author: MILLS, Judge.

text:
    Troy FLANAGAN, a/k/a Steven L. Anthony, Appellant, v. STATE of Florida, Appellee.
    No. AQ-260.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1983.
    Rehearing Denied Dec. 2, 1983.
    Michael Allen, Public Defender, Gwendolyn Spivey, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

In this criminal appeal, Flanagan contends that the trial court erred in denying his motion to suppress a quantity of cocaine that was found in his possession. We disagree and affirm.

Officer W.B. Butler, a deputy with the Jacksonville Sheriff’s Office, was on routine patrol on 21 March 1982 when he was flagged down by an informant around 1:00 a.m. The informant told him that a man named Troy Flanagan had just robbed a nearby convenience store and that he knew where Flanagan was hiding out. Officer Butler then put plain clothes over his uniform and was driven by the informant to a trailer where Flanagan was allegedly in hiding.

When they arrived a man named Taylor came out of the trailer and began conversing with Officer Butler. Taylor told him that he had the authority either to grant or to deny entry into the trailer. He further told Officer Butler that the trailer contained illegal drugs and that he would not allow him to go inside if he was going to conduct a search. After several minutes of negotiating, Officer Butler agreed that he would not search the trailer and that he would arrest no one other than Flanagan.

Taylor then led Officer Butler, along with a backup officer who had arrived on the scene, inside the trailer .and up to the bathroom door. Taylor tapped on the door, opened it, and began a conversation with Flanagan who was inside. Eventually, the door was opened wide enough so that Officer Butler could see inside. What he saw was Flanagan, holding a syringe, preparing to inject himself with what appeared to be illegal drugs. Officer Butler arrested Flanagan and charged him with violating Section 893.13(l)(e), Florida Statutes (1981). The substance in the syringe was later analyzed and determined to be cocaine.

Some time later, Flanagan was also charged with the armed robbery of the convenience store. That count, however, was severed and is not pertinent to this appeal.

Flanagan filed a motion to suppress the cocaine, contending that it was the fruit of an illegal search and seizure. In its order denying the motion, the trial court found that Flanagan had no standing to challenge the search and that even if he did, the cocaine was not illegally seized. Thereafter, Flanagan entered a plea of nolo conten-dere to the charge of possession of cocaine, reserving his right to appeal the denial of his motion to suppress. This timely appeal followed.

In reviewing the trial court’s order, the first question which must be answered is whether Flanagan had a reasonable expectation of privacy in the area where the cocaine was seized. If he did not, then the question of the legality of the search becomes irrelevant. State v. Hutchinson, 404 So.2d 361 (Fla. 2d DCA 1981).

The evidence adduced at the hearing shows that Flanagan was an overnight guest in this trailer. At the time Officer Butler entered the trailer, Flanagan was in ■ the bathroom with the door closed. Under these circumstances, we hold that Flanagan did have a reasonable expectation of privacy, and thus he may challenge the legality of the search. Daniels v. State, 411 So.2d 1034 (Fla. 1st DCA 1982).

Flanagan urges that Officer Butler did not have probable cause to enter the trailer and that the cocaine must be suppressed as the product of an illegal arrest. We disagree. The issue is not whether Officer Butler had probable cause to enter the trailer, but whether there was consent for him to do so. If there was consent, then it does not matter that there was no probable cause. United States v. Ellis, 547 F.2d 863 (5th Cir.1977).

It is also urged that the consent given by Taylor was a “limited consent” and that Officer Butler went beyond the bounds of that consent when he seized the cocaine. More specifically, Flanagan contends that, as a condition to his entering the trailer, Officer Butler agreed not to seize any drugs. We find that argument is based on a misreading of the record. Officer Butler agreed not to search the trailer for drugs and not to arrest anyone other than Flanagan; he never agreed that he would not seize any drugs from Flanagan should he find them in his possession. Even if he had so agreed, such an agreement would be unenforceable as a matter of public policy. Law enforcement officers should not be allowed simply to ignore a crime that is being committed in front of their very eyes.

In order to determine whether there was valid consent in this case, it must first be determined whether Taylor consented in fact or whether he merely submitted to the apparent authority of Officer Butler. The evidence here is sufficient to show that Taylor did, in fact, consent. Taylor negotiated with Officer Butler for several minutes before allowing him to enter the trailer. If Taylor had merely submitted to the apparent authority of Officer Butler, it seems more likely that Taylor would simply have let him inside with no questions asked.

Next, it must be determined whether Taylor actually had the authority to consent. There was no evidence that Taylor owned the trailer and none that he even resided there. Flanagan testified at the suppression hearing that there were three people who resided at the trailer, and Taylor was not one of those named. Officer Butler never attempted to determine who the owners or lessees of the trailer were, nor did he ever contact Taylor after the date of the arrest. Taylor merely told Officer Butler that he had authority either to grant or to deny entry into the trailer. On this record, we cannot say that there was proof of any actual authority by Taylor.

However, the evidence is sufficient to show that Taylor had the apparent authority to consent. Taylor came out of the trailer, told Officer Butler that it was up to him to grant or to deny entry into the trailer, and negotiated the terms of entry with him for several minutes. Under such circumstances, it was reasonable for Officer Butler to believe that Taylor did in fact have the authority to consent.

Finally, it must be determined whether consent which is grounded on the apparent authority of a third party is valid. Florida has not yet addressed this question, but other jurisdictions have done so.

In Nix v. State, 621 P.2d 1347 (Alaska 1981), it was held that a house guest had the apparent authority to allow an undercover policeman to enter a dwelling and that such authority was sufficient to show a valid consent. Likewise, in People v. Adams, 53 N.Y.2d 1, 422 N.E.2d 537, 439 N.Y.S.2d 877 (1981), it was held that a search was valid when consent to search the defendant’s apartment was obtained from his girlfriend even though she did not reside with him. For a contrary view, see State v. Carsey, 664 P.2d 1085 (Or.1983), where it was held that a police officer’s reasonable, good faith belief that the defendant’s grandmother had authority to consent to a search of the defendant’s bedroom was insufficient to validate the search. Because it is more consistent with the purpose underlying the exclusionary rule, we adopt the reasoning of Nix and Adams.

In United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974), it was held:

The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim.... Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable search and seizures. ...

This purpose would not be served by suppressing evidence obtained in cases, like this one, where law enforcement officers reasonably believe that they are acting lawfully-

The trial court was correct in denying Flanagan’s motion to suppress.

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    FLORIDA BAR OWNERS, INC., Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Appellee.
    No. AR-277.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1983.

      Joe B. Weeks, Winter Park, for appellant.
    Harold F.X. Purnell, Gen. Counsel for Dept, of Business Regulation, Tallahassee, for appellee.
   MILLS, Judge.

Florida Bar Owners appeals and the Division of Alcoholic Beverages and Tobacco of the Department of Business Regulation (the Division) cross-appeals an order of the trial court which dismissed with prejudice Florida Bar Owners’ petition for declaratory relief. We affirm.

Florida Bar Owners, Inc. is a nonprofit corporation operating in Florida. The shareholders of this corporation are small bar owners who have been issued licenses to sell beer and wine and who have attempted to obtain but have been denied licenses to sell liquor.

By way of a petition for declaratory relief, Florida Bar Owners attacked, on due process and equal protection grounds, the constitutionality of Section 561.20(1), Florida Statutes (1981), which limits the number of liquor licenses that may be issued in any one county. The trial court dismissed the petition with prejudice, ruling that although Florida Bar Owners was entitled to seek declaratory relief, the statute was not unconstitutional. This timely appeal and cross-appeal followed.

We agree with the Division that there is no actual controversy in this case. There are no allegations in the petition nor is there any evidence in the record to indicate that Florida Bar Owners as an entity has ever applied for or been denied a liquor license. On this record, therefore, Florida Bar Owners was not entitled to seek declaratory relief. Grady v. Department of Professional Regulation, 402 So.2d 438 (Fla. 3d DCA 1981). Accordingly, we decline to address the constitutional question and affirm the trial court’s dismissal of the petition.

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Mirth K. BROWN, Appellant, v. Dwight D. BROWN, Appellee.
    No. AN-149.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1983.
    Rehearing Denied Dec. 1, 1983.

      Donald L. Braddock, of Howell, Liles, Braddock & Milton, Jacksonville, for appellant.
    Kathleen F. Dekker of Brown & Camper, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

The seventeen-year marriage of these parties ended in a 1979 Maryland divorce in which the wife was awarded alimony of $250.00 a month, and child support of $400.00 a month. After the Maryland divorce judgment was adopted as a Florida judgment in the Circuit Court of Duval County, the court modified the Maryland decree by terminating the husband’s obligation to pay alimony, and reducing child support payments to $300.00 per month. The wife appeals. We affirm the order of modification except for the trial court’s failure to retain jurisdiction for consideration of a future award of alimony, and remand for further proceedings with respect to that issue.

There would be little value in a detailed recitation of the evidence tracing the husband’s fall from relative prosperity as a 40-year old president of a “high-tech” company earning $60,000.00 (plus) annually in 1977, prior to the divorce, to his present impecunious condition as a 44-year old, “over-the-hill” (his assessment) small company employee earning under $10,000.00 a year. We are immediately struck, however, by the improbability that one with the husband’s qualifications (two engineering degrees, and a background including positions of responsibility with at least one Fortune 500 company), will forever remain down and out. We are confident that the same improbability must have occurred to the trial judge, for the record reflects the judge’s close scrutiny of the husband’s testimony concerning his employability. The husband has remained either unemployed or underemployed for some five years (he was fired from his $60,000.00 a year job prior to the divorce) and his testimony revealed extensive job-search efforts, as to which he says he has been disadvantaged by pending litigation with his former employer. He cites as further obstacles the fact that his engineering education is now out-dated in a world of rapidly changing technology, and he points also to the problem of over-qualification facing one of his age, background, and education in seeking re-employment at any level within his narrow field of expertise, computerized typesetting.

In his order of modification, the trial court found that the Maryland court’s award of child support and alimony was based primarily upon the husband’s history of high earnings, together with the presence of substantial assets not affected by the fact that he was unemployed at the time of the dissolution. Furthermore, at the time of the dissolution the wife was not engaged in income producing work. The court found, however, that since the dissolution the husband’s assets have been disposed of, and despite substantial efforts on the part of the husband he is presently employed at a modest wage. The trial court noted in the order also that since the entry of the Maryland dissolution the wife has become the equitable owner of a comfortable home in Jacksonville, and with exception of a short period of time in early 1982 has been regularly employed as a legal secretary earning wages exceeding the earnings of the husband at his current employment. The trial court concluded that the husband does not have the “current ability” to pay child support and alimony as required by the prior judgment.

The rule governing the termination of permanent, periodic alimony in modification proceedings is that the moving party must show a substantial change in the circumstances of one or both parties not contemplated at the time of the final judgment of dissolution, and it must be further shown that the moving party is no longer able to pay any amount of alimony, or that the recipient has no need for alimony. Withers v. Withers, 390 So.2d 453 (Fla. 2nd DCA 1980). There is competent evidence within the requirements of this rule to support the trial judge’s decision terminating alimony payments.

Whether the trial court should have retained jurisdiction for a future award of alimony is another matter. In a dissolution proceeding the question of whether to reserve jurisdiction to award periodic alimony in the future is within the trial court’s discretion. Shaw v. Shaw, 334 So.2d 13 (Fla.1976). Unless the trial court’s ruling is shown to he unsupported by the evidence, or an abuse of discretion, it cannot be disturbed on appeal. Id. at 17. The rule, generally, is that where there is a likelihood of a change in circumstances in the future that would warrant an award of alimony, the court should retain jurisdiction. Reed v. Reed, 244 So.2d 449 (Fla. 1st DCA 1971); Roberts v. Roberts, 283 So.2d 396 (Fla. 1st DCA 1973); Mumm v. Mumm, 353 So.2d 134 (Fla. 3rd DCA 1977); Hunt v. Hunt, 394 So.2d 564 (Fla. 5th DCA 1981). While the burden of persuasion as to retention of jurisdiction would be on the party seeking alimony in a dissolution proceeding, because of the res judicata effect of a final judgment awarding permanent periodic alimony, the burden of persuasion would be upon the other party in a modification proceeding to show the absence of any basis for retention of jurisdiction for a future award of alimony. In order to secure a reinstatement of alimony, after a modification terminating it, the burden would then fall upon the party seeking alimony to establish the foundation for such an award in a later modification proceeding. See, Wing v. Wing, 429 So.2d 782, 783 (Fla. 3rd DCA 1983).

The husband’s acceptance of an option to purchase 51,000 shares of stock in the company that employs him (a company he formed, but the stock in which is wholly owned by the female friend with whom he lives) can be interpreted as consistent with an expectation of better days in the future. By contrast, the wife’s acceptance of financial assistance from her family, in order to buy her present house, and her automobile, and her receipt of weekly monetary contributions from her parents, are indications of her inability to maintain a suitable (at least to her) standard of living on her own earnings.

On the record before us in this case we are unable to conclude that the trial court actually addressed the question of retention of jurisdiction for the purpose of re-instituting alimony, or if he did, that the correct rule was applied in making the determination. Accordingly, jurisdiction will be temporarily relinquished to the trial judge for further proceedings, including the receipt of additional evidence and argument, in the discretion of the court, and for determination of whether jurisdiction should be reserved for a future award of alimony.

We have considered and find no reversible error in the trial court’s ruling on the contempt charges, and the denial of appellant’s post-hearing proffer of additional or newly-discovered evidence.

The order of modification is affirmed, except as to the issue of reservation of jurisdiction for a future award of alimony, and jurisdiction is temporarily relinquished to the trial judge for a period of thirty (30) days for further proceedings consistent with this opinion.

WENTWORTH and JOANOS, JJ., concur.

      . See, 25 Fla.Jur.2d, “Family Law,” § 482; Chastain v. Chastain, 73 So.2d 66, 68 (Fla.1954).


author: PER CURIAM.

text:
    Jacqueline DIXON, et al., Appellants, v. David King MADDOX, et al., Appellees.
    No. AQ-187.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1983.
    Rehearing Denied Dec. 1, 1983.

      Joseph R. Boyd and Michael L. Berry, of Boyd & Smith, and Chris Walker, of Child Support, Tallahassee, for appellants.
    Jeffry A. Mulrain, Jacksonville, for appel-lees.
   PER CURIAM.

The trial court dismissed the complaint in this paternity action with prejudice because “alternative pleading alleging that one of two or one of a group of potential fathers is the actual father is not proper or appropriate in a paternity action” and because the allegations “concede that said plaintiff is unable to determine the father of the child in question.” It was error to dismiss the complaint on this ground. Holliman v. Green, 439 So.2d 955 (Fla. 1st DCA 1983).

We find the complaint deficient in other respects, however. For example, it wholly fails to allege any ultimate facts identifying the circumstances of the occurrences alleged, such as the place where the alleged sexual relations occurred, the dates or time periods during which the alleged relations occurred, or whether plaintiff had sexual relations with other men during the alleged time period. Omission of these allegations renders the complaint insufficient, warranting affirmance of the trial court’s order of dismissal. These deficiencies may be cured by amendment, however; and even though plaintiff refused to amend the complaint further, obviously for the reason that she could not cure the deficiency found in the trial court’s order, we reverse the dismissal with prejudice and remand with directions to afford the plaintiffs leave to amend.

REVERSED and REMANDED.

ROBERT P. SMITH, Jr., WENTWORTH and ZEHMER, JJ., concur.


author: WENTWORTH, Judge.

text:
    Anthony JEFFERSON, Appellant, v. STATE of Florida, Appellee.
    No. AJ-165.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1983.
    Rehearing Denied Dec. 2, 1983.

      Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen.; Kathryn L. Sands, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant was tried, and found guilty as charged, for the crime of armed robbery. After filing the timely notice of appeal, appellate counsel for Mr. Jefferson requested that jurisdiction be relinquished to the trial court to determine whether appellant received reasonably effective assistance of counsel at his trial. This court then entered an order temporarily relinquishing jurisdiction “for collateral proceedings to determine whether effective assistance of counsel was rendered .... ” (e.s.) Pursuant to this order, a hearing was held before the trial judge who then entered an order in which he made substantive findings that appellant had not been denied his right to effective assistance of counsel. Thereafter, appellant filed a brief in which the only two issues raised pertain to the right to effective assistance of counsel. Although appellant’s case is aptly argued and warrants some discussion, we find that there was no violation of appellant’s sixth amendment right to counsel and therefore affirm.

Appellant and a co-defendant, Charles Harrison, were both represented at trial by a single court-appointed attorney, Mr. Clyde Reese. Over Mr. Reese’s objection the cases were consolidated and the defendants were tried together. The evidence tended to show that Harrison and a third accomplice, Diane Harold, entered the Day-N-Nite Food Store and robbed it while appellant waited outside. The three then fled in appellant’s car. After being arrested, appellant and Harrison made separate statements to Detective Hill. Although there were slight discrepancies in the statements, both defendants maintained that they were at a barbecue gathering at the time of the Day-N-Nite robbery. Some time prior to trial, Mr. Reese informed appellant that the state had offered to recommend a ten-year cap on the sentence if appellant would plead guilty and testify against Harrison. At the hearing on the question of ineffective counsel, appellant testified that Mr. Reese advised him to accept the state’s proposal due to the evidence the state had and the possibility of a life sentence upon conviction. Appellant chose to go ahead with the jury trial.

Appellant contends that when Mr. Reese objected to the consolidated trial, the possibility of a conflict of interest was called to the attention of the trial judge. According to appellant, reversal is required because of the judge’s failure at that time to conduct an inquiry into the possibility of conflict.

Appellant relies in part upon Holloway v. State, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), in which an attorney for three co-defendants informed the judge of a possible conflict of interest among defendants and moved for appointment of separate counsel. Without inquiring into the asserted conflict, the judge denied the motion. The Supreme Court held that:

... the failure [to appoint separate counsel], in the face of the representations made by counsel weeks before trial and again before the jury was empaneled, deprived petitioners of the guarantee of “assistance of counsel.”

435 U.S. at 484, 98 S.Ct. at 1178. The court went on to hold that when a trial court improperly requires joint representation over timely objection, there can be no harmless error.

We find the holding in Holloway inapplicable here because in this case the possibility of conflict was never “brought home” to the trial judge. In fact, defense counsel affirmatively acknowledged that the defenses were not conflicting. Thus, this case is distinguishable from those where an objection to consolidation, based on the grounds that there is a risk of conflicting interests, is sufficient to trigger the Holloway rule. E.g., Smith v. Anderson, 689 F.2d 59 (6th Cir.1982). When defense counsel represents to the trial court that there is no conflict, it cannot reasonably be said that the judge is then on notice of a possible conflict merely because defense counsel objects to consolidated trials. Holloway does not require the trial court to initiate inquiries into the propriety of multiple representation. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

When the trial court is not on notice of a possible conflict, a defendant must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Cuyler, supra. “But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” 446 U.S. at 350, 100 S.Ct. at 1719.

The primary conflict asserted by appellant stems from the existence of the previously mentioned plea bargain offer. While it is certainly possible that an attorney could be placed in a position of conflict when the state offers one of his two co-defendants a plea bargain, the record here demonstrates that the offer did not create a conflict adversely affecting Mr. Reese’s representation since appellant himself testified that Reese advised him to accept the offer. Thus, there is no indication that counsel placed Harrison’s interests over appellant’s. Under these circumstances we find that appellant failed to demonstrate a conflict actually affecting the adequacy of his representation. He therefore failed to establish the constitutional predicate for his claim of ineffective assistance.

We have considered appellant’s second point on appeal, in which he asserts ineffective representation at trial given the totality of the circumstances, and find it to . be without merit. Appellant has not shown that the complained of omissions and acts of his attorney were measurably below that of competent counsel or that the alleged errors prejudiced him to the extent that there is a likelihood that the outcome was affected. Knight v. State, 394 So.2d 997 (Fla.1981).

Affirmed.

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

      . Combs v. State, 403 So.2d 418 (Fla.1981), authorizes relinquishment of jurisdiction to the trial court when counsel informs the appellate court of an honest belief that there is an issue as to ineffective assistance of counsel. That opinion, as well as State v. Meneses, 392 So.2d 905 (Fla.1981), appears to us to contemplate that the proper procedure to follow when such relinquishment is granted is to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. If the trial court does not grant the relief, a new notice of appeal may be filed. The original appeal may proceed if there are other issues, and should be dismissed if there are not. As our order in this case stated, jurisdiction was relinquished for collateral proceedings, i.e., for instituting proceedings separate from the trial and pending appeal. However, no such motion was filed. Instead, the trial court and the parties apparently relied on the allegations in appellant’s motion to relinquish. While this procedure was not in technical compliance with our order, we entertain the appeal by treating the proceedings below as having been conducted pursuant to remand for hearing upon an application for new trial. See Antone v. State, 382 So.2d 1205 (Fla.1980), cited in Combs, in which the Supreme Court remanded for testimony in the trial court on application for new trial. Under Florida Rule of Criminal Procedure 3.600(b)(8), ineffective assistance of counsel may properly be raised as a ground for new trial. The issue in this case having been thoroughly aired before the trial court, it is now sufficiently preserved and presented for our review, and the appeal from the judgment of conviction is carried over for that purpose. Cf. Wright v. State, 428 So.2d 746 (Fla. 1st DCA 1983).

      . Although appellant denied making any statement, Detective Hill testified that he did.

      . If a defendant shows that an actual conflict adversely affected his lawyer’s performance, he need not show that the effect was prejudicial to the outcome of the case. Cuyler, supra.

      . E.g., Alvarez v. Wainwright, 522 F.2d 100 (5th Cir.1975).

      . We have not overlooked appellant’s additional argument directed at specific incidents which allegedly indicate actual conflict. We do not address them in detail because we perceive no such indication in the incidents. For example, we fail to see how counsel’s alleged failure to stress the paucity of evidence, concerning appellant’s knowledge of the presence of a weapon, could be construed as an attempt to deflect the effect of the evidence on Harrison, since there was no dispute in this case about which defendant possessed the gun.


text:
    Charles HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. AI-361.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1983.

      Rehearing Denied Dec. 2, 1983.
    Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. Jefferson v. State, 440 So.2d 20 (Fla. 1st DCA 1983).

LARRY G. SMITH, WENTWORTH and JOANOS, JJ., concur.


author: DELL, Judge.

text:
    Norman BLACK, Appellant, v. Barbara A. BRAMMER, Personal Representative of the Estate of Harold W. Brammer, Deceased, Appellee.
    No. 83-255.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Rehearing Denied Dec. 1, 1983.
    Gary I. Zwickel of Zwickel, Gross & Kes-sler, Lake Worth, for appellant.
    Zell H. Altman of Altman, Colin & Fried-land, Lake Worth, for appellee.
   DELL, Judge.

Norman Black appeals from an order denying his motion for an extension of time to file suit on his claim against the Estate of Harold W. Brammer, deceased.

Appellant timely filed his claim against the estate and appellee timely objected. Forty-nine days after appellee filed her objections to the claim, appellee’s attorney sent appellant’s attorney the following letter:

This will confirm our telephone conversation of 9/2/82 wherein you questioned the effect of our objection to the claim filed by Norman Black in the amount of $31,379.00 plus interest.
As I explained, this was done to protect the estate in the event we are unable to reach a settlement. Under the Rules of Procedure you are required to file suit within 60 days from the date of our objection, however, due to the complexities of this case, I hereby waive this requirement on your part and agree that you shall have the right to institute any legal action relating to the collection of your claim at any time but in no event later than 30 days from the date of written notification from me that we are unable to reach a settlement of the claim.

Appellee’s attorney testified at the hearing to extend the time for filing suit that

I spoke to Harvey Spring, who is Black’s lawyer, and I talked to other creditors that right from the beginning it was all in the spirit of let’s forbear and we’ll be able to work this thing out and it will net out more cents on the dollar to the creditors.

Appellant asserts that the evidence before the trial court constituted good cause for extending the time to file suit.

Section 733.705(3), Florida Statutes (1981) provides:

The claimant shall be limited to 30 days from the date of service of an objection within which to bring an action upon the claim. For good cause, the court may extend the time for filing an objection to any claim or the time for serving the objection, and may likewise extend the time for filing an action or proceeding after objection is filed.

The trial court has broad discretion to grant or deny an extension of time to file suit. In Re: Estate of Matchett, 394 So.2d 437 (Fla. 5th DCA 1981); In Re: Estate of Herskowitz, 342 So.2d 530 (Fla. 3d DCA 1977).

It has been held that a legal excuse for extension exists where a claimant ... forgoes the commencement of an independent action under the belief that his objected-to claim will be paid or settled without the need for action, and he reasonably comes to that belief because of representations or actions of the personal representative of the estate or his agent.

In Re: Estate of Wilisch, 384 So.2d 223, 226 (Fla. 3d DCA 1980). Good cause to extend the time for filing an action has also been found where the actions of the representative of an estate lulled the claimant into a false sense of security or induced the claimant to delay the institution of his action. Sessions v. Jelks, 194 So.2d 307 (Fla. 1st DCA 1967); In Re: Estate of Matchett, supra.

We hold that appellant presented sufficient evidence to show that he had good cause to believe his client’s claim would be paid or settled without the need to file suit. We wish to point out that we do not view appellee’s actions as anything other than a sincere attempt to avoid the expenses of litigation and to preserve the assets of the estate for the benefit of the creditors.

Accordingly, we reverse the order denying appellant’s motion for an extension of time to file suit and remand this cause to the trial court with directions to enter such further orders as may be consistent herewith.

REVERSED and REMANDED.

ANSTEAD, C.J., and HERSEY, J., concur.

      . Although the letter mistakenly indicated suit must be brought within 60 days of the objection, rather than 30 days as provided in Section 733.705(3), Florida Statutes (1981), the appellant does not rely on this error.


author: ROBERT P. SMITH, Jr., Judge.

text:
    SUNLAND CENTER AT MIAMI and Crawford & Company, National Loss Control Service Corp., Appellants, v. Clara GILBERT and the Division of Workers’ Compensation, Appellees.
    No. AR-293.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1983.
    Rehearing Denied Dec. 1, 1983.
    Robert H. Gregory, Miami, for appellants.
    Joseph J. Finkelstein of Pelzner, Schwe-dock, Finkelstein & Klausner, P.A., Miami, for appellees.
   ROBERT P. SMITH, Jr., Judge.

We find in Dr. Dennis’ testimony and reports substantial competent evidence that, due to her 1976 and 1978 industrial accidents, claimant is unable in the physician’s opinion to return to work. Claimant’s attempts at employment, which she abandoned due to pain associated with her industrial injuries, might properly have been regarded by the deputy not as evidence of her employability but as evidence of her inability to work, excusing a further work search. The consequent finding of a change in condition, the predicate of the modification order, is therefore sustained. However, we remand this cause for further proceedings so that the deputy may correct his incorrect findings regarding claimant’s compensation rate.

AFFIRMED but REMANDED.

BOOTH and WIGGINTON, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge. BOOTH, Judge,

text:
    HILLSBOROUGH COMMUNITY COLLEGE and Gallagher-Bassett Insurance Service, Appellants, v. Marie MILLER, Appellee.
    No. AR-422.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1983.
    Rehearing Denied Dec. 1, 1983.

      Susan R. Whaley, and Richard R. Crooke, Tampa, for appellants.
    H. Guy Smith, Lakeland, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The self-insured employer and servicing agent appeal a deputy commissioner’s order awarding permanent total disability benefits to this 68 year-old worker who apparently is ineligible, due to age, for wage-loss benefits. Sec. 440.15, Fla.Stat. (Supp.1980).

Claimant sustained a compensable back injury, requiring surgery, and reached maximum medical improvement with a 15 percent permanent neurological impairment of the body as a whole. She suffers also from a medically diagnosed psychiatric impairment, due to depression reaction. No physician says she is unable physically, or for that matter mentally, to work. The psychiatrist says it would do her good to work. Claimant has sought work and has been offered work but in her emotional condition, so the deputy found, “she is obviously unemployable.” The deputy further found that “[t]he employer/carrier has offered her no rehabilitation, and there is no reasonable probability that she could be rehabilitated to the extent that she could achieve gainful employment.”

The deputy thus found that “she has suffered a total loss of wage-earning capacity and is permanently totally disabled” within the meaning of section 440.15(l)(a), Fla. Stat. (Supp.1980). Subsection (l)(b) provides that except in limited and specified cases, where permanent total disability is conclusively presumed, “permanent total disability shall be determined in accordance with the facts.” The statute further provides:

[N]o compensation shall be payable under paragraph (a) if the employee is engaged in, or is physically capable of engaging in, gainful employment, and the burden shall be upon the employee to establish that he is not able uninterruptedly to do even light work due to physical limitation.

We need not address the question of whether an emotional or psychiatric disability can ever be said to have rendered a claimant physically incapable of working, or unable to do light work on account of physical limitations. Assuming that such a case can satisfy the statute, this is not that case. There is no evidence by a competent witness that this claimant is unable to do light work. The deputy’s' observations of this distressed claimant, at the hearing, would be of considerable weight, were there a fragment of evidence authenticating claimant’s total impairment, but there is none.

REVERSED.

WIGGINTON, J., concurs.

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

BOOTH, Judge,

concurring in part and dissenting in part:

I agree with the majority that claimant has failed to establish permanent total disability, but must dissent from that portion of the opinion which perpetuates the invidious discrimination based on age alone that arises under Section 440.15, Florida Statutes, as upheld in this court’s recent opinion in Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA, 1983). Claimant in this case was 65 years old and working at her job when violently assaulted. She has sustained permanent injury, both physical and mental, but is ineligible for benefits allowed to younger workers under the same circumstances.

The employer, who was willing enough to employ claimant while she was uninjured, is relieved of responsibility because claimant is over 65; and, although her wage-earning ability has been surely impaired as a result of her injuries, there is no remedy afforded claimant under Chapter 440 or at common law. We are told claimant can receive social security retirement benefits (for which she has paid) and can look for some work which she may be able to do.

This statutory scheme, denying recourse or remedy solely because of age, should be held invalid.


author: GLICKSTEIN, Judge.

text:
    Ian STEVENSON and London Motors, Ltd., Appellants, v. Gary RUTHERFORD and Classic Roadsters, Ltd., etc., Appellees.
    No. 82-2021.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1983.
    Daniel S. Mandel of Law Offices of Fred C. Bamman, III, P.A., Pompano Beach, for appellants.
    Bruce G. Shaffner of Shaffner & Shaff-ner, P.A., Fort Lauderdale, for appellees.
   GLICKSTEIN, Judge.

The general manager of a corporate automobile dealer made a written statement, identifying Gary Rutherford as having made a defamatory statement applying a wide range of colorful epithets to the dealer’s principal, whereupon the dealer and its principal sued Rutherford and the latter’s employing automobile dealer. When the general manager’s deposition was taken, he was shown Mr. Rutherford’s photograph; and it became clear that whoever had laid down the barrage of verbiage historically associated with bell bottoms was not the individual identified in the written statement. The plaintiffs’ trial counsel then beat a propitious, hasty retreat but used an incorrect address in notifying his client, which misaddress was — as is usual when one pleading contains such an inaccuracy— in part thereafter repeated by others involved. The trial court awarded summary judgment to defendants and also awarded them attorney’s fees pursuant to Section 57.105, Florida Statutes (1981). We reverse the award of attorney’s fees.

The purpose of Section 57.105, Florida Statutes (1981), as it pertains to the instant case, is to discourage baseless claims, by attaching a cost to their pursuit. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 505 (Fla.1982). The policy is not to cast a chilling effect on use of the courts, but to discourage unwarranted controversy. Castaway Lounge of Bay County, Inc. v. Reid, 411 So.2d 282 (Fla. 1st DCA 1982). Here the claim did not initially appear baseless, and appellants’ time table for voluntary dismissal is not inordinately drawn out in light of intervening events.

In Greenberg v. Manor Pines Realty Corporation, 414 So.2d 260 (Fla. 4th DCA 1982) this court found that there were justiciable issues until discovery established otherwise. This court would not accept appellee’s contention that award of attorney’s fees was appropriate because following discovery the cause became frivolous. This court chose not to decide whether segmentation of the course of an action into non-frivolous and frivolous periods was permissible for the purpose of applying Section 57.105, but held that even if that could be done “there was no appreciable imposition on either the court or counsel” after the nonjusticiability became apparent. Id. at 261. The present case sufficiently resembles Greenberg to demand a similar result.

Appellees argue in part that appellants’ dismissal of their action should be a factor in support of award of attorney’s fees. They cite Puder v. Raymond International Builders, 424 So.2d 78 (Fla. 3d DCA 1982). However, as this court pointed out in Angora Enterprises v. Condominium Association of Lakeside Village, Inc., 432 So.2d 792 (Fla. 4th DCA 1983) appellant’s dismissal of their claim against appellees is not significant to the issue of attorney’s fees. It is clear also that the facts of the present case do not fit the other element appellees cite from Puder — creation of a controversy far from appellees’ residence solely for tactical purposes, the basis of which is not a part of the record.

Perhaps someday lawyers will regularly have psychics on their payroll capable of determining whether witnesses really know what they’re talking about. Until then, in a case such as this, Section 57.105 should not be employed as if absolute verification was available prior to suit.

HURLEY and WALDEN, JJ., concur.

      . Plaintiff Stevenson resides in Michigan. It became clear that defendant Rutherford was not the alleged defamer when the plaintiffs’ sole witness to the defamation was deposed on August 25, 1981. Plaintiffs’ attorney’s motion to withdraw, filed within the month, was heard and granted by court order on October 15, 1981. The plaintiffs’ copy of this order was misaddressed. The plaintiffs’ voluntary dismissal, dated December 22, 1981, appears to have arrived at the court on December 28, 1981 but was filed on the same day the court rendered summary judgment in favor of the defendants, January 4, 1982.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    BURNUP & SIMS, INC. and Crawford & Company, Appellants, v. Homer L. OZMENT, Appellee.
    No. AO-259.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1983.
    Rehearing Denied Dec. 1, 1983.

      Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for appellants.
    Edward J. Richardson of Saxon & Richardson, Melbourne, for appellee.
   THOMPSON, Judge.

This is an appeal from a compensation order awarding attorney’s fees pursuant to § 440.34(2)(b), Fla.Stat. (1979). We reverse.

The claimant sustained a serious compen-sable back injury on September 6,1979, and reached maximum medical improvement (MMI) from his injuries on August 29,1980. The claimant’s doctor found he had suffered a 25% permanent impairment of the body as a whole. On September 17, 1980, the employer/carrier (E/C) received a copy of the doctor’s report declaring claimant had reached MMI and discontinued payment of temporary total disability (TTD) benefits. On the same date the doctor’s report was received, the E/C forwarded claimant a letter informing of his possible entitlement to wage loss benefits and enclosed a supply of wage loss benefit request forms. The claimant, who apparently was under the impression that the E/C were refusing to pay any further compensation benefits, hired the attorney who continues to represent him in this case. On September 23,1980, this attorney wrote the E/C to inform them that claimant had been actively but unsuccessfully seeking employment, and was thus experiencing a total loss of wages. The attorney further informed the E/C that claimant was, in his opinion, permanently and totally disabled (PTD), and that the attorney would be filing “the appropriate claim forms” and would request a hearing on the matter. The attorney closed his letter with a request that the E/C offer a lump sum payment in settlement of the PTD claim. On October 1, 1980, the E/C responded to the attorney’s letter, informing him that lump sum settlement was not appropriate under the 1979 amendments to the workers’ compensation law, and that “[a]t this point, the carrier is not in agreement with you that your client is permanently and totally disabled.”

On November 14, 1980, the E/C deposed the claimant and learned that he had been unable to find employment because of his inability to lift or to stand on his feet for prolonged periods. The E/C further learned that claimant was 45-years-old, that he had a high school diploma, and that he had taken some college business courses while in the service. On December 5, 1980, the claimant’s attorney filed a formal claim for benefits, which included a claim for PTD benefits and wage loss benefits. However, the attorney did not submit any wage loss benefit request forms to the E/C until January 30, 1981. On February 6, 1981, the E/C submitted to the attorney a check for wage loss benefits for the period from September 19, 1980 through January 18, 1981, along with a letter reminding the attorney that wage loss benefit request forms should be filed with the E/C on a monthly basis and that the forms should include a statement as to what, if any, work search efforts the claimant had made during the previous month. The E/C thereafter continued to pay wage loss benefit upon receipt of wage loss benefit request forms, but continued to insist that the claimant seek employment as a prerequisite to payment of the benefits. During this period, the E/C also investigated the possibility that claimant might benefit from treatment at a pain clinic, and pursued the possibility of rehabilitation both with a state rehabilitation nurse and with a private rehabilitation and vocational counselor. On May 14, 1981, a Division of Workers’ Compensation (Division) field specialist completed and forwarded to the parties his claim evaluation conducted pursuant to § 440.19(1), Fla.Stat. The field specialist recommended that the E/C continue payment of wage loss benefits, but that the E/C should provide the claimant with vocational counseling and, if indicated, vocational rehabilitation prior to accepting claimant as PTD. The PTD claim was heard on August 20,1981, and on October 5, 1981 the deputy commissioner (deputy) entered an order finding claimant to be PTD and reserving jurisdiction to determine whether an attorney’s fee should be awarded.

Hearings on the attorney’s fee issue were thereafter conducted, resulting in the issuance, on September 1,1982, of the order on appeal. In the order, the deputy found that the claimant’s failure to timely file wage loss benefit request forms did not justify the E/C’s delay in paying the wage loss benefits. This finding was erroneous. Although this court has ruled on numerous occasions that wage loss requests need not be submitted on any particular form, and need not be technically perfect or complete down to the last detail, see, e.g., Ardmore Farms v. Smith, 423 So.2d 1039 (Fla. 1st DCA 1982), this court has never ruled that a claimant need not file a wage loss benefit request at all. Such would not be consistent with the dictates of § 440.185(10), Fla. Stat., and under the circumstances of this case no reason appears for excusing the delay in filing the wage loss request form.

In paragraphs nine and ten of the order, the deputy found that notwithstanding the existence of the PTD claim, the E/C continued to insist that claimant conduct a work search each month as a prerequisite to receipt of wage loss benefits, and that the E/C had continued to dispute the PTD claim to and through the date of the hearing. These findings cannot support the conclusion that the E/C acted in bad faith in the handling of this claim. Where a claimant is not patently totally disabled, the E/C is clearly entitled to require a work search as a condition of payment of wage loss benefits, and the fact that the E/C controvert a claim or assert defenses thereto cannot, without more, support a finding of bad faith. Pam Am Tobacco Corp. v. Brown, 416 So.2d 1211 (Fla. 1st DCA 1982); Harper Plumbing & Heating v. Boyd, 418 So.2d 396 (Fla. 1st DCA 1982). Section 440.34(2)(b), Fla.Stat. (1979) defines bad faith as “conduct by the carrier ... which amounts to fraud, malice, oppression, or willful, wanton or reckless disregard of the rights of the claimant.” The statute does not provide for the payment of attorney’s fees each time an E/C contest a claim but ultimately lose the case on its merits.

In Exceptional Children’s Home & Nursery, Inc. v. Fortuna, 414 So.2d 1130, 1131 (Fla. 1st DCA 1982), this court held that an employee’s right to receive benefits with reasonable promptness must be balanced against the E/C’s right “to make a reasonable investigation regarding liability, and to have a reasonable opportunity to comply with the demands made, depending upon the exigencies of the particular request and the statutory duties and obligations pertinent to it.” (emphasis added). Here, the “exigencies of the particular request” for PTD benefits were not compelling, since the claimant was eligible for, and was receiving, 100% wage loss benefits during the period when the E/C were investigating and resisting the PTD claim. Although a claimant who is PTD has a right to be accepted as being PTD even though he is receiving TTD or 100% wage loss benefits and thus is suffering no actual monetary loss as a result of the E/C’s failure to accept him as PTD, the fact that the E/C continue to pay benefits during the pendency of the investigation certainly is relevant to the issue of whether the E/C acted reasonably in continuing to investigate a PTD claim.

The “statutory duties and obligations pertinent to” a PTD claim differ significantly from the obligations surrounding, for instance, a claim for medical benefits. Section 440.15(l)(b), Fla.Stat., provides that in all cases not involving certain catastrophic injuries the question of whether a claimant is PTD is to be determined in accordance with the facts of the case. Absent the enumerated types of catastrophic injury, “no compensation shall be payable [for PTD] if the employee is engaged in, or is physically capable of engaging in, gainful employment, and the burden shall be upon the employee to establish that he is not able uninterruptedly to do even light work due to physical limitation.” § 440.15(l)(b), Fla. Stat. Deputies are prohibited by § 440.-49(l)(c), Fla.Stat. from adjudicating injured workers to be PTD prior to determining whether there is a reasonable probability that the employee can be rehabilitated to the extent that he or she can obtain suitable gainful employment. In our view, these statutes permit, if indeed they do not require, a more extensive investigation of a PTD claim than of lesser claims.

We note the deputy’s omission • from his order of any reference to the claim evaluation performed by the Division pursuant to § 440.19(1), Fla.Stat. Although the opinions rendered in such claim evaluations are advisory only and are neither res judicata nor binding in any way on any party, such evaluations should not be totally ignored unless they are patently wrong. We perceive that the legislature’s determination that claim evaluations performed by the Division should be advisory only was based on a recognition that the information relied upon by the field specialist in making the evaluation will not ordinarily have been subjected to truth testing safeguards such as cross-examination. However, we are not willing to assume that the legislature intended the evaluations to have no effect whatsoever, since to do so would be to ascribe to the legislature an intention that the Division perform a useless act. At the very least, a claim evaluation such as that rendered by the Division in this case, i.e., one which specifically recommends that the E/C not accept a claimant as PTD until after vocational rehabilitation efforts have been undertaken, is relevant to the question of whether the E/C acted in bad faith when they declined to voluntarily accept claimant as PTD.

The reasonableness of the E/C’s belief that claimant was not or might not be PTD was borne out by the July 22, 1981 deposition testimony of claimant’s doctor, that claimant “could probably perform some type of sedentary job without too much of a problem.... ” Because the record before us is entirely devoid of evidence tending to show that the E/C acted in bad faith, the award of attorney’s fees is REVERSED.

WIGGINTON, J., concurs.

ERVIN, C.J., concurs and dissents with opinion.

ERVIN, Chief Judge,

concurring and dissenting.

I concur with that portion of the majority’s opinion reversing the deputy's bad faith determination on the ground that the carrier cannot be held responsible for failing to pay wage-loss benefits to the injured worker until a request from the employee for such benefits is made. I agree that once the carrier demonstrates it has complied with its statutory duty, imposed by Section 440.185, Florida Statutes (1979), of advising the worker that any payment of wage-loss benefits must be preceded by a request from him, the carrier cannot be said to have acted in bad faith by not distributing such benefits to the employee before its receipt of the request. The record before us discloses that the claimant was determined to have reached maximum medical improvement (MMI) on August 29, 1980, and that by letter of September 17, 1980, the carrier then informed him to file a request for wage-loss with it, and enclosed wage-loss request forms with the letter, but that he failed to request such benefits until January, 1981. Under the circumstances, I do not believe that the record supports a finding of bad faith as it pertains to the carrier’s inactivity before the claimant filed his request.

I disagree, however, with the majority’s reversal of the deputy’s order as it concerns the carrier’s bad faith in delaying permanent total disability (PTD) payments to claimant after being placed on notice of his condition, revealing him incapable of finding gainful employment. The majority relies on Pan Am Tobacco Corp. v. Brown, 416 So.2d 1211 (Fla. 1st DCA 1982), and Harper Plumbing & Heating v. Boyd, 418 So.3d 396 (Fla. 1st DCA 1982), and now concludes that claimant was “not patently totally disabled .... ” Ante at 32. The facts in Pan Am and Harper were far different from those here. The court’s opinions were based on complete records, and they show that the awards, reversed on appeal, rested upon claimants’ subjective complaints of pain without a foundation establishing a good faith work search. The findings before us, however, clearly reveal an extensive job search, a medical determination of substantial permanent impairment, and the carrier’s continued failure to investigate the extent of the worker’s disability, as well as its resistance to paying PTD benefits after being given abundant information concerning the employee’s condition.

I need not review in detail the numerous cases from our court holding that a carrier’s failure to place needed benefits promptly in the hands of the injured worker, once it has notice of his condition, constitutes bad faith, see, e.g., Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981); Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982); B & J Windows v. Sweitzer, 420 So.2d 363 (Fla. 1st DCA 1982). Nor need I extensively recite those cases deciding that a carrier’s passive rejection of claims on mere technical matters, or its failure to investigate the extent of disability, will not be tolerated. Florida Erection Services, Inc.; Ardmore Farms v. Smith, 423 So.2d 1039 (Fla. 1st DCA 1982); Layne Atlantic Company v. Scott, 415 So.2d 837 (Fla. 1st DCA 1982).

The difficulty in our addressing the portion of the deputy’s order determining that the carrier acted in bad faith by not promptly accepting claimant as permanently and totally disabled is that it is based on an incomplete record. Missing from the record before us is the transcript of the proceeding on the claim for PTD benefits. We do, however, have claimant’s deposition, disclosing that claimant had not worked since the date of his accident on September 6, 1979, and showing that he then provided appellant with a long list of prospective employers, contacted from the date of MMI (August 29, 1980), until the date of the deposition, and had not yet been able to obtain gainful employment. Additionally, claimant then testified that he was incapable of sitting or standing in one position for more than thirty minutes; that he could only walk a short distance before experiencing pain, and that most of the day was spent by him in a prone position.

The findings in the order granting PTD benefits recite that the carrier was aware of the following: (1) that claimant had suffered a ruptured intervertebral disc with a permanent impairment rating of 25% to 30% to the body as a whole, and that he had been given medical instructions to avoid prolonged sitting, bending, lifting and other stressful situations involving the use of his spine; (2) that a psychiatrist’s report (the report is not in the record, but its date is given as May 12,1981) had diagnosed claimant as suffering from a psychiatric condition caused by the industrial accident, which resulted in an additional psychiatric impairment of 10%, and (3) that another report by the manager of the Florida State Employment Service (also not in the record, nor is the date given), considered that claimant was unable to compete for jobs in the local labor market due to his physical condition, training, education and experience. Finally, the deputy found that the carrier forced the claimant, for more than a year after he had reached MMI, to conduct monthly an aggressive job search, despite its knowledge of claimant’s inability to work.

Although the record as stated is incomplete, those portions of the record now before us clearly reveal that from the filing of the claim for PTD benefits on December 5, 1980, through the hearing on the claim, conducted on August 20, 1981, the carrier resisted paying PTD benefits to claimant, and that after the order was entered on October 5, 1981, granting such benefits— with jurisdiction reserved for considering the issue of attorney’s fees — it finally complied with the order by paying PTD benefits and did not file an appeal. The only substantial questions remaining unresolved by the record are what was the extent of the carrier’s knowledge concerning claimant’s impairment and when did it obtain its knowledge?

The primary reason the record does not contain this needed information is that the employer/carrier, as appellant, has favored us only with those portions of the record directly relating to that proceeding which was held on claimant’s motion for attorney’s fees. In those circumstances where an appellate court reviews a lower tribunal’s final action which is based upon an incomplete record, the rule is clear that the court, before it reaches a decision, must first give the parties an opportunity to supplement the missing record. Fla.W.C.R.P. 18(d). Recently, in Starks v. Starks, 423 So.2d 452 (Fla. 1st DCA 1982), we ordered the parties to do precisely that. Following the provisions of Florida Rule of Appellate Procedure 9.200(f)(2), which are practically identical to those of rule 18(d), we initially directed the parties to attempt supplementation of the record. After their efforts to do so were unsuccessful, we affirmed, stating that as we had no way of discovering the factual context of the case presented before the trial court, we were required to presume the lower court’s findings were not in error. And, quoting with favor from Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979), we recognized that even if the result reached by the lower tribunal appears erroneous from the findings reviewed, an appellate court is nevertheless precluded from reversing, because there is no way of determining whether its conclusion could be supported by the evidence or by an alternative theory. 423 So.2d at 453-54. To date, no effort has been made by anyone in the case at bar to provide us with a complete record.

Given the limited record now before us, I do not see how we can do otherwise than was done in Starks: Before reaching the merits of the appeal relating to the carrier’s delay in promptly paying PTD benefits to claimant after it had notice of his condition, first order the parties to bring up a record which will support a meaningful appellate determination on the issue raised.

      . This report was apparently filed sometime after the Division’s evaluation report, dated May 4, 1981, recommending that the carrier provide the claimant with vocational counseling, and, if applicable, vocational training or job placement assistance.


text:
    GEORGE H. AUSTIN, INC., and Claims Center, Appellants, v. Obie GARDNER, Appellee.
    No. AR-421.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1983.
    Rehearing Denied Nov. 30, 1983.

      Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellants.
    Dudley Burton, Sanibel, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The deputy’s order rejecting the employer’s intoxication defense, sec. 440.09(3), Fla. Stat. (1981), must be reversed for its error in holding that the presumption afforded the employer by that statute did not arise from the evidence of claimant’s blood alcohol content. But because the presence of that presumption may not conclude the factfinder’s inquiry, we remand the case for further consideration by the deputy, on the same record.

This 51 year-old illiterate claimant worked for ten years or more for this employer, as a fruit picker. One day he was found beneath an orange tree, with his 20-foot ladder fallen into the lower branches, a broken tree limb nearby, and a broken neck. Claimant evidently was a chronic alcoholic, as witness withdrawal symptoms later in the hospital. Claimant’s crew leader testified that claimant did not seem to have been drinking when he reported for work, and claimant denied drinking since the night before. This the deputy found to be incredible, for several paramedics and hospital attendants testified emphatically that claimant was intoxicated when, at mid-afternoon, claimant was taken into medical care. The point in issue is the blood test performed at the hospital that evening. The deputy allowed the test results in evidence but without a presumption, normally attending the tester’s finding of exactly .10 percent blood alcohol content, “that the injury was occasioned primarily by the intoxication of the employee.”

In ruling that the presumption did not arise, the deputy held that the conceded margin of error in the testing technique, estimated at .05 percent (leaving, we suppose, an accuracy rate of 99.95 percent), makes it impossible for the presumption to arise when the reading of alcohol content is exactly .10 percent. The statutory presumption depends upon a finding of .10 percent of alcohol.

The deputy’s ruling was right on numbers but erroneous in fixing the time at which the right numbers were important. The statute looks to the alcohol content “at the time of the injury,” not specifically to percentage readings at the time of the test. There was abundant evidence that, unless claimant consumed alcohol after his fall, of which there is no evidence nor any reasonable inference, an alcohol reading of .10 late in the day meant a substantially higher level at the time of the accident. The deputy did not deny this reasoning, but found the .10 percent reading at the test an insufficient predicate, in view of the error-factor, to support the antecedent inference.

In this, we conclude, the deputy erred. The presumption was afforded by 440.09(3).

Yet the deputy conceivably may have found from the evidence, despite the presumption, that claimant’s fall was not “occasioned primarily by the intoxication of the employee.” Sec. 440.09(3). Even if presumed, it is not necessarily concluded, that this chronic alcoholic, chosen by the employer as suitable enough in ladder work for ten years, and capable everyday before of picking citrus at heights without breaking his neck, fell this day primarily because he was intoxicated. The fallen ladder and the broken tree limb, interpreted by the crew leader from years of experience, meant that claimant and the ladder fell together, when the limb broke under their weight; neither the falling ladder nor the falling claimant would alone have broken this limb, he said. That testimony was credited by the deputy when weighing the evidence absent the presumption; and, as the question now is whether that evidence contrary to the presumption is “substantial,” as the statute requires, remand is necessary.

Should the deputy conclude that substantial evidence did not overcome the statutory presumption, the deputy will of course deny this claim. If the claim is sustained, however, claimant’s point on cross-appeal is conceded and is well taken: claimant reached maximum medical improvement and is permanently and totally disabled.

REVERSED and REMANDED.

BOOTH and WIGGINTON, JJ., concur.


author: SHIVERS, Judge. MILLS, Judge,

text:
    FLORIDA STATE UNIVERSITY, Appellant, v. Frank TUCKER and The Florida Career Service Commission, Appellees.
    No. AQ-389.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1983.
    Rehearing Denied Dec. 1, 1983.
    Patricia A. Draper, Associate University Atty., Tallahassee, for appellant.
    H. Reynolds Sampson, Tallahassee, for Frank Tucker and Jeffrey A. Miller, Asst. Atty. Gen., Tallahassee, for Career Service Commission, appellees.
   SHIVERS, Judge.

Florida State University appeals an order of the Career Service Commission which grants a directed verdict in favor of Frank Tucker, thereby nullifying Tucker’s three day suspension. We affirm.

Appellee Tucker, an FSU employee, received a predetermination letter, pursuant to Rule 22A-10.042, Florida Administrative Code (F.A.C.), notifying him that it intended to take disciplinary action against him by suspending him from his job. The letter alleged that this action was due to the following:

threatening and/or abusive language directed toward another person, conduct unbecoming a public employee, leaving your work station without authorization, and branishing [sic] or threatening another person (Mr. John Williams), while on the job with a deadly weapon. Such conduct renders you ineffective within the University and affects the ability for your acceptance by other. employees and citizens of Florida. Signed statements of misconduct are available for your inspection in the Personnel Relations Department, 216 Suwannee Arcade, Florida State University.

The predetermination letter did not allege any times, dates, places, or other specifications as to the allegations against Tucker. Subsequently, FSU notified Tucker of its decision to suspend him for three working days. Tucker appealed this action to the Career Service Commission pursuant to Rule 22A-10.05, F.A.C. At the hearing on Tucker’s appeal, the Commission, on its own motion, directed a verdict in Tucker’s favor based on the Commission’s finding that the predetermination letter advising Tucker of the charges against him did not meet the due process requirements of Section 110.-227(5)(a), Florida Statutes, and Rule 22A-10.042(3)(b), F.A.C.

Appellant argues that the statutes and rules do not require specification as to date or time in a predetermination letter, that any deficiency in the predetermination letter was cured by the signed statements of witnesses which were referenced in the letter, and that the Commission erred in failing to allow FSU an opportunity to establish the absence of any prejudice to Tucker. We disagree. Rule 22A-10.042 outlines predetermination procedures. Subsection (2) of the rule states that the predetermination notice “shall constitute full and complete notice .... ” Full and complete notice should include, inter alia, the date, time, and place of any alleged misconduct. The predetermination letter sub judi-ce is rendered vague by its failure to include such specifics, and this vagueness prejudices Tucker by inhibiting his ability to prepare a defense. See State ex rel. Hawkins v. McCall, 158 Fla. 655, 29 So.2d 739 (1947); Bass v. Askew, 342 So.2d 145 (Fla. 1st DCA 1977). There is no provision in the rules giving an employing agency the right to a hearing following noncompliance with Rule 22A-10.042 to determine whether actual prejudice resulted to the employee.

Rule 22-10.042(3)(b) mandates that the predetermination letter include “[t]he specific charges or reasons for the action. Identification of any documents on which the charges are based shall be included.” We interpret this section to require identification of documents on which the charges are based in addition to full and complete notice specifying the charges or reasons for the action. This subsection does not permit the full and complete notice requirement to be satisfied via incorporation by reference to documents not physically annexed to and made a part of the predetermination letter.

Accordingly, the Career Service Commission order of December 16, 1982, is AFFIRMED.

ZEHMER, J., concurs.

MILLS, J., dissents with opinion.

MILLS, Judge,

dissenting:

I dissent.

Florida State University appeals the Commission’s order granting Tucker a directed verdict based on its finding that Florida State University’s predetermination letter advising Tucker of the charges against him did not meet the due process requirements of Section 110.227(5)(a), Florida Statutes (1981); Rule 22A-10.042(3)(b), Florida Administrative Code; State ex rel. Hawkins v. McCall, 158 Fla. 655, 29 So.2d 739 (1947); and Bass v. Askew, 342 So.2d 145 (Fla. 1st DCA 1977) (R. 69-78).

Although the predetermination letter is poorly worded and nonspecific in its allegations, the Commission erred in not allowing Florida State University an opportunity to prove that the signed affidavits of witnesses, which were referenced in the predetermination letter, did not cure the deficiencies in the letter.

I would reverse and remand with directions that the Commission conduct an evidentiary hearing to determine whether the signed affidavits were available for Tucker’s inspection and, if available, whether the signed affidavits together with the allegations in the predetermination letter adequately apprised Tucker of the charges against him.


author: JOANOS, Judge.

text:
    Edward CYCENAS, Appellant, v. SARASOTA COCA COLA BOTTLING COMPANY and Fireman’s Fund Insurance Company, Appellees.
    No. AP-285.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1983.
    Rehearing Denied Nov. 29, 1983.
    John H. Thompson, IV, of Earle & Thompson, St. Petersburg, for appellant.
    John J. O’Riorden of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.
   JOANOS, Judge.

The deputy commissioner erroneously determined that a causal relationship was shown between claimant’s misrepresentation on his employment application and his subsequent work related injury and that the employer/carrier’s defense pursuant to Martin Co. v. Carpenter, 132 So.2d 400 (Fla.1961), was established. Therefore we reverse.

In order for the Martin Co. v. Carpenter defense to apply there must be a medical relationship between the present injury and the misrepresented physical condition resulting from an undisclosed prior injury, see Higgins v. Trigil Repair, Inc., 436 So.2d 222 (Fla. 1st DCA 1983). There is no competent substantial evidence to support the deputy commissioner’s conclusion that such a causal relationship existed. That both injuries involved claimant’s back is not sufficient to show causal relationship, and the medical testimony does not indicate a causal relationship.

Before he began working for employer on June 30,1981, claimant worked eight to ten hours a day as a backhoe operator. In May, 1981, he began developing a backache around noon each day. He reported to a hospital emergency room physician that he thought he had lifted a ramp incorrectly and caused the problem. The emergency room physician diagnosed muscle spasm and gave claimant some medication and a back supporter to wear. After missing two days of work, claimant returned to his job and worked until he was laid off on June 25, 1981. Claimant said a week after he went to the emergency room the back pain was gone and he had no more problems at work.

Claimant applied for work with employer on June 26, 1981. The job he sought was that of a route salesman, which involves transporting bottles of the product into buildings, removing empty bottles, and driving a truck. On the application form claimant indicated he had never worn a back brace and never had back trouble or a back injury or ailment. After a physical examination, during which the examining physician was unaware of claimant’s previous back trouble, claimant went to work for employer. On September 10,1981, claimant was injured when he slipped and fell while climbing out of his truck to make a delivery. Claimant continued to work until September 16, when he could no longer bend over due to severe pain in his right hip and leg. The company physician diagnosed a bruise. Claimant still continued to work, but his back problem became worse. On his own he went to a chiropracter who treated him and sent him to Dr. Lascelle, an orthopedic physician. On October 13, 1981, Dr. Lascelle diagnosed a herniated disc as a result of the September 10, 1981 accident, and eventually performed surgery. In his deposition Dr. Lascelle said he could not say the problem he treated claimant for surgically was related to claimant’s previous back problem. He noted that the physician who treated claimant for the problem he had in May, 1981, had not mentioned any neurological symptoms in her report. The company physician said had he known of claimant’s previous problem his opinion of whether claimant was able to perform the job with employer might have differed. Based on an assumption that claimant had a disc problem previously, an assumption which was unsupported in the record, he said he probably would not have recommended claimant for the job. Claimant said he did not have problems with his legs and feet as a result of the first back problem as he did after the September 10, 1981 accident, and he was having no problems when he took his preemployment physical. None of this evidence indicates a causal relationship existed between the prior lifting injury and the disc herniation which resulted from the slip and fall. There is no competent substantial evidence that the pri- or injury contributed to or was aggravated by the subsequent accident, see Blaine v. Paks Food Store, 382 So.2d 132 (Fla. 1st DCA 1980).

The deputy commissioner made a separate finding that the misrepresentation by claimant was of sufficient magnitude as to vitiate the employment relationship, and appellee points to this conclusion as establishing a separate basis under Martin Co. to deny compensability of the accident. After examination of Martin Co. and the cases which have followed it, we conclude that no such separate standard was adopted in that case. While there was a discussion in Martin Co. of cases from other jurisdictions in which it had been decided that the employee’s fraud “went to the factum of employment contract” and therefore vitiated that contract without regard to causal relationship between the misrepresented physical condition of the employee and the alleged compensable injury, 132 So.2d at 404-405, the rule adopted in Martin Co. and consistently applied by the Florida Supreme Court and this court is that:

a false representation as to physical condition or health made by an employee in procuring employment will preclude the benefits of the Workmen’s Compensation Act for an otherwise compensable injury if there is shown to be a causal relationship between the injury and the false representation and if it is also shown that (1) the employee knew the representation to be false, (2) the employer relied upon the false representation and (3) such reliance resulted in consequent injury to the employer.

See Georgetown Manor Furniture Co. v. Smith, 281 So.2d 18 (Fla.1973); Higgins v. Trigil Repair, Inc., supra; Montgomery Ward & Co. v. Provenzano, 394 So.2d 1081 (Fla. 1st DCA 1981); Doric Food Co. v. Allen, 383 So.2d 316 (Fla. 1st DCA 1980); Blaine v. Paks Food Store, supra.

REVERSED and REMANDED for further proceedings in light of this opinion.

WIGGINTON and ZEHMER, JJ., concur.


text:
    EASTSIDE BAIT & TACKLE and Florida Farm Bureau, Appellants, v. Corene S. HUMPHREY, Appellee.
    No. AQ-66.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1983.
    Jack A. Langdon of Jones & Langdon, Gainesville, for appellants.
    No appearance by appellee.
   PER CURIAM.

This cause is before us on appeal from a final order of the deputy commissioner awarding temporary partial disability benefits calculated upon claimant’s ability to work 20 hours per week at the prevailing minimum wage. The deputy’s finding that claimant was TPD from October 31, 1980 to April 8,1982 is supported by competent, substantial evidence in the record. The deputy’s tacit excusal of a work search by finding that, although claimant did not actually work during the 17 months in question, she was able to work 20 hours per week at the prevailing minimum wage during that period, must be reversed.

At the hearing, claimant testified that she had not looked for any type of job since the injury and that if she were to consider any employment, she would limit the number of hours worked so as not to forfeit her social security retirement benefits. The record does not disclose evidence that would excuse, on the basis of her mental or physical condition, claimant’s failure to conduct an adequate job search. A conscientious work search is the Chapter 440 obligation of any injured and unemployed worker not physically disabled to work. Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982). In the absence of a conscientious work search or a medically justifiable excusal from the duty to look for work, there is no entitlement to TPD compensation. The deputy’s award of TPD benefits from October 31, 1980 to April 8, 1982 is therefore reversed.

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


text:
    Gerald L. WEHRLY, Appellant, v. Rosa F. WEHRLY, Appellee.
    No. AR-229.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1983.
    Lawrence R. Rausch, Jacksonville, for appellant.
    Joseph C. Black, Jacksonville, for appel-lee.
   WENTWORTH, Judge.

Appellant seeks review of a final judgment of dissolution which awarded the ap-pellee wife periodic and lump sum alimony and denied appellant husband’s claim for a special equity in the former marital home. Because the award of periodic alimony was apparently based upon improper principles, that award is reversed. The judgment is otherwise affirmed.

The parties were married in the wife’s hometown in Italy while the husband was stationed there in 1960. During most of the marriage, the husband was in military service and the wife’s activities were limited to those of homemaker and mother of their two children. The parties separated in 1975. At that time the wife was working as a bookkeeper and going to school at night. Subsequently, she received a bachelor of arts degree in accounting, and now works as a systems analyst.

Fourteen months prior to the separation, the parties had purchased a home on Cassie Road in Jacksonville, Florida. In July, 1979, they purchased a home on Randall Street where the wife and the remaining dependent child were living at the time of the dissolution. Because the Randall Street property was purchased with the wife’s earnings, she requested the husband’s interest in it as a special equity. Alternately, she requested his interest as lump sum alimony. In part because the wife had only briefly resided in the Cassie Road house, the husband sought a special equity in it.

The wife’s petition for dissolution also claimed an “equitable interest” in the husband’s military retirement benefits, and re-quésted “equitable distribution” of those benefits between the husband and wife.

The final judgment denied the husband’s claim of a special equity in the Cassie Road property and awarded the husband’s interest in the Randall Street property to the wife as lump sum alimony. We find no error in either of these determinations. The husband did not show that the Cassie Road property was acquired through resources over and above his normal marital contributions. And the record sufficiently supports the lump sum award to the wife in order to achieve equitable distribution between the parties. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

We find, however, apparent error or omission in the trial court’s findings and disposition with regard to the wife’s request for a share of the husband’s military retirement benefits. The final judgment provides in pertinent part' that:

Under authority of Cullen v. Cullen, First DCA, 413 So.2d 1196, 1982, the wife has a special equity in the husband’s military retirement pay, wherefore, the husband shall pay the wife $125.00 each month as periodic alimony, beginning February 1, 1983, and continuing on the first day of each month thereafter, until the wife remarries, dies or until further Order of the Court, with the first payment (February 1, 1983 payment) being paid by the husband directly to the wife, and all subsequent payments being paid to the wife by U.S. military allotment, and the husband shall, forthwith, cause such allotments to be made and maintained.

We are unable to discern from the quoted language whether the trial court (1) found that the wife had demonstrated a need for periodic alimony, or (2) made an award upon an erroneous reading of Cullen as holding what it expressly did not on the question of entitlement to a spouse’s military retirement benefits. In Cullen we concluded that such benefits may be used as a measure of ability to pay alimony provided the requisite showing of need for an alimony award is made. Such awards were thus distinguished from the property settlement concept rejected by the Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).

Because of our inability to determine whether the trial court found that the wife in this case made the requisite showing, the award of periodic alimony is reversed and the cause is remanded for reconsideration and application of the pertinent Cullen principles.

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


text:
    Roger A. WELCH, Appellant, v. HILTON INN and Florida Hotel/Motel Association, Self-Insurer’s Fund, Serviced by: Corporate Group Service, Appellees.
    No. AS-295.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1983.
    Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellant.
    James B. Cantrell, of Miller & Cooper, Orlando, for appellees.
   PER CURIAM.

AFFIRMED. See Mahoney v. Sears, Roebuck & Co., 419 So.2d 754 (Fla. 1st DCA 1982) and Recon Paving, Inc. v. Cook, 439 So.2d 1019 (Fla. 1st DCA 1983).

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

BOOTH, J., dissents without written opinion.


author: WIGGINTON, Judge.

text:
    Herbert D. ADEY, Appellant, v. FRANK DAWSON MOTOR SALES, and Lynn Underwriting Co., Appellees.
    No. AQ-81.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1983.
    Rehearing Denied Dec. 1, 1983.
    Robert Jackson McGill, Venice, for appellant.
    John J. O’Riorden, of Dickinson, O’Rior-den, Gibbons, Quale, Shields. & Carlton, P.A., Sarasota, for appellees.
   WIGGINTON, Judge.

Adey appeals the deputy commissioner’s order denying his petition for modification. We reverse and remand.

On September 13, 1976, Adey injured his lower back in a work related accident. He underwent surgery in 1978 and subsequently moved to Ohio. In January, 1980, Deputy Commissioner Masterson entered an order, finding that Adey’s condition had remained stable since 1978 and awarding him 25 percent permanent partial disability benefits. According to Adey s testimony, after entry of that award, his back pain gradually worsened and he had to seek emergency treatment in Ohio in October, 1980. In February, 1981, he filed a petition for modification claiming temporary total disability from October, 1980, medical authorization, payment of medical bills incurred since that date, and greater permanent partial disability benefits or permanent total disability benefits.

To support his petition, Adey submitted the reports and deposition of Dr. Knell, his treating physician in Ohio, who performed surgery on his back in July, 1981. According to Dr. Knell, a comparison of a myelo-gram taken on November 3, 1980 with one taken in July, 1981 showed a further narrowing of the subarachnoid space from L-2 to S — 1 which, according to the doctor who performed the test and Dr. Knell, was most likely due to the combined effect of’ disc degeneration and extensive scarring and adhesions which, in Dr. Knell’s opinion, were related to the previous surgery. Thus, the objective medical evidence showed that Adey’s back condition had worsened since at least November, 1980.

In January, 1982, Deputy Commissioner Murphy entered an order denying with prejudice Adey’s petition for modification, stating only that the parties had declined to furnish a record of the prior proceedings in this case. In July, 1982, this Court reversed that order and remanded to the deputy to either elucidate his reasons for denying the petition or to make sufficient findings of fact and conclusions of law based upon the record before him. Adey v. Frank Dawson Motor Sales, et al., 417 So.2d 1061 (Fla. 1st DCA 1982).

Responding to this court’s mandate, the deputy commissioner entered the present challenged order on December 6, 1982 stating that “the evidence supporting the alleged change of medical condition was predicated largely on an alleged change in the claimant’s complaints and symptoms between the time of the hearing before me and the hearing before my predecessor.” The deputy recognized that the reporter at the original hearing was unable to find the notes on the hearing and therefore no transcript of the original hearing was available. He denied the petition, stating that “absent the claimant’s prior testimony and complaints and symptoms,” he found no substantial competent evidence to support it.

In our view, Adey has satisfied his burden on modification of showing a change in his medical condition since entry of the original order. He has presented objective and uncontradicted medical testimony, including test results and the doctor’s findings upon further surgery, showing that his condition has worsened during the time in question. Conclusive evidence of Adey’s prior symptoms and complaints as compared to his present symptoms and complaints is unnecessary in light of the fact that he has otherwise shown a change of condition through medical evidence. Consequently, the deputy commissioner erred in denying the petition for modification. We reverse the order denying the petition for modification and remand to the deputy commissioner for further proceedings consistent herewith and to determine the amount of benefits to which Adey is entitled on modification.

REVERSED AND REMANDED.

ROBERT P. SMITH, Jr. and BOOTH, JJ., concur.


author: PER CURIAM. JOANOS, Judge,

text:
    Leonard W. PENKOSKI, Appellant, v. Linda A. PATTERSON, Appellee.
    No. AQ-427.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1983.

      Donald R. Colpitts and George E. Day, Fort Walton Beach, for appellant:
    Ferrin C. Campbell, Sr., Crestview, for appellee.
   PER CURIAM.

Appellant seeks review of a dissolution decree which also effected a division of marital property, awarded child custody, and imposed a support obligation. We find that the court erred as to the support obligation imposed, and we otherwise affirm the order appealed.

Pursuant to the dissolution decree, appellant is required to pay child support in the amount of $300 per month until the child attains the age of five; $400 per month thereafter until the child attains the age of ten; and $500 per month thereafter. Judgments providing for automatic changes in support payments are generally disfavored, as there is no evidentiary basis for the determination of future events, and there exists an adequate procedure for modification when changes in the circumstances of the parties do occur. See Kangas v. Kangas, 420 So.2d 115 (Fla. 2d DCA 1982). Unlike Spotts v. Spotts, 355 So.2d 228 (Fla. 1st DCA 1978), in the present instance the automatic increases are not conditioned upon specifically articulated future occurrences warranting a presumption that appellant will necessarily have a greater ability to pay. Instead, the support increases occur regardless of any external circumstances. Such an award is contrary to the principle that support should be based upon need and ability to pay; the lower court erred in mandating unconditioned automatic increases in support payments.

We conclude that any standard which could force a party to accept a decree based on clairveyance of the trial judge would be clearly less desirable than one which enables the judge to make a decision based on present conditions, leaving the parties to make their own decisions when monetary ability and needs change. The latter course has a tendency immediately to impress upon both parents the need for cooperation, not just with respect to monetary matters but as to all other conditions that may later affect the child. This rule places the burden of providing for future support needs of the child, and changing obligations of the parents, precisely where that burden belongs — upon the parents themselves. They may formalize a change by a two-line modification of support agreement. If either parent lacks the maturity and judgment to make those adjustments, a return to court is probably inevitable regardless of anticipatory provisions of the final judgment. If there is a prospect of added expense and emotional turmoil from the necessity for future judicial modification, that burden should be recognized as the result of lack of parental cooperation and recognition of changed circumstances, rather than a lack of judicial intervention in future affairs which are presently impossible to evaluate in context.

The order appealed is affirmed in part and reversed in part, and the cause remanded for redetermination of appellant’s support obligation.

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

JOANOS, J., dissents in part with opinion.

JOANOS, Judge,

dissenting in part.

It should be permissible within the sound discretion of the circuit judge to enter a judgment providing for the periodic escalation of child support where the circumstances warrant it. The ever increasing needs of children as they age as well as the effects of inflation are reasonably forseeable. Likewise, the breakup of a marriage is a time when marriage debts and attorney’s fees have to be paid. It is reasonable to project ahead that as those matters are taken care of there will be more money available for child support. We should look with favor upon a judgment that sets out a future pattern that the parties can plan around. The circuit judge showed wisdom in looking to the future. To discourage the entry of forward looking judgments and to encourage the frequent return to the courtroom should not be favored. The “.. . adequate procedure for modification ...” referred to by the majority is both expensive and fraught with emotional shock. It oftentimes continues a war that should have ended long before. It is also a drain upon the labors of the trial bench. The judgment appealed from should be affirmed in total.


text:
    Buddy PICKELSIMER, Appellant, v. STATE of Florida, Appellee. Richard DANIELS, Appellant, v. STATE of Florida, Appellee. STATE of Florida, Appellant, v. Lacy Wayne CLARK; Louis C. Mitchell, Jr., a/k/a Louis Brown, a/k/a Bill Brown; David Lamar Whetstone, a/k/a David Lamond Whetstone: Daniel Thomas; and Ronnie Brown, Appellees.
    Nos. AR-155, AS-368 and AP-316 to AP-320.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1983.

      Gwendolyn Spivey, Asst. Public Defender, for Pickelsimer, Daniels and Clark, et al., for appellants/appellees.
    Jim Smith, Atty. Gen., for State of Florida, for appellee/appellant.
   WENTWORTH, Judge.

Pickelsimer and Daniels, as appellants, and Clark, et al., as appellees, argue in these consolidated appeals from circuit court judgments that motions to dismiss informations charging felony petit theft are properly granted for failure to detail the specifics of prior convictions rendering the current petit theft a felony. The motions to dismiss by Pickelsimer and Daniels were denied and each defendant was found guilty of felony petit theft. The motions to dismiss by Clark, et al., were granted. We conclude that timely motions on that ground should be granted and we therefore reverse the judgments against Pickelsimer and Daniels and affirm as to Clark, et al.

In each case the caption of the information described the charge to be “Felony Petit Theft,” and allegations in the body were that the defendants had deprived the rightful owner of property valued at less than $100 in violation of § 812.014(2)(c), Florida Statutes. The referenced statute provides that “[u]pon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree .... ” The informations did not give specifics of the prior convictions upon which the felony petit theft charges were predicated.

The timely motions in these cases clearly brought to the attention of the state and the trial court the defendants’ objections to the generality of the informations in alleging only the deprivation of property valued at less than $100 in violation of the cited felony petit theft provision, § 812.014(2)(c), Florida Statutes. We conclude that defendants were entitled at that point to informa-tions which were not ambiguous in identifying the prior convictions relied upon to render conviction on the current charge “a third or subsequent conviction for petit theft” and make defendants “guilty of a felony” in the language of the statute incorporated by reference in the informations. The motions should therefore have been granted for that reason, and we need not, accordingly, speculate as to the outcome if defendants had not filed motions to dismiss, and we need not reach the issue presented in Phillips v. State, 438 So.2d 886 (Fla. 1st DCA 1983), as to the asserted jurisdictional nature of the omissions here in question.

The judgments against Pickelsimer and Daniels are reversed, those in favor of Clark and his co-appellees are affirmed, and the causes remanded for further proceedings consistent herewith.

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

      . We note, however, that the decision cited by movants in this case, Christopher v. State, 397 So.2d 406 (Fla. 5th DCA 1981), involved an information which, even when read in conjunction with the statute there referenced, did not state a charge cognizable by the circuit court. Defendant there was faced with a patent inconsistency between caption and body of the charging instrument and clearly could not properly be tried for theft of a larger amount than that specified, based upon allegations of clerical error. Cf. Jones v. State, 415 So.2d 852 (Fla. 5th DCA 1982), for application of the doctrine of incorporation by reference to statutes in charging instruments.


author: THOMPSON, Judge.

text:
    Michael Robert KRONZ, Appellant, v. STATE of Florida, Appellee.
    No. AR-320.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1983.
    Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Defendant appeals an order denying his motion to correct sentence. We affirm and certify conflict to the Florida Supreme Court.

Defendant pleaded guilty to the charge of escape, was adjudicated guilty of the December 28, 1979 escape, and was sentenced to one year with credit for 27 days jail time. Defendant subsequently requested amendment of his judgment and sen1 tence to reflect credit for the period March 2, 1982 to May 23, 1982, the period during which he was held in a South Carolina jail on a fugitive warrant for the Florida escape charge and during which he unsuccessfully attempted to block extradition. The trial court denied this motion based on Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974).

In Kurlin this court declined to construe § 921.161(1), Florida Statutes, which requires credit for time spent in county jail prior to sentencing, as applicable to periods of time a defendant is incarcerated in other states. Although we affirm the denial of defendant’s motion to correct sentence, relying on Kurlin, we certify that Kurlin conflicts with Zulla v. State, 404 So.2d 202 (Fla. 2d DCA 1981), and Rehfuss v. State, 432 So.2d 639 (Fla. 4th DCA 1982) on the issue of whether a defendant is entitled to credit on a Florida sentence for time incarcerated in an out-of-state jail pursuant to a Florida detainer or warrant.

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