court, in the face of the specific questions raised by the E/C concerning the extent to which the amount of the award was affected by the method of calculating benefits obtained for the claimant. Upon remand, the deputy is directed to consider Deese v. Oolite Rock Company, IRC Order 2-1045 (1961), affirmed, 134 So.2d 241 (Fla.1961), which requires the present value of claimant’s compensation payments to be determined and used for purposes of calculating the statutory schedule amount of attorney’s fees due under Section 440.34(1), Florida Statutes (1977). Deese provides that the four percent (4%) statutory discount factor may be utilized to compute the present value of claimant’s compensation payments. Since the date of accident in this case is May 24, 1978, the newly enacted eight percent (8%) statutory discount factor, which has been held by this court to be prospective only, would not apply. Cone Brothers Contracting v. Gordon, 453 So.2d 420 (Fla. 1st DCA 1984).

Accordingly, the deputy’s order is REVERSED and the cause REMANDED for proceedings consistent with this opinion.

BOOTH, SMITH and THOMPSON, JJ., concur.


author: MILLS, Judge.

text:
    Leon CHAPPELL, Appellant, v. STATE of Florida, Appellee.
    No. AY-133.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1984.
    Michael E. Allen, Public Defender; A. Terry Carley, Asst. Public Defender, Tallahassee, for appellant.

      Jim Smith, Atty. Gen.; Gregory G. Cos-tas, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   MILLS, Judge.

Chappell appeals his convictions and sentences for possession of cocaine and less than 20 grams of cannabis. He contends the State failed to present legally sufficient evidence of constructive possession. We agree and reverse.

Based on the affidavit of a police officer that the officer had participated in a purchase of marijuana by a confidential informant at Chappell’s apartment, the authorities obtained a search warrant for the apartment. On 10 November 1983, police on the way to execute the search warrant saw Chappell leaving the apartment. The police informed Chappell of the search warrant and their intent to search the apartment. He unlocked the apartment door and followed the officers inside. There is no indication Chappell made any statements to the officers.

Hidden under a chair in the living room, the officers found a turntable dust cover. Inside the dust cover were several small manila envelopes, two of which contained marijuana. There was also a small amount of loose marijuana in the dust cover. On the dining room table lay two more small manila envelopes. One contained cocaine capsules, the other marijuana. More manila envelopes containing marijuana were found in two kitchen drawers.

The State’s case at trial consisted of the testimony of the officer who prepared the search warrant, the two officers who executed the warrant, the assistant manager of the apartment complex where Chappell lived, the evidence custodian, and an FDLE chemist. Following the State’s case, defense counsel moved for a judgment of acquittal on the ground that the State had failed to establish that Chappell was in either actual or constructive possession of drugs. The motion was denied. The defense rested after presenting no evidence and renewed the motion for judgment of acquittal. Again, it was denied. The jury found Chappell guilty of both counts as charged. He was put on five years probation and sentenced to 270 days in jail.

It was undisputed that Chappell was not in actual possession of the drugs. Chap-pell lived in the apartment with his wife and two young children. When the search warrant was executed, no one but Chappell was in the apartment.

A legally sufficient case of constructive possession requires that the State show the defendant has: (1) dominion and control over the contraband; (2) knowledge that the contraband is present; and (3) knowledge of the illicit nature of the contraband. Brown v. State, 428 So.2d 250 (Fla.1983); Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981). Where premises are jointly occupied, evidence of mere occupancy is not enough to prove elements (1) and (2). Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).

In Brown, at 252, the Florida Supreme' Court held “joint occupancy, with or without ownership of the premises, where contraband is discovered in plain view in the presence of the owner or occupant is sufficient to support a conviction for constructive possession.”

The State argues that the testimony of the officer who executed the warrant — testimony that the manila envelopes on the dining room table were not concealed — was sufficient evidence from which the jury could infer Chappell knew the contraband was present.

Chappell argues the drugs were not in plain view because they were not visible through the envelopes; therefore, there was no evidence he knew the contraband was present. Chappell’s dominion and control over the contraband and his knowledge of its illicit nature are not in dispute.

Although the manila envelopes on the dining room table were not concealed, their contents were. There was no evidence that the incriminating nature of the packaged contraband was immediately apparent, one of the requirements of “plain view” as that term is used in search and seizure analysis. See, Neary v. State, 384 So.2d 881 (Fla.1980); State v. Hall, 376 So.2d 276 (Fla. 3d DCA 1979); Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978). Nor was there any evidence that Chappell’s apartment was in a neighborhood of known narcotics transactions where manila envelopes were used as a principal means to convey narcotics. See, P.L.R. v. State, 455 So.2d 363 (Fla.1984).

We hold, therefore, that Brown does not apply because the contraband in this case was not in plain view. Given that there was no evidence Chappell knew the drugs were present, the trial court erred in denying the motions for judgment of acquittal.

The convictions and sentences are REVERSED.

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


text:
    Edgar Lorenzo ROBERSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-2027.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1984.
    Rehearing Granted Nov. 7, 1984.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We reverse the order revoking defendant’s probation because the trial court failed to advise him of his right to counsel. See Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984). The court also erred by imposing a sentence of 4 years, 3 months and 21 days. This sentence exceeds the four-year cap on terms of incarceration for defendants designated as youthful offenders. Brandle v. State, 406 So.2d 1221 (Fla. 4th DCA 1981). Additionally the court erred by refusing to grant credit for the 513 days which the defendant served in prison on the split sentence prior to his release on probation in July, 1983. See Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980).

Accordingly, the order of revocation is reversed, the sentence is vacated and the cause remanded with directions to hold a revocation proceeding at which the defendant is advised of his right to counsel.

REVERSED AND REMANDED.

HURLEY and WALDEN, JJ., concur.

GLICKSTEIN, J., concurs in result only.

      . We specifically note that the order of revocation was not invalid on jurisdictional grounds. See Clem v. State, 9 F.L.W. 1868 (Fla. 4th DCA Aug. 29, 1984).


text:
    Clifford WALKER, Appellant, v. STATE of Florida, Appellee.
    No. AR-200.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1984.
    P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., for appellee.
   ON MOTION TO STRIKE NOTICE OF CROSS APPEAL

PER CURIAM.

This cause comes before us on appellant’s motion to strike the State’s notice of cross appeal. Appellant contends that this court lacks jurisdiction to entertain the cross appeal because the notice of cross appeal was not filed within 10 days of service of the notice of appeal.

Rule 9.140(c)(1)(H), Fla.R.App.P., permits the State to appeal a ruling on a question of law when a defendant appeals his judgment of conviction. Rule 9.140(c)(2), Fla.R. App.P., provides that in an appeal taken pursuant to Rule 9.140(c)(1)(H), the State’s notice of appeal shall be filed within 10 days of service of defendant’s notice of appeal. Appellant argues that the language of the rule requiring the notice of cross appeal to be “filed”, as opposed to “served”, is evidence that the requirement is jurisdictional, like the filing of the notice of appeal. In support of this position, appellant cites to Agrico Chemical Co. v. Department of Environmental Regula tion, 380 So.2d 503 (Fla. 2nd DCA 1980), which, in holding that service of a notice of cross appeal pursuant to Rule 9.110(g), Fla. R.App.P., is not jurisdictional, appeared to place some significance on the fact that service was required rather than filing.

We do not agree with appellant that the use of the term “file” rather than “serve” has any jurisdictional import. The mere use of one term or the other does not, in and of itself, determine whether a requirement is procedural or jurisdictional in nature. Under the former rules, a cross appeal was taken by “filing” cross assignments of error, yet the timely filing of the cross assignments of error was not deemed jurisdictional. See Agrico Chemical Co., supra; Brickell Bay Condominium Association v. Forte, 379 So.2d 1334 (Fla. 3rd DCA 1980). Further, this court has held that the timely “filing” of a notice of cross appeal in a workers’ compensation case is not jurisdictional. County Sanitation v. Ross, 389 So.2d 1247 (Fla. 1st DCA 1980).

We hold that the filing period for a notice of cross appeal by the state in a criminal case is procedural rather than jurisdictional. Jurisdiction over the cause is acquired by the appellate court upon the timely filing of the notice of appeal. See, e.g., Hollywood v. Clark, 153 Fla. 501, 15 So.2d 175 (1943). Because the court gains jurisdiction over the entire cause at the time the notice of appeal is filed, neither the timely filing of a notice of cross appeal, nor the failure to timely file such a notice will affect the jurisdiction of the appellate court. As the Third District Court of Appeal succinctly stated:

[SJince the jurisdiction of the appellate court is invoked by the filing of the initial notice of appeal, ... the notice of cross-appeal is properly regarded as no more than a subsequent procedural step in the appellate process.

Brickell Bay Condominium Association, 379 So.2d at 1335.

In holding that the filing of a notice of cross appeal under 9.140(c)(2) is not jurisdictional, we wish to emphasize that is a procedural requirement, and while the.filing period may be extended for good cause, this does not mean the period will be extended automatically or in every case. In most cases, the court will expect the time limits for filing to be complied with. However, when defendant will not suffer prejudice or be deprived of adequate notice, the court may, in its sound discretion, allow the state to file an untimely notice of cross appeal.

In this case, appellant does not allege and the court does not find that appellant has been prejudiced by the untimely filing of the notice of cross appeal. Therefore, appellant’s motion to strike the notice of cross appeal is denied.

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


author: BARFIELD, Judge. JOANOS, Judge,

text:
    Richard MARKS, Appellant, v. Mary MARKS, Appellee.
    No. AV-249.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1984.

      Clayton W. Crevasse and Douglas F. Miller, of Taylor & Van Matre, Pensacola, for appellant.
    Mary M. Marks, pro se.
   BARFIELD, Judge.

Richard Marks appeals that portion of an order of contempt that requires him to pay certain mortgage payments or be imprisoned. The final judgment of dissolution of marriage provides in part:

The parties agree to sell the marital home of the parties located at 4740 Anchor Lane, Pensacola, Florida, by listing it with Reed-Reed Realtors, and they shall equally divided the proceeds of the said sale. The respondent shall be responsible for the mortgage payments on the said marital home from the date of the foregoing judgment until such time the said marital home is sold, and the respondent shall receive credit for these mortgage payments by recovering from the net sale proceeds a percentage of the net sale proceeds based on the number of mortgage payments he paid after the divorce as compared to the number of mortgage payments paid during the time the parties were married.

All terms of the judgment were the result of a stipulation between the parties. Alimony and child support were provided in other parts of the judgment unrelated to the quoted provisions concerning property. The appellant has not challenged the contempt order as it relates to child support, alimony, attorney fees and costs.

The above quoted provision of the final judgment is solely in the nature of a property settlement and is not enforceable by contempt. Ball v. Ball, 440 So.2d 677 (Fla. 1st DCA 1983); Schminkey v. Schminkey, 400 So.2d 121 (Fla. 4th DCA 1981); Carlin v. Carlin, 310 So.2d 403 (Fla. 4th DCA 1975); Corbin v. Etheridge, 296 So.2d 59 (Fla. 1st DCA 1974).

REVERSED.

WIGGINTON, J., concurs.

JOANOS, J., concurs specially with opinion.

JOANOS, Judge,

specially concurring.

I concur in the result reached by the majority because the cases cited dictate that result. However, I wish to note my uneasy feeling in reversing the trial judge on what appears to have been a most reasonable decision on his part. Further, I wish to point out my concern with the case law that has developed that treats “provisions concerning property” in a dissolution judgment as being unrelated to provisions for child support and alimony. To limit the trial judge’s ability to protect the needs of the former spouse and children in this fashion seems to seriously hamper that judge’s ability to do justice. A parent and children receiving what has been labeled as alimony and child support are still going to be in a bad way if the home payments are not made.


author: BOOTH, Judge.

text:
    RALSTON PURINA COMPANY and Aetna Life & Casualty Company, Appellants, v. Alfred BYERS, Appellee.
    No. AX-169.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1984.

      F. Bradley Hassell, Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellants.
    Edward H. Hurt, Hurt & Parrish, Orlando, and Bill McCabe, Shepherd, McCabe & Cooley, Orlando, for appellee.
   BOOTH, Judge.

The employer/carrier appeal the deputy commissioner’s holding that Section 440.-15(3)(b)4, Florida Statutes, as amended in 1983, can be retroactively applied to accidents occurring prior to the effective date of the amendment, and awarding wage-loss benefits. The amended statute, for the first time, allows persons 65 and over and eligible for social security to also obtain wage-loss benefits but provides for a setoff for social security benefits received.

The parties stipulated that the claimant sustained a compensable injury on December 3, 1981, that the claimant was 65 years of age as of July 1, 1983, and that the employer/carrier have paid temporary total disability benefits from January 10, 1983 to February 16, 1983, and wage-loss benefits from April, 1983 to July, 1983. The employer/carrier contended the claimant was not eligible for benefits because, inter alia, he had previously reached age 65. The deputy awarded the wage-loss benefits requested, holding that Section 440.15(3)(b)4, as amended effective June 30, 1983, applied to the claimant even though claimant’s accident occurred prior to that statute’s effective date. The deputy reasoned that the statute was primarily a clarification of what was intended by the 1980 version of the age/wage-loss provision, citing Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), and that, since the statutory change was procedural, it could be applied retroactively.

On the date of the claimant’s compensa-ble accident, Sections 440.15(3)(b)3 d and 4, Florida Statutes (1981), provided, in pertinent part, as follows: “3. The right to wage-loss benefits shall terminate: %y4)27 d. [w]hen the injured employee reaches age 65 and becomes eligible for benefits under 42 U.S.C. §§ 402 and 405;” and “4. [w]hen the injured employee reaches age 62, wage-loss benefits shall be reduced by the total amount of social security retirement benefits which the employee is receiving, not to exceed 50 percent of the employee’s wage-loss benefits.”

In 1983, the Legislature enacted Chapter 83-305, Section 5, effective June 30, 1983, which deleted Sections 440.15(3)(b)3 d and 440.15(3)(b)4 (quoted above) and replaced them with a new Subsection 4, which provided:

If an employee is entitled to both wage-loss benefits and social security retirement' benefits under 42 U.S.C. ss. 402 and 405, such social security retirement benefits shall be primary and the wage-loss benefits shall be supplemental only. The sum of the two benefits shall not exceed the amount of wage-loss benefits which would otherwise be payable. For the purposes of termination of wage-loss benefits pursuant to sub-subparagraph 3.a., the term “payable” shall be construed to include payment of social security retirement benefits in lieu of wage-loss benefits.

We hold that the deputy commissioner erred in applying Section 440.15(3)(b)4, Florida Statutes (1983), retroactively, since the amendment is a substantive change in the law. Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), affirmed, 452 So.2d 932 (Fla.1984), relied upon by the deputy commissioner, is distinguishable because the addition to the statute in the Sasso case was in clarification of what was intended by the Legislature in the previous enactment, as stated by the court in Sasso, 431 So.2d at 217-218:

In 1980, the legislature amended the statute by providing that an injured worker’s right to permanent disability wage-loss benefits terminate “[w]hen the injured employee reaches age 65 and becomes eligible for benefits under U.S.C. §§ m and m, Chap. 80-236, § 5, Laws of Fla. (added language emphasized) The added language requires that an injured worker’s wage-loss benefits may not be terminated unless he is both 65 or older and receiving old-age and survivors insurance benefits (O.A.S. L), more commonly referred to as social security retirement benefits. “[T]he timing and circumstances of an enactment may indicate it was formal only and served as a legislative clarification or interpretation of existing law, and thus such an enactment may even suggest that the same rights existed before it.” Williams v. Hartford Accident and Indemnity Co., 382 So.2d 1216, 1220 (Fla.1980); Speights v. State, 414 So.2d 574, 577 (Fla. 1st DCA 1982). Because the amendatory language in the age/wage-loss provision was relatively minor, was added to an act that was the first of its type in the nation and experimental in nature, and was added at the legislative session immediately following the original enactment of the wage-loss law, we are convinced that the 1980 amendment was merely a clarification of what was intended by the 1979 version of the age/wage-loss provision_

Unlike Sasso, supra, the amendment at issue in the instant case, which deletes a subsection of Section 440.15(3)(b)3 d, clearly alters the employer/carrier’s liability and cannot be characterized as “relatively minor.” Under the law at the time of the accident, the right to wage-loss benefits terminated when the employee reached age 65 and was eligible for social security benefits. Under the 1983 amendment, a 65-year-old claimant now has the right to receive wage-loss benefits with a setoff for social security benefits. The statutory change is substantive in nature and is not retroactive. Ship Shape v. Taylor, 397 So.2d 1199 (Fla. 1st DCA 1981). Accordingly, the deputy commissioner’s order must, unfortunately, be REVERSED.

MILLS and BARFIELD, JJ., concur.

      . See Hillsborough Community College v. Miller, 440 So.2d 26 (Fla. 1st DCA 1983), Booth, J., concurring in part and dissenting in part; Acosta v. Kraco, Inc., 448 So.2d 562 (Fla. 1st DCA 1984); Whilden v. H.B.A. Corp., 453 So.2d 551 (Fla. 4th DCA 1984), Anstead, C.J., specially concurring.


author: BARKETT, Judge.

text:
    Sydney POLLY, George I. Platt, III, and The Democratic Executive Committee of Broward County, Appellants, v. Nicholas G. NAVARRO and Jane Carroll, Supervisor of Elections of Broward County, Appellees.
    No. 84-2192.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 1984.

      Robert D. Klausner of Pelzner, Schwe-dock, Finkelstein & Klausner, P.A., Hollywood, for appellants.

      Linda A. Conahan, Clark R. Kerr, III, and James J. Blosser of English, McCau-ghan & O’Bryan, Fort Lauderdale, for ap-pellee, Navarro.
    Samuel S. Goren of Josias & Goren, Fort Lauderdale, for appellee, Carroll.
   BARKETT, Judge.

This is an appeal from a final judgment denying declaratory and injunctive relief. Appellants contend that the trial court erred in refusing to enjoin the Supervisor of Elections from placing the name of appellee Nicholas G. Navarro, the Republican Party candidate for the office of Bro-ward County Sheriff, on the November 6, 1984, ballot. We agree and reverse.

The record before us reflects the following undisputed facts. On January 30,1984, Navarro executed documents appointing a campaign treasurer and designating a campaign depository, identifying himself as a Democrat. Between January 30, 1984, and July 20, 1984, Navarro solicited and expended funds for his campaign. Various campaign literature and bumper stickers identified Navarro as a Democrat.

On July 20, 1984, Navarro changed his party affiliation from Democrat to Republican. Later that day, he signed a “Statement of Candidate” indicating that he was a Republican candidate for the office of Broward County Sheriff, and that he had “not been a candidate for nomination for any other political party for a period of six months preceding the general election” for which he sought to qualify. Notwithstanding the change of party allegiance, Navarro maintained the same bank account at all times, which contained contributions received while he had been a Democrat. The general election is to be held November 6, 1984, which is within six months of July 20, 1984.

Appellants contend that Navarro’s actions violate section 99.021(l)(b)2, Florida Statutes (1983), which bars such party-switching by candidates within six months of an election.

Section 99.021(l)(b), Florida Statutes (1983), provides:

(b)In addition, any person seeking to qualify for nomination as a candidate of any political party shall, at the time of subscribing to the oath or affirmation, state in writing:
1. The party of which he is a member.
2. That he is not a registered member of any other political party and has not been a candidate for nomination for any other political party for a period of 6 months preceding the general election for which he seeks to qualify.

Section 97.021(18), Florida Statutes (1983), defines “candidate” as follows:

(1) “Candidate” means any person to whom any one or more of the following applies:
(a) Any person who seeks to qualify for nomination or election by means of the petitioning process.
(b) Any person who seeks to qualify for election as a write-in candidate.
(c) Any person who receives contributions or makes expenditures, or gives his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination or election to, or retention in, public office.
(d) Any person who appoints a treasurer and designates a primary depository.
(e) Any person who files qualification papers and subscribes to a candidate’s oath as required by law.

The uncontradicted evidence shows that Navarro was a Democratic “candidate” as defined in section 97.021(18)(c) or (d), Florida Statutes, prior to July 20, 1984. The uncontradicted evidence also shows that Navarro was a Republican “candidate” within 97.021(18)(c), (d), or (e), after July 20, 1984.

Appellees suggest, however, that section 99.021(l)(b)2, Florida Statutes (1983), means that a nominee need only state that he has not qualified pursuant to section 99.061 to run for nomination in a primary election. They further argue that any other construction would render the statute unconstitutional by infringing upon the associational rights of the candidate and his supporters. We disagree on both points.

The statute is clear and unambiguous. Nothing supports the forced construction appellees would place upon it. Nor can its constitutionality be questioned in light of Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). There, the United States Supreme Court upheld a California statute which was far more restrictive than the statute in question here. The California statute provided that any candidate who had been a registered member of a political party within one year of the primary election preceding a general election could not appear on the ballot of that general election could not appear on the ballot of that general election as an independent candidate. The Court noted that the statute furthered the state interests of maintaining the integrity of the various routes to the ballot and of stabilizing its political system. Id. 94 S.Ct. at 1281, 1282. The Court found the latter interest so compelling that the statute would have been held constitutional even if the candidate’s right to run for office were deemed a fundamental right. Id. 94 S.Ct. at 1282. In the case before us the relevant disaffiliation period is only six months. Furthermore, the governmental interests of maintaining the integrity of different routes to the ballot and of stabilizing the political system, are clearly served by section 99.021(l)(b), Florida Statutes (1983), and, therefore, it is constitutional. See also Lippitt v. Cipollone, 337 F.Supp. 1405 (N.D.Ohio 1971), aff’d mem., 404 U.S. 1032, 92 S.Ct. 729, 30 L.Ed.2d 725 (1972) (upholding four-year disaffiliation requirement for candidates); Bendinger v. Ogilvie, 335 F.Supp. 572 (N.D.Ill.1971) (upholding two-year disaffiliation requirement for candidates, and discussing compelling reasons in support thereof).

Clearly, then, as a matter of law, appel-lee Navarro violated a valid and constitutional statute, to-wit section 99.021(l)(b)2, Florida Statutes (1983). Accordingly, he is not qualified to be the Republican party nominee in the November 6, 1984, election.

Notwithstanding the foregoing, ap-pellees successfully persuaded the court below, and presently contend before us, that the appellants’ claim for injunctive relief is barred by the doctrine of laches and unclean hands. We cannot agree.

First, there is no evidence in the record that appellants had notice of Navarro’s conduct, or that they delayed in asserting their rights. In fact, only 74 days elapsed between the day Navarro filed for candidacy and the day appellants filéd suit. A period of 74 days is hardly a “delay.” See Niagara Fire Insurance Company v. Allied Electrical Company, 319 So.2d 594 (Fla. 3d DCA), cert. dismissed, 322 So.2d 925 (Fla.1975). More importantly, no prejudice has accrued to appellee Navarro. If his candidacy is illegal now, it was never legal and he was never eligible to be elected sheriff. Accordingly, he stands in exactly the same shoes as if he had been declared ineligible on July 21, 1984.

Lastly, the doctrine of laches cannot be permitted to achieve an inequitable or illegal result. Navarro has violated a statute governing eligibility for public office. If he were to win the election, Broward County would have an unqualified sheriff. The application of the equitable doctrine of laches cannot countenance such a result. Nor can the defense of laches be used as a basis for giving legal effect to a void act. Board of Public Instruction v. Little River Valley Drainage District, 119 So.2d 323, 327 (Fla. 3d DCA 1960).

In addition, we find the trial court erred in applying the doctrine of unclean hands as a bar to the requested injunction. There simply was no evidence to support a finding of unclean hands on the part of appellants.

The trial court also erred in holding that appellants were not entitled to an injunction because they had an adequate remedy at law. The general view, and that adopted in Florida, is that “barring fraud, unfairness, disenfranchisement of voters, etc., it is too late to attack the validity of an election after the people have voted.” Baker v. State ex rel. Caldwell, 122 So.2d 816, 826 (Fla. 2d DCA), cert. denied, 122 So.2d 777 (Fla.1960). In McPherson v. Flynn, 397 So.2d 665 (Fla.1981), a case where a defeated candidate for the state legislature attempted to have the winning candidate removed because the winning candidate filed a false candidate oath, the court stated:

Since there is no common law right to contest elections, any statutory grant must necessarily be construed to grant only such rights as are explicitly set out. See Pearson v. Taylor, 159 Fla. 775, 32 So.2d 826 (1947). The statutory election contest has been interpreted as referring only to consideration of the balloting and counting process. State ex rel. Peacock v. Latham, 125 Fla. 69, 169 So. 597 (1936); Farmer v. Carson, 110 Fla. 245, 148 So. 557 (1933). The balloting process is distinct from the legal qualifications of the candidates, and we can find no authority for extending an election contest to areas outside the balloting process. See State ex rel. Gandy v. Page, 125 Fla. 453, 170 So. 118 (1936).

Id. at 668. Under McPherson, it appears that appellants would be without a remedy to contest Navarro’s unqualified status after the election.

Lastly, we concur with the reluctance expressed by the trial court in taking an action which impacts upon the electoral process and causes an administrative hardship in the conduct of an election. However, the court has a responsibility which cannot be avoided. A dispute has been presented which must be resolved. We are not unmindful of the practical effect that excluding appellee Navarro from the ballot will have upon the voters of Broward County. We must note, however, that to fail to act could result in the election of an unqualified nominee. Our legislature has determined the criteria for valid candidacy, and appellee Navarro does not meet them. We would be remiss in our duty if we allowed him to remain on the ballot.

With reference to the argument that the removal of Navarro results in disenfranchising Republican voters, we note that July 20, 1984, was the last day on which a candidate could qualify as a candidate for the office of sheriff. No other Republican candidates for Broward County Sheriff registered with the supervisor of elections. Had appellee Navarro not switched at the last moment, the Democratic candidate would have been unopposed by a Republican.

For the foregoing reasons, we reverse the order of the trial court and hereby direct the appellee Supervisor of Elections to forthwith remove from the November 6, 1984, ballot the name of appellee Nicholas G. Navarro due to his failure to be a qualified candidate.

Nothing in this opinion shall preclude the supervisor of elections from taking any lawful action to place a successor candidate on the ballot.

A petition for rehearing will not be entertained.

HURLEY and DELL, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Errol GARNETT, Appellant, v. The STATE of Florida, Appellee.
    No. 83-961.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

We reject the defendant’s claim that he was entitled to discharge under the speedy trial rule, Fla.R.Crim.P. 3.191. Gar-nett did not appear on the date scheduled for trial. Although his absence was caused by his incarceration in the Palm Beach county jail at the time, this did not render him “available for trial” under Rule 3.191(e) because the state and the lower court had no notice that this was the case. Singleton v. Gross, 436 So.2d 132 (Fla. 3d DCA 1983), rev. denied, 436 So.2d 100 (Fla.1983) so holds. Accord, State v. Kerwin, 449 So.2d 355 (Fla. 1st DCA 1984). The fact that the prosecution subsequently became aware of the defendant’s whereabouts before the 180-day period expired does not, contrary to the appellant’s contention, require the application of the converse principle that a defendant is not deemed unavailable when his incarceration in another county is known to the authorities. Robbins v. State, 453 So.2d 877 (Fla. 2d DCA 1984); see generally, e.g., Holmes v. Leffler, 411 So.2d 889 (Fla. 5th DCA 1982), pet. for rev. denied, 419 So.2d 1200 (Fla.1982). This is because the rule requires that the defendant be “continuously” available so that an unexcused absence at any single required appearance precludes the defendant’s reliance on Rule 3.191. See Sherrod v. Franza, 427 So.2d 161 (Fla.1983); Harris v. State, 400 So.2d 819 (Fla. 5th DCA 1981). Since Garnett’s non-appearance for trial was unexcused under Singleton, the trial court properly concluded that he could not prevail.

Affirmed.


text:
    Jorge MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1416.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.

      Gitlitz, Keegan & Dittmar and James D. Keegan, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Bonham v. State, 450 So.2d 269 (Fla.3d DCA 1984). Nava v. State, 450 So.2d 606 (Fla. 4th DCA 1984). Lewis v. State, 416 So.2d 895 (Fla. 4th DCA 1982).


text:
    TARGET DEVELOPMENT CORPORATION, a Florida corporation, Appellant, v. BEST COUNTY WIDE CONSTRUCTION CORPORATION, a Florida corporation, Appellee.
    No. 83-1499.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Siegfried, Kipnis & Gross and Tom Hall, Miami, for appellant.
    Ann Mason Parker, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

In this action based on foreclosure of a mechanic’s lien, the property owner appeals a judgment in favor of the lienholder. We reverse on authority of Boyce Construction Cory. v. District Board of Trustees of Valencia Community College, 414 So.2d 634 (Fla. 5th DCA 1982), a case which is factually similar to this one.

As in Boyce, no evidence was presented to the trial court which could support a finding here that an unpleaded issue— quantum meruit — was tried by the express or implied consent of the property owner. Neither will we affirm the judgment on the alternative theory of substantial performance, because the trial court failed to expressly resolve that factual issue.

Reversed and remanded for further proceedings.


text:
    BISCAYNE COVE SOUTHEASTERN, INC., Appellant, v. AMERIFIRST FEDERAL SAVINGS & LOAN ASSOCIATION, a United States corporation, Appellee. AMERIFIRST FEDERAL SAVINGS & LOAN ASSOCIATION, a United States corporation, Appellant, v. Norman COHEN, as Trustee of Trust No. 71-LT-100, Appellee.
    Nos. 83-1605, 83-1608, 83-1616 and 83-2237.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Bedzow & Korn, North Miami, for Appellant/Biscayne Cove Southeastern, Inc.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for Appellee & Appellant/Amerifirst Federal Savings & Loan Assoc.
    Floyd, Pearson, Richman, Greer, Weil, Zack & Brumbaugh, William C. Hearon, Miami, for Appellee/Norman Cohen.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Our opinion in Amerifirst Federal Savings and Loan Association v. Cohen, 454 So.2d 626 (Fla. 3d DCA 1984) renders moot the instant appeal.

Dismissed.


text:
    CONSOWELD DISTRIBUTORS, INC., and Sentry Insurance Co., Appellants, v. HERTZ CORPORATION, Appellee.
    No. 83-1769.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellants.
    Bedford & Whitelock and Gerald L. Bed-ford, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Hertz Corporation established its entitlement to attorney’s fees by way of an indemnity claim. The trial court awarded fees based on the number of hours devoted to the file and found a reasonable rate to be $125.00 an hour. We reverse and remand on the authority of Jemco, Inc. v. United Parcel Service, Inc., 400 So.2d 499 (Fla. 3d DCA 1981), review denied, 412 So.2d 466 (Fla.1982), with directions to the trial court to award fees based upon the established agreed fee between Hertz and its attorney.

Reversed and remanded with directions.


text:
    Juan C. GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-1778.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Bennett H. Brummer, Public Defender and John M. Bolduc, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff’d, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); McCreary v. State, 371 So.2d 1024 (Fla.1979); Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).


text:
    Estelle LANG, Appellant, v. Harold LANG, Appellee.
    No. 83-2083.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Richard R. Snyder and Joyce Brown, Miami, for appellant.
    David A. Rosenblatt, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

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


author: HENDRY, Judge.

text:
    Elaine ROBERTO, Appellant, v. ALLSTATE INSURANCE CO., a foreign insurance carrier, Appellee.
    No. 84-218.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.

      Gerald E. Rosser, Miami, for appellant.
    Spencer, Taylor & Homer and W. Thomas Spencer, Miami, for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   HENDRY, Judge.

Roberto appeals from the order granting Allstate Insurance Co. (Allstate) a new trial on the issue of Roberto’s residence and/or setting aside the verdict. The order was based on the fact of newly discovered evidence of fraud, pursuant to Rules 1.530 and 1.540, Florida Rules of Civil Procedure.

Roberto was injured in an automobile collision while riding her bicycle. She sued Allstate when it refused to continue paying her medical and lost wages claim under an insurance policy issued to her husband. The policy, in pertinent part, defined the insured as the policyholder named on the declarations page and that policyholder’s resident spouse. “Resident”, as defined in the policy, meant “the physical presence in your household with the intention to continue living there.”

The matter was tried non-jury and resulted in a final judgment for Roberto in the amount of $905. The issue at trial, as framed by the pleadings, was whether Roberto needed further medical care. The issue of Roberto’s residence at the time of the accident, March of 1982, was never raised as Roberto had given her husband’s address as her own to the hospital and treating physicians, to the police officer investigating the accident and to the insurance company when she filed her claims and no-fault insurance benefit applications. Additionally, Roberto had testified in her deposition that she had moved out of her husband’s household in September, 1982.

Shortly after trial, Allstate moved for a new trial and relief from judgment. Accompanying the motion was a series of affidavits wherein it was stated that Roberto had been living apart from her husband since March, 1981. The affiants were document custodians of Allstate claims, the voter registration bureau, Southern Bell Telephone Co., Florida Power & Light, Roberto’s apartment complex and Roberto’s past employer, Grand Union. Allstate additionally submitted the petition for dissolution of marriage filed by Roberto’s husband on March 3, 1983 and Roberto’s answer which acknowledged and admitted that Roberto had been separated from her husband since March, 1981.

The trial court, after considering the affidavits and arguments of counsel, granted Allstate’s motion and ordered a new trial on the issue of whether Roberto was a resident of her husband’s household at the time of the accident.

Roberto contends that the trial court erred in granting a new trial where the evidence was discoverable prior to trial. This * contention is based on the fact that during discovery, Allstate subpoenaed the record custodian of Roberto’s employer, Grand Union. The records produced by Grand Union included Roberto’s application for employment dated July 20, 1981 wherein the address of Roberto was different from her husband’s.

The requirements for granting a new trial on the ground of newly discovered evidence are: 1) that the evidence is such as will probably change the result if a new trial is granted; 2) that it has been discovered since the trial; 3) that it could not have been discovered before the trial by the exercise of due diligence; 4) that it is material to the issue; and 5) that it is not merely cumulative or impeaching. Alston v. Shiver, 105 So.2d 785 (Fla.1958); City of Winter Haven v. Tuttle/White Constructors, Inc., 370 So.2d 829 (Fla. 2d DCA 1979); Dade National Bank of Miami v. Kay, 131 So.2d 24 (Fla. 3d DCA), cert. denied, 135 So.2d 746 (Fla.1961). The requirement of due diligence, however, is not a legal absolute, Ragen v. Paramount Hudson, Inc., 434 So.2d 907 (Fla. 3d DCA 1983), rev. denied, 444 So.2d 417 (Fla.1984); Jackson v. State, 416 So.2d 10 (Fla. 3d DCA 1982); In Re Estate of Hill, 294 So.2d 46 (Fla. 3d DCA 1974). A party is not required to anticipate false testimony from the opposing party and is therefore not required to discover evidence which would refute the false testimony. Louisville & Nashville Railroad Co. v. Hickman, 445 So.2d 1023 (Fla. 1st DCA 1983), rev. dismissed, 447 So.2d 887 (Fla.1984). Additionally, where it is shown that the prevailing party knowingly gave or used false testimony, a new trial is allowable at the court’s discretion without it first being shown that the newly discovered evidence would produce a different result. Alston v. Shiver, supra; Gaiter v. Winn Dixie Stores, Inc., 376 So.2d 912 (Fla. 3d DCA 1979).

In reviewing this type of discretionary act of a trial judge an appellate court must apply the reasonableness test to determine whether the trial court abused its discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla.1981); Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Staib v. Ferrari, Inc., 391 So.2d 295 (Fla. 3d DCA 1980). Discretion is abused when the judicial action is arbitrary, fanciful or unreasonable. Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977), cert. denied, 359 So.2d 1221 (Fla.1978). An appellate court will not reverse an order granting a new trial absent a showing of a clear abuse of discretion. Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975); Saunders v. Smith, 382 So.2d 1254 (Fla. 4th DCA), dismissed, 389 So.2d 1114 (Fla.1980); Monarch Cruise Line, Inc. v. Leisure Time Tours, Inc., 456 So.2d 1278, (Fla. 3d DCA 1984).

The record herein does not reflect, nor do we find, that the trial court abused its discretion in ordering a new trial on the issue of Roberto’s residence at the time of the accident and/or setting aside the verdict and we accordingly affirm the order under review.

Affirmed.


text:
    Phillip Anthony DUNNAM, Appellant, v. The STATE of Florida, Appellee.
    No. 84-444.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Mishkin & Golembe and Stuart R. Mish-kin, Miami, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas and Carolyn Snurkowski, Asst. At-tys. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Rodriguez v. State, 436 So.2d 219 (Fla. 3d DCA 1983), pet. for review denied, 447 So.2d 888 (Fla.1984); Maisler v. State, 425 So.2d 107 (Fla. 1st DCA 1982), pet. for review denied, 434 So.2d 888 (Fla.1983); Pressley v. State, 395 So.2d 1175 (Fla. 3d DCA); pet. for review denied, 407 So.2d 1105 (Fla.1981); Hernandez v. State, 305 So.2d 211 (Fla. 3d DCA 1974), cert. denied, 315 So.2d 192 (Fla.1975); Duran v. State, 301 So.2d 486 (Fla. 3d DCA 1974); Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974).


text:
    HOLLAND INDUSTRIES, INC., a Nevada corporation, Appellant, v. Robert J. LaPOINTE, and Bruce R. McCune, individually and Gold Coast Leasing, a Partnership, Appellees.
    No. 84-734.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Norman Malinski, Miami, for appellant. Richard B. Austin, Miami, for appellees.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Zurich Ins. Co. v. Allen, 436 So.2d 1094 (Fla. 3d DCA 1983), pet. for rev. denied, 446 So.2d 100 (Fla.1984).


text:
    Sharon L. MILLER, Appellant, v. FEDERATED DEPARTMENT STORES, INC., d/b/a Burdines, Appellee.
    No. 84-858.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.

      Dennis G. King, Miami, for appellant.
    Hogg, Allen, Ryce, Norton & Blue and Allen J. McKenna, Coral Gables, for appel-lee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Douglas v. City of Dunedin, 202 So.2d 787 (Fla. 2d DCA 1967); Curran & MacDonell, Inc. v. Pearre, 202 So.2d 858 (Fla. 1st DCA 1967).


text:
    MONETARY MANAGEMENT CORPORATION, Ricca-Reddington Instruments, Inc. of North Carolina, Hitech Instruments, Inc., Jack E. Kennedy and Arlene Kennedy, Appellants, v. CONTROL POWER SYSTEMS, INC., et al., Appellees.
    No. 84-1695.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Cooper, Shahady, Frazier, Pugatch & Meyer and Jeffrey B. Smith, Fort Lauder-dale, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Diane H. Tutt, Miami, for appellees.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See White v. Kirsch, 427 So.2d 1119 (Fla. 3d DCA 1983).


text:
    Harry POLLACK and Toby Pollack, his wife, Petitioners, v. THREE HORIZONS NORTH CONDOMINIUM, INC., a Florida corporation not for profit, Respondent.
    No. 84-1814.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.

      Nancy J. Pollack, North Miami, for petitioners.
    Leff, Pesetsky & Zack and Dean A. Mitchell, North Miami Beach, for respondent.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Upon the holding that the counterclaim properly stated an action for declaratory relief as to the validity of designated bylaws of the condominium association in question, Johnson v. Royal Garden Estates, Inc., 371 So.2d 577 (Fla. 2d DCA 1979), and that the circuit court, which alone has jurisdiction in such a proceeding, therefore improperly transferred the cause to the county court, the petition for certio-rari is granted, Tantillo v. Miliman, 87 So.2d 413 (Fla.1956); Ross v. Barnett, 436 So.2d 1040 (Fla. 3d DCA 1983), and the order of transfer under review is quashed.


author: LEHAN, Judge.

text:
    Stacey D. HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 84-77.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1984.
    Jerry Hill, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals his conviction and sentencing for a charge of failure to appear, a violation of section 843.15, Florida Statutes (1979). We affirm.

The incident which gave rise to the case now on appeal occurred during a felony prosecution of defendant in 1980. Defendant appeared on the day of trial with serious, untreated injuries to his face. Defendant was taken for medical treatment, after which defense counsel moved for a continuance. The trial court denied the motion.

Defendant was present in the courtroom at the beginning of his trial, through jury selection and the testimony of two witnesses. A recess was taken at that point, and defendant did not return to the courtroom. The trial continued without defendant’s presence, pursuant to Florida Rule of Criminal Procedure 3.180(b). Defendant was ultimately convicted and sentenced in ab-sentia.

The state charged defendant with failure to appear in violation of section 843.15, Florida Statutes (1979), which states:

(1) Whoever, having been released pursuant to chapter 903, willfully fails to appear before any court or judicial officer as required shall incur a forfeiture of any security which was given or pledged for his release and, in addition, shall: (a) If he was released in connection with a charge of felony ... be guilty of a felony of the third degree ....

After a jury trial on this charge, defendant was convicted and sentenced to five years probation. This appeal followed.

Defendant argues on appeal that the trial court erred in denying his motion for judgment of acquittal because section 843.-15 would only apply to a failure to initially appear for trial, not a failure to stay at the trial for its duration. The state responds that section 843.15 makes it illegal for a defendant not to appear “as required” and that a defendant is required to be present during the entire trial. We agree with the state’s position.

Florida Rule of Criminal Procedure 3.180(a) states, “In all prosecutions for crime the defendant shall be present: ... (5) At all proceedings before the court when the jury is present; ... (8) At the rendition of the verdict; (9) At the pronouncement of judgment and the imposition of sentence.” This rule clearly contemplates that defendant is required to be present for the length of the trial.

Defendant contends that Florida Rule of Criminal Procedure 3.180(b) allows a defendant to be absent during his trial. That rule, however, merely allows a trial to continue to its conclusion if a defendant absents himself without leave of court. If the meaning of the rule was as argued by defendant, then there would be no need for subsection (c) of rule 3.180 which specifies that a person who is prosecuted for a misdemeanor may, with leave of court, be excused from attending his trial.

Because defendant was required to remain at his first trial, the trial court did not err in denying defendant’s motion for judgment of acquittal. We also find no error in defendant’s second point on appeal regarding jury instructions.

AFFIRMED.

RYDER, C.J., and CAMPBELL, J., concur.


text:
    Kevin SMITH, Appellant, v. IMPORT BIRDS, INC., a Florida Corporation, Appellee.
    No. 84-2037.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1984.
    C. Kent Miller, Lake Worth, for appellant.
    Robert C. Hackney of Nason, Gildan, Yeager & Gerson, P.A. West Palm Beach, for appellee.
   UPON MOTION TO REVIEW AND MODIFY ORDER ON STAY

PER CURIAM.

Kevin Smith appealed a trial court order which denied his motions to quash service of process and vacate default. Smith sought a stay pending review. It was granted upon condition that Smith post a bond in the sum of $25,000. All of this is pre-trial and pre-judgment. Smith suggests that the bond amount is excessive and amounts to an abuse of discretion. We agree.

Florida Rules of Appellate Procedure 9.310(a) and (c)(2) apply. They provide:

(a) Application. Except as provided by general law and in section (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify or deny such relief. A stay pending review may be conditioned upon the posting of a good and sufficient bond, other conditions, or both.
(c) Bond.
(2) Conditions. The conditions of a bond shall include a condition to pay or comply with the order in full, including costs, interest, fees, damages for delay, use, detention and depreciation of property, if the review is dismissed or order affirmed; and may include such other conditions as may Re required by the lower tribunal.

The basic suit brought against Smith by Import Birds, Inc. was for damages in excess of $5,000. It may be gleaned from the complaint that the claim substantially exceeded $5,000. Import Birds, Inc., argues to us, as we understand it, that the bond must have a relationship to the damages claimed in the main action. We disagree because if that were so, a plaintiff could merely claim some ridiculously large sum to the end that his adversary could never afford to obtain a stay bond in case he wished to file a non-final appeal. The controlling criteria here is found in Fla.R.App.P. 9.310(c)(2).

In our opinion a bond in the sum of $5,000 would be appropriate and adequate to secure the conditions of the bond.

The motion is granted and the case is remanded with respectful instructions to modify the order granting motion for stay pending review and setting bond so as to provide for a bond in the sum of $5,000.

Motion granted.

HURLEY, WALDEN and BARKETT, JJ., concur.


text:
    Juan HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 84-647.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1984.
    Jerry Hill, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Karla J. Staker, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We disagree with the appellant’s two contentions.

There was sufficient evidence to support the order of the trial judge finding that the appellant violated conditions of his probation. Furthermore, it was proper for the trial judge to depart from the sentencing guidelines using the violation of probation by the appellant as the basis for doing so. Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984).

AFFIRMED.

BOARDMAN, A.C.J., and DANAHY and LEHAN, JJ., concur.