author: COBB, Chief Judge. SHARP, Judge,

text:
    Pedro JAIMOT and Angel Sanchez, Petitioners, v. MEDIA LEASING CORP., d/b/a Holiday Rent-A-Car, et al., Respondents.
    No. 84-231.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    Rehearing Denied Oct. 17, 1984.
    Eli H. Subin and John M. Brennan of Subin, Shams, Rosebluth & Moran, P.A., Orlando, for petitioners.
    Lawrence D. Johnson of Peacock & Johnson, P.A., Orlando, for respondents.
   COBB, Chief Judge.

The third party defendants herein, Jaimot and Sanchez, have petitioned for certiorari review of the trial court’s denial of their motion to strike a punitive damage claim against them for an alleged breach of contract. Fulminating language in a complaint characterizing a contract breach as “willful, wanton, outrageous, malicious,” ad nauseum does not establish an independent tort that will support a punitive damage action. Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037 (Fla.1982), Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976), Haendel v. Paterno, 388 So.2d 235 (Fla. 5th DCA 1980).

Since a punitive damage claim can serve as the basis for an inquiry into a defendant’s net worth, an otherwise private matter, the trial court’s failure to strike the invalid punitive damage claim is a departure from essential requirements of law giving rise to an irreparable injury. Accordingly, we grant certiorari review and quash the order of the trial court in that regard.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent because I think the complaint in this case sufficiently states misrepresentation or fraud as a component of the breach of contract action. In Count I, appellees alleged that appellants represented they would fulfill appellee’s obligations to Ford Motor Credit Company, that they knew ap-pellees would rely thereon to their detriment, and that the representations were false, made in bad faith, and/or that their conduct was grossly negligent. In my view these allegations are indistinguishable from those in Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957), wherein the Florida Supreme Court held punitive damages would lie for the gross neglect of a contractual duty owed to another party sufficient to constitute an independent tort. See also Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037 (Fla.1982).

Further, the failure of the trial court to strike the punitive damage claim is clearly an interlocutory matter, which we have no jurisdiction to review under the non-final appeal rules. Fla.R.App.P. 9.130. Nor should we review it as a petition for common law writ of certiorari. Appeal from the final order would be an adequate remedy. Speculation about possible invasive discovery concerning appellants’ finances, as yet unsought, is not in my view a sufficient showing of irreparable harm to justify granting common law certiorari in this case. I would deny the petition for writ of certiorari.

      . See Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942); Malone v. Costin, 410 So.2d 569 (Fla. 1st DCA 1982).


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    Henry Marcy MANEE, Appellant, v. STATE of Florida, Appellee.
    No. 84-277.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1984.
    Rehearing Denied Oct. 24, 1984.

      David J. Kurland, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was charged with possession of more than twenty grams of marijuana. His motion to suppress the warrantless search was denied. He then pled nolo con-tendere, reserving the right to appeal the denial of his motion to suppress. This appeal concerns the legality of the search.

Appellant worked for ABA Industries. The company’s security officer advised the sheriffs office that appellant was dealing in narcotics in the company parking lot early in the morning and during the lunch hour. Detective Howard Reed ran a background check on appellant and learned that he had been charged with possession of marijuana in the past. Detective Reed established a surveillance of the parking lot, beginning on June 14, 1983. He watched appellant for two days and observed nothing suspicious. On both days, however, appellant left the plant in his automobile for about a half hour during his lunch period. On June 16, 1983, at about noon, Detective Reed followed appellant in his automobile to a building known as Martin Manufacturing. Approximately six minutes after appellant went inside the building, an unidentified man came out briefly and looked up and down the street in what Reed described as a “suspicious manner.” About six minutes later, appellant came out of the building carrying a paper bag, immediately followed by the same unidentified man. As appellant left in his automobile, the man once again looked up and down the street before returning inside.

Detective Reed, an experienced narcotics officer, described the paper bag as being rolled down from the top onto the contents. The bag was rolled so tightly that Reed could distinguish the shape of the contents inside, that it was “something of a loose nature, because it had a round shape to it.” He further explained that during his undercover work he had observed persons break up quantities of marijuana and package it for transportation using brown paper bags. Such persons “always seemed to carry” the bags in the manner of appellant. Predicated upon appellant’s actions and the appearance of the bag, Detective Reed believed that the bag contained marijuana.

When appellant returned to ABA Industries, he left the bag in his automobile and went back to work. Detective Reed continued to maintain surveillance because he anticipated that a narcotics transaction was likely to ensue. However, nothing occurred. Appellant left work at 5:00 p.m., entered his car, and drove out of the parking lot. At this point, Detective Reed stopped the automobile and removed appellant from the car. Detective Reed was unable to see the bag in plain view. Without obtaining appellant’s consent to search, Detective Reed entered the car and located the bag in a compartment. Upon opening the bag, he found a half pound of marijuana.

Appellant first argues that Detective Reed did not have probable cause to believe that the brown paper bag contained marijuana. We cannot accept this proposition. In P.L.R. v. State, 455 So.2d 363 (Fla.1984), our supreme court recently upheld the seizure of a manila envelope containing marijuana at a known drug transaction site predicated upon the testimony of an experienced narcotics officer. He stated that the only use he had ever seen for this type of envelope at the location was for narcotics transactions. Here, Detective Reed, also a trained narcotics officer, was able to rely not only upon his experience with folded-down brown paper bags, but also upon appellant’s suspicious activities which preceded the confrontation. Thus, Detective Reed had probable cause to seize the bag. Cf. Thompson v. State, 405 So.2d 501 (Fla. 2d DCA 1981) (police officer’s testimony that marijuana is usually carried in brown manila envelopes insufficient, by itself, to sustain seizure of a brown manila envelope).

Appellant’s second point has more merit. He argues that even assuming that Detective Reed had probable cause to believe the bag contained marijuana, he was obligated to obtain a search warrant before opening the bag. The state justifies the warrant-less search upon the doctrine of exigent circumstances surrounding automobile searches. The point is subtle, but a careful reading of recent United States Supreme Court cases on the subject leads- us to conclude that the appellant’s position is correct.

In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the police had probable cause to believe that a suitcase containing marijuana would arrive by airplane at the Little Rock airport. The police watched as the suitcase was unloaded, placed into a taxi and driven away. The police stopped the taxi and retrieved the unlocked suitcase from the trunk. Upon opening it, they found marijuana. In quashing the warrantless search, the Court said:

The only question, therefore, is whether the police, rather than immediately searching the suitcase without a warrant, should have taken it, along with respondent, to the police station and there obtained a warrant for the search. A lawful search of luggage generally may be performed only pursuant to a . warrant. In Chadwick, we declined an invitation to extend the Carroll exception to all searches of luggage, noting that neither of the two policies supporting warrantless searches of automobiles applies to luggage. Here, as in Chadwick, the officers had seized the luggage and had it exclusively within their control at the time of the search. Consequently, “there was not the slightest danger that [the luggage] or its contents could have been removed before a valid search warrant could be obtained.” 433 US, at 13, 53 L Ed 2d 538, 97 S Ct 2476.

442 U.S. at 762, 99 S.Ct. at 2592, 61 L.Ed.2d at 243-44. In rejecting the contention that the “automobile exception” eliminated the requirement of obtaining a search warrant, the Court observed that a suitcase taken from an automobile stopped on the highway is not necessarily attended by any lesser expectation of privacy than is associated with luggage taken from other locations.

Only three years later, however, the United States Supreme Court in United States v. Ross, 456 U.S. 798,102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), upheld the warrant-less search of a closed brown paper bag found in the trunk of an automobile that the police had probable cause to believe was transporting contraband. The Court ruled that if the police have probable cause to believe that a vehicle is carrying contraband, they may search it in its entirety and in the course of the search may open any containers found therein. The Court recognized that it was receding from some of the rationale of Arkansas v. Sanders but adhered to its holding in that case.

The First District Court of Appeal in Mancini v. State, 448 So.2d 573 (Fla. 1st DCA 1984), had occasion to analyze Sanders and Ross with respect to facts much like those in the instant case. There, the police had obtained a warrant to search the defendant's apartment for cocaine. They also had probable cause to believe that the defendant was going to receive a package of cocaine from a Federal Express office at a specified time. Officers established a surveillance of the defendant who was observed obtaining a Federal Express package, placing it in his automobile, and driving away. The police had assumed that the defendant would proceed to his apartment, thereby enabling them to seize the package in connection with the execution of the search warrant. However, after the defendant continued to drive around town, the police stopped the automobile, seized the package, and opened it without consent. In holding the search invalid because of the absence of a warrant, the court said:

With respect to the cocaine found in the Federal Express package, the state urges that United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), is supportive of the trial court’s denial of the defendant’s motion. The state’s reliance on Ross, however, is misplaced. Although the officers clearly had probable cause to believe that the defendant was in the process of transporting cocaine in his automobile at the time the officers stopped him, it is equally clear that the probable cause was limited to the Federal Express package as contrasted with the automobile generally. Under these circumstances, the Supreme Court has interpreted the Fourth Amendment as requiring the officers to obtain a search warrant authorizing the opening and searching of the container. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In Ross the court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere therein may conduct a warrantless search of the vehicle and may open any containers which may contain the contraband. Significantly, however, the court was careful to point out the distinction between the situation where, as in Ross, the probable cause information was that the contraband was somewhere within the automobile and the situation, as in Sanders, where the probable cause was limited to a container within the automobile. In discussing its previous opinion in Sanders, the court in Ross stated:
The Arkansas Supreme Court ruled that the warrantless search of the suitcase was impermissible under the Fourth Amendment and this Court affirmed. As in Chadwick, the mere fact that the suitcase had been placed in the trunk of the vehicle did not render the automobile exception of Carroll [v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ] applicable; ...
As The Chief Justice noted in his opinion [in Sanders] concurring in the judgment:
“Because the police officers had probable cause to believe that respondent’s green suitcase contained marijuana before it was placed in the trunk of the taxicab, their duty to obtain a search warrant before opening it is clear under United States v. Chadwick, 433 US 1, 53 L Ed 2d 538, 97 S Ct 2476 (1977)....
“... Here, as in Chadwick, it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected .locus of the contraband. The relationship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent’s arrest does not turn this into an ‘automobile’ exception case. The Court need say no more.” 442 US, at 766-767, 61 L Ed 2d 235, 99 S Ct 2586 [at 2594].
456 U.S. at 812, 813, 102 S.Ct. at 2166. Nor has the Supreme Court left any room for a material distinction being made between the kind of container involved in the ease at bar and those which were “protected” under the court’s rulings in Chadwick and Sanders. Id. [456 U.S.] at 814, n. 19 [99 S.Ct. at 2167 n. 19], Presumably, that is why the state has not urged upon us any such purported distinction.
Under the above authorities, the defendant was entitled to an order granting his motion to suppress directed to the contraband found in the Federal Express package ....

448 So.2d at 575, 576 (footnotes omitted).

Our sister court’s interpretation of Sanders and Ross appears to be correct. Ross seems to draw the distinction between a case where the police have probable cause to believe that contraband is located in a specific container within a vehicle and one in which they simply have probable cause to believe that a vehicle is transporting contraband. Carried to its extreme, this reasoning would produce the anomaly that the police are at liberty to conduct a war-rantless search of a vehicle which they have probable cause to believe is transporting contraband only so long as they do not know the exact container in which the contraband is located. Perhaps, however, the holding in Sanders and Mancini can be grounded upon the narrow proposition that, as in the instant case, the police had the container under surveillance before it reached the vehicle, and the fact that later it was fortuitously placed in the vehicle before being seized does not authorize the application of the “automobile exception.”

Therefore, with some reluctance, we hold that while Detective Reed properly seized the brown paper bag, he should have detained appellant and obtained a warrant before searching it. Accordingly, we reverse appellant’s conviction.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.


author: PER CURIAM.

text:
    CITRUS MACHINERY COMPANY, INC., Appellant, v. SIX L’S PACKING COMPANY, INC., Appellee.
    Nos. 83-2403, 84-396.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1984.
    Rehearing Denied Oct. 16, 1984.
    A. Clifton Black, Orlando, for appellant.
    Jack F. Weins and Joseph J. Huss of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellee.
   PER CURIAM.

Affirmed. Ryder Systems, Inc. v. O’Connor, 369 So.2d 980 (Fla. 4th DCA 1979), cert. denied, 383 So.2d 1201 (Fla.1980).

GRIMES, A.C.J., and SCHEB and SCHOONOVER, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Thomas B. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 84-284.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1984.

      Jerry Hill, Public Defender, Bartow, and Amelia Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Thomas B. Simmons, appeals from a judgment and sentence entered pursuant to a jury verdict finding him guilty of being a convicted felon in possession of a firearm. We affirm appellant’s conviction, but find that the trial court erred in sentencing.

The trial court imposed a fifteen-year sentence upon appellant and ordered him to serve a mandatory minimum three-year sentence pursuant to section 775.-087(2), Florida Statutes (1983). That section requires the trial court to sentence a person convicted of certain enumerated crimes to a three-year minimum term of imprisonment. Because appellant’s crime is not among the offenses enumerated in section 775.087(2), the trial court was without authority to impose the minimum sentence on appellant.

Since the sentence was unlawful, the court committed fundamental error which was not waived by appellant’s failure to object in the trial court. Lawson v. State, 400 So.2d 1053 (Fla. 2d DCA 1981).

We, therefore, strike that portion of the sentence imposing a minimum term of imprisonment upon the appellant. Cooper v. State, 360 So.2d 1130 (Fla. 3d DCA 1978). We affirm the judgment and fifteen-year sentence in all other respects.

Affirmed in part, reversed in part.

HOBSON, A.C.J., and BOARDMAN, J., concur.


author: ZEHMER, Judge.

text:
    BARNETT BANK OF JACKSONVILLE, N.A., Appellant, v. JACKSONVILLE NATIONAL BANK, a national banking association, Appellee.
    No. AP-163.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1984.
    Rehearing Denied Nov. 1, 1984.

      Peter L. Dearing and Thomas F. Har-kins, Jr., of Mahoney, Hadlow & Adams, Jacksonville, for appellant.
    Smith & Hulsey, Jacksonville, for appel-lee.
   ZEHMER, Judge.

Barnett Bank of Jacksonville (Barnett) appeals a final judgment for Jacksonville National Bank (JNB) resulting from Barnett’s refusal to repay an erroneous $29,-597 transfer from JNB to Barnett with instructions to deposit the sum to one of Barnett’s customers. Finding that the trial court failed to correctly apply the applicable law, we reverse.

The events leading to this dispute began with a wire transfer of funds from a bank in the Netherlands to Citibank in New York with instructions that the funds be credited to the account of Perfecta, U.S.A., through one of Citibank’s correspondant banks in Jacksonville. On June 22, 1979, Citibank transferred the funds to JNB, one of its correspondant banks, by crediting JNB’s account with $29,597.21, with instructions that JNB pay these funds to Barnett for deposit to Perfecta’s account at Barnett. At this time, Barnett had no account directly with JNB, nor did Perfecta have an account with JNB. Several days after the transfer, in response to a request from a Barnett officer, an employee of JNB promptly transferred the funds to Barnett through the Federal Reserve Bank, and Barnett credited Perfecta’s general checking account with the full amount of the transfer. The funds were actually placed in Barnett’s own operating account so that as of June 29,1979, the $29,597 was carried on Barnett’s books of account as an asset of Barnett and a corresponding liability to Perfecta (as a depositor).

Approximately three weeks later, on July 20, 1979, Citibank, apparently unaware of JNB’s transfer to Barnett, determined that it had mistakenly transferred Perfecta’s funds to JNB rather than to Barnett and reversed the JNB transfer by reducing the balance of JNB’s account with Citibank. At the same time, the funds were purportedly transferred by Citibank to Barnett with a mailgram confirming the deposit and containing the statement: “(WARNING POSSIBLE DUPLICATE).” But Citibank mistakenly credited two of Barnett’s affiliates with this transfer, and not until September 11, 1979, was this mistake corrected and the funds placed in Barnett’s account with Citibank. This transfer was again carried as an asset of Barnett and as a liability to Perfecta on Barnett’s books of account. Thus, as of September 11, Barnett had twice received payment of the $29,597 for Perfecta’s account. Perfecta withdrew both deposits from Barnett shortly after they were made.

Approximately eight months later, on May 7, 1980, JNB discovered this error and realized it had lost $29,597, so Mr. Bernard of JNB called Mr. Fernandez, an officer of Barnett, to discuss correcting the error. Mr. Fernandez confirmed that the double payment had been received by Barnett for Perfeeta’s account, but said he would have to ask Perfecta to confirm the duplicate deposit, which he did. Perfecta initially denied any duplicate deposit. Approximately four months later, however, Perfecta conceded the duplicate deposit and provided Barnett with documentation confirming this fact. In the meantime, between May 7, 1980, and June 2, 1980, Perfecta’s account balance with Barnett fluctuated considerably between an overdraft and substantial funds and on at least three occasions exceeded the amount necessary to reimburse JNB for the overpayment. Despite Barnett’s actual knowledge of the duplicate deposits and despite JNB’s claim, Barnett took no steps during this period of time to correct the mistake by freezing or setting off any funds in Perfecta’s account, nor was Barnett requested to do so by JNB. The record reflects no formal request by JNB that Barnett return the $29,-597 overpayment during this period. Perfecta subsequently went out of business and left no funds on deposit with Barnett. As a result, Barnett declined to pay JNB the claimed overpayment.

In April 1981, JNB initiated this suit seeking restitution from Barnett on a theory of unjust enrichment. Barnett denied that JNB was entitled to restitution from it and affirmatively alleged that it had not been unjustly enriched because the funds had been immediately credited to Perfecta’s account and withdrawn by Perfecta; that a substantial change in position had occurred because Perfecta had gone out of business and no longer maintained any account with Barnett; and that JNB’s claim was barred by laches. In response to Barnett’s affirmative defenses, JNB alleged that Barnett had received actual knowledge of the “mistaken” transfer of $29,597 at a time when Perfecta “had more than that sum on deposit in its account” with Barnett and, therefore, Barnett could not rely on Perfecta’s withdrawal of the funds as a defense.

At the nonjury trial, JNB urged, in addition to unjust enrichment and without amending the pleadings, that it should recover on a theory of “money had and received.” Barnett contended, inter alia, that Perfecta initially denied that duplicate deposits had been made and that Barnett was not required to decide unilaterally that JNB was entitled to the funds in Perfecta’s account. Barnett argued that it could not set off or hold funds credited to Perfecta’s account to satisfy JNB’s claim unless JNB had first obtained a court “order of garnishment or something like that, that would have been sufficient to attach those funds.” The record is undisputed that JNB did not, prior to this suit, institute any legal proceeding to attach or freeze funds in Perfecta’s account at Barnett or to procure a restraining order, injunction, or other appropriate process against Barnett at any time while Perfecta maintained funds in an active account at Barnett.

After the evidence was closed and counsel presented argument, the trial court perceived the issue in dispute, reduced to its barest essentials, to be whether Barnett was legally obligated or permitted to charge Perfecta’s account with $29,597 after it gained actual knowledge of the duplicate deposit from JNB or whether Barnett had no legal right or obligation to so charge Perfecta’s account without some intervening court order, such as a writ of garnishment or other legal process. The court entered final judgment for JNB upon the conclusion that:

On May 7, 1980, JNB notified Barnett of the mistaken double payment. After that notification and after Barnett had actual knowledge that it had received a mistaken double payment of the $29,-597.21 transfer, Perfecta had from time to time sufficient funds on deposit in its account with Barnett against which Barnett could have charged the amount of the mistaken $29,597.21 payment. The evidence therefore fails to sustain Barnett’s defenses of an alleged change of position and laches.

Barnett asserts two points on this appeal: (1) JNB’s action against Barnett is barred by section 658.61, Florida Statutes (1981); and (2) JNB has no right to recover from Barnett under common law theories of unjust enrichment or money had and received. Barnett primarily relies on the statute as controlling. Barnett recognizes that there is a split of authority in decisions from other jurisdictions decided prior to enactment of statutes similar to section 658.61 on whether a bank can be held liable for permitting withdrawals by depositors after receipt of notice of adverse ^claims to the funds by third parties, and contends that the proper common law rule is that discussed and applied in Gendler v. Sibley State Bank, 62 F.Supp. 805 (N.D. Iowa 1945), and similar cases.

JNB, on the other hand, argues that the evidence before the trial court fully supports its judgment for restitution, relying principally upon the decision in Union National Bank of Troy v. Sixth National Bank of New York, 43 N.Y. 452, 3 Am. Reptr. 718 (1869). JNB denies that its claim against Barnett is barred by section 658.61, Florida Statutes (1981), because (1) its claim against Barnett was not an adverse claim to a deposit within the meaning of the statute, and (2) Barnett waived any affirmative defense it might have had based on the statute.

We hold that section 658.61 governs the rights of the parties in the circumstances of this case and precludes the entry of a judgment for JNB. Section 658.61, formerly section 659.38, Florida Statutes (1979), was in effect at the time of the transactions involved in this case and provides as follows:

ADVERSE CLAIM TO BANK OR TRUST COMPANY DEPOSIT OR FIDUCIARY ACCOUNT. — Notice to any bank or trust company of an adverse claim to a deposit or fiduciary account standing on its books to the credit of any person shall not be effectual to cause the bank or trust company to recognize the adverse claimant unless the adverse claimant shall also either:
(1) Procure a restraining order, injunction, or other appropriate process against the bank or trust company from a court in a cause therein instituted by him wherein the person to whose credit the deposit or fiduciary account stands is •made a party and served with process; or
(2) Execute to the bank or trust company, in form and with sureties acceptable to it, a bond indemnifying the bank or trust company from any and all liability, loss, damage, costs, and expenses for and on account of the payment of such adverse claim or the dishonor of the check or other order of the person to whose credit the deposit or fiduciary account stands on the books of the bank or trust company. (Emphasis added)

The statutory language makes it quite clear that whenever a third party asserts an adverse claim against funds on deposit to the account of one of a bank’s depositors, such adverse claim will not be effectual and need not be honored by the bank until the third party either obtains a court order or executes an appropriate bond. The evident purpose of the statute is to relieve the bank from having to decide at its peril whether the adverse claim is valid and, further, to protect it against financial responsibility for making the wrong determination. Barnett was faced with that precise situation in this case.

JNB notified Barnett in May 1980 that it claimed a duplicate deposit had been mistakenly made to Perfecta’s account at Barnett, that JNB had refunded the funds so deposited to Citibank and that JNB was entitled to recover back those funds from Barnett. Since Barnett had properly credited the funds to Perfecta’s account when received and Perfecta had promptly withdrawn the funds, JNB’s claim against Barnett was necessarily asserted against other funds subsequently deposited to the account of Perfecta and then credited to that account by Barnett. Had Perfecta acknowledged the validity of JNB’s claim when advised of it by Barnett, that claim would have ceased to be “adverse” within the meaning of the statute and Barnett would have become liable to JNB if JNB thereafter permitted Perfecta to draw down its account balance below the amount of such claim. But that was not the case here. Perfecta denied, when advised by Barnett, that duplicate deposits had been made, leaving JNB in the position of asserting against Barnett, in the language of the statute, “an adverse claim to a deposit ... standing on its books to the credit of any person” (Perfecta).

We reject the contention that JNB’s claim is not against Perfecta’s account, but only against Barnett for funds received by Barnett and placed in its general operating account. In no event would Barnett be liable to JNB if Perfecta had no funds on deposit with it, as JNB has implicitly, if not explicitly, recognized. Both JNB’s claim and the trial court’s order are predicated on the fact that after Barnett received notice of JNB’s claim, Perfecta’s account had balances exceeding the amount of JNB’s claim on at least three occasions between May 7 and June 2, 1980. Since JNB’s claim was “adverse” during this period, the claim would become effectual only upon JNB’s compliance with the statute by procuring an appropriate court order pursuant to sub-paragraph (1) or by executing and delivering the appropriate bond pursuant to sub-paragraph (2). See, Griffin v. Gulf Life Insurance Co., 146 So.2d 901 (Fla. 1st DCA 1962). Since JNB did neither, Barnett was not obligated to protect JNB’s interest.

JNB also contends that Barnett failed to allege any affirmative defense based on section 658.61 and did not bring that statute to the attention of the court below. The record clearly shows this to be true. Therefore, JNB argues, Barnett has waived this affirmative defense and cannot now rely on it or make this argument for the first time on appeal.

We need not decide at this time whether section 658.61 imposes conditions precedent to any cause of action by JNB against Barnett that must be generally pleaded by the plaintiff under rule 1.120(c), Florida Rules of Civil Procedure, or whether it amounts to matter constituting an avoidance or affirmative defense that must be pleaded by Barnett under rule 1.110(d), Florida Rules of Civil Procedure. The record below sufficiently establishes that the issue, whether Barnett could be held liable to JNB in the absence of some court order or other process establishing JNB’s right to funds in Perfecta’s checking account with Barnett, was posed by the court and treated by the parties as within the issues being tried by the trial court. Rule 1.190(b), Fla.R.Civ.P.; Vanguard Construction Co. v. Lewis State Bank, 348 So.2d 72, 74 (Fla. 1st DCA 1977); Pike v. National Fidelity Life Insurance Co., 377 So.2d 973, 976 (Fla. 3d DCA 1979). The fact that Barnett presented this argument in terms of common law rules espoused in Gendler v. Sibley State Bank, supra, and similar cases does not preclude consideration of the statute for resolution of this appeal. Where a party intends to rely on a specific statute before the trial court, it is preferable to plead the specific statute, but it is not necessary to do so if the facts pleaded are sufficient to bring the case within it since the court takes judicial cognizance of all public statutes. City of Lakeland v. Select Tenures, Inc., 129 Fla. 338, 176 So. 274, 277 (1937); Vance v. Indian Hammock & Riding Club, Ltd., 403 So.2d 1367, 1369 (Fla. 4th DCA 1981). Although section 658.61 was not called to the trial court’s attention, nevertheless it must be followed by this court because the statute controls the matter before us. Bedenbaugh v. Adams, 88 So.2d 765 (Fla.1956).

In view of our conclusion that the rights of the parties are governed by the applicable statute, it is unnecessary to consider the common law rules and numerous decisions relied upon by JNB and Barnett in support of their respective positions. The judgment is reversed, and the case is remanded with directions to enter judgment for Barnett.

REVERSED and REMANDED.

SMITH and BOOTH, JJ., concur.

      . In fairness to the trial judge, had this statute been brought to his attention, no doubt a different result would have been reached.

      . No such averment was contained in JNB’s complaint.

      .No pleading by Barnett specifically alleged the statute or any requirement of a court order or process as necessary to perfection of JNB’s claim against Perfecta’s account.


text:
    Richard James ACTON, Appellant, v. STATE of Florida, Appellee.
    No. 84-295.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1984.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was charged with delivery of cocaine in excess of twenty-eight grams (count I) and conspiracy to traffic in cocaine by delivering an amount in excess of twenty-eight grams (count II). Pursuant to a plea bargain, appellant pled nolo con-tendere. The bargain contemplated a three year sentencing cap and recognized that the judge intended to impose a $50,000 fine. At the request of appellant’s lawyer, the judge stated on the record that he was imposing a $50,000 fine only because he believed that the statute obligated him to do so. Thereafter, on count I, the court sentenced appellant to three years in prison and levied a $50,000 fine. No penalty was imposed for count II.

Appellant now contends that the court was not authorized to levy the $50,000 fine against him. The problem arises from the fact that in charging appellant in count I with delivery of more than twenty-eight grams of cocaine, the information referred to section 893.13, Florida Statutes (1983), rather than section 893.135, Florida Statutes (1983). Conviction of delivering cocaine under section 893.13 carries a maximum fine of $10,000, whereas a conviction of trafficking through the delivery of more than twenty-eight grams of cocaine under section 893.135(l)(b)l. requires a mandatory fine of $50,000.

Under the circumstances of this case, we view the reference to section 893.13 in count I of the information as surplusage because the appellant was not misled to his prejudice. Youngker v. State, 215 So.2d 318 (Fla. 4th DCA 1968). The record reflects that it was evident to all concerned that appellant had been charged with trafficking under count I. The plea bargain was clearly premised upon the sentencing requirements of section 893.135, and the prosecutor laid a factual basis under that statute. Appellant’s lawyer was even debating the mandatory aspect of the imposition of the $50,000 fine as specified in section 893.135(l)(b)l. If there was any doubt that count I sufficiently charged the crime of trafficking, the colloquies at the entry of the plea and sentencing were sufficient to constitute an amendment to the information. Shanklin v. State, 369 So.2d 620 (Fla. 2d DCA), cert. denied, 378 So.2d 348 (Fla.1979).

We affirm but direct that the judgment be amended to reflect a conviction for trafficking under count I.

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


text:
    Alan G.S. VOCE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1609.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1984.
    Rehearing Denied Nov. 7, 1984.

      Stuart L. Stein, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Alan G.S. Voce, was charged in a multicount information with five counts of offering to negotiate a mortgage for compensation without a license in violation of Section 494.10(2), Florida Statutes (1981), and with five counts of mortgage fraud in violation of Section 494.093, Florida Statutes (1981). A jury found him guilty on all five of the negotiating a mortgage for compensation without a license counts and on two of the five mortgage fraud counts. This appeal is from a judgment of guilty entered pursuant to the verdict, five concurrent five year sentences, and two five year terms of probation to follow consecutively the prison sentences.

Voce attacks the sufficiency of the state’s compliance with discovery and the sufficiency of the evidence as to the mortgage fraud charges. Our examination of the record reveals that there was no harmful deficiency in discovery and that there was adequate evidence to support the verdict as to the mortgage fraud charges.

Voce also attacks the circuit court’s refusal to dismiss on constitutional grounds the five counts charging him with offering to negotiate a mortgage for compensation without a license in violation of Section 494.10(2), Florida Statutes (1981).

Voce’s argument before the circuit court and here appears to be that the United States citizenship requirement set forth in Section 494.04(2), Florida Statutes (1981), is invalid on equal protection grounds because citizenship may not properly be made a requirement for practicing an occupation that is not related to a governmental function.

Our determination whether a constitutional decision is necessary here depends upon the relationship between the questioned statute and the facts of this case.

Five of the counts in the present information charged Voce with unlawfully offering to negotiate a mortgage loan for compensation without first obtaining a required license, contrary to Section 494.-10(2), Florida Statutes. The foregoing section necessarily incorporates Section 494.-04, Florida Statutes. Subsection (1) of that statute prohibits any person from acting as a mortgage broker in or from Florida without a license as provided in Chapter 494, the Mortgage Brokerage Act. Subsection (2) provides that

No mortgage broker’s ... license shall be granted to any person unless he has been a bona fide resident of the state for a period of at least 6 months immediately preceding the date of application for license and is a citizen of the United States, or has presented a notarized declaration of intention to become a United States citizen.

Subsection (4) requires submission of a nonrefundable investigation fee of $50, personal information relevant to the potential licensee’s character and competency, and a complete set of his fingerprints.

In order to have standing to question the constitutionality of any statute, whether it deals with a license or a criminal act, a person must demonstrate that he is injuriously affected by the particular feature of the statute he attacks. 16 C.J.S. Constitutional Law § 76a nn. 51 & 74, § 84 n. 70 (1956).

The question here is whether, by alleging only that he is being prosecuted for acting as a mortgage broker without a license and that he is an alien, Voce has demonstrated that the provision in Section 494.04(2) that makes United States citizenship a requirement for obtaining such a license has injured him.

It must be remembered that Voce’s attack is only on one requirement for obtaining a license rather than an attack on the requirement that one have a license in order to engage in the occupation of mortgage broker.

Had Voce shown that he fulfilled all other requirements for licensure except citizenship or intention to obtain citizenship, he would have had standing to attack this statute as being unconstitutional as applied to him, a citizen of Jamaica, based upon such cases as Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Graham v. Ramani, 383 So.2d 634 (Fla.1980); Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977). However, Voce simply surmises that he would have been denied a license because of his alienage and his failure to apply for United States citizenship. That is not enough to afford him standing. As the court said in United States v. Slobodkin, 48 F.Supp. 913, 917 (D.C.Mass.1943):

It is well settled that where a licensing ordinance, valid on its face, prohibits certain conduct unless the person has a license, one who without a license engages in that conduct can be criminally prosecuted without being allowed to show that the application for a license would have been unavailing. * * * In short, the individual is given the choice of securing a license, or staying out of the occupation, or, before he acts, seeking a review in the civil courts of the licensing authority’s refusal to issue him a license.

A legislative enactment is void on its face or facially invalid if it cannot be applied constitutionally to any factual situation. Antieau, Modern Constitutional Law, § 15:36, p. 698. Examination of Section 494.04 discloses that it does not meet the foregoing test of facial invalidity. Hence, Voce’s failure to demonstrate that he had all of the qualifications other than United States citizenship to be entitled to obtain a mortgage broker’s license and his failure under Section 494.04 to apply for a license precluded him from having the circuit court pass on the validity of Section 494.04(2). Bashir v. Supreme Court of Ohio, 652 F.2d 641 (6th Cir.1981). Cf. Caiola v. City of Birmingham, 288 Ala. 486, 262 So.2d 602, 607 (1972); Grosso v. Commonwealth, 177 Va. 830,13 S.E.2d 285, 288 (1941); City of Madison v. Schultz, 98 Wis.2d 188, 295 N.W.2d 798, 806 (1980).

Accordingly, we affirm the judgment of guilty on all counts.

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


author: DOWNEY, Judge.

text:
    Willie Lee PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 83-2396.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1984.
    Rehearing Denied Nov. 7, 1984.

      Richard L. Jorandby, Public Defender, Lawrence Duffy and Anthony Calvello, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant seeks review of an order revoking his probation and sentencing him to ten years in prison.

Two points have been presented for our consideration. The first has been mooted by our relinquishment of jurisdiction and the entry and filing of a nunc pro tunc written order designating the grounds for revocation of probation.

In his second point appellant contends that he wished to be sentenced under the new guidelines set forth in Rule of Criminal Procedure 3.701, but before he could make his election the trial court sentenced him outside that format. Immediately thereafter appellant advised the court of his election. The state contends appellant waived the application of the guidelines because his motion was not made until after sentence was pronounced. Considering the point in time when the sentencing took place, we feel the appellant’s contentions are valid. The sentencing took place on October 6, 1983, only a few days after the effective date of the guidelines, and because the procedure regarding exercise of the option was still unfamiliar, the appellant’s attorney merely failed to move quickly enough at the hearing. Additionally, appellant points to Committee Note (c) of Rule of Criminal Procedure 3.701, which seems to require use of the guidelines in sentencing for a probation violation.

Accordingly, we affirm the order revoking appellant’s probation, but remand the cause to the trial court with directions to vacate the sentence appealed from and re-sentence appellant under the new sentencing guidelines.

AFFIRMED AND REMANDED FOR RESENTENCING.

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


author: OTT, Judge.

text:
    Richard Lynn BRADY, Appellant, v. STATE of Florida, Appellee.
    No. 83-2457.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1984.

      Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Brady appeals his three-year sentence under section 775.084, Florida Statutes (1983), the habitual felony offender statute. He argues that the court erred in exceeding the sentence recommended by the sentencing guidelines, rules 3.701 and 3.988, Florida Rules of Criminal Procedure. We affirm.

Brady’s sentence was within the range set forth in section 775.084. We hold that the habitual felony offender statute is a viable alternative to the sentencing guidelines. The Committee Note to rule 3.701(d)(ll) in existence when Brady was sentenced, while not specifically referring to the habitual offender statute, recognized other alternatives to the guidelines. See also Massaro v. State, 449 So.2d 1010 (Fla. 2d DCA 1984); Sweat v. State, 454 So.2d 749 (Fla. 1st DCA 1984). The supreme court recently eliminated this note. See The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824 (Fla.1984). However, the court acknowledged the existence of statutory alternatives to. the guidelines. Id., at 824 n. 12. Unless and until the Legislature repeals section 775.084, we conclude that courts may utilize it provided they comply with its requirements and adequately state the reasons for departing from the guidelines. In the case sub judice, the judge complied with the habitual offender statute by finding that sentencing as an habitual offender was necessary to protect the public. This is a clear and convincing reason for departing from the guidelines.

In our case, no written reasons for departure from the guidelines appear in the record. However, the trial judge clearly stated the reasons in the record. This is sufficient. See Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984); Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984). We do, however, caution and encourage judges to record in writing their reasons for departing from the guidelines.

AFFIRMED.

SCHOONOVER and LEHAN, JJ., concur.

      . The relevant portion of Committee Note to 3.701(d)(ll) provided:
      Sentences under provisions of the Youthful Offender Act (ch. 958), the Mentally Disordered Sex Offender Act (ch. 917), or which require participation in drug rehabilitation programs (s. 397.12) need not conform to the guidelines.


author: DANAHY, Judge.

text:
    James W. STRANIGAN, Appellant, v. STATE of Florida, Appellee.
    No. 84-345.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1984.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The defendant challenges the propriety of the sentence imposed upon him pursuant to his plea of nolo contendere. The defendant was charged with burglary and subsequently entered a nolo contendere plea to the charge on the understanding that he would receive probation. However, at sentencing, a different judge presided and sentenced the defendant to three years’ incarceration, then suspended the three-year sentence and instead placed the defendant on three years of community control. The defendant protested the sentence on the ground that community control was not the same as probation and asked that he be permitted to withdraw his plea on the ground that he was promised probation and did not receive it. The trial judge denied the motion, indicating his belief that community control was at least consistent with probation. Later the defendant made a motion for reconsideration of the sentence or, in the alternative, to withdraw the plea of nolo contendere. The trial judge denied the defendant’s motion but modified the original sentence to two years’ community control followed by one year of probation. This appeal followed.

We agree with the defendant that community control is a more severe sanction than probation. Section 948.001, Florida Statutes (1983), defines community control and probation as follows:

(1) “Community control” means a form of intensive, supervised custody in the community, including surveillance on weekends and holidays, administered by officers with restricted caseloads. Community control is an individualized program in which the freedom of an offender is restricted within the community, home, or noninstitutional residential placement and specific sanctions are imposed and enforced.
(2) “Probation” means a form of community supervision requiring specified contacts with parole and probation officers and other terms and conditions as provided in s. 948.03.
[Emphasis added.]

When a plea agreement is not honored, either by mistake, inadvertence, or subsequent change in the trial judge’s concurrence with the plea bargain, the defendant should have the opportunity to withdraw his plea. Fla.R.Crim.P. 3.171(d); Odom v. State, 310 So.2d 770 (Fla. 2d DCA 1975). Since, in this case, the defendant tendered his plea of nolo contendere on the understanding that he would receive probation and since he received, instead, three years’ community control followed by one year probation, the defendant should have the opportunity to withdraw his plea.

Accordingly, the judgment and sentence are hereby set aside and vacated to give the defendant the opportunity to withdraw his plea of nolo contendere.

REVERSED AND REMANDED.

OTT, A.C.J., and CAMPBELL, J., concur.


author: SMITH, Judge. THOMPSON, Judge,

text:
    BRADLEY CONSTRUCTION and Southeastern Fire Insurance, Appellants, v. Phillip WHITE, Appellee.
    No. AX-125.
    District Court of Appeal of Florida, First District.
    Oct. 9, 1984.

      Richard H. Weisberg and John E. McLain, III of Cooper, Rissman, Weisberg & Jeffery, P.A., Orlando, for appellants.
    James M. Hess of Driscoll, Langston, Kane & Hess, P.A., Orlando, for appellee.
   SMITH, Judge.

The employer/carrier (E/C) challenge two orders of the deputy commissioner issued below. The first order granted the claimant’s request that the E/C pay for chiropractic treatment received by claimant in lieu of treatment offered by two physicians authorized by the E/C. The second awarded claimant temporary total disability benefits (TTD) for the period of time claimant was under the chiropractor’s care. We affirm.

The claimant suffered a compensa-ble injury, initially diagnosed as a strain of the lumbar region of his back, on December 23, 1982. He was examined at Brook-wood Community Hospital in Orlando, Florida, this examination producing essentially normal results. Accordingly, claimant was prescribed a muscle relaxant, Robaxin. Receiving no relief from this treatment, he was referred to Dr. Arslanian in January 1983. Dr. Arslanian reported that the results of his physical and x-ray examinations of claimant were either negative or revealed no significant abnormalities. Consequently, Dr. Arslanian diagnosed claimant’s injury as mild paravertebral muscle inflammation, and prescribed a correspondingly mild muscle relaxant, Flexeril. Dr. Arslanian subsequently re-examined claimant on January 17, 1983, and found claimant capable of a full range of motion, flex-ion, extension, and lateral bending and rotation. In spite of these apparently normal objective findings, claimant continued to voice subjective complaints of pain. For this reason, Dr. Arslanian prescribed Nor-flex, plus increased rest.

Claimant was again examined by Dr. Arslanian on two separate occasions in February 1983. The results of these examinations as reported by Dr. Arslanian were again unremarkable. At this point, Dr. Arslanian was unable to explain the variance between his objective clinical findings and claimant’s subjective complaints of pain, nor was he able to suggest an effective future treatment program. Dr. Arsla-nian did feel that the claimant was at that time capable of returning to his former job. Even so, Dr. Arslanian requested a second independent medical examination, which was subsequently performed by Dr. Bour-guignon on March 24,1983. Dr. Bourguig-non reported that his examination revealed no objective abnormalities. He diagnosed claimant’s injury as a pulled muscle of the lumbar spine. Dr. Bourguignon’s suggested treatment was two weeks of physical therapy. Dr. Bourguignon stated that he felt that the claimant had been capable of returning to his prior work as of the March 24, 1983 examination.

Claimant was re-examined by Dr. Arsla-nian on April 25, 1983, who again interpreted the results of his testing of claimant as being within expected norms. As a result of his continued negative objective findings, Dr. Arslanian persuaded claimant to undergo a thermogram test, which was performed on May 5, 1983. Dr. Arslanian reported that the thermogram test results revealed possible nerve root irritation, which he stated is sometimes indicative of soft tissue injury. Since the testing physician stated that the thermogram results did not meet strict criteria for abnormality, Dr. Arslanian interpreted the results as supporting his initial diagnosis as to the extent of claimant’s injury. Dr. Arslanian further felt that the claimant had not been making a good faith attempt to follow Dr. Arslani-an’s treatment plan. As a result, Dr. Ars-lanian released claimant from his care on June 1, 1983, because he thought it would be futile to attempt to follow the claimant’s progress in the future. At this time, Dr. Arslanian testified that he felt that the claimant had reached maximum medical improvement (MMI) and therefore was capable of returning to his prior job.

Claimant, however, continued to complain of pain, and therefore requested, and was granted, a hearing before the deputy commissioner, held August 17, 1983, to request chiropractic treatment. The E/C objected, pointing out that claimant had already been treated by two board-certified physicians who had discharged him from treatment and pronounced him able to return to work. Following the hearing the deputy commissioner, by order dated August 23, 1983, ordered the E/C to provide claimant a chiropractic examination and, if found medically necessary by the examining chiropractor, a maximum of 60 days of subsequent chiropractic treatment.

Claimant was examined by Dr. Exum and underwent treatment for a period of six weeks. Dr. Exum’s examination revealed a restricted range of motion in the right lateral flexion of the claimant’s cervical and lumbar spine regions. He interpreted x-rays of claimant’s injured area as indicating a posterior displacement of the fifth lumbar vertebra and a lateral flexion misalignment at the L-5 lumbar region. Dr. Exum diagnosed claimant as suffering from a misalignment of the L-4/s vertebra, with accompanying radiculitis, with a secondary diagnosis of sprain/strain complex of the cervical spine with accompanying misalignment. Dr. Exum opined that the claimant had reached MMI on October 3, 1983, and that although claimant, while under Dr. Exum’s treatment, had not been capable of performing his previous job-related duties, claimant could “probably” have performed less strenuous work activities. Dr. Exum did not testify whether or not he had so informed claimant of claimant’s presumed residual capacity for sedentary-type work activities.

As noted above, there are two orders before us for review. The first, dated August 23, 1983, required the E/C to provide claimant a chiropractic examination, as well as treatment, if necessary. The second order, dated December 22, 1983, granted claimant’s request for TTD benefits for the period between August 24, 1983, and October 3, 1983, the time claimant was under the care of Dr. Exum, as well as medical expenses, costs, and attorney’s fees. The deputy commissioner specifically credited the opinion of Dr. Exum that the claimant had been incapable of working between August 24 and October 3, 1983. While the deputy commissioner noted the contrary opinions of Drs. Arslanian and Bourguig-non, he pointed out that neither physician had treated claimant since June 1983, and thus they would not possess knowledge of claimant’s impairments for the contested time period.

The E/C’s challenge to the deputy’s August 23, 1983, order is based on the judicial gloss given to Section 440.13(1), Florida Statutes (1981), which section provides that an employer shall furnish to an injured employee remedial treatment for such period as the nature of the employee’s injury or the process of recovery requires. The E/C points to cases such as Heller Brothers v. Avans, 414 So.2d 1191 (Fla. 1st DCA 1982), which hold that it is error for a deputy to require an E/C to pay for medical examinations and/or treatment where there exists no conflict in the medical evidence of record. The E/C further relies upon decisional language indicating that the rule is not altered by a claimant’s subjective complaints of pain; since a mere subjective assertion on a claimant’s part cannot create conflict in the medical evidence. Amoco Container Co. v. Singh, 418 So.2d 395 (Fla. 1st DCA 1982), citing K-Mart Corporation v. Nasoni, 377 So.2d 821 (Fla. 1st DCA 1979). Here, the E/C assert, claimant was treated by two board-certified physicians who both released claimant to work as of June 1983, with no restrictions and a finding that claimant suffered from no permanent impairments. We find that the decisions relied upon by the E/C do not mandate reversal here.

Heller Brothers and Nasoni are both distinguishable from the ease at bar by the fact that in both of those cases this court found that there were no allegations that the authorized treatment there complained of was inadequate or otherwise inappropriate. Here, on the other hand, the inadequacy of the treatment offered by the E/C was precisely what claimant was contesting. The claimant was not seeking merely additional care in the same type of treatment regime, cf., Commercial Carriers, Inc. v. Porter, 424 So.2d 155 (Fla. 1st DCA 1982), but rather a new mode of treatment altogether. Claimant’s perception of the need to seek alternative care was undoubtedly reinforced by Dr. Arslanian’s release of claimant from his treatment program in June of 1983, based on Dr. Arslanian’s belief that continuing treatment would be futile. In such circumstances, as we acknowledged in Sears, Roebuck and Company v. Viera, 440 So.2d 49, 51 (Fla. 1st DCA 1983) (quoting from the deputy commissioner), Section 440.12(2), Florida Statutes (1981), requires an E/C whose authorized physicians are objected to by a claimant who seeks alternative treatment

to either select a physician to provide such care to the claimant or to seek a ruling from the deputy commissioner that such change in medical attendance would not be in the best interest of the claimant. Failing in same the employer must pay for the requested treatment subject only to the reasonableness and necessity of same.

440 So.2d 49, 51. Here, the E/C offered no alternative care or treatment for claimant, even though he was not, at the times he requested chiropractic care, free of the symptoms for which he initially sought treatment. Instead, claimant himself sought a determination from the deputy commissioner that chiropractic treatment would be in claimant’s best interest, following the proper procedure for resolving treatment disputes outlined in Usher v. Cothron, 445 So.2d 387 (Fla. 1st DCA 1984), and Sears, Roebuck and Company v. Viera, supra, at 51.

As previously noted, Dr. Arslanian released claimant from his care for reasons other than claimant’s or, for that matter, Dr. Arslanian’s satisfaction with the previous course of treatment. Apparently, the deputy concluded that claimant was simply not receiving the relief he sought from the physicians authorized by the E/C. In his ■ December 22, 1983 order, the deputy noted that “there may have been a communication problem between the claimant and Dr. Arslanian.” For whatever reason, the care provided claimant by the E/C’s authorized physicians had proven unsatisfactory but, as the deputy further found, it was clear that the claimant did improve under Dr. Exum’s treatment. While this is after-the-fact evidence, it nonetheless tends to confirm both the necessity for additional care and the soundness of the deputy’s handling of this case.

The E/C also challenge the deputy’s award of TTD benefits to claimant during the time he was under the care of Dr. Exum, August 24 to October 3, 1983. The E/C cites the opinions of Dr. Arslanian and Bourguignon that claimant was, as of June 1, 1983, capable of returning to work, as well as Dr. Exum’s testimony that while claimant was not able to return to past employment he retained the capacity to perform some work during the time period in question. The E/C construes this evidence as indicative of an absence of clear medical evidence establishing TTD, and notes that in such circumstances, a claimant must prove either a good faith work search or the inability to return to work due to disability. Belle v. General Electric Co., 409 So.2d 182 (Fla. 1st DCA 1982). The E/C asserts that no evidence of any work search on claimant’s part was adduced below. Finally, the E/C suggest that claimant’s “bare complaints of pain and assertions of inability to work" are insufficient to justify an award of TTD benefits where “abundant expert medical opinion” to the contrary exists. Sanlando Utility Corp. v. Morris, 418 So.2d 389, 391 (Fla. 1st DCA 1982). However, the E/C’s arguments here are likewise unavailing.

The deputy’s award of TTD benefits to the claimant is supported by competent, substantial evidence consisting of Dr. Exum’s testimony regarding his examination and treatment of claimant which showed that the claimant was unable to perform work-related activities between August 24 and October 3, 1983. The E/C essentially ask this court to reweigh the evidence introduced below, a task this court steadfastly refuses. Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983). Moreover, we reject the E/C’s attempt to impeach Dr. Exum by noting that he, somewhat vaguely, testified that claimant might have been capable of performing certain unnamed less strenuous jobs. The E/C suggest that this testimony negates Dr. Exum’s previously-noted opinion of TTD, with the result that no evidence exists in the record below that claimant is totally unable to work, and therefore that a work search by claimant, admittedly not undertaken, is required here. However, the evidence below fails to establish that Dr. Exum informed claimant that he was capable of some work activities or that such less strenuous work activities would be a part of claimant’s treatment program, nor that the claimant knew or should have known that he was released for lighter work. Accordingly, a reversal of benefits here cannot rest on claimant’s failure to seek work. Daytona Linen Services and Mission Insurance Company v. Davis, 454 So.2d 46 (Fla. 1st DCA 1984); Fulmer-Orlando v. Taylor, 419 So.2d 734, 735 (Fla. 1st DCA 1982).

The orders appealed from are AFFIRMED.

BOOTH, J., concurs.

THOMPSON, J., dissents with written opinion.

THOMPSON, Judge,

dissents.

The employer/carrier (E/C) appeal separate orders of the deputy commissioner (deputy) requiring the E/C to pay for the claimant’s treatment by a chiropractor and awarding claimant temporary total disability (TTD) benefits during the time claimant was under treatment by the chiropractor. I would reverse.

The claimant sustained a compensable injury December 23, 1982. He was referred to Dr. Arslanian, an orthopedic surgeon, in January 1983. After a thorough examination claimant’s injury was diagnosed as a mild paravertebral muscle inflammation. After further testing on January 17, 1983, Dr. Arslanian was of the opinion that despite claimant’s continuing subjective complaints of pain he had a full range of motion, flexion, extension, lateral bending and lateral rotation. The claimant was seen and examined by Dr. Arslanian on two subsequent occasions in February 1983 and the doctor reported that he could make no objective findings and was unable to explain claimant’s continued complaints of pain or suggest an effective treatment.

Because of claimant’s continued complaints of pain Dr. Arslanian requested a independent medical examination. This examination was performed by Dr. Roger L. Bourguignon on March 24, 1983. As a result of his examination Dr. Bourguignon diagnosed claimant’s injury as a pulled muscle of the lumbar spine and recommended two weeks of daily physical therapy. Dr. Bourguignon was of the opinion that the type of injury the claimant sustained normally took between six to eight weeks to heal, and he felt that claimant was capable of returning to his prior employment at the time of his March 24, 1983 examination. Claimant was again examined by Dr. Arslanian on April 25, 1983. His tests were still negative and the doctor concluded that the claimant was not making a good faith attempt to follow his treatment plan.

The claimant requested and was granted a hearing before the deputy on August 17, 1983 on his request for chiropractic treatment. The E/C contested the claimant’s request asserting that the claimant had already been treated by two board certified physicians who had discharged him from treatment and found him capable of returning to work. The deputy ordered the E/C to provide a chiropractic examination and, if deemed medically necessary by the chiropractor, to provide a maximum of 60 days subsequent chiropractic treatment. The deputy based his order on his factual finding that the claimant continued to have difficulty with his back. He based his finding on the claimant’s testimony that he still had back pain and difficulty despite the treatments he had received from Dr. Arsla-nian and Dr. Bourguignon. The deputy erred in ordering this treatment and in the awarding of attorney’s fees to claimant’s attorney. An award of an examination and treatment is error absent a conflict in the medical evidence. See Heller Brothers v. Avans, 414 So.2d 1191 (Fla. 1st DCA 1982); K-Mart Corporation v. Nasoni, 377 So.2d 821 (Fla. 1st DCA 1979). The law requires a conflict in the medical testimony and the claimant’s testimony of continued pain relied upon by the deputy does not constitute a conflict in the medical testimony. As this court said in Amoco Container Company v. Singh, 418 So.2d 395 (Fla. 1st DCA 1982):

Absent a conflict in the medical evidence, the employer/carrier may not be required to bear the expense of an evaluation by an additional physician based merely on claimant’s assertions of continued pain, (emphasis supplied)

In the absence of a conflict in the medical evidence the claimant must demonstrate that such further medical evaluation and/or treatment is reasonably required by the nature of the injury or the process of recovery. No such showing was made in this case.

I would also reverse the award of TTD benefits as there was no evidence that the claimant made a bona fide work search. In Heller Brothers, this court reversed an award of TTD benefits saying:

[T]he Deputy Commissioner erred in awarding temporary total disability absent a showing of a bona fide work search. LeHigh Corporation v. Byrd, 397 So.2d 1202, 1204 (Fla. 1st DCA 1981).

The affirmance by the majority is contrary to the foregoing cited cases which in my opinion require reversal of the orders appealed.


text:
    Daisy CONCEPCION, Appellant, v. Maximino TOJEIRO and Norma Tojeiro, Appellees.
    No. 84-421.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.
    Edward C. Yining, Jr., Miami, for appellant.
    Lucrecia H. Granda, Miami, for appel-lees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Where a note is made payable to two or more payees in the conjunctive, payment made to only one of the payees does not discharge the maker’s obligations under the note. § 673.116, Fla.Stat. (1983). In the instant case the note was made payable to the appellant and a co-payee and payment by the Tojeiros was made only to the co-payee. Appellant did not give the co-payee authority to accept payment on her behalf and no such authority will be implied from a close relationship between the appellant and the co-payee. Glasser v. Columbia Federal Savings & Loan Association of Miami Shores, 197 So.2d 6 (Fla.1967).

The judgment below is therefore reversed and the case remanded with directions that judgment be entered for the appellant, plaintiff below.

Reversed and remanded with directions.

      . Section 673.116, Florida Statutes (1983), provides as follows:
      Instruments payable to two or more persons. — An instrument payable to the order of two or more persons:
      (1) If in the alternative is payable to any one of them and may be negotiated, discharged or enforced by any of them who has possession of it;
      (2) If not in the alternative is payable to all of them and may be negotiated, discharged or enforced only by all of them.


author: DELL, Judge.

text:
    SHADA, a Florida partnership, Appellant, v. TITLE & TRUST COMPANY OF FLORIDA, etc., Appellee.
    No. 83-963.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.

      R. Hugh Lumpkin of Keith, Mack, Lewis & Allison, Miami, for appellant.
    William Robert Leonard of Coleman, Leonard & Morrison, Fort Lauderdale, for appellee.
   DELL, Judge.

Shada, a Florida partnership, appeals from an adverse final summary judgment in an action for breach of a title insurance-policy and for negligence in failing to list record title defects in the title insurance commitment.

In 1977, appellant entered into contracts to purchase more than twenty lots in Bro-ward County, Florida. In lieu of obtaining an attorney’s opinion of title, appellant obtained title insurance commitments issued by appellee’s predecessor, Peninsular Title Insurance Company. Appellant thereafter closed on the lots and purchased standard loss title insurance policies based on the previous commitments. The policies provided that “[t]he Company, insures ... against loss or damage ... sustained or incurred by the insured by reason of ... [a]ny defect in or lien or encumbrance on such title....”

In 1979, appellant entered into a contract to sell the property, promising to deliver marketable title to the lots. The contract purchaser notified appellant that title defects existed in each of the subject lots. The defects consisted of outstanding potential redemptive rights which had not been eliminated through prior foreclosures and certain outstanding judgments which allegedly survived the foreclosure action due to failure to join the judgment holders.

In order to overcome the contract purchaser’s objection to title, appellant notified appellee of the defects, made a claim for coverage, and requested appellee to clear the title. Appellee refused to take any action to eliminate the defects, although it appears from the pleadings that appellee offered to insure appellant’s buyer against loss arising from these defects, and that appellant rejected this offer. Appellant thereafter successfully quieted title, completed the sale, and then filed the instant action against appellee alleging breach of the title insurance policy and negligence by failure to set forth the title defects in the commitment. The trial court granted ap-pellee’s motion for summary judgment and appellant filed this timely appeal.

Appellant contends a question of fact exists as to whether appellee’s failure to cure or schedule the title defects constituted a breach of contract or actionable negligence. Appellee argues that the policy only covers an actual loss sustained because of a defect in the title and does not cover a purchaser’s refusal to close. Ap-pellee relies on Blessing v. American Title & Insurance Co., 121 So.2d 455 (Fla. 1st DCA 1960), to support its argument that appellant voluntarily quieted title before anyone had asserted a claim against the title and therefore appellee had no duty under the policy to cure the defects.

Appellant responds by asserting this court’s decision in Endruschat v. American Title Insurance Co., 377 So.2d 738 (Fla. 4th DCA 1979). In Endruschat, two dentists contracted to purchase property for use as a dental clinic. The title company issued a binder and then a title policy to the dentists which failed to include recorded restrictions limiting the use of the property to single family housing. At the request of the dentists the construction loan institution accepted a mortgagee’s policy which contained the same omission. The bank later discovered the deed restrictions and suspended funding of the loan. The title company denied coverage, and the dentists engaged counsel and successfully quieted title nine months later. The dentists filed an action against the title company for reimbursement of the fees and costs incurred to quiet title and damages for increased building costs occasioned by the delay. The title company argued that the bringing of the quiet title suit and the cessation of construction was an unnecessary and purely voluntary act for which it should not be responsible.

This court stated:

To hold as the Title Company here contends is to require the Bank and the dentists to ignore duly recorded restrictions and play Russian Roulette with the surrounding property owners to see whether they will legally enforce the restrictions. Furthermore, once the Title Company knew of the omitted restriction, it was not itself willing to reissue its insurance without including the very restriction which it simultaneously demands that the dentists ignore. It cannot have it both ways.

Id. at 742.

We recognize that appellee offered to rein-sure against the title defects which it had omitted from appellant’s policy. However, we do not find appellee’s offer sufficient to satisfy its obligations under its contract to indemnify appellant for the record title defects which it overlooked.

In Holinda v. Title & Trust Co. of Florida, 438 So.2d 56 (Fla. 5th DCA 1983), petition for review denied, 449 So.2d 265 (Fla.1984), a title company failed to except four liens in its policy. The insured plaintiffs discovered the liens when they attempted to resell the property. Plaintiffs paid off the lienholders and brought suit against the title company. The title company denied their claim and argued that they had “no cause of action ... until there was an actual loss under the policy, and [that] payment of a claim or judgment before execution against the property amounted] to a voluntary settlement of the claim.” Id. at 57. The Fifth District Court of Appeal rejected this argument and held:

that the satisfaction of an outstanding judgment which is a valid, enforceable lien on the real property does not constitute a “voluntary satisfaction.” See Endruschat v. American Title Ins. Co., 377 So.2d 738 (Fla. 4th DCA 1979). But see Blessing v. American Title & Ins. Co., 121 So.2d 455 (Fla. 1st DCA 1960). As shown here, the satisfaction of such claims was necessary in order to complete the sale of the property.

Id. at 57.

Similarly, we reject appellee’s argument that appellant did not sustain an “actual loss” under the policy.

Summonte v. First American Title Insurance Co., 180 N.J.Super. 605, 436 A.2d 110 (Ch.Div.1981), aff’d, 184 N.J.Super. 96, 445 A.2d 409 (App.Div.1981), petition for certification denied, 89 N.J. 418, 446 A.2d 148 (1982), provides a comprehensive analysis of cases which have construed questions similar to those presented by this appeal. The court, quoting from Jarchow v. Transamerica Title Insurance Co., 48 Cal. App.3d 917, 122 Cal.Rptr. 470 (1975), suggests that title insurance policies “must be construed so as to give the insured the protection which he reasonably had a right to expect_” 180 N.J.Super. at 614, 436 A.2d at 115. The court stated:

Any requirement of “actual loss,” examined in the light of present facts and modern decisions, is a requirement which must be read liberally, not strictly. Nothing less can result from application of the universal rules which require insurance policies to be so interpreted and, further, to be construed in a manner which satisfies the expectations of the insured. Courts, faced with the enforcement of title insurance obligations, speak of indemnification but act in broader terms.

Id. at 613, 436 A.2d at 114.

The Summonte court reached a conclusion similar to that of Judge Letts in Endrusc-hat when it stated:

Any concept of fair dealing requires the company to remove the title defect without insisting upon an “actual loss” as it defines that unworkable term.

Id. at 616-617, 436 A.2d at 116.

The fact that the overlooked defects came to light only when appellant attempted to sell the property does not change the fact that the defects existed at the time the policy issued and that appellant purchased the policy to have insurance to protect against such an occurrence. We hold that appellee had a duty under its contract to cure the defects and its failure to do so entitles appellants to damages. Thus we decline to follow the holding in Blessing v. American Title & Insurance Co., supra.

Next, with respect to the negligence count, appellee moved at an early stage in this proceeding to dismiss Count II of appellant’s complaint. Count II asserted a claim based on alleged negligence by appel-lee in failing to schedule certain record title defects in its title insurance commitment. The trial court denied appellee’s motion to dismiss and later denied appellee’s first motion for summary judgment, which sought judgment as to both counts of appellant’s complaint. Appellee directed its second motion for summary judgment, which we have before us, only to the contract count. Therefore, appellant argues that its claim for negligence remains pending in the trial court. We agree.

Appellee contends that appellant cannot maintain an action for negligence because:

[T]he exclusions in a title insurance policy are those items for which loss will not be compensated. If then there is no listing of outstanding redemptive rights in the exclusion portion of the policy, then the assertion of the outstanding redemptive right is a loss which the title company must address and defend the possession, use and enjoyment of the property in favor of its insured. Plaintiff simply cannot have it both ways. If there is a contract action, it is because the item complained of was not listed as an exclusion.

As we see it, appellee simply argues that the contract precludes an action for damages sustained as a result of its negligence because the loss would be covered under the policy. We find no merit in this argument. Appellee cannot hide behind its contract to avoid appellant’s claim for damages arising out of its alleged negligence in searching the title and scheduling the defects.

The right of action on the contract, and the right to sue for the breach of the collateral duty are distinct, the only limitation on a suit for either or both being that the same party cannot be compensated twice over for the same wrong, once for the breach of contract and again for the tort. Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503, 12 L.R.A. (N.S.) 924, text 933.

Parrish v. Clark, 107 Fla. 598, 603, 145 So. 848, 850 (1933); see also Holbrook v. City of Sarasota, 58 So.2d 862 (Fla.1952).

Appellant pled that it purchased the title insurance policy in lieu of obtaining an abstract and that it relied upon the commitment to determine the quality of its title prior to the closing of the transaction. The title insurance commitment provides:

Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company.
1. Defects, liens, encumbrances, adverse claims, or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof....

We construe the language of this paragraph to provide that “defects, liens, etc.” will be listed as exceptions in the commitment but that they will not appear in the title policy if they are “disposed of” to the satisfaction of the company.

In First American Title Insurance Co. v. First Title Service Co. of the Florida Keys, Inc., 457 So.2d 467 (Fla.1984), the Supreme Court extended the liability of an abstracter and held:

Where the abstracter knows, or should know, that his customer wants the abstract for the use of a prospective purchaser, and the prospect purchases the land relying on the abstract, the abstracter’s duty of care runs, as we have said, not only to his customer, but to the purchaser. Moreover, others involved in the transaction through their relationship to the purchaser — such as lender-mortgagees, tenants and title insurers — will also be protected where the purchaser’s reliance was known or should have been known to the abstracter.

Id. at 473.

We see no reason why the principles applicable to an abstracter should not be applied to a title insurance company where it undertakes the duty to schedule record title defects. The use of a title insurance binder or commitment instead of an abstract and an attorney’s opinion of title has become commonplace. A title insurance company has a duty to exercise reasonable care when it issues a title binder or commitment and its failure to do so may subject it to liability in either contract or tort. Summonte, supra; Jarchow, supra.

Therefore we reverse the summary judgment in favor of appellee and remand this cause for further proceedings consistent herewith.

REVERSED and REMANDED.

DOWNEY and HURLEY, JJ., concur.


author: ANSTEAD, Chief Judge.

text:
    STATE of Florida, Appellant, v. Mark Gerard LITTLEFIELD, Appellee.
    No. 83-1987.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellant.
    Patrick C. Rastatter of Glass, Rastatter & Tarlowe, P.A., Fort Lauderdale, for ap-pellee.
   ANSTEAD, Chief Judge.

This is an appeal from a final judgment discharging appellee, Mark Gerard Little-field, due to a speedy trial violation.

Littlefield was arrested on January 20, 1983. He and nine other defendants were charged in a single information with possession of marijuana. On March 31, at a trial status call before the court eight of the defendants announced that they were not ready for trial and sought continuances. The state agreed that the continuances should be granted. Littlefield announced that he was ready for trial and objected to his trial being continued. Subsequently, over Littlefield’s objection, the case as to all ten defendants was postponed. On August 2, Littlefield moved for discharge for the failure of the state to bring him to trial within the 180 days provided in the speedy trial rule. This motion was granted, and the state appeals.

The trial court ruled that prior to the expiration of the 180 days the state should have sought an extension due to exceptional circumstances under rule 3.191(f)(5):

Exceptional Circumstances. As permitted by (d)(2) of this Rule, the court may order an extension of the time periods provided under this Rule where exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation or failure to obtain available witnesses, or other avoidable or foreseeable delays.
Exceptional circumstances are those which as a matter of substantial justice to the accused or the State or both require an order by the court: Such circumstances include ... (5) a showing that a delay is necessary to accommodate a co-defendant, where there is reason not to sever the cases in order to proceed promptly with trial of the defendant ....

The state contends that it had no obligation to seek an extension and that discharge is barred by rule 3.191 (d)(3)(ii):

Delay and Continuances; Effect on Motion. If trial of the accused does not commence within the periods of time established by this Rule, a pending motion for discharge shall be granted by the court unless it is shown that ... (ii) the failure to hold trial is attributable to the accused, a co-defendant in the same trial, or their counsel ....

The state argues that since the failure to bring Littlefield to trial was caused by continuances taken by his codefendants Little-field is not entitled to discharge.

In Grimett v. State, 383 So.2d 698 (Fla. 4th DCA 1980), this court held that a code-fendant’s unanticipated, failure to appear at trial and a consequent order of continuance because of the nonappearance was a sufficient basis to deny Grimett’s subsequent motion for discharge. On the other hand, the Second District has suggested that a defendant’s speedy trial rights should always be given precedence over the state’s right to jointly try defendants charged in the same crime. Machado v. State, 431 So.2d 337 (Fla. 2d DCA 1983). Florida Rule of Criminal Procedure 3.152(b)(l)(i) provides that a severance should be granted if necessary to protect speedy trial rights:

(b) Severance of defendants.

(1) On motion of the State or a defendant, the court shall order a severance of defendants and separate trials:
(i) before trial, upon a showing that such order is necessary to protect a defendant’s right to a speedy trial, or is appropriate to promote a fair determination of the guilt or innocence of one or more defendants ....

In the present case, neither Littlefield nor the state moved to sever Littlefield from the other defendants prior to the expiration of the speedy trial time.

Having considered all three provisions of the criminal rules relating to the potential conflict between defendant’s speedy trial rights and the state’s right to consolidation, we believe the trial court acted properly in this case in placing the burden on the state to seek an extension under the provisions of rule 3.191(f)(5).

By making accommodation of a codefendant a basis for an extension, the provisions of rule 3.191(f) imply that the state must affirmatively request an extension, if such a situation is contemplated, in advance of the expiration of the speedy trial time. Under this procedure, the trial court can deal with the specific situation and balance the interests of the state in avoiding multiple trials against the interest of the defendant in receiving a speedy trial. Of course, the defendant is also entitled to seek a severance under rule 3.152(b)(l)(i) and in doing so the same factors may be considered by the trial court. In effect, by asserting that he was ready to go to trial and wanted to go to trial even if tried alone, and that he would not waive his speedy trial rights, we believe Littlefield was seeking a severance and that he made a prima facie showing of his entitlement to such by showing that his speedy trial rights would be violated if his codefend-ants’ continuances were forced on him. See Rule 3.152(b)(l)(i) and Machado v. State. When Littlefield objected to having his trial continued beyond the speedy trial time we believe it was the obligation of the state to respond by demonstrating that despite the speedy trial consequences to defendant “there is reason not to sever the cases.” See Rule 3.191(f)(5). This the state failed to do.

If the state had no obligation to seek an extension when it was aware of the need for delay to accommodate other defendants, then the state could simply rely on continuances extended to codefendants, whether or not there were sufficient reasons to also extend the non-movant’s speedy trial time, as a means to avoid the non-movant’s speedy trial rights. Such automatic reliance, in our view, ignores the scheme suggested by rule 3.191(f)(5) and violates the individual defendant’s speedy trial rights. Here, the state was well aware of the codefendants’ need for continuances and of defendant’s objection thereto. The problem was not an unexpected one as was involved in Grimett. However, the state merely concurred in the requests for continuances and took no action to secure an extension as it had a right to do under rule 3.191(f)(5).

Accordingly, we affirm the order of discharge.

DOWNEY, J., concurs.

DELL, J., dissents without opinion.


text:
    STATE of Florida, Appellant, v. Willie COLEMAN, Appellee.
    No. 83-2161.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellant.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   ANSTEAD, Chief Judge.

This is an appeal by the state of an order discharging Coleman, pursuant to the speedy trial rule, Florida Rule of Criminal Procedure 3.191. This court’s jurisdiction is based on Florida Rule of Appellate Procedure 9.140(c)(1)(E).

Coleman was arrested on February 24, 1983. He and four codefendants were charged under count I of an amended multiple-count information with trafficking in cannabis; the other counts did not involve Coleman. Trial was originally set for June 6, 1983 for Coleman alone, but reset for all defendants for July 8, 1983. At the unreported July 8 trial call, the codefendants requested a continuance which was agreed to by the state but strongly objected to by Coleman. Coleman also requested severance. The court reset the trial for October 3, 1983 and tolled speedy trial as to Coleman until that date.

On September 8, 1983, Coleman moved for discharge on speedy trial violations grounds and that motion was granted.

We believe that disposition of this case is governed by our decision in State v. Littlefield, 457 So.2d 558 (Fla.1984), Fourth District Court of Appeal Case No. 83-1987, opinion issued this same date. On the authority of Littlefield we affirm.

DOWNEY, J., concurs.

DELL, J., dissents without opinion.


text:
    Steve PYSZ, Appellant, v. HENRY’S DRUG STORE, a Florida corporation, et al., Appellees.
    No. 83-2227.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.
    Rehearing Denied Nov. 5, 1984.
    Terry N. Freeman and J. Mark Maynor of Beverly & Freeman, West Palm Beach, for appellant.
    Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellee, Henry’s Drug Store.
   DELL, Judge.

Steve Pysz appeals from an order of dismissal with prejudice of his second amended complaint.

Appellant filed suit against four defendants: a physician, two manufacturers, and appellee, a retail druggist. Appellant alleged that appellee’s failure to warn him of the addictive propensities of Quaaludes constituted negligence. Appellant further alleged that filling his Quaalude prescriptions for more than nine years constituted negligence because appellee knew or should have known that use of this drug over an extended period of time would subject appellant to physical and psychological dependence and addiction. Finally appellant alleged that appellee knew he had become addicted to Quaaludes and negligently failed to inform appellant’s physician. The trial court dismissed appellant’s complaint and held that:

[A] supplier of drugs has no duty to fail or refuse to supply a customer with drugs for which the customer has a valid and lawful prescription from a licensed physician, nor any duty to warn said customer of the fact that one using the prescribed drug for any period of time could or would become addicted to the use thereof and would become physically and psychologically dependent thereon, even though the supplier of such drugs was aware of the fact that the customer had developed a physical and psychological dependence and addiction to the prescribed drugs.

Appellant asks two questions in this appeal: Whether a licensed pharmacist has a duty not only to properly fill a prescription but also to warn the customer of the dangerous propensities of the prescription drug and whether a licensed pharmacist who has actual or constructive knowledge of a customer’s dependency and addiction to a prescription drug has a duty to warn the customer’s treating physician of this fact.

The facts alleged in appellant’s complaint require us to answer each of these questions in the negative. Appellant not only alleged that the prescribing physician knew of the type and amount of drugs prescribed over nine years, but also knew of appellant’s addiction. Under the circumstances, we do not view appellee’s failure to warn appellant, or to notify the physician, as a failure to exercise due care.

Appellant acknowledges the holding of our Supreme Court in McLeod v. W.S. Merrell Co., Div. of Richardson-Merrell, Inc., 174 So.2d 736 (Fla.1965):

[T]he rights of the consumer can be preserved, and the responsibilities of the retail prescription druggist can be imposed, under the concept that a druggist who sells a prescription warrants that (1) he will compound the drug prescribed; (2) he has used due and proper care in filling the prescription (failure of which might also give rise to an action in negligence); (3) the proper methods were used in the compounding process; (4) the drug has not been infected with some adulterating foreign substance.

Id. at 739.

Appellant seeks to distinguish McLeod on the basis that this is an action for negligence rather than warranty and cites numerous out of state cases in support of his position that the complaint stated a cause of action for negligence. We find the cases distinguishable from the facts alleged in appellant’s complaint. In two of the cases, the druggist or his employee improperly filled the prescriptions by giving customers the wrong drugs. Burke v. Bean, 363 S.W.2d 366 (Tex.Civ.App.1962); Tombari v. Conners, 85 Conn. 231, 82 A. 640 (1912). Each of these actions constituted a breach of the duties listed in McLeod and clearly gave rise to a cause of action. In four other cases cited by appellant, the druggist sold poisons or explosive chemicals without giving any warnings. Krueger v. Knutson, 261 Minn. 144, 111 N.W.2d 526 (1961); Gibson v. Torbert, 115 Iowa 163, 88 N.W. 443 (1901); Meyer v. King, 72 Miss. 1, 16 So. 245 (1894); Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247 (Ct.App.1919). None of the foregoing cases concerned a druggist properly filling a lawful prescription.

Appellant suggests that the pharmaceutical business has changed drastically in the past twenty years and therefore this court should take a new look at the duty of a druggist to either warn the customer of the dangerous propensities of a drug prescribed by a licensed physician or in the alternative, to notify the physician of the dangerous propensities of the drug and/or the effect that it is having on his patient. Appellant argues that a pharmacist has greater knowledge of the propensity of drugs than that of the physician. Although this may be factually true in some instances, it is the physician who has the duty to know the drug that he is prescribing and to properly monitor the patient. Therefore, we must affirm the dismissal of appellant’s complaint. However, we limit our affirmance to the facts of this case since we recognize that a factual situation could exist which would support an action for negligence against a druggist who has lawfully filled a prescription issued by a licensed physician.

AFFIRMED.

ANSTEAD, C.J., and GEIGER, DWIGHT L., Associate Judge, concur.