author: THOMPSON, Judge.

text:
    Charles Henry ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. AP-251.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1983.

      Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Defendant appeals his judgment and sentence for attempted sexual battery. Defendant argues that his six-year term of incarceration, imposed after he violated the terms and conditions of his Community Control Release Agreement as defined in the Youthful Offender Act, Chapter 958, Florida Statutes (1979), is contrary to the mandatory sentencing provisions of the Youthful Offender Act. We agree and reverse.

Defendant was classified as a youthful offender with regards to a 1979 attempted sexual battery. After being adjudicated guilty of this crime, he was sentenced to six years at the Alachua County Adult Corrections Center, with the provision that after serving one year, the remainder of his sentence would be stayed and withheld and he would be placed on five years probation. While defendant was on probation after release from the correctional center, an affidavit of violation of probation was filed, alleging he had violated the terms of his probation by, inter alia, committing burglary and two counts of grand theft. Defendant entered a negotiated plea, admitting he had violated the terms and conditions of his probation, in exchange for the state’s agreement to nolle pross the burglary and grand theft charges. The trial court subsequently revoked defendant’s probation and imposed a six-year sentence with 436 days credit. Defense counsel correctly argued below that pursuant to the mandatory sentencing provisions of § 958.05, Fla.Stat. defendant could only be sentenced to a maximum of four years incarceration, with appropriate jail credit, and to a maximum of two years of community control but the maximum two years of community control could not be added to the maximum four years of incarceration to yield a six-year term of incarceration. However, the trial court construed § 958.05 as not imposing a four-year maximum period of incarceration.

The trial court’s interpretation of the sentencing provisions of § 958.05 is erroneous. Once a defendant is classified as a youthful offender, he must be sentenced in accordance with the act. See Waugh v. State, 406 So.2d 1238 (Fla. 2d DCA 1981). This also applies to sentences, such as the one herein, entered pursuant to a subsequent revocation of probation. See Brandle v. State, 406 So.2d 1221 (Fla. 4th DCA 1982); Greene v. State, 398 So.2d 1011 (Fla. 1st DCA), pet. for rev. dismissed, 406 So.2d 1118 (Fla.1981). Since defendant was originally classified as a youthful offender regarding the attempted sexual battery, his sentence for attempted sexual battery which was imposed upon revocation of probation for that offense should have been in accordance with the provisions of § 958.05.

The state cites Preston v. State, 411 So.2d 297 (Fla. 3d DCA), pet. for rev. den., 418 So.2d 1280 (Fla.1982) for the proposition that defendant has waived the right to challenge the instant sentence because he did not challenge his original sentence for attempted sexual battery, which was clearly an improper sentence under § 958.05. However, Preston, which involved an appeal from an order denying a motion to correct a sentence imposed after revocation of probation, is clearly distinguishable from the instant case. The defendant’s argument in Preston that he could only be sentenced upon revocation of probation, as a youthful offender because he was originally entitled to designation as a youthful offender was rejected because he had never sought designation as a youthful offender and because he had not been sentenced to imprisonment but had been placed on probation. The defendant in the case sub judice sought and was granted designation as a youthful offender. This defendant was actually sentenced to a term of imprisonment, which he apparently served before being released on probation. Accordingly, Preston does not require rejection of the defendant’s argument.

The sentence imposed herein is reversed and the cause is remanded for resentencing consistent with the provisions of § 958.05. Defendant shall be given appropriate credit for the time he has already served.

ERVIN, C.J., and WIGGINTON, J., concur.


source: Caselaw Access Project

author: LARRY G. SMITH, Judge.

license: Public Domain

text:
    DEPARTMENT OF CORRECTIONS, Appellant, v. Ronnie FARMER, Kenneth Harris, J.E. Robinson, Michael Mallory, Sanford Everage and Career Service Commission, Appellees.
    Nos. AP-428, AP-429, AP-430, AP-431 and AP-432.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1983.
    Rehearing Denied Sept. 1, 1983.
    Louis A. Vargas, Asst. Gen. Counsel, Dept, of Corrections, Tallahassee, for appellant.
    William L. Whitacre, Fishback, Davis, Dominick & Bennett, Orlando, for appellees.
   LARRY G. SMITH, Judge.

In this consolidated appeal, the Department of Corrections attacks five orders of the Career Service Commission in which the Commission determined that appellees’ dismissals should be reduced to suspensions. We reverse.

Appellees, former employees at Sumter Correctional Institution, were dismissed because of their involvement in a “special counselling session” of ten prison inmates on February 4, 1982. The “special counsel-ling session” involved kicking and slapping the inmates, verbal abuse and the giving of close hair cuts to each of the inmates. Because the incident involved corporal punishment and such degradation of the inmates, the Department dismissed appellees. Section 944.35, Florida Statutes (1981); and Rule 33-4.03(21), Florida Administrative Code.

In their appeal to the Commission, appel-lees admitted their involvement in the special counselling session, but contended that mitigating circumstances required that their dismissals be reduced to suspensions. The Commission found that the Department had just cause to dismiss appellees for their behavior. Nevertheless, the Commission agreed with appellees that mitigating circumstances were present and required that their dismissals be reduced to suspensions.

In reversing appellees’ dismissals, the Commission exceeded the limits of its authority. Under the provisions of Section 110.309(2), Florida Statutes (1981), if the Commission determines that just cause exists for the particular action taken by the agency, the Commission must affirm. Only when the Commission determines that “just cause for disciplinary action existed,” but that the disciplinary action taken was not justified, may the Commission modify that particular action. See, Department of Health and Rehabilitative Services v. Hankerson, 404 So.2d 149 (Fla. 1st DCA 1981), construing Sections 110.309(2), and 110.-309(4)(a) and (b). In this case, once the Commission determined that the Department was justified in dismissing each of the appellees, it was required to affirm the decision of the agency. Hankerson, supra at 151.

The parties have devoted much of their argument to the issue of whether Section 944.35, Florida Statutes (1981) is mandatory, or directory only. This statute makes it unlawful for any corporal punishment to be inflicted upon any prisoner at any time. Appellant urges that the statute mandatorily requires appellees’ dismissal, while appel-lees argue that the statute is directory only, and has been so construed by appellant by its past actions, and by the adoption of Rule 33-4.03(21). Neither party has referred to our Hankerson decision, supra (although appellant does refer to our decision in the same case on appeal after remand, Department of Health and Rehabilitative Services v. Hankerson, 423 So.2d 448 (Fla. 1st DCA 1982)). However, we conclude that the statutory interpretation adopted in our initial Hankerson decision is dispositive of the issues on this appeal, and we therefore find it unnecessary to address the “mandatory— directory” argument with respect to Section 944.35. We find that upon application of the established law the action of the Commission must be set aside, and that the Department’s order of dismissal must be reinstated. Section 120.68(13), Florida Statutes (1981).

The orders of the Commission are reversed and the cause is remanded for further proceedings consistent with this opinion.

ERVIN, C.J., and MILLS, J., concur.


author: WENTWORTH, Judge.

text:
    In the Interest of A.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. AP-485.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1983.

      Gregory J. Cummings, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

After being found guilty of robbing a convenience store, the appellant was adjudicated delinquent and committed to the Department of Health and Rehabilitative Services. The court further ordered that appellant be placed in the Boys’ School at Marianna. After a brief inquiry into the ability of appellant’s mother to make restitution, the following colloquy took place:

THE COURT: Okay ....
Next case.
MR. CONGDON [state attorney]: Quinton Brown and Odis Griffin.
MR. YOUNG [attorney for HRS]: Does the Court retain jurisdiction of [A.L.] THE COURT: Right. And I want you to note something else, that that was ordered that he be sent to Marianna, too. We’re going to test the new system. I want you to test that through HRS. MR. CUMMINGS: Judge, I’d like to object to you retaining jurisdiction on that. The next case had been called.

Appellant argues that the retention of jurisdiction constituted an improper enhancement of his sentence in violation of double jeopardy because the sentencing proceeding had been concluded. Assuming, without deciding, that a trial court’s retention of jurisdiction over an adjudicated delinquent constitutes an enhancement of sentence, we find no error in this case. It is not clear that the sentencing proceeding had in fact been concluded by the court’s utterance of the words “next case.” However, it is clear that appellant had not begun to serve his sentence when the announcement was made. Under these circumstances, there was no error in the sentencing. See Rizzo v. State, 430 So.2d 488, 489 (Fla. 1st DCA 1983); Williams v. State, 365 So.2d 201 (Fla. 1st DCA 1978).

Affirmed.

BOOTH and THOMPSON, JJ., concur.

      . In State v. Williams, 397 So.2d 663 (Fla. 1981), the trial court’s retention of jurisdiction over the first one third of a defendant’s sentence, pursuant to a statute enacted after the commission of his crime, was held to be an ex post facto violation in that it empowered the trial court to disregard the prisoner’s gain time credit when being considered for parole.


author: MILLS, Judge.

text:
    WENDY’S OF BREVARD and Esis, Inc., Appellants, v. Anita Tait STICKNEY, Appellee.
    No. AQ-157.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1983.
    Rehearing Denied Sept. 6, 1983.

      Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, P.A., Orlando, for appellants.
    Thomas E. Thoburn, Cocoa, for appellee.
   MILLS, Judge.

In this workers’ compensation ease, we are asked to review the deputy commissioner’s order awarding the claimant temporary total disability (TTD) benefits, medical care and costs, and penalties. The deputy reserved jurisdiction to determine attorney’s fees and bad faith. The employer/carrier (E/C) contends that there are six points in the order requiring reversal. We disagree and affirm.

First, the E/C contends the deputy commissioner erred in finding that Stick-ney’s hand condition was related to her industrial accident. On 4 June 1981, Stick-ney cut her right hand while working for Wendy’s. Over the course of the following eighteen months, her hand condition progressively deteriorated. At the hearing, the deputy commissioner received the testimony and depositions of several orthopedic surgeons and psychiatrists, some of which conflicted. It was his duty to resolve those conflicts with appropriate findings in his order. Grillo v. Big “B” Ranch, 328 So.2d 429 (Fla.1976). See also, Jefferson Stores, Inc. v. Rosenfeld, 386 So.2d 865 (Fla. 1st DCA 1980). Upon our review of the record, we have determined that there is competent and substantial evidence to support his finding that Stickney suffered a conversion reaction secondary to her hand injury at Wendy’s. We will not exceed our scope of review by reweighing the evidence. Croft v. Pinkerton-Hayes Lumber Company, 386 So.2d 535 (Fla.1980).

Second, we do not agree with the E/C that Stickney’s refusal to wear the splint applied by Dr. Helmy was a refusal of reasonable medical treatment. The record supports Stickney’s contention that the splinting of her hand was not “treatment per se,” but merely to show her that she could, in fact, open her hand. Accordingly, we find that Stickney took all reasonable steps to seek prompt medical attention for her injury when it was indicated. Lobnitz v. Orange Memorial Hospital, 126 So.2d 739 (Fla.1961).

Next, the E/C contends that the award of medical care and benefits by doctors unauthorized by the carrier was error. On 2 June 1982, the E/C filed a notice to controvert “current and continuing medical.” We find this was a failure to provide medical care and that Stickney was then free to seek “reasonable and necessary” medical care on her own. Section 440.13(1), Florida Statutes (1981). The deputy approved such care and we will not disturb that determination.

The E/C also alleges error in awarding penalties, since a notice to controvert was filed. The deputy did not set out specifically the compensation for which punitive penalties were to be paid, but directed the carrier to pay penalties in accordance with Sections 440.20(7) and (9), Florida Statutes (1981). The provisions require the carrier to pay punitive penalties on compensation due prior to, but not after, the date that the notice to controvert was filed. The order is clear and correct on this point.

The E/C further complains that the deputy erred in awarding temporary total disability benefits from April 1982 through the date of the hearing and continuing. Again, our review of the record finds competent and substantial evidence to support the deputy’s order on this point. Croft v. Pinkerton-Hayes Lumber Company, supra.

Finally, the E/C claims that the deputy abused his discretion in refusing to hear testimony and rule on the issues of attorney’s fees and bad faith. This point is without merit. Although we have held that Section 440.34(2)(b), Florida Statutes, does not require a deputy commissioner to hold a completely separate hearing on the question of bad faith, we have recognized that separate hearings do occur and are proper. Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033, 1034 (Fla. 1st DCA 1981); Sears Termite & Pest Control v. Spearman, 417 So.2d 292, 293 (Fla. 1st DCA 1982). While it may better serve the interest of judicial economy to decide these issues at the same hearing, it is certainly not reversible error to reserve jurisdiction to later resolve them.

The deputy commissioner’s order is affirmed on all points, and appellee is granted fees of $2,000.

AFFIRMED.

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


author: WIGGINTON, Judge.

text:
    Pepe VERI, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AR-28.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1983.

      Pepe Veri, pro se.
    John C. Courtney, Asst. Gen. Counsel, Fla. Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Veri appeals the Parole and Probation Commission’s determination of his presumptive parole release date. We affirm. Veri was timely interviewed within six months of his confinement in execution of judgment, Section 947.16(1), Florida Statutes, and was interviewed under the applicable guidelines in effect at the time of the interview; Veri’s ex post facto argument is without merit. May v. Florida Parole and Probation Commission, 424 So.2d 122 (Fla. 1st DCA 1982), aff’d, 435 So.2d 834 (Fla. 1983); Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982); Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982).

JOANOS and ZEHMER, JJ., concur.


author: PER CURIAM.

text:
    Steven THOMAS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AT-217.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1983.
    Steven Thomas, pro se.
    Doris E. Jenkins, Asst. General Counsel, Tallahassee, for appellee.
   ON MOTION TO DISMISS

PER CURIAM.

Since this Court’s jurisdiction to entertain direct appeals by prisoners or parolees from orders of the Florida Parole and Probation Commission has been eliminated by chapter 83-78, sections 1 and 4, Laws of Florida, this appeal, the notice for which was filed June 7, 1983, is dismissed.

ROBERT P. SMITH, Jr., WIGGINTON and NIMMONS, JJ., concur.


text:
    Erling Knud Ove HANSEN, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AT-406.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1983.
    Erling Knud Ove Hansen, pro se, for appellant.
    Enoch J. Whitney, Gen. Counsel, and Doris E. Jenkins, Asst. Gen. Counsel, Tallahassee, for appellee.
   ON MOTION TO DISMISS

PER CURIAM.

Appellee’s motion to dismiss is granted. See Thomas v. Florida Parole and Probation Commission, 436 So.2d 349 (Fla. 1st DCA 1983). Hansen’s notice of appeal was filed June 14, 1983. Hansen may seek his remedy in the circuit court by way of petition for an extraordinary writ.

ROBERT P. SMITH, Jr., WIGGINTON and NIMMONS, JJ., concur.


text:
    Dale E. LUCAS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AT-407.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1983.
    Dale E. Lucas, pro se, for appellant.
    Enoch J. Whitney, Gen. Counsel, Tallahassee, for appellee.
   ON MOTION TO DISMISS

PER CURIAM.

Appellee’s motion to dismiss is granted. See Thomas v. Florida Parole and Probation Commission, 436 So.2d 349 (Fla. 1st DCA 1983). Lucas’ notice of appeal was filed on July 1,1983. This dismissal is without prejudice for Lucas to file a petition for extraordinary writ in the circuit court.

ROBERT P. SMITH, Jr., and WIGGIN-TON and NIMMONS, JJ., concur.


text:
    James E. PFEIFFER, Appellant, v. STATE of Florida, DEPARTMENT OF NATURAL RESOURCES and Division of Management, Appellees.
    No. AP-212.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.

      James F. McKenzie, Pensacola, for appellant.
    James N. McConnaughhay and Arthur C. Beal, Jr. of McConnaughhay, Roland & Mai-da, Tallahassee, for appellees.
   MILLS, Judge.

Pfeiffer appeals the deputy commissioner’s order denying his claim for temporary total disability and wage loss benefits. We affirm.

Employed since 1966 as a Marine Patrol Officer with the Department of Natural Resources, Pfeiffer was diagnosed as having artherosclerosis in 1973. In 1976 he suffered a myocardial infarction, and on 14 March 1980, the date of this alleged accident, he experienced a sharp angina while launching his Marine Patrol boat. The launching of this boat was a routine and customary part of his duties, and there was nothing unusual or different about this particular launching.

Pfeiffer contends that his artheros-clerosis was caused, at least in part, by his highly stressful job, which evolved over the years from one involving mostly conservation duties to one involving law enforcement duties for which he was not adequately trained. He also alleges that he was constantly exposed to extreme weather conditions in his open powerboat. Consequently, he argues, his coronary condition should be treated as an occupational disease pursuant to Section 440.151, Florida Statutes (1979). This we decline to do because the evidence failed to show that Pfeiffer’s condition was an “occupational disease” within the meaning of Section 440.151(2), Florida Statutes (1979).

Rather, the instant case is controlled by the holding in Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962). Because there was no specifically identified effort, over and above the routine of the job, Pfeiffer’s coronary condition is not compensable. Emotional strain alone is not sufficient to establish a causal connection between employment and internal failures of the cardiovascular system. City of Miami v. Rosenberg, 396 So.2d 163 (Fla.1981); Diaz v. City of Miami, 427 So.2d 1085 (Fla. 1st DCA 1983).

Pfeiffer also contends that, pursuant to Section 185.34, Florida Statutes (1979), he is entitled to a presumption that his condition was accidental and suffered in the line of duty. This contention is without merit. First, he is not a “police officer” as defined by Section 185.02(1), Florida Statutes (1979). He is employed by the Department of Natural Resources, not by a municipality. Second, Section 185.34 expressly provides that it is not to be construed to extend to or otherwise affect the provisions of Chapter 440. Therefore, even if Pfeiffer were a “police officer,” he could not avail himself of the presumption in this workers’ compensation proceeding.

For the foregoing reasons, the order ap-; pealed is affirmed.

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


text:
    Patricia Ann WINKEL, Appellant, v. GRAND UNION STORES and Crawford and Company, Appellees.
    No. AP-361.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.

      Pam Fleischmann, of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, Miami, for appellant.
    Guy A. Gladson, of Gladson & Sullivan, Miami, for appellees.
   WENTWORTH, Judge.

The claimant in this workers’ compensation case appeals an order of the deputy commissioner denying her claim for temporary benefits. The order reserved jurisdiction to determine claimant’s entitlement to wage loss benefits after finding that claimant had reached maximum medical improvement (MMI) prior to the hearing. Thus, the order would appear facially to be non-final and non-appealable because it did not dispose of all pending claims. Crown Hotel v. Friedman, 420 So.2d 418 (Fla. 1st DCA 1982). However, because of circumstances in this case explained more fully below, we find that the issue of wage loss entitlement was not mature at the time of the hearing, and we therefore review and affirm the order on temporary benefits as a final disposition of all claims which were or should properly have been presented at that time.

Workers’ compensation cases are, of course, often resolved piecemeal, resulting in successive, appealable orders. An order awarding or denying temporary benefits, entered prior to the date of MMI, would ordinarily be final and appealable by the adversely affected party. If, however, other benefits are due and could have been claimed at the time of the hearing, then all issues with respect thereto must be raised or they will be barred, unless reserved in some fashion identifying the order as interim and not final. See Hunt v. International Minerals and Chemical Corp., 410 So.2d 640 (Fla. 1st DCA 1982). The question in this case is whether the claim for wage loss had matured, so that its reservation in the order would make that order non-final.

At the hearing on September 17, 1982, the claimant’s attorney sought to include a claim for wage loss benefits because the parties had then stipulated that August 9, 1982, was the MMI date. The attorney explained that the parties had become aware of that date during the deposition of claimant’s treating physician, taken on September 14,1982, three days before the hearing. The carrier’s attorney objected to the claim for wage loss on the grounds that there was no formal claim pending, and the deputy correctly sustained the objection in view of the time and notice constraints. The deputy re-affirmed this ruling in his order of October 22, 1982. He therefore determined only the claim for temporary benefits, in spite of finding that MMI had been reached on August 9, 1982..

As noted, the deputy’s order in this case patently fails to dispose of all matters in question at the time it was entered. We find, however, that where due process considerations would require the exclusion of an issue from a hearing on other noticed issues, a claim involving that point, even if then pending, is not “matured” for purposes of determining that its resolution is a necessary condition for finality of the order. Appellate review is accordingly not deferred until after disposition of the reserved matter. See Hunt, supra. This case is distinguishable from Crown Hotel, supra, because, although the MMI date here had been agreed, the parties had insufficient notice to prepare for or defend against the asserted claim for wage loss. Since due process clearly prevented amendment of the pending claim over objection and required that wage loss be excluded from the hearing then in progress, that claim was not “ripe for adjudication,” Crown Hotel, at 419, and its exclusion or omission from the hearing does not prejudice either the finality of the order for appeal purposes or the right to pursue the claim thereafter.

For the foregoing reasons, we have considered the merits of the appeal and find no error in the order.-

Affirmed.

BOOTH and THOMPSON, JJ., concur.

      . After the hearing, and prior to the date of the order, claimant filed a formal claim for wage loss. The record contains nothing further to indicate whether that claim will be controverted.

      . Both parties have referred in their briefs to the deputy’s finding of no impairment. However, we do not construe the order as making any findings regarding claimant’s permanent physical impairment or lack thereof.


text:
    John Andrews LANDRY (Husband), Appellant, v. Barbara Carol LANDRY (Wife), Appellee.
    No. AP-372.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.

      Barry J. Fuller, Orange Park, for appellant.
    Harold C. Arnold of Hooten, Donohoe & Arnold, Jacksonville, for appellee.
   MILLS, Judge.

Husband appeals from an order denying his petition for modification of an alimony award in a dissolution of marriage final judgment. The issue raised by the appeal is whether the trial court abused its discretion in denying the petition. It did not and we affirm.

The parties were divorced following a seventeen-year marriage. During the marriage the husband was a career aviation officer for the U.S. Navy. He retired in 1982 following twenty years of commissioned service. There were two children born of the marriage. One has turned eighteen and the other will next year. The wife did not work during the marriage but since has obtained a teaching certificate and is employed by the Clay County School Board.

The judgment of dissolution awarded $250 per month per child for support. The support was to continue until the child reached eighteen. Permanent alimony in the amount of $300 per month was awarded. The real property and insurance policies were divided. Jurisdiction was retained to enforce and modify the judgment.

At the time of dissolution, the husband was a lieutenant commander. He had not been informed of his imminent retirement. However, he had been passed over for commander. This was a strong hint from the Navy.

The husband subsequently remarried. His present wife has a relatively low-paying job, but she has good prospects. At the time of the hearing, husband had not found new employment. He had contacted several potential employers. His best bet seemed to be as a navigator in the offshore oil industry.

The hearing occurred two months after husband’s retirement. At that time his weekly income showed a deficit of $289. Wife’s income showed a deficit of $200 per month. She had assets of $94,000, liabilities of $57,000. He had assets of $105,000 and liabilities of $52,000. The bulk of both of these is in real estate and mortgages. Husband listed as an asset $27,000 for his joint interest in a sail boat. This is held jointly with his second wife.

A petition for modification is addressed to the sound discretion of the trial court, and absent an abuse of discretion clearly evident from the record, the trial court’s decision will be affirmed.

The evidence in this case does not clearly show abuse of discretion. The husband retains considerable ability to pay. His capital assets include several substantial items. One of these is a $27,000 sail boat. The husband’s military pension is roughly equivalent to the wife’s full-time earnings in her job as a teacher. Both his possible retirement and her prospects of employment must have been considered at the initial hearing. At that time she held a degree in education, and very little work was required for her to attain a teaching certificate. The record supports an inference that the current situation was contemplated at the time of the initial judgment.

Husband has a substantial income, his present wife has an income, and they both have prospects of substantial increases in income. They are confident enough of the future to buy an expensive sail boat for recreational purposes.

Wife’s prospects are limited. She will have great difficulty advancing beyond the status of a tenured teacher. Her potential employment had to be contemplated at the time of the initial judgment. Husband will be relieved of $500 per month child support shortly.

An abuse of discretion has not been shown. We affirm.

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


text:
    John ZAHORIAN, Jr., Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION & Division of Risk Management, Appellees.
    No. AP-411.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.
    Michael A. Reichman, Monticello, for appellant.
    Thomas J. Maida of McConnaughhay, Roland & Maida, Tallahassee, for appellees.
   WENTWORTH, Judge.

The deputy commissioner entered an order on September 27, 1982, denying appellant’s claim for temporary benefits and wage loss but awarding travel expenses and costs. Both parties filed petitions for reconsideration, and the deputy entered an amended order on October 26, 1982, in which he found that all travel expenses had been properly paid. He therefore deleted the awards for travel expenses and costs from the September 27 order. The claimant filed his notice of appeal on November 23,1982, and challenges only matters covered by the original order. We note, sua sponte, a question as to timeliness of the appeal, because a motion for rehearing does not toll the time for taking an appeal in workers’ compensation cases. Jacksonville Paper Co. v. Nolan, 80 So.2d 454 (Fla.1955). A deputy commissioner may, however, withdraw an order at any time before an appeal is filed within the thirty days before the order becomes final. Phillips v. Redtop Sedan, IRC Order 2-3284 (1976). Although in this case the deputy did not in literal terms withdraw the September order, we find that within the requisite period he effectively vacated and re-entered his former order by providing in the amended order that “[a]ll other portions of the Order of September 27, 1982, are incorporated by specific reference and made a part hereof.”

For the foregoing reasons, we have considered the merits of claimant’s appeal as addressed to the latter order. We find that the denial of appellant’s claim for wage loss benefits is supported by competent substantial evidence, as is the implicit finding that claimant suffered no permanent aggravation of his prior injury as a result of the January 1982 accident.

Affirmed.

BOOTH and THOMPSON, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Lee Ann BURGESS, Appellant, v. FLORIDA DEPARTMENT OF COMMERCE and Department of Administration, Appellees.
    No. AP-426.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.
    Rehearing Denied Sept. 12, 1983.
    Edward S. Jaffry and Fred 0. Dickinson, III, of Horne, Rhodes, Jaffry & Horne, Tallahassee, for appellant.
    Don W. Davis, Gen. Counsel, and Mary Lou Rajchel, Asst. Gen. Counsel, Fla. Dept, of Commerce, Daniel C. Brown, Gen. Counsel, Fla. Dept, of Admin., Tallahassee, for appellees.
   ERVIN, Chief Judge.

In this appeal from a final order of the Department of Commerce (Department), appellant contends, first, that Section 110.-205(2)(h), Florida Statutes (1979), constitutes an unlawful delegation of legislative authority, and, alternatively, that there is insufficient evidence to support the Department’s finding that Burgess’ position with the Department was one of “policy-making” and thus properly subject to exemption from the career service system. We disagree and affirm the Department’s order.

The facts of this case are fully set out in our prior opinion of Burgess v. Department of Commerce, 400 So.2d 1258 (Fla. 1st DCA 1981) (Burgess I) and need not be extensively repeated. Suffice it to say that Burgess was employed by the Department as an Administrator of Tourism Development, a position she occupied in 1979 when the Department sought, pursuant to section 110.205(2)(h), to exempt that position from the career service system. Burgess objected and eventually sought a section 120.57(1) hearing before the Department. Contending that Burgess was not entitled to such a hearing, the Department denied her petition and Burgess appealed the denial to this court. After deciding that Burgess was entitled to a 120.57 hearing, we reversed the Department’s order and remanded “for further proceedings addressing the sole issue of whether Burgess’ position is lawfully exempted as a policy-making position.” Burgess I, 400 So.2d at 1260.

After remand, a hearing was held at which testimony was taken from several witnesses called by both Burgess and the Department, and extensive documentary evidence was introduced. In her recommended order, the hearing officer concluded that Burgess’ position was, in fact, a “policy-making” position eligible for exemption from career service. The Department, on October 26, 1982, entered a final order which, not surprisingly, adopted the findings and recommendations of the hearing officer. Burgess now appeals from that final order.

Burgess first urges that section 110.205(2)(h) is constitutionally infirm due to a lack of adequate standards and guidelines by which the Department of Administration (DOA) is to determine which positions may be classified as “policy-making.” In particular, Burgess points to the legislature’s failure to define “policy-making” for purposes of that statute. The Department counters that section 110.205(2)(h) sets forth sufficient guidelines and standards necessary to pass constitutional muster. We agree with the Department and find that the statute does not violate the prohibition against improper delegation of legislative authority.

The applicable 1979 version of section 110.205 provides:

110.205 Career service; exemptions—
(1) CAREER POSITIONS. — The career service to which this part applies shall include all positions not specifically exempted by this part, any other provisions of the Florida Statutes to the contrary notwithstanding.
(2) EXEMPT POSITIONS. — The exempt positions which are not covered by this part include the following:
‡ ⅛ ⅜⅞ # * ⅜
(h) A maximum of 10 policy-making positions, in addition to those specified in this subsection, in the offices of the Secretary of State, the Attorney General, the Comptroller, the Treasurer, the Commissioner of Education, and the Commissioner of Agriculture, as designated by such officer, and 10 such policy-making positions, in addition to these specified in this subsection, in each of the other departments, as designated by the head of each such department, plus any additional positions which are established for a limited period of time for the purpose of conducting a special study, project, or investigation. However, the employing agency shall advise the department in writing of each position to be exempted, and each such exemption shall be subject to the approval of the department as being policy-making or being established for a limited period of time. The department shall set the salary unless otherwise fixed by law.

(e.s.) The remaining portions of subsection (2) of section 110.205 set out in great detail numerous state positions which are exempt from the career service system. Paragraph (h), which Burgess challenges, allows the enumerated state officers and the heads of state departments to designate up to 10 exempt “policy-making positions” within each department. That authority is not, however, unbridled, and the designation of a position as one of policy-making is subject to review and approval by the DOA. It is Burgess’ position that such statutory language does not sufficiently prevent the DOA from arbitrarily defining “policy-making”, thus amounting to an unlawful delegation of legislative authority. We reject this argument. It has been long settled that the legislature may delegate authority to administrative agencies to administer the laws of this state. State, Department of Citrus v. Griffin, 239 So.2d 577, 580 (Fla. 1970). Such delegation is proper, “provided that in doing so [the legislature] announces adequate standards to guide the agency in the execution of the powers delegated.” Dickinson v. State, 227 So.2d 36, 37 (Fla. 1969). As Dickinson observes, however, “[t]he exact meaning of the requirement of a standard has never been fixed. The exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulating enactments under the police power.” Id. Consequently, the Florida Supreme Court and this court have often recognized “that the specificity of standards and guidelines may depend upon the subject matter dealt with and the degree of difficulty involved in articulating finite standards.” Askew v. Cross Key Waterways, 372 So.2d 913, 918 (Fla.1978). See also Straughn v. K & K Land Management, Inc., 326 So.2d 421 (Fla.1976); State, Dept. of Citrus v. Griffin.

If there ever was a need in Florida for the legislature to provide minutely detailed standards and guidelines in its delegation of authority to administrative agencies, that need was eliminated with the enactment of the Florida Administrative Procedure Act in 1974. Subsequent decisions of this court have recognized that the legislative employment of phrases such as “policy-making position”, the definition of which is then to be refined by the administering agency through the processes of adjudication and rulemaking, will not, by itself, render an otherwise constitutional statute infirm.

Such approximations of the threshold of legislative concern are meaningful in common parlance; they are a practical necessity in legislation regulating complex subjects; and, above all, they are now susceptible to refinement by policy statements adopted as rules under the 1974 Administrative Procedure Act, ... and as so refined are judicially ascertainable and enforceable.

Cross Key Waterways v. Askew, 351 So.2d 1062, 1069 (Fla. 1st DCA 1977), approved in Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978). Accordingly, we find the standards and guidelines embodied in section 110.205(2)(h) to be sufficient to meet Burgess’ constitutional challenge on delgation grounds and reject her suggestion that the statute is unconstitutional.

We also reject Burgess’ argument that there was insufficient evidence to sustain the officer’s conclusion that Burgess’ position was in fact a policy-making position eligible for career service exemption. As we have repeatedly recognized, our review of final administrative orders accepting the recommended orders of hearing officers is limited by the following standards:

When in Section 120.57 proceedings to construe and apply a nonpenal regulatory statute an independent hearing officer and the agency agree on a dispositive finding, there is little cause for a district court of appeal to debate whether the matter in issue is more nearly adjudicative fact or statutory policy and whether the hearing officer’s or the agency’s findings must prevail. See McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977). In such a case our task is only to assure that the affected party was protected by adherence to Chapter 120 processes, that the dispositive finding is supported by substantial competent evidence appropriate to the issue, and that the agency was not “clearly erroneous or unauthorized. ” Gay v. Canada Cry [sic] Bottling Co. of Florida, Inc., 59 So.2d 788, 790 (Fla.1952), in interpreting the statute given in its charge to enforce.

Barker v. Board of Medical Examiners, 428 So.2d 720, 723 (Fla. 1st DCA 1983), citing ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981) (e.s.). The issue before us in Burgess I was, of course, whether Burgess was entitled to the protections afforded by Chapter 120. We found that she was entitled to such protection and remanded for purposes of a formal hearing pursuant to section 120.57. The subsequent hearing which was held thus assured that Burgess’ interests would be protected by adherence to the procedures of Chapter 120. Having carefully reviewed the entire record in this case, it is equally clear that the findings and conclusion of the hearing officer, which were adopted by the Department, were supported by substantial competent evidence and that the Department’s action was not clearly erroneous or unauthorized. Finding no error, the Department’s order is accordingly

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.

      . The Department additionally urges that Burgess is precluded from raising a constitutional challenge to section 110.205(2)(h) due to her failure to raise that issue in Burgess I. It is, however, generally recognized that where the grounds or reasons for the alleged unconstitutionality of a statute are “not presented and not considered or determined’ by an appellate court initially reviewing a case, that issue may be then considered and determined by the same court in a subsequent appeal. Higbee v. Housing Authority of Jacksonville, 143 Fla. 560, 566, 197 So. 479, 482 (1940) (e.s.). See also 3 Fla. Jur.2d Appellate Review § 420 (1978). We therefore find no merit in the Department’s argument that Burgess may not now raise the constitutionality of section 110.205(2)(h), because our prior opinion clearly indicates that issue was neither presented to this court nor considered or determined in Burgess I.


text:
    Daniel C. PERRI, General Partner of Andrew Christopher and Andrew Christopher, Ltd., d/b/a Bogie’s on the Beach, Appellants, v. Jeff BYRD, Will Nowling, Ronald Pilcher and Rick Bowman, Appellees.
    No. AQ-113.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.

      James M. Wilson, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellants.
    Gary B. Lane, Pensacola, for appellees.
   ERVIN, Chief Judge.

Appellant, Bogie’s, seeks review of a jury verdict awarding $15,000 in damages to ap-pellees, the Band, for breach of an employment contract, and asserts on appeal that the employment contract was terminable at will, so that termination of the contract by Bogie’s was not a breach. Bogie’s contends also that at most the award of damages should be limited to the customary two-week notice period for the termination of a contract that is terminable at will. We agree and reverse the award of damages.

After various unsuccessful attempts of the Band at reaching an agreement with the Tiki Bar, where it had been playing without a written contract for several months, the Band pursued the possibility of summer employment at Bogie’s. According to Byrd, a member of the Band, he discussed with Scoggins of Bogie’s on March 31,1982, the sum of $1,250 per week for the first four weeks, with the possibility of a raise thereafter depending upon the amount of business at the bar. They agreed that the Band would play Wednesdays through Saturdays from 9:00 p.m. until 2:00 a.m., and on Sundays from 8:00 p.m. until 1:00 a.m. If the Band decided they wished to play at Bogie’s, they would begin work on April 28, but Scoggins wanted a definite answer by April 2. No written contract was ever reached between the Band and Bogie’s.

The Band confirmed with Scoggins on April 2 the employment arrangements they had discussed, placed their notice of termination with Tiki, and gave their last performance there on April 18. On April 20, Scoggins informed the Band that he had received a letter from the Tiki saying that it would sue Bogie’s for causing its employee to leave and that the Band had better resolve any problems with the Tiki. Scog-gins told Byrd on April 23 that because of the potential difficulties with the Tiki, he had hired another band, thereby scuttling any further contractual arrangements between them.

Appellees maintain that because bands are customarily hired in that locale near the beach for an entire summer season, that if they had been employed as anticipated at $1,250 per week, they would have earned approximately $24,000 from April 28 through September 8. The parties do not dispute that an oral contract of employment of the band at Bogie’s existed, at the weekly rate of $1,250. The appellees admit that no discussions or agreement took place with respect to the duration of the employment, but they contend that employment for the summer season was in the contemplation of the parties since that was customary for the area.

We do not agree with this contention. The general rule is that a contract which contains no express provision as to duration, or which is to remain in effect for an indefinite period of time, is not deemed to be perpetual, but instead may be terminated at will. The party terminating the contract, however, must give reasonable notice to the other party. 11 Fla.Jur.2d Contracts § 33 (1979). As the oral contract on review contained no express provision as to duration, we find that the contract was terminable at will by either party, subject to the requirement of reasonable notice. The testimony of the parties indicates that two weeks’ notice prior to termination is customary in the business, which we consider would have been the reasonable notice necessary, under the circumstances, before Bogie’s could have properly terminated the contract with the Band. Consequently, we find that the maximum amount of damages the Band would have been entitled to was $2,500, based on two weeks’ salary at the agreed rate. The record reveals, however, that the Band earned $400 at a bar called Franko’s during the second week of the two-week period the parties were required to provide notice, and we find that this amount should be applied to mitigate the $2,500. We therefore conclude that an appropriate award of damages for the termination without proper notice is $2,100.

Accordingly, the award of $15,000 damages is reversed and modified consistent with this opinion.

THOMPSON and WIGGINTON, JJ., concur.


text:
    Joseph KIRKLAND, Appellant, v. STATE of Florida, Appellee.
    No. AQ-120.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.
    Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Walter M. Meginniss, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Kirkland appeals a final order requiring his involuntary placement pursuant to the Baker Act, §§ 394.451-4785, Fla.Stat. (Supp.1982). He contends the evidence did not support the trial judge’s conclusion that he met the criteria for involuntary placement and that the trial judge erred in failing to notify the state attorney’s office of the placement hearing. We affirm.

Kirkland is a 31-year-old man who suffers from mental retardation and from intermittent psychotic episodes which occur most frequently during those periods when he does not take his medication. Much of Kirkland’s adult life has been spent in the Northeast Florida State Hospital at Mac-clenny. Approximately one year prior to the instant placement hearing he was taken out of the hospital and lived with his mother until his behavior forced his family to attempt to have him recommitted to the state hospital.

At the hearing Kirkland’s attorney argued that Kirkland’s retardation precluded his being involuntarily placed under the Baker Act because the Baker Act expressly excludes the mentally retarded from those defined as mentally ill. Sec. 394.455(3), Fla. Stat. (Supp.1982). However, the statute does not prevent a mentally retarded person from being involuntarily placed if he is mentally ill in addition to being retarded. In this case there was competent substantial evidence that Kirkland was not only mentally retarded but was also mentally ill from a medical standpoint.

It is also contended that the trial judge erred in failing to notify the state attorney’s office of the placement hearing, and in interrogating the witnesses himself. The Baker Act in effect at the time of the placement hearing provides that “The court shall serve notice on the state attorney ... who shall represent the state.” Sec. 394.-467(3)(a), Fla.Stat. (Supp.1982) (emphasis added). The law makes notification mandatory, and it was error for the court to fail to notify the state attorney of the hearing. However, we decline to reverse under the circumstances of this case because we find that the error was harmless. The record of the placement hearing reveals no evidence that Kirkland was prejudiced by the absence of the state attorney, and no contention has been made that the judge was not impartial in his handling of the case.

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.


text:
    Patti W. CARTY, now known as Patti W. Bailey, Appellant, v. Joseph CARTY, Appellee.
    No. AS-486.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1983.
    Rehearing Denied Aug. 31, 1983.
    Everett P. Anderson, of Anderson & Weiss, Tallahassee, for appellant.
    C. Edwin Rude, Jr. and Robert King High, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellee.
   WIGGINTON, Judge.

This expedited appeal by Patti Carty from an adverse ruling on her change-of-child-custody motion, leaving legal custody of the parties’ eleven year old child in Joe Carty, changing physical custody of the child from Patti to Joe and denying Patti’s motion for a new trial and rehearing, is affirmed.

Despite Patti’s contention that the lower court’s order fails to articulate adequately its findings calculated to justify a physical custody change favoring child-Joey’s best interest, a review of the relatively brief record including the testimony of Patti, Joe, a clinical psychologist and the several exhibits reveals ample competent evidence to support the conclusion that it was in the child’s best interest that Joe continue to have custody. See Johnson v. Johnson, 422 So.2d 1013 (Fla. 1st DCA 1982). The trial judge’s findings and conclusions are affirmed.

Patti’s motion for rehearing and new trial sought an additional hearing to adduce evidence and testimony available at the time of the modification hearing but not presented due to the tactical decision of her counsel, relying particularly on the authority of Meadows v. Meadows, 78 Fla. 576, 83 So. 392 (1919). There, the mother was awarded custody of the minor child in a final decree. The father’s post-decretal petition seeking a change in the custody of the child on the grounds that the mother was unfit, had been denied by the lower court. On appeal our supreme court held that:

Assuming that the mentioned subsequent order is also appealed from, and that such order in effect held the awarding of the custody of the child by the final decree to be res adjudicata as to the conduct of the mother prior to the rendering of the final decree, such order is reversed, as the proper custody of the minor child is a proper subject for consideration by the chancellor at any time, even if facts in issue could have been considered at a previous hearing, if such facts were not presented or considered at a former hearing.

(Emphasis supplied). Id. 83 So. at 392-393.

Counsel for Patti conceded that the motion was not grounded on newly discovered evidence and the proffered evidence was known to her prior to the modification hearing. The trial judge, after examining the basis of the motion, hearing the proffer, and reviewing the hearing transcript, denied the motion and again concluded that it was his view that Joey’s best interest would be served by his custody being placed primarily with his father. The lower court found no acceptable reason or excuse for failure to present the evidence and observed that Patti’s trial attorney handled the case in a competent and professional manner.

In Dalton v. Dalton, 412 So.2d 928 (Fla. 1st DCA 1982), the wife appealed from a final order denying her amended motion for rehearing and affirming a prior order of dissolution of marriage. This Court determined the affidavits filed in support of her motion to be insufficient, reasoning:

Such allegations are insufficient to support a motion for rehearing where, as here, the evidence tending to show that appellee allegedly concealed his assets was available to appellant prior to the final hearing and was even a subject of inquiry by appellant during appellee’s deposition. Where a party has access to such evidence prior to trial or hearing, yet fails to show any excuse or justification for her failure to introduce the evidence at the trial or hearing, her motion for rehearing is properly denied.

(Emphasis supplied). Id. at 929.

The trial judge must be permitted to consider the totality of components before him so as to exercise properly his discretion to grant, or not to grant, rehearing, even in these highly sensitive custody disputes. The reasons assigned by the court in its order of denial did not exhibit an abuse of judicial discretion and although instructive were harmless and not required by law. See R.W. Stoner v. W.G., Inc., 300 So.2d 268 (Fla. 2d DCA 1973). Denial of the motion was not error.

We note in the conclusory comments of Patti’s brief that she is not suggesting a remand for rehearing to adduce the additional facts contained in her motion. Instead, she seeks reversal and remand for entry of an order awarding her permanent legal as well as physical custody of Joey and setting of Joe’s child support obligation. However, having disposed of the legal issues raised, no remand is required in any event, as the orders appealed are affirmed.

JOANOS and ZEHMER, JJ., concur.


text:
    Alfonso PONTON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1018.
    District Court of Appeal of Florida, Third District.
    Aug. 16, 1983.
    Bennett H. Brummer, Public Defender and Robert H. Martin and John H. Lipinski, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. See: Ross v. State, 386 So.2d 1191 (Fla.1980); Olsen v. State, 338 So.2d 225 (Fla. 3d DCA 1976); Compare, Jent v. State, 408 So.2d 1024 (Fla.1982).


text:
    Mark W. MILGROM, Jose R. Arrojo and Gladys P. Arrojo, Appellants, v. The INTERNATIONAL BANK OF MIAMI, a national hanking association organized pursuant to the laws of the United States, Appellee.
    No. 82-2015.
    District Court of Appeal of Florida, Third District.
    Aug. 16, 1983.
    Robert L. Roth, Paul Morris, Miami, for appellants.
    Penzell & Diamond and Kris Penzell, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

The summary judgment for the plaintiff bank in an action on guaranties was improperly entered below because of the existence of genuine issues as to whether the execution of the agreements had been induced by fraudulent representations, by a contemporaneous oral agreement with which the bank did not comply or both. Public Health Trust of Dade County v. Prudential Ins. Co., 415 So.2d 896 (Fla. 3d DCA 1982); Furlong v. First National Bank of Hialeah, 329 So.2d 406 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 291 (Fla.1976); Healy v. Atwater, 269 So.2d 753 (Fla. 3d DCA 1972). Accordingly, the judgment and a consequent order dismissing the present defendants’ counterclaim with prejudice are reversed and the cause remanded for further appropriate proceedings.


author: SCHWARTZ, Chief Judge.

text:
    Todd DIAMOND, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2168.
    District Court of Appeal of Florida, Third District.
    Aug. 16, 1983.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Ñeimand, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

Diamond was convicted of the possession of quaaludes and amphetamines which were found in the gear shift boot of an automobile he owned and in which he was a passenger but which was being driven by one Hengst when it was stopped by the police. His defense was that the drugs belonged to Hengst, who put them in the car and that he, Diamond, knew nothing about their presence. In fact, Hengst, who was not initially arrested, had consistently confirmed that this was the case both directly to Diamond’s counsel and, of decisive significance here, in a written statement under oath taken by the state attorney. On that basis, Diamond obviously planned to use him as a witness for the defense. On the day before Diamond’s scheduled trial, however, Hengst was himself arraigned on the charge and, on the advice of his newly appointed public defender, gave notice to the prosecutor and defense counsel that he was recanting the previous statements as untrue and that Diamond had indeed been aware of the drugs. When these developments were called to the trial court’s attention, it ruled in limine over the defendant’s vehement objections that, as held in Perry v. State, 356 So.2d 342 (Fla. 1st DCA 1978), cert. denied, 364 So.2d 889 (Fla.1978), Hengst’s prior now-inconsistent statement could be employed only for impeachment purposes, and that Diamond could not therefore call him as a defense witness in order to introduce the sworn exculpatory statement into evidence. This ruling was reversibly erroneous.

While Perry correctly reflects the common law rule applicable when it was decided, the issue is now controlled by the Evidence Code, which became effective after the trial in Perry but before the present one. See In re Florida Evidence Code, 376 So.2d 1161 (Fla.1979). Section 90.801, Florida Statutes (1981), provides in pertinent part:

(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(a) Inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition....

There is no question that this provision effects a complete turnabout from the prior law exemplified by Perry, so that, contrary to the ruling below, Hengst’s prior statement under oath is admissible as substantive evidence in the defendant’s favor. State v. Moore, 424 So.2d 920 (Fla. 4th DCA 1982); Hills v. State, 428 So.2d 318 (Fla. 1st DCA 1983); Law Revision Council Note, 6C F.S.A. 238-39 (1976); see California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); see also, State v. Freber, 366 So.2d 426 (Fla.1978).

Since, by its terms, Sec. 90.801(2)(a) is applicable only when the declarant “testifies at the trial ... and is subject to cross-examination,” Diamond must be permitted to call Hengst to the stand during his case. When and if, as expected, Hengst testifies that the defendant had guilty knowledge of the drugs, Diamond may then introduce the sworn statement, which is “[ijnconsistent with [that] testimony,” under Sec. 90.-801(2)(a). See, United States v. Coran, 589 F.2d 70 (1st Cir.1978); United States v. Mosley, 555 F.2d 191 (8th Cir.1977), cert. denied, 434 U.S. 851, 98 S.Ct. 163, 54 L.Ed.2d 120 (1977); United States v. Jordano, 521 F.2d 695 (2d Cir.1975).

For this reason, the judgment below is reversed for a new trial to be conducted in accordance with this opinion.

Reversed.

      . The prosecutor stated that he would not call him and did not do so.

      . This process is consistent also with Sec. 90.-608(2), Fla.Stat. (1981):
      (2) A party calling a witness shall not be allowed to impeach his character as provided in s. 90.609 or s. 90.610, but, if the witness proves adverse, such party may contradict the witness by other evidence or may prove that the witness had made an inconsistent statement at another time, without regard to whether the party was surprised by the testimony of the witness. Leading questions may be used during any examination under this subsection, [e.s.]


author: BASKIN, Judge.

text:
    Margaret M. HALPERN, Appellant, v. Stanley N. HALPERN, Appellee.
    No. 83-163.
    District Court of Appeal of Florida, Third District.
    Aug. 16, 1983.
    Young, Stern & Tannenbaum and Glen Rafkin, North Miami Beach, for appellant.
    Carol R. Gersten, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   BASKIN, Judge.

In accordance with our concern for the substance rather than the form of payments made pursuant to a dissolution decree, regardless of the label of “property settlement” or “alimony”; and in recognition that the name assigned may not be conclusive of the question of the character of the obligation, see Underwood v. Underwood, 64 So.2d 281 (Fla.1953); Fagan v. Lewis, 374 So.2d 18 (Fla. 3d DCA 1979), we hold that the sums referred to in paragraph 3 of the order portion of the Final Judgment of Dissolution of Marriage dated May 23,1980, constituted alimony obligations enforceable by contempt and not a property settlement. Accordingly, we reverse and remand the cause to the trial court for an evidentiary hearing on the wife’s motion for contempt.


text:
    Rev. Francis John CONTI and The Freedom Church of Revelation, Appellants, v. INTERNATIONAL PRECIOUS METALS CORPORATION, Appellee. Rev. Linda Jane CONTI, individually and as Trustee of the Ocean Ridge Congregation of The Freedom Church of Revelation, Appellant, v. INTERNATIONAL PRECIOUS METALS CORPORATION, Appellee.
    Nos. 82-625, 82-1661.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 1983.
    Jerold Hart of Law Offices of Jerold Hart, P.A., North Miami Beach, & Gerald K. Burton and Sharon L. Zeller of Thompson & Burton, P.A., Hollywood, for appellants.
    R. Lawrence Bonner of Arky, Freed, Stearns, Watson & Greer, P.A., Miami, for appellee.
   PER CURIAM.

We have considered each of the issues raised by appellant in these consolidated appeals and have concluded that reversible error has not been demonstrated in either appeal. Accordingly, we affirm the orders of the trial court. ,

ANSTEAD, C.J., and BERANEK and HURLEY, JJ., concur.


author: DELL, Judge. WALDEN, Judge,

text:
    David Alan CAIN, Appellant, v. Nancy Marie CAIN, Appellee.
    No. 82-1140.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 1983.

      Michael H. Stauder, West Palm Beach, for appellant.
    Robert A. D’Angio, Jr., North Palm Beach, for appellee.
   DELL, Judge.

David Alan Cain appeals an order which denied his petition for modification of a final judgment of dissolution, denied his petition for partition and awarded attorneys fees to appellee.

In 1971 the parties entered into a property settlement agreement which the court incorporated into its final judgment of divorce. The agreement provided for the wife to have the “permanent possession, use and control of the home property until [appellant] shall no longer be required to support the minor children of the parties.” Following the divorce, appellant moved to Connecticut. He has maintained a very poor record for payment of child support and alimony. In 1979, the court awarded appellee a judgment in the amount of $10,-600 for child support and alimony arrearag-es. The court also awarded attorneys fees of $750 and costs of $52. Appellant ignored this judgment and continued to fall behind on his child support payments. By 1981, the arrearage of child support had again climbed to $2,782. On December 4th, 1981, appellee obtained a writ of execution on the 1979 judgment and directed execution against the marital home. Thereafter, on December 28th, appellant paid the sum of $2,782 to the wife, and on January 8th, filed a petition for modification of the final judgment and a complaint for partition. He asserted in his petition for modification that since appellee had remarried, her right to exclusive use of the home should be terminated and the property sold with the profits divided between the parties. He also filed a petition for stay of the writ of execution which the trial court granted. Following a hearing on appellant’s petition, the trial court denied the petition for modification, vacated the stay of execution and awarded the wife attorneys fees and costs.

On appeal, appellant argues that the evidence established a sufficient change in ap-pellee’s circumstances to justify modification of the final judgment, that the court erred in refusing to modify the final judgment because he lacked “clean hands,” and that the court erred in awarding the wife attorneys fees.

The record demonstrates that since the time of the final decree dissolving the marriage of the parties, appellant has consistently failed to timely pay child support. The record does not disclose whether or not appellant offered a reasonable explanation to justify the accrual of more than $10,000 in child support and alimony arrearages by the year 1979, and fails to disclose the reason for the additional arrearages which occurred between 1979 and 1981 in the amount of $2,782. The record does demonstrate, however, that the husband made no effort to pay the judgment for arrearages or to cure the $2,782 arrearage until after the wife obtained a writ of execution on the marital home. It also demonstrates that at the time of the hearing on the petition for modification, an arrearage existed. Appellant makes no argument that the trial court deprived him of the opportunity to explain his failure to comply with previous orders. Therefore we are not confronted with the situation that existed in the case of Fleet v. Fleet, 345 So.2d 792, 793 (Fla. 4th DCA 1977).

It is well settled that the doctrine of “clean hands” permits a judge sitting in equity to refuse to grant a petition for modification of a support decree when the petitioner is in arrears.

[1]t is said that, based on the doctrine of “clean hands,” a decree for payment of alimony will not be vacated unless the petitioner has paid up all alimony due under such decree, or by his petition shows his inability to do so.

Blanton v. Blanton, 154 Fla. 750, 18 So.2d 902, 904 (1944).

It is equally well settled that the determination of whether or not a petitioner comes to the court of equity with clean hands is for the trial judge to determine.

In the case at bar, it was a question for the chancellor to determine whether, on the particular facts presented, he should entertain the application for modification, and we would not be justified to hold that any error was committed in doing so; ....

Id. 18 So.2d at 904.

Although appellant presented sufficient evidence to justify modification under most circumstances, we find sufficient evidence for the trial judge to refuse such relief under the doctrine of “clean hands.”

We find merit in appellant’s argument that the trial court erred in awarding appellee attorneys fees in this action.

Accordingly, we affirm the trial court’s denial of appellant’s petition for modification and the order vacating the stay of execution. We vacate that part of the trial court’s order awarding appellee attorneys fees arising out of this action.

AFFIRMED AS MODIFIED.

DOWNEY, J., concurs.

WALDEN, J., concurs in part and dissents in part with opinion.

WALDEN, Judge,

concurring in part and dissenting in part:

I respectfully dissent from that portion of the majority opinion which approves the denial of the former husband’s petition for partition on the grounds of unclean hands. My view is based on the authority of Lambert v. Lambert, 403 So.2d 484 (Fla. 1st DCA 1981), where the husband’s request for partition was approved upon the remarriage of the wife regardless that the former husband had apparently failed to make child support payments and there was an arrearage.

Moreover, I am in nowise persuaded that the former husband should be barred from relief because of his past failure to make child support payments. As reflected, the parties were divorced in 1971. The wife undertook enforcement only twice in the intervening years. In 1979, the trial court entered judgment for the arrearage but did not adjudge the former husband to be in contempt. In 1980, the trial court denied the former wife’s motion for contempt and only ordered the former husband to pay a $640.00 medical bill. While we do not have a transcript of these two hearings, it seems safe to assume two things. First, the trial court would have forced payment via contempt if the former husband had the ability to make the payments. Second, the former wife would have made continual enforcement efforts had she thought her former husband possessed the ability to pay the arrearage.

Denying access to the court based on the doctrine of unclean hands is an extreme sanction which ought to be invoked under only the most provocative or contumacious circumstances. It is tantamount to striking a party’s pleadings. And, as all know, it would be a rare instance in contested marital litigation where one or both the parties are not to some degree or other in violation of the letter or spirit of the judgment. It should be the purpose of the trial court to conciliate, and bring the parties into compliance using the several tools available rather than to nakedly punish, except as a very last resort. Here, the former husband, if partition is ordered, has offered to place in escrow with the court clerk by stipulated court order all sums due or to become due by reason of his child support obligation. This would come from his share of the sale’s proceeds. The former wife is entitled to this assurance, but not more. Instead, she has taken advantage of the former husband’s impecunious state which leaves him unable to pay the judgment other than from his share of the proceeds if the house is partitioned and sold. As a consequence she stands to gain a substantial windfall far in excess of the monies due to her for child support, all at the husband’s expense. This writer does not condone the former husband’s failure to pay child support represented by the judgment. However, under the facts reflected in this record I cannot condone the harsh penalty being visited upon the husband, particularly when, as stated, earlier trial judges with the facts fresh before them in adversary contempt proceedings were unable to find contempt.

I would reverse the denial of partition and remand. I concur in the other portions of the majority opinion.

      . The court did not rule on appellant’s petition for partition since without modification of the final decree he had no right to partition.


author: LEE J. CAIL, Associate Judge.

text:
    Kenneth D. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1409.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 1983.
    Richard L. Jorandby, Public Defender, and Lee Kretschmer, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   LEE J. CAIL, Associate Judge.

Appellant, defendant in the trial below, brings this appeal from the jury verdict and subsequent adjudication of guilty on the charge of dealing in stolen property. He has raised several points, among them being “whether the trial court erred in assessing court costs, crime compensation trust fund payment, and restitution of value of unre-covered clothing where appellant was declared indigent”. As to court costs and Crime Compensation Trust Fund payment, we reverse on the authority of Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982). We note the apparent conflict with Jenkins v. State, 422 So.2d 1007 (Fla. 1st DCA 1982) and concede that there is merit to the view espoused therein by our sister court. However, until this conflict is resolved we consider it appropriate to follow our own prior decision. We decline to certify this question to the Supreme Court, in favor of some other case involving the same issues, as well as subject matter of greater substance.

Appellant’s remaining points on appeal, as well as the remaining portion of the point above referred to, are without merit.

Accordingly, the judgment and sentence herein are affirmed, except for that portion which assessed costs, as above set forth. As to such assessment of costs, we remand for vacation thereof for which appellant need not be present.

DOWNEY and LETTS, JJ., concur.


author: WALDEN, Judge.

text:
    HEEDE INDUSTRIES, INC., a Connecticut corporation, Deltronics, Inc., a Maryland corporation, John F. Raynolds III, Robert W. Johnson and Berge M. Heede, Jr., Petitioners, v. Victor A. RATNER and Nancy J. Ratner, his wife, Respondents.
    No. 82-2228.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 1983.
    Ronald Sales of Sales & Weissman, P.A., West Palm Beach, and Philip H. Bartels of Duel & Holland, Greenwich, Conn., for petitioners.
    John Neil Buso of Walton Lantaff Schroeder & Carson, West Palm Beach, for respondent, Victor Ratner.
   WALDEN, Judge.

This is a petition for common law certio-rari. It is addressed to an interlocutory order which required Petitioner, Heede Industries, Inc., to deposit $226,446.02 with arbitrators in a pending arbitration proceeding between Heede and Respondent, Nancy J. Ratner,

Certiorari is an appropriate vehicle because Heede would not have an adequate remedy via a plenary appeal. Chalfonte Development Corp. v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979); Fla.R.App.P. 9.030(b)(2)(A).

There are two aspects which merit attention. First, is the mentioned sum in a proper amount? Two, is Heede entitled to a set off against the mentioned sum?

The relevant contract provision which prompted the requirement that Heede post $226,446.02 is this, “If the disagreement or dispute involves a claim for money owed by one party to another the net proceeds reasonably alleged to be owed shall be deposited in escrow with the arbitrator or arbitrators and awarded by the arbitrator or arbitrators in connection with the arbitration.” (emphasis supplied).

We look for the source of the figure $226,446.02 and find it is only mentioned in the written Demand for Arbitration filed by Respondent, Nancy J. Ratner. Contrary to the argument of Nancy J. Ratner that sum is not found in the Assignment Agreement. There is no testimony or document support for it. Thus, the selection of that figure by the trial court was based only on the naked allegation or demand for same.

In our opinion the inclusion of the words “the net proceeds reasonably alleged to be owed” found in the contract require more of a basis and more of a showing than only the bare demand for $226,446.02 found in the initial arbitration document. Had the parties not so intended they could have omitted the words “net” and “reasonably” leaving the amount to be deposited in escrow simply the amount “alleged to be owed.”

We quash that portion of the appealed order which sets the amount of the escrow deposit in the sum of $226,446.02. 3 Fla. Jur.2d, Appellate Review, § 515. On remand, we respectfully direct that a preliminary hearing be conducted and inquiry made as to whether or not the demand for $226,446.02 is a reasonable one and whether or not such sum is net. Based thereon, the amount of the deposit should be newly set.

We deal seriously with the above question because, otherwise, a pleader could fancifully set forth an absurdly high demand which the other side could not possibly raise so as to deposit, thereby suffering fatal prejudice.

As to Heede’s claim for a set off, we decide that issue adverse to it.

A short background statement is necessary. Respondent, Victor A. Ratner, sued the Petitioners, Heede and others, for damages and declaratory relief. Heede and Deltronics counterclaimed and added Respondent, Nancy J. Ratner as a counter-defendant. Then Mrs. Ratner, only, instituted arbitrational proceedings against Heede as concerns Heede’s counterclaim against Mrs. Ratner. Thus, we have the controversy splintered with the controversy between Heede and Mr. Ratner resting in the circuit court while the controversy between Heede and Mrs. Ratner is in arbitration.

The basis for Heede’s claim of set off is the misconduct of Mr. Ratner. It is found in Paragraph 7 of the Agreement of Assignment and Assumption between Heede and Mrs. Ratner:

7. The Former Stockholder acknowledges that Heede shall have the right to offset its payment obligations herein against any damages to Heede caused by Victor A. Ratner’s (a) fraudulent or (b) intentional and material breach of his representations and warranties contained in the Stock Purchase Agreement which are not satisfied by the remedies of set-off and indemnification set forth in the Stock Purchase Agreement.

So, indeed, Heede would appear to have the right to set off against the claim of Mrs. Ratner the damages caused Heede by Mr. Ratner, as specified in Paragraph 7. However, as we view it, such offset is not available to Heede until such time as it makes a claim for money in the arbitration proceedings, a step that it has not taken. Otherwise, the arbitrators would have to take note of the circuit court proceedings between Heede and Mr. Ratner in a process over which they have no control. Moreover, as viewed in the forepart of this opinion, the arbitrators can only set the amount of the deposit based on “the net proceeds alleged to be owed” and we interpolate this to mean, “alleged in the arbitration proceedings.”

In sum, we hold that the trial court correctly disallowed the offset claimed by Hee-de.

The petition for common law certiorari is granted and the questioned order is approved in part and quashed in part and remanded for further proceedings consistent herewith.

DOWNEY and HURLEY, JJ., concur.


author: LETTS, Judge.

text:
    In re The FORFEITURE OF 1978 FORD FIESTA (3 DOOR) VIN # GCFBTK24642, FLA TAG # VUH234 TAN IN COLOR.
    No. 82-2455.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 1983.
    Charles L. Brown of Brown & Pickett, West Palm Beach, for appellant-City of West Palm Beach Police Dept.
    No appearance for appellee.
   LETTS, Judge.

This appeal by the City of West Palm Beach arises because the trial judge found:

No probable cause exists, based on the above stipulated facts, for the issuance of a Rule to Show Cause under the provisions of Florida Statutes Sections 932.701 —932.704.

We reverse.

The stipulated facts referred to were: On March 1,1982, the owner of the above vehicle, Frank Joseph Boltri, did, while sitting in the above vehicle, commit the felony offense of Lewd and Lascivious Acts in the presence of a child under the age of fourteen (14) years of age. The said Frank Boltri drove the above vehicle to the scene of the above offense, opened the vehicle door, exposed his penis to two (2) females under the age of fourteen and then left the scene in the above vehicle. A similar offense involving the same vehicle, same owner, and same location had occurred some three to four months earlier. In addition, the tag number and vehicle description was obtained a week after the March 1,1982 incident when the vehicle and owner were once again observed in the same location as the incident of March 1, 1982 by one of the same young females.

Based on the above, we simply cannot agree with the trial judge and we are of the opinion that a rule to show cause should have been issued predicated on the likelihood that this vehicle had been used as an instrumentality during the commission of a felony. The automobile in this instance did more, much more, than serve as transportation to and from the scene of the crime. Indeed it was used literally as a substitute for the classic trenchcoat.

Accordingly upon the authority of In re Forfeiture of United States Currency in the Amount of Five Thousand Three Hundred Dollars, 429 So.2d 800 (Fla. 4th DCA 1983) and In re Forfeiture of Approximately Forty-Eight Thousand Nine Hundred Dollars, 432 So.2d 1382 (Fla. 4th DCA 1983), we REVERSE AND REMAND IN ACCORDANCE HEREWITH.

DOWNEY and DELL, JJ., concur.


text:
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 323, Sheet Metal Workers International Association, Local 130, Palm Coast Building and Construction Trade Council, Inc., George C. Hudspeth and Roger C. Hudspeth, Appellants, v. RICHWAY, A DIVISION OF FEDERATED DEPARTMENT STORES, INC., a Delaware corporation, authorized to do business in the State of Florida, et al., Appellee.
    No. 82-2573.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 1983.
    Rehearing Denied Sept. 9, 1983.
    Howard S. Susskind of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & DeCastro, P.A., Miami, for appellants.
    John F. Wymer, III, of Smith, Currie & Hancock, Atlanta, Ga., and Larry A. Klein of Larry A. Klein, P.A., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from an order imposing a temporary injunction. We affirm upon authority of Sears, Roebuck & Co. v. San Diego County, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978), whose rationale is buttressed by the fact that the National Labor Relations Board had earlier determined: (1) that the conduct of Richway and its state court application were not violations of the National Labor Relations Act, and (2) that the appellants’ complaint filed before us be dismissed thereby indicating that it would not provide a forum for this dispute.

AFFIRMED.

DOWNEY, HURLEY and WALDEN, JJ., concur.