text:
    Eugene Kreis LUMAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-330.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Luman appeals from a final judgment that adjudicated him guilty of dealing in stolen property in violation of section 812.-019(1), Florida Statutes (1981). The issue on appeal is whether the trial court erred in failing to suppress Luman’s confession which was given after he had invoked his right to counsel but before he was provided with an attorney. We think Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 878 (1981), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), require a reversal.

Luman was arrested for the theft of a Volkswagen. Deputies McDonald and Pruitt read the Miranda rights to him. Luman said he did not want to talk and he was taken to the Marion County Jail.

At some point thereafter Luman asked to be furnished with counsel. Pruitt noted this request in the arrest affidavit. While Luman was in the office, McDonald told him they found a gun in the car, wrapped in a greasy towel. Pruitt told him that if he cooperated with them and told them the truth about the theft of the car, McDonald would be lenient regarding the gun charges. Luman then made an incriminating statement.

Afterwards Luman asked McDonald if there really was a gun. McDonald laughed and said no. McDonald and the other deputies admitted the gun ploy was a trick used to get Luman to talk. The trial court correctly ruled that this statement was not admissible.

While Luman was in the process of -giving his statement regarding the Volkswagen, Deputies McQuaig and McWilliams entered the room. Immediately thereafter they began asking Luman about the theft of equipment and property from a horse farm, which culminated in the criminal charge filed in this case. They read him his Miranda rights, and he made the confession involved in this case. At no time during either interrogation was counsel offered to Luman. The trial court ruled that this second statement was given voluntarily and constituted a knowing and intelligent waiver of Luman’s fifth and sixth amendment fights.

Had the second interrogation involved the first criftiinal investigation, it is clear that the second statement would not have been admissible under these facts. In Edwards, an accused invoked his right to counsel. The authorities ceased questioning him and he was put in jail. The'next morning the investigators returned. Edwards told the jailor he did not want to see them. Again he was read his Miranda rights. This time he confessed to the crime.

The trial court ruled Edwards’ confession was admissible: it stated without explanation that Edwards’ statement was voluntary. The Supreme Court ruled, as a matter of law, that Edwards’ confession was not admissible because there was an insufficient showing of waiver. The Court held that if an accused asks for counsel during custodial interrogation, a valid waiver of his sixth amendment rights cannot be established by the mere showing that the accused responded to further police initiated custodial interrogation, even if he was first given Miranda warnings.

We further hold that an accused, such as Edwards, having expressed his desire to déal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with the police.

Edwards, 451 U.S. at 484-485, 101 S.Ct. at 1885.

In Edwards, the interrogation concerned the same criminal investigation for which the accused was arrested. Should this fact make any difference since in this case the continued interrogation concerned a different crime than the one for which Luman was arrested and initially interrogated? Two of our sister courts have held that an accused’s statements should be suppressed in this context.

In Harris v. State, 396 So.2d 1180 (Fla. 4th DCA 1981), an accused was arrested on robbery charges and advised of his Miranda rights. He asked for an attorney, but was told one could not be appointed for a number of days. The questioning stopped, but later the same day he was asked about a different robbery than the one for which he was first interrogated. He made an incriminating statement which he sought to have suppressed. The court held that Harris’ constitutional rights had not been sufficiently safeguarded. However, in Harris, the accused was not reread the Miranda rights before the interrogation commenced anew concerning the other robbery.

In State v. Padron, 425 So.2d 644 (Fla. 3d DCA 1983), the state appealed a trial court’s order which suppressed statements made by a criminal accused in a fact situation substantially indistinguishable from the present case. The court ruled that even though Padrón was reread his Miranda rights before interrogation (initiated by the police) resumed concerning a crime for which he had not then been arrested, that as a matter of law his statements made at that time should be suppressed, pursuant to Edwards and Miranda.

One of the cases disposed of by the United States Supreme Court in Miranda, involved a case like this one: Westover v. United States. Westover was arrested for a state crime, and was interrogated without any Miranda warnings being given. Immediately after the city police finished, he was questioned by the F.B.I. concerning federal crimes. The F.B.I. agents read him Miranda warnings prior to their questioning, but the Court held that under these circumstances no intelligent waiver of constitutional rights could be assumed.

Thus, in obtaining a confession from Westover the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of warnings alone was not sufficient to protect the privilege.

Miranda, 384 U.S. at 496-97, 86 S.Ct. at 1639.

At three different places in Miranda the Court says that if an accused asks for an attorney during custodial interrogation, the questioning must stop, and he cannot be questioned further until he has consulted with an attorney, and then only if he later consents to be questioned. If this procedure is not observed, the Court said, any statements taken “cannot be other than the product of compulsion, subtle or otherwise.” (Emphasis supplied). Miranda, 384 U.S. at 474, 86 S.Ct. at 1628.

[A] valid waiver will not be presumed simply taken from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.

Miranda, 384 U.S. at 475, 86 S.Ct. at 1628.

“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver. (Emphasis supplied).”

Miranda, 384 U.S. at 475, 86 S.Ct. at 1628.

“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver. (Emphasis supplied).”

Miranda, 384 U.S. at 475, 86 S.Ct. at 1628 (quoting Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962)).

Because the record does not show Luman waived his right to consult counsel, having invoked his fifth and sixth amendment rights, the statement made before he was offered counsel must be suppressed. Edwards; Miranda. Accordingly, the judgment is reversed and the case is remanded for new trial.

REVERSED AND REMANDED.

DAUESCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree, punishable as provided in ss. 775.082, 775.083, and 775.084. § 812.019(1), Fla.Stat. (1981).

      . Luman also argues that the trial judge should have instructed the jury on grand theft because it was a necessarily included lesser offense of the crime with which he was charged, and was only one step removed from it. We do not think grand theft is a necessarily lesser included offense of the managing and trafficking in stolen property offense set forth in section 812.019 because the elements of the two crimes are different.

      . Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: JOANOS, Judge.

license: Public Domain

text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. SUNRISE CATERING and Carolyn Sprayberry, Appellees.
    No. AS-63.
    District Court of Appeal of Florida, First District.
    March 22, 1984.

      Thomas A. Moore of Pitts, Eubanks & Ross, Orlando, for appellant.
    George J. Adler, Orlando, for appellee Carolyn Sprayberry.
    John A. Baldwin of Baldwin & Dikeou, Fern Park, for appellee Sunrise Catering.
   JOANOS, Judge.

Insurance Company of North America (INA) contends it effectively cancelled Sunrise Catering’s (Sunrise) workers’ compensation insurance policy with proper notice in compliance with Florida Statutes 440.-42(2) and 440.185(7). We agree and reverse the deputy commissioner’s finding that the insurance policy was in full force.

Sunrise applied for a workers’ compensation insurance policy issued by INA through a local insurance agent, Mr. Coughlin, on October 9, 1979. The application reflected Sunrise’s address as “6501 Hilltop Dr.,” while Sunrise was located at 6501 Hilltop Road, there being no such address as 6501 Hilltop Drive, or a Hilltop Drive in the area. A policy was issued by INA with coverage from October 12, 1979 to October 12, 1980. Sunrise obtained two additional policies through INA for vehicle liability and property. All three policies were financed through INAC Corporation, a subsidiary of INA, with Sunrise making monthly premium payments. INA filed a certificate of insurance with the Bureau of Workmen’s Compensation reflecting that Sunrise’s federal employer identification number had been requested.

On August 14,1980, Carolyn Sprayberry, Sunrise employee, was injured in the course and scope of her employment, but Bureau of Compliance records showed that coverage of the worker’s compensation policy issued by INA had been terminated on March 10, 1980. INA produced competent evidence that it had mailed notification to Sunrise and the Bureau of Workmen’s Compensation on February 7, 1980 that the workers’ compensation policy would be can-celled effective March 10, 1980 due to Sunrise’s failure to supply its federal employer identification number as previously requested on October 20, 1979. Sunrise contended it never received the notification. The cancellation notice was addressed to 6501 Hilltop Drive. Sunrise stated that it had provided the number to Coughlin, and the number was written on the outside of Coughlin’s office file on Sunrise. The deputy commissioner accepted Sunrise’s testimony, as supported by the handwritten entry on the file jacket and his finding that no other letters were directed to Sunrise after January 12,1980. The evidence, however, is undisputed that Coughlin wrote a letter on March 3, 1980, warning Sunrise of the impending March 10, 1980, cancellation. A copy is in the record.

INA’s proof that it mailed notice of cancellation to Sunrise at the address stated in the policy, 6501 Hilltop Drive, and to the Division of Workers’ Compensation would be sufficient compliance with the policy provision requiring notice to the insured and Florida Statutes 440.185(7) and 440.42(2), even assuming the correctness of Sunrise’s allegation that it never received the notice. Where an insurer established by competent evidence that a notice of cancellation was mailed pursuant to a statute, actual receipt or non-receipt is irrelevant. Service Fire Insurance Co. of New York v. Markey, 83 So.2d 855 (Fla.1955); Woodcock v. Motors Insurance Corporation, 422 So.2d 959 (Fla. 3d DCA 1982).

Sunrise argues that INA should be estopped from denying coverage, since the cancellation was based upon the failure to supply the federal employer identification number and Sunrise supplied the number to Coughlin as found by the deputy commissioner. Florida Statutes 440.42(2) provides for policy cancellation with notice sent to the division and the employer in compliance with section 440.185(7), Florida Statutes. Section 440.185(7) provides that “[n]otice of cancellation or expiration of a policy as set out in section 440.42(2) shall be mailed to the division in accordance with rules promulgated by the division under Chapter 120.” Florida Administrative Code Rule 803.19(1) [now under Rule 38F-6.19], applicable at the time of the events leading to the proceedings, allows cancellation “flat” by filing the proper notice with the Bureau of Workmen’s Compensation and “serving a copy thereof upon the employer in person or by mail, stating therein the reason for such termination.” Florida Statutes 440.185, the enabling statute for Rule 803.19, provides for the mailing of notices to the division. There are no statutory provisions requiring certain elements, such as the basis for cancellation, be included in the notice of cancellation.

Accordingly, the deputy commissioner’s order in which he found that workers’ compensation insurance was in effect on August 14, 1980, the date of Carolyn Spray-berry’s accident, is REVERSED.

SHIVERS and THOMPSON, JJ., concur.


author: WIGGINTON, Judge. NIMMONS, Judge,

text:
    STATE of Florida, Appellant, v. Bruce Anthony SLIFER, Appellee.
    No. AT-338.
    District Court of Appeal of Florida, First District.
    March 22, 1984.

      Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for appellant.
    Larry G. Turner and Robert S. Griscti, Gainesville, for appellee.
   WIGGINTON, Judge.

The State appeals the trial court’s orders granting appellee’s motions to suppress certain statements and to dismiss the charge against appellee of trafficking in cannabis in excess of 100 pounds but less than 2,000 pounds, in violation of section 893.135(l)(a)l, Florida Statutes. We affirm.

On August 6, 1980, Florida Department of Corrections guards, assisted by Columbia County Sheriff’s deputies, tracked an escaped prisoner to an area of the Santa Fe River and Interstate 75. Upon hearing gunshots, the officers crossed the river, climbed a fence and confronted appellee, who was in possession of a shotgun and accompanied by several dogs. Appellee ordered the officers off his property. However, when they informed him that they were searching for a dangerous escapee, he finally cooperated with them by proceeding toward the interstate, as they requested, to be escorted home by other officers who were to be contacted by radio. The search party pursued the trail along the river bank through a heavily wooded area for one-fourth to one-half mile and came upon a mobile home. Near the trailer, the officers discovered a growing marijuana field. The evidence showed that dense foliage covered the land around the mobile home; paths led from the mobile home to two or three wooden structures located behind the trailer, which were visible from the trailer and which contained implements used in the growing and cultivation of marijuana; trail's led from the structures into the marijuana field, which was not visible from the trailer. The officers who discovered the marijuana field radioed the officers waiting at the interstate, told them about the field and advised that they should detain appel-lee. When appellee met the officers at the interstate, they took him into custody, gave him his Miranda warnings, handcuffed him and put him in the caged back seat of a sheriff’s car. After receiving his warnings, appellee remained silent during his detention until he was transferred to the car of Lt. Nobles to be driven to the mobile home.

According to Nobles’ testimony at the motion hearing, he released appellee from the handcuffs and invited him to sit in the front seat of his car. Nobles said that he did not advise appellee of his Miranda rights, but he thought he asked appellee if he previously had been advised of his rights, to which appellee replied in the affirmative. During the drive to the mobile home, Nobles told appellee that marijuana had been spotted “somewhere possibly on your property or probably on your property and that’s not my concern right now.” He went on to explain to appellee that a prisoner possibly was hiding in the mobile home and he expressed concern for the safety of anyone who might be in or around the mobile home. He asked appellee if he would cooperate with the officers at the mobile home in their effort to determine the location of the escapee. At that point, for the first time since receiving his Miranda warnings, appellee began to talk. He told Lt. Nobles that he had a roommate named Frank who might be at the mobile home. In response to other questions by Nobles, he stated that he and Frank lived in the mobile home, which they rented along with the surrounding 100 acres. Those statements are the subject of the motion to suppress.

Soon after appellee and Lt. Nobles reached the mobile home, the officers determined that the escapee was not there. They then arrested appellee for possession of marijuana and appellee made no further statements.

In granting appellee’s motion to suppress his statements, the trial judge agreed with appellee’s argument that under the peculiar circumstances of this case, the statements were not made subject to a knowing and voluntary waiver on the part of appel-lee of his right to remain silent.

We agree with the trial judge that under the particular facts of this case, ap-pellee’s right to remain silent was not knowingly and voluntarily waived and therefore his statements were properly suppressed. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the court stated:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. (Emphasis supplied).

In Foreman v. State, 400 So.2d 1047 (Fla. 1st DCA 1981), the court, in considering the voluntariness of a confession, declared:

The confession must be excluded if “the attending circumstances, or the declarations of those present at the making of the confession, are calculated to delude the prisoner as to his true position, or to exert improper or undue influence over his mind.” Frazier v. State, 107 So.2d 16 (Fla.1958).

In Lornitis v. State, 394 So.2d 455 (Fla. 1st DCA 1981), the Lornitis brothers were arrested for possession of marijuana and advised of their Miranda rights. The brothers were asked to sign the “acknowledgment and waiver of rights” form, which they refused to do. A deputy then instructed each of them to identify any personal belongings in the cargo area of the truck which they were driving at the time of their arrest and in which the marijuana was located. According to the testimony, the deputy told the men that any belongings not claimed would be “disposed of.” In order to avoid having their bags thrown away, the men identified their luggage in the midst of the marijuana bales located in the cargo area of the truck. That identification was the subject of the suppression. In affirming the suppression, this Court found that under the facts of that case, the defendants’ refusal to sign the waiver form did indicate “in any manner” to the deputy that they desired to remain silent and thus interrogation should have ceased. The court rejected the State’s argument that by freely and voluntarily complying with the deputies’ instruction to identify their belongings, the defendants thereby waived their right of interrogation free silence, on the basis that such a view

exploits the suspects’ failure to recognize, for what it was, the subtle form of interrogation to which they were subjected. The suspects conceived, as reasonably they might considering that Deputy Jones apparently acquiesced in their refusal to be questioned, either that complying with his instructions had no evi-dentiary significance or that complying, being administratively necessary (in the opinion of an officer who evidently respected their election not to talk), was for that reason privileged against use as evidence.

At 459.

The court thereupon concluded that the defendants' response to Deputy Jones’ instruction could not have constituted a knowing and intelligent waiver of their right, reserved moments before, not to be interrogated.

Although the question of whether Lt. Nobles knew and intended that his discussion with appellee would operate as an “interrogation” designed to elicit incriminating responses from appellee is open to fair debate, Lt.-Nobles, under the circumstances, must be charged with the responsibility of having known that his questioning would produce an incriminating response from this defendant who had theretofore remained silent, but who, it may be reasoned, was cooperating in a humanitarian manner to save his friend in this emergency situation. Lt. Nobles’ discussion with appellee amounted to an “interrogation” under Miranda and it probably deluded appellee as to his true position. Compare Foreman, Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) and Lornitis. For the reasons discussed in Lornitis, that interrogation was not done pursuant to a knowing and voluntary waiver by appellant of his right to remain silent. Thus, we hold that the trial judge’s suppression of appellee’s statement was correct.

The State’s second point concerns the question of whether the trial court was correct in granting appellee’s motion to dismiss, which was filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The rule 3.190(c)(4) motion is appropriate only in the unique situation in which no material disputed facts exist. The facts alleged in appellee’s motion and the State’s traverse thereto allege the facts to be basically as set forth above. Appellee stipulated to the facts set forth by the State in its traverse. In the absence of the evidence provided by the statements of appellee which were correctly suppressed by the trial judge, the only remaining evidence to support the State’s case is that appellee was seen along the Santa Fe River with a shotgun and dogs one-fourth to one-half mile from the marijuana patch. That evidence standing alone is insufficient, as a matter of law, to survive a 3.190(c)(4) motion to dismiss. Therefore, the trial judge was correct in granting the motion.

AFFIRMED.

SMITH, J., concurs.

NIMMONS, J., concurs in part and dissents in part, with written opinion.

NIMMONS, Judge,

concurring in part and dissenting in part.

I agree with the majority that the trial court’s order suppressing the statements should be affirmed, but I disagree with the majority’s affirmance of the (c)(4) dismissal order.

THE (C)(4) MOTION

I do not agree with the majority that the defendant was entitled to a dismissal under Fla.R.Cr.P. 3.190(c)(4). Essentially, our af-firmance of the dismissal order in this case encourages (c)(4) “mini-trials” in cases which involve disputes over the inferences which may be drawn from the purported “undisputed” facts. Adequacy of the proof of a defendant’s constructive possession of contraband can, in the totality of all the circumstances, easily turn upon seemingly insignificant factual nuances. For example, in this case, the defendant’s peculiar conduct when he encountered the officers in the woods on his property is not, in my view, insignificant. Here, we have law enforcement officers who were diligently in hot pursuit of a dangerous escapee and who, nevertheless, were told by the defendant: “I want you off my property now.” The officers eventually talked the defendant into cooperating although he attempted to head back in the direction the officers were proceeding (towards the defendant’s mobile home). There was also a “dim road” from that point back through the woods approximately 600 yards to the area where the mobile home was situated. One could certainly infer that the defendant had something on his property which he did not want the officers to see. That inference, along with the other facts set forth in the majority’s opinion, particularly footnote 2 thereof, are such that the trial court should not have granted the motion to dismiss.

I am concerned that Rule 3.190(c)(4) is increasingly being used to short-circuit trials in situations in which it was never intended to be used. And I share the Fifth District’s view:

So long as the state barely shows a case against the accused it should be allowed to proceed with its case. Then if the accused is entitled to a directed verdict at trial or on acquittal, each party has been given its due. It is only when the state cannot establish even the barest bit of a prima facie case that it should be prevented from prosecuting.

State v. Pentecost, 397 So.2d 711, 712 (Fla. 5th DCA 1981). See also State v. Hunwick, 446 So.2d 214 (Fla. 4th DCA 1984).

ADMISSIBILITY OF STATEMENTS

On this issue, I write only to clarify my views as to the reasons why the trial court’s order granting the defendant’s motion to suppress statements must be affirmed.

The state points to the fact that the defendant, upon being handcuffed and placed in the deputy sheriff’s ear, was properly given the Miranda warnings. There is a dearth of any evidence, however, that the defendant ever waived his constitutional rights including his right to remain silent. The state, of course, has the burden of proving such waiver and, although a finding of waiver is not dependent upon an express formalistic waiver or the utterance by the defendant of a shibboleth such as: “I hereby waive my rights,” or “I, nevertheless, wish to make a statement,” the state must present evidence from which it can be determined that the defendant knowingly and voluntarily waived his rights before being questioned.

The state urges the principle that once a defendant has been informed of his rights and indicates that he understands those rights, his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and voluntarily chooses not to exercise them, citing United States v. Hayes, 385 F.2d 375 (4th Cir.1967), cert. denied 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968), and People v. Johnson, 70 Cal.2d 541, 75 Cal.Rptr. 401, 450 P.2d 865 (1969). I do not disagree with that principle and believe that waiver can be found under those circumstances. However, in the instant case, there is no evidence that the defendant understood his rights. In fact, no evidence was presented that he was ever even asked if he understood his rights.

In Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980), the Supreme Court stated:

Miranda v. Arizona clearly stated the principles that govern once the required warnings have been given.
“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 490, n. 14, [84 S.Ct. 1758, 1764, 12 L.Ed.2d 977, 4 Ohio Misc. 197, 32 Ohio Ops.2d 31]. This Court has always set high standards of proof for the waiver of constitutional rights. Johnson v. Zerbst, 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357] (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.” 384 U.S. [436] at 475, [86 S.Ct. 1602 at 1628], 16 L.Ed.2d 694, 10 Ohio Misc. 9, 36 Ohio Ops.2d 237, 10 A.L. R.3d 974.
Just last Term, in holding that a waiver of Miranda rights need not be explicit but may be inferred from the actions and words of a person interrogated, we firmly reiterated that
“[t]he courts must presume that a defendant did not waive his rights; the prosecution’s burden is great....” North Carolina v. Butler, 441 U.S. 369, 373 [99 S.Ct. 1755, 1757], 60 L.Ed.2d 286 (1979).
In this case no evidence at all was introduced to prove that petitioner knowingly and intelligently waived his rights before making the inculpatory statement. The statement was therefore inadmissible.

444 U.S. at 470, 471, 100 S.Ct. at 652, 653. The Court’s opinion in Miranda also said:

“[A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was eventually obtained.”

384 U.S. at 475, 86 S.Ct. at 1628. See also North Carolina v. Butler, supra.

Finally, I wish to address that portion of our opinion which appears to emphasize the fact that, after being given his warnings, the defendant “remained silent during his detention until he was transferred to the car of Lt. Nobles.” I do not construe that language of our opinion to suggest that the defendant was exhibiting an intention to exercise his Fifth Amendment privilege in the sense contemplated in the following portion of the Court’s opinion in Miranda:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

384 U.S. at 473, 86 S.Ct. at 1627. In other words, the fact that the defendant said nothing for a period of time after being advised of his rights — and, of course, nothing was then being said to him at that time either — would not have precluded the officers from proceeding to subsequently interview him if, prior thereto, the defendant had indicated an intention to waive his right to remain silent. Stated another way, the defendant’s motion to suppress under the circumstances of this case is not dependent upon a showing that the defendant’s silence during the above interval was the kind of affirmative exercise of the defendant’s constitutional rights as described in the above-quoted portion of Miranda. Rather, the defense was entitled to prevail on its motion simply because the state failed to carry its burden of proving the threshold element of waiver. Certainly, Lt. Noble’s subsequent encounter with the defendant and the latter’s response to his questions, as described in the court’s opinion, did not establish waiver, there being no evidence from which it could be found that the defendant understood his rights.

The question of the admissibility of a statement or confession is for the court to decide, based on all the surrounding circumstances, DeConingh v. State, 433 So.2d 501 (Fla.1983); Palmes v. State, 397 So.2d 648 (Fla.1981), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981), and a trial court’s ruling thereon comes to a reviewing court with the same presumption of correctness that attaches to jury verdicts and final judgments. DeConingh v. State, supra; Gaspard v. State, 387 So.2d 1016 (Fla. 1st DCA 1980). The reviewing court should defer to the factfinding authority of the trial court and should not substitute its judgment for that of the trial court. DeConingh v. State, supra; State v. Melendez, 392 So.2d 587 (Fla. 4th DCA 1981). Measured by these standards, the state has failed to demonstrate that the trial court erred in its determination that, prior to the incriminating statements, the defendant did not freely and voluntarily waive his rights to remain silent and to counsel.

I would, therefore, affirm the order granting the motion to suppress but reverse the order granting the (c)(4) motion to dismiss.

      . This Court has previously reversed an order of Judge Chance, which suppressed the same statements made by appellee that are involved in this appeal on the basis that appellee’s detention was not justified by probable cause. This Court held that appellee’s detention was lawful. State v. Slifer, 413 So.2d 59 (Fla. 1st DCA 1982).

      .In its traverse, the State asserted only the following additional facts:
      1. Structures were located behind the mobile home in which the Defendant admitted residing.
      2. A well traveled path ran from the mobile home to the structure described in Paragraph 1 above.
      3. The structures could be seen from the mobile home.
      4. The cannabis seized in this case was located behind the structures and could be seen from the area of the structures. Paths lead from the structures into the cannabis.
      5. The structures contained cultivation implements, drying racks, fertilizer, and a plant shredder.
      6. No other residences were in the immediate area of the mobile home, structures, or the seized cannabis.
      The State asserted that these facts plus those asserted in appellee's motion were sufficient as a matter of law to constitute a prima facie case against appellee.

      . On the (c)(4) issue, the state’s arguments are predicated upon the assumption that the defendant's inculpatory statements will be admissible. The state has made no effort to present an argument which assumes the inadmissibility of such statements. Accordingly, the state’s briefing on this issue has been of limited assistance to the court.


author:
PER CURIAM.
      MILLS, Judge,

text:
    GENERAL DEVELOPMENT CORPORATION and Home Insurance Company, Appellants, v. Wayne R. MARTENS, Appellee.
    No. AU-83.
    District Court of Appeal of Florida, First District.
    March 22, 1984.
    Peter C. Burkert, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
    Alex Lancaster, Sarasota, for appellee.
   PER CURIAM.

We find competent substantial evidence to support the deputy commissioner’s order with one minor exception. The deputy awarded compensation for nursing services to claimant’s wife for periods extending to September 29, 1982, when “claimant reached substantial recovery”. Claimant reached maximum medical improvement on September 22, 1982, therefore the award is modified to terminate such benefits on September 22, 1982, but in all other respects it is affirmed.

WENTWORTH, J., and GUYTE P. McCORD, Jr., (Retired), Associate Judge, concur.

MILLS, J., concurs in part and dissents in part, with written opinion.

MILLS, Judge,

concurring in part and dissenting in part:

I concur in part and dissent in part with the majority opinion.

In this worker’s compensation appeal, the employer/carrier (E/C) appeal an award of compensation to claimant’s wife for nursing services furnished by her to the claimant. The deputy awarded a sum equal to $3.91 per hour, for 10 hours per day from 11 March 1981 to 3 December 1981 (excluding brief periods of hospitalization), and the same hourly wage for 30 hours per week from 3 December 1981 to 29 September 1982 or MMI. The E/C does not contend that the services performed by claimant’s wife were not compensable nursing services. Rather, the E/C argue that there is no competent substantial evidence in the record to support an award for more than 8 hours per day for the former time period or to support any award for the latter period. I would affirm in part and reverse in part.

I find no error in the award to claimant’s wife covering the period from 11 March 1981 to 3 December 1981. Claimant's wife had to quit her job in order to care for her husband and the services she rendered thereafter, including bed bathing, wound and dressing care, physical therapy and round-the-clock assistance with toilet functions, went far beyond those normally provided on a gratuitous basis by family members. See Silver Springs Sportswear v. Marlin, 389 So.2d 702 (Fla. 1st DCA 1980).

With regard to the award covering the period from 3 December 1981 to 29 September 1982 however, I find error and would reverse the award insofar as it compensated claimant’s wife for services rendered after 30 June 1982 through MMI (which the record indicates occurred 22 September 1982, not 29 September 1982, as stated in the deputy’s order). There is no competent substantial evidence to support the deputy’s finding that claimant’s wife provided compensable nursing services to claimant after that date on which the record reflects claimant was released by his physical therapist.

The record shows that the services performed by claimant’s wife after his casts were removed on 3 December 1981 consisted of encouragement of claimant to perform his physical therapy exercises at home (the wife testified that she was not actually administering the therapy at this point); transporting claimant to his formal physical therapy sessions, located in the town of their residence, which decreased in number from a high of 12 sessions in January 1982 to five sessions during the final month of therapy, June 1982; and assisting claimant to sit and stand, although, once standing, claimant could walk without assistance. Claimant was able to bathe himself, and the wife herself testified that, after the casts were removed, it was no longer necessary to provide assistance for claimant in getting to the bathroom. Therefore, after the claimant’s physical therapy ended on 30 June 1982, the wife’s services were reduced to assisting claimant to sit and stand. This service does not go beyond that normally provided gratuitously by family members. Silver Springs, supra. I would find, therefore, that it was error to award compensation to claimant’s wife for nursing, services after claimant’s physical therapy ended on 30 June 1982. As this court pointed out in Sanlando Utility Corporation v. Morris, 418 So.2d 389 (Fla. 1st DCA 1982):

In the face of competent substantial evidence, we recognize that factual determinations by a deputy commissioner are normally not to be reweighed by an appellate tribunal even though substantive evidence may be marshaled to counter the deputy’s determination. However, this rule evaporates when, as here, there is no competent evidence to support a deputy’s conclusions.

I would affirm the award of compensation to claimant’s wife from 11 March 1981 to 3 December 1981. I would reverse the award of compensation from 3 December 1981 to 29 September 1982 in part with directions to the deputy to enter an amended order which limits the recovery for nursing services rendered after 3 December 1981 to 30 hours per week from that date to 30 June 1982.


author: BARFIELD, Judge.

text:
    Ernest K. and Linda C. BROWN, Appellants, v. STATE of Florida, Appellee.
    No. AW-232.
    District Court of Appeal of Florida, First District.
    March 22, 1984.
    Ernest K. Brown and Linda C. Brown, pro se.
    Jim Smith, Atty: Gen., Tallahassee, for appellee.
   BARFIELD, Judge.

Ernest K. and Linda C. Brown appeal the summary denial of their motion for post-conviction relief. The trial judge properly denied the motion on all grounds, with one possible exception. We are unable to determine from the record before us if the trial judge properly denied relief on the grounds of ineffective assistance of counsel for failure to raise the issue of speedy trial as it relates to the RICO prosecution.

The Browns argue that the speedy trial time on the RICO charge commenced to run upon their arrest for the earliest of the predicate acts upon which the RICO charge was based. They allege that the State had the information upon which the RICO charges were based at the time of their arrest, but deliberately delayed the RICO information until after they had been tried on the forgery charges; that by the time they were brought to trial on the RICO charges, speedy trial time had run; that trial counsel failed to adequately investigate facts and omitted evidence that would have proven their allegations; and that appellate counsel failed to raise the speedy trial issue on appeal. The affidavits of the Browns’ attorneys attached to the trial court’s order denying the motion do not conclusively show that the Browns are entitled to no relief.

Therefore, this case is REMANDED to the trial court for an evidentiary hearing on the Browns’ allegations of ineffective assistance of counsel with regard to the speedy trial issue, or in the alternative, for attachment of those portions of the record which conclusively show that the Browns are entitled to no relief.

MILLS and WENTWORTH, JJ., concur.


author: COBB, Judge.

text:
    Floyd G. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1416.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.
    Susan Cary of Florida Institutional Legal Services, Inc., Gainesville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ON MOTION FOR REHEARING

COBB, Judge.

The appellant filed a 3.850 motion to vacate in the trial court, claiming ineffective assistance of counsel based on various grounds. On appeal, we initially reversed the trial court’s denial of an evidentiary hearing in regard to trial counsel’s failure to challenge the admission of evidence which may have contravened the “Williams Rule;” but we affirmed in regard to the other grounds set out in the motion.

The appellant has moved for rehearing, which we grant. Our initial opinion was predicated upon this court’s prior holding in Ferby v. State, 404 So.2d 407 (Fla. 5th DCA 1981). To the extent that Ferby appeared to hold, as a matter of law, that failure to conduct pretrial investigation is permissible trial strategy, it has been superseded by subsequent opinions of the Florida Supreme Court and of this court. See Vaught v. State, 442 So.2d 217 (Fla.1983); McMillian v. State, 411 So.2d 1372 (Fla. 5th DCA 1982). Indeed, even when it first appeared, Ferby was in conflict with prior opinions from this court and from the Florida Supreme Court.

The recent Vaught opinion concerned a 3.850 allegation of incompetent counsel supported, inter alia, by a specific allegation of prejudice resulting, from a failure to conduct pretrial preparation. The trial judge incorporated by reference the entire trial transcript in his order denying relief without a hearing. There is no error in this procedure. Vaught at 219. See also Raulerson v. State, 420 So.2d 567 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 3572, 77 L.Ed.2d 1412 (1983). In the instant case, there was no attachment of any portion of the files or record nor incorporation by reference. In Vaught, the court reversed the order and remanded for an evidentiary hearing, noting that the trial transcript did not negate the allegation pertaining to the omission in regard to trial preparation.

In Meeks v. State, 382 So.2d 673 (Fla.1980), the appellant filed a 3.850 motion seeking relief on the basis, inter alia, that his court-appointed counsel did not render effective assistance of counsel at trial, at the sentence hearing, or on appeal. In support of this claim, the appellant alleged “a number of specific instances of his trial counsel’s failure to act....” The Florida Supreme Court noted that the burden is on the person seeking collateral relief to specifically allege the grounds for relief — i.e., grounds showing that the appellant was deprived of reasonably effective counsel based on the totality of the circumstances. The Meeks opinion then states:

Pursuant to a rule 3.850 motion, a prisoner is entitled to an evidentiary hearing unless the motion and the files and records in the case conclusively show that he is entitled to no relief. If the prisoner raises a matter that may properly be considered in a rule 3.850 motion, the trial judge reviewing the motion must either attach that portion of the case file or record which conclusively shows that the prisoner is entitled to no relief or grant an evidentiary hearing. (Citations omitted.)

Id. at 676.

In the instant case, the motion was denied without hearing and without attachment of any portion of the case file or record, despite recitation by the trial judge that he had reviewed the entire record as a basis for summarily denying the motion. Despite an inconsistency in the motion itself in regard to whether there was no pretrial investigation or insufficient investigation, there were specific allegations, as required by Meeks, indicating that facts could (and should) have been discovered via pretrial preparation in regard to impeachment of the two “victims,” their reputation for violence, and a witness who saw both victims with the defendant on the night in question at a time when the state contended he was alone with only one of them. These omissions, if true, could be found to be substantial and prejudicial since the crux of the trial was the credibility clash between the defendant’s version of the facts and that of the two victims.

Accordingly, we grant rehearing, vacate our original opinion, and remand for the trial court to either attach appropriate portions of the record as required by the rule, or to conduct an evidentiary hearing based on the “Williams Rule” problem and the question of the pretrial preparation in determining whether or not there was ineffective assistance of counsel based on the criteria set out in Knight v. State, 394 So.2d 997 (Fla.1981).

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

      . E.g., Young v. State, 397 So.2d 1159 (Fla. 5th DCA 1981); Battle v. State, 388 So.2d 1323 (Fla. 5th DCA 1980); Gunn v. State, 378 So.2d 105 (Fla. 5th DCA 1980).

        .E.g., Knight v. State, 394 So.2d 997 (Fla.1981); Meeks v. State, 382 So.2d 673 (Fla.1980).

      .Evidence as to a second "victim” was permitted under the “Williams Rule." The defendant asserts the two victims were cohorts who attacked and robbed him, then fabricated the kidnap and rape accusations as a coverup.

      . Marcum v. State, 341 So.2d 815 (Fla. 2d DCA 1977).

      . Knight v. State, 394 So.2d 997 (Fla.1981).


author: PER CURIAM.

text:
    Perry McSHAY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1926.
    District Court of Appeal of Florida, Second District.
    March 23, 1984.
    Douglas P. Chanco, Office of Patient Legal Services, Chattahoochee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s denial of his motion for a hearing regarding his involuntary placement and the denial of his motion for a public defender.

In 1978, appellant was acquitted of aggravated battery by reason of insanity and, as a result, was involuntarily hospitalized in 1979.

On April 25, 1983, a report by the administrator of'the mental facility wherein appellant was confined was filed with the court indicating that appellant continued to meet the criteria for continued confinement. On August 8, 1983, appellant filed a motion requesting a hearing under rule 3.218, Florida Rules of Criminal Procedure, and the appointment of a public defender. On August 17, 1983, the trial court denied appellant’s motion for a hearing and a public defender.

On appeal, appellant claims that he was entitled to an attorney and a hearing after the report on his mental status was filed with the court, pursuant to rule 3.218, Florida Rules of Criminal Procedure. We agree.

Florida Rule of Criminal Procedure 3.218 provides that administrators of mental facilities shall provide the court with a report addressing the issues of involuntary hospitalization of defendants on a regular basis. The rule states that “the court shall hold a hearing within thirty days of the receipt of any such report from the administrator of the facility on the issues raised thereby....” Based on the language in this section, we find that appellant was entitled to a hearing after the court received the report from the administrator of the mental health facility where he was placed. We also agree with appellant that he was entitled to be represented by counsel. Chapter 916, Florida Statutes (1981), provides that defendants have a right to the type of hearing described in rule 3.218, and that “[i]n the event the defendant cannot afford counsel, the court shall appoint a public defender to represent him.”

For the reasons stated above, we find that appellant was deprived of his rights as provided in Florida Rule of Criminal Procedure 3.218 and section 916.15, Florida Statutes (1981). Therefore, we reverse the de-cisión of the trial court and remand for a hearing and appointment of a public defender.

HOBSON, A.C.J., and GRIMES and CAMPBELL, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    P.P.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 83-2027.
    District Court of Appeal of Florida, Second District.
    March 23, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

P.P.M., a juvenile, appeals an order of the lower court adjudicating him delinquent. We reverse and remand.

Appellant was charged by petition with first degree arson pursuant to section 806.-01(l)(a), Florida Statutes (1981). At trial, testimony revealed that on March 23, 1983, a fire broke out at 1423 Lakeside Drive, a home owned by Mr. and Mrs. Albert Li-gertwood. Mrs. Ligertwood testified that the home had been struck by lightning more than four years before, and, although the kitchen had been badly burned by the lightning, the rest of the house remained intact. Since that time, the house had been boarded up. Mrs. Ligertwood’s husband and son visited the house quite often and she, herself, visited the house during the previous year to repair a wire fence which enclosed the property. The fence had a gate which was chained and locked. Items of personal property belonging to the Li-gertwoods were stored in the house, but the house was uninsured. There was no testimony by Mrs. Ligertwood indicating whether she or her family intended to return and occupy the house.

Mrs. Ligertwood testified that one day while she was repairing the fence a group of children told her that they had been in the house playing. At that time she spoke with appellant, who told her his name was “Bobby.” He told her that he was there when the house burned, that he had not done it, and that there was not enough evidence to convict him.

William Martinez, a fire and arson investigator with the State Fire Marshal’s Office, testified that after investigating the March 23 fire he concluded that the fire which destroyed the home was not caused by an accident, but by the ignition of a flammable liquid that was poured throughout the house.

Charles Roberts of the Sheriff’s Office arrived at the home after the fire was extinguished and talked to two juveniles, R.A. and P.P.M. He talked to them in the presence of P.P.M.’s father, but made no arrest at that time. Deputy Sheriff Bill Myers investigated the March 23 fire and his findings and conclusions corroborated those of Mr. Martinez. Myers interviewed R.A. who told him that he and P.P.M. were alone in the house on the day of the fire and that he did not observe any smoke or flammable liquids. R.A. told Myers that while he and P.P.M. were in the house the fire suddenly started. P.P.M. related basically the same story.

Bert Fox, a retired Fire Marshal living close by, testified that he knew P.P.M. but not R.A., although he had seen them both before. On March 23, R.A. and P.P.M. came to Fox’s house to tell him about the fire. Fox reported the fire by phone and told the boys to go back to the house and wait for the deputy sheriff. P.P.M. told Mr. Fox that when one of them stepped on something, twisting his foot, there was a flash and the fire started.

R.A. testified that he and P.P.M. were in the house reading old comic books when the fire broke out, and that he did not know how the fire started. When he looked down at his feet, he saw the fire and jumped. P.P.M. testified that when the fire started both boys were in the house looking through comic books and that he did not smell smoke before R.A. yelled and ran out of the window. P.P.M. testified that he did not have any matches or flammable substances with him.

A nonjury trial resulted in appellant’s adjudication of delinquency and he was placed on a program of community control with a suspended commitment. Thereafter, defense counsel filed an amended motion for rehearing alleging that the state failed to establish a prima facie case of first degree arson. The defense, in arguing the motion, stated that the state failed to prove the structure destroyed could rise to the level of a dwelling. In response, the court stated that the character of the Li-gertwoods’ former home did not change from a dwelling because they chose not to live in it after the first fire. On this basis, the motion was denied.

On appeal, appellant raises two points, only one of which merits discussion. Appellant argues that the state failed to establish a prima facie case of first degree arson because the burned structure was not a dwelling within the meaning of section 806.01(l)(a), Florida Statutes. We agree.

Florida case law has not directly defined the term “dwelling” within the meaning of the arson statute. However, in an early position on the sufficiency of an information charging the defendant with burning of a dwelling house under section 5106, Revised General Statutes (1920), the supreme court in Sawyer v. State, 100 Fla. 1603, 132 So. 188, 193 (1931), stated:

[Wjhile it is generally held that a dwelling house loses its character as a habitation when it ceases to be dwelt in, or is abandoned as a dwelling and closed up, or is converted into a place for other purposes than human occupancy; ... the temporary absence of its tenants will not take away from a house its character as a habitation or dwelling house, provided the absence is not unreasonably prolonged and there is an intention to return.

Similar types of analyses have been applied by the courts of other jurisdictions in determining whether evidence is sufficient to establish that a burned building is a “dwelling.” For example, in People v. Foster, 103 Mich.App. 311, 302 N.W.2d 862 (1981), it was held that the lower court committed reversible error by charging the jury on arson because there was insufficient evidence presented to establish that the burned building was a dwelling house inside the meaning of the arson statute. The Michigan Court of Appeal considered the owner’s intent to occupy the house as to whether the structure was a dwelling for purposes of the arson statute. The court concluded that, where the house was abandoned prior to the burning and was unfit for habitation when the fire occurred, it was found not to be a dwelling within the meaning of the statute.

In People v. Reed, 13 Mich.App. 75, 163 N.W.2d 704 (1968), the court, in reversing the defendant’s arson conviction, held that the building which was unoccupied for several months, in a dilapidated condition, not habitable without renovation, boarded up to prevent ingress and egress, and was not capable of being lived in at the time of the fire was not a dwelling house within the meaning of the statute.

Similarly, in Fillman v. State, 251 A.2d 557 (Del.1969), the defendant’s arson conviction was set aside. In so doing, the court held that the dilapidated, abandoned four-room building, in a rural area, which had not been used for habitation for more than five years prior to the fire and which had no furnishings nor any operating utilities and was not fit for habitation at the time of the fire, was not a dwelling house within the meaning of the second degree arson statute.

Additionally, Florida case law, in addressing the definition of a “dwelling” within the context of the burglary statutes, supports our conclusion that the building burned in this case was not a dwelling. These cases basically hold that the occupant’s temporary absence does not take away from a building being characterized as a dwelling, but it must appear that the occupant left the home with an intention to return and reestablish his residence. Henderson v. State, 80 Fla. 491, 86 So. 439 (Fla.1920); Smith v. State, 80 Fla. 315, 85 So. 911 (Fla.1920). In the absence of proof that the occupant intended to return to his home, the evidence must establish that the absence of the occupant is temporary. The evidence in the record from which the court could infer such an intention would include: the length of the absence, furnishings and household effects remaining, frequency of use and condition of the building. See Smith v. State; Johnson v. State, 188 So.2d 61 (Fla. 3d DCA 1966).

Applying these legal principles to the facts of this case, we hold that the trial court erred in concluding that the subject house was a dwelling inside the meaning of section 806.01(l)(a), Florida Statutes (1981). However, because we find that the evidence supports appellant’s delinquency adjudication for second degree arson, a lesser included offense of first degree arson, we reverse and remand with instructions that the trial court enter judgment on the lesser included offense [section 806.01(2), Florida Statutes (1981) ] and to pass sentence accordingly. See Tukes v. State, 346 So.2d 1056 (Fla. 1st DCA 1977); Johnson v. State.

REVERSED and REMANDED.

SCHEB and LEHAN, JJ., concur.

      . Section 806.01(l)(a), Fla.Stat. (1981), provides:
      (1) Any person who willfully and unlawfully, by fire or explosion, damages or causes to be damaged:
      (a) Any dwelling, whether occupied or not, or its contents;
      is guilty of arson in the first degree, which constitutes a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Section 806.01(2), Fla.Stat. (1981), provides:
      (2) Any person who willfully and unlawfully, by fire or explosion, damages or causes to be damaged any structure, whether the property of himself or another, under any circumstances not referred to in subsection (1), is guilty of arson in the second degree, which constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


text:
    In the Interest of R.L.A., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 83-1970.
    District Court of Appeal of Florida, Second District.
    March 23, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Reversed on the basis of P.P.M., a Child, v. State, 447 So.2d 445 (Fla. 2d DCA 1984). We find that the evidence supports appellant’s delinquency adjudication for second degree arson, a lesser included offense of first degree arson. Therefore, we remand with instructions that the trial court enter judgment on the lesser included offense [section 806.01(2), Florida Statutes (1981)] and to pass sentence accordingly. See Tukes v. State, 346 So.2d 1056 (Fla. 1st DCA 1977); Johnson v. State, 188 So.2d 61 (Fla. 3d DCA 1966).

REVERSED and REMANDED.

SCHEB and LEHAN, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    Richard PROCTOR, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1559.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.

      Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

The defendant contends that the trial court erred in admitting over his objection a photograph which was taken at the time of the defendant’s arrest and depicted the defendant as he appeared at the time of the commission of the crime. As the record clearly reflects, the sole probative value of this photograph was to demonstrate to the jury that appearances deceive, that is, that the defendant, who at trial was dressed in a three-piece suit, bespectacled, well-groomed, and scrubbed clean as a choirboy, was not always thus. We agree that the photograph was not admissible either as substantive or impeachment evidence because (a) the identification of defendant was not an issue at trial, and (b) the defendant’s neat courtroom appearance is not a basis for impeaching him by showing that at the time of the offense, or at any time before trial, he appeared otherwise. However, we find that the error of admitting the photograph was harmless in light of (a) the defendant’s previous acquiescence in testimony from the arresting officer about the defendant’s appearance when the photograph was taken, (b) the non-inflammatory nature of the photograph, and (c) other decisive evidence of the defendant’s guilt.

Affirmed.

      . Merely by appearing in appropriate courtroom attire at trial, an accused cannot be said to have offered evidence of any trait of his character pertinent to the issues in the case so as to become subject to having that evidence rebutted by the State. See § 90.404, Fla.Stat. (1981). We do not, however, foreclose the possibility that there may be instances where the accused’s courtroom attire so dramatically symbolizes a pertinent trait of character as to be the functional equivalent of testimony as to that trait so as to invite rebuttal by the State.

      . The robbery occurred on a beach in Key Biscayne. The photograph showed the defendant barechested.


text:
    Lazaro RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1809.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.

      Bennett H. Brummer, Public Defender, and Gelber, Glass, Durant, Canal, Pineiro & Grande, Miami, and Jane H. Grande, Sp. Asst. Public Defender, for appellant.
    Jim Smith, °Atty. Gen. and Lawrence G. Price, Legal Intern, and Michael J. Nei-mand, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See State v. Delgado-Armenta, 429 So.2d 328 (Fla. 3d DCA 1983); State v. Thomas, 405 So.2d 462 (Fla. 3d DCA 1981).


text:
    The STATE of Florida, Appellant, v. Julio Alfredo LEYVA, Appellee.
    No. 83-1034.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Neary v. State, 384 So.2d 881 (Fla.1980); State v. Hughes, 375 So.2d 615 (Fla. 3d DCA 1979); Purcell v. State, 325 So.2d 83 (Fla. 1st DCA 1976).


text:
    Daisy CONCEPCION, Appellant, v. Joseph RUIZ, Appellee.
    No. 83-2041.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.
    Edward C. Vining, Jr., Miami, for appellant.
    Burt E. Redlus, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The summary final judgment in favor of Ruiz is reversed upon a holding that the provision of the note which authorized an extension of time for repayment raises a genuine issue of fact as to when the causes of action for breach of contract, fraud and conversion arose under the applicable statutes of limitations.

Reversed and remanded for further proceedings.


text:
    Ruby SWEZY, Appellant, v. BARBARA ENTERPRISES, INC., Edilberto Enterprises, N.V. and James Ivy and Elizabeth Cutler Ivy, jointly and severally, Appellees.
    No. 83-1339.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.
    Nelson & Nelson and Mark Press, Coral Gables, for appellant.
    Scherman & Zelonker and Regina F. Zel-onker, Miami, Abrams, Anton, Robbins, Resnick, Schneider & Mager and Joseph J. Huss, Hollywood, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Samson v. Dutcher, Higginbotham and Bass, Inc., 401 So.2d 913 (Fla. 4th DCA 1981); Dixson v. Kattel, 311 So.2d 827 (Fla. 3d DCA 1975).


author: GLICKSTEIN, Judge.

text:
    Norris HAYWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 83-977.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Norris Haywood, pro se, appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a conviction of robbery of a convenience store. Appellant raises two questions, one of which warrants discussion; namely, the sufficiency of the proof of appellant’s identity as the robbery by fingerprints isolated on a bottle in the store.

A sensible test for acquittal is recited in Sorey v. State, 419 So.2d 810, 812 (Fla. 3d DCA 1982):

Where the sole evidence linking a defendant to the crime is fingerprints found in a place or on a thing accessible to the general public and there is no other evidence to show that the prints were made at the time of the crime, see, e.g., Williams v. State, 247 So.2d 425 (Fla.1971), courts must conclude that a defendant is entitled to a judgment of acquittal. (Emphasis in original).

The second prong of the foregoing test was not met in this case because there was evidence to show that the prints were made at the time of the crime. The victimized store clerk was so upset at being robbed (for the second time in days) that she got a better look at the gun displayed by the younger robber than at the two criminals. However, she watched the older robber pull out and hold up a quart of Miller from the beer cooler and put it back into the cooler. Later she pointed out to the I.D. technician the Miller bottle that the older robber had handled; and three of appellant’s fingerprints were found on it. We are not blind to the possibility that appellant, who lived in the neighborhood, could have touched the bottle without the clerk’s knowledge while it was stored in a carton stacked either under the cooler or at the end of the middle aisle some theoretical day prior to the robbery. It is not, however, incumbent upon us to overlook the victim’s direct testimony as to what she observed during the crime in favor of a theoretical possibility.

The judgment of conviction is affirmed.

BERANEK and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Barbara RADZIWON, Appellant, v. David J. GUTILLO and Kathleen Gutillo, his wife, Appellees.
    No. 83-1203.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Philip M. Berman, Pompano Beach, for appellant.
    William R. Dickey, Largo, for appellees.
   DOWNEY, Judge.

This is an interlocutory appeal from an order abating this action for improper venue and transferring it from the Seventeenth Judicial Circuit in Broward County to the Sixth Judicial Circuit in Pinellas County, Florida.

The first count of the Second Amended Complaint alleges in paragraph 3 that “This is an action upon a decree of divorce heretofore entered herein between the Plaintiff, Barbara Radziwon, and the Defendant, David J. Gutillo, incorporative (sic) a Property Settlement Agreement....” It is further alleged that in said agreement appellee David Gutillo agreed to pay $35.00 per week for support of appellant and $21.00 per week as child support for the minor child of the parties. It is alleged that he never made any payments and appellant demands judgment for $41,944.00, plus interest.

Appellees sought abatement and transfer of the cause to Pinellas County, the county of their residence.

Appellant contends the proper venue is Broward County, the residence of the payee of the obligation for support. She argues that the cases cited by the trial court do not support a change in venue because this is a common law action for child support rather than one for domestication of a foreign divorce proceeding.

The second amended complaint alleges that the parties were divorced by a judgment entered in Juarez, Mexico, which incorporates a separation agreement of the parties. As heretofore stated, the complaint purports to allege a cause of action based upon the judgment and separation agreement. Regardless of what appellant would like to call her stated cause of action, it appears to us that venue should be laid in Pinellas County. Ruscoe v. Ruscoe, 327 So.2d 93 (Fla. 4th DCA 1976); accord McIntire v. McIntire, 352 So.2d 142 (Fla. 1st DCA 1977).

Accordingly, the order appealed from is affirmed.

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


text:
    EXPEDITIONS UNLIMITED, INC., Appellant, v. ROLLY MARINE SERVICES, INC., etc., et al., Appellees.
    No. 83-1643.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Arthur M. Wolff of Wolff & Gora, P.A., Fort Lauderdale, for appellant.
    Stanley Marcus, U.S. Atty., and Marilynn G. Koonce, Asst. U.S. Atty., Miami, for appellee-U.S. of America.
   DOWNEY, Judge.

Appellant, Expeditions Unlimited, Inc., filed this suit in the circuit court against Roily Marine Services, Inc., and Aetna Insurance Company for negligent maintenance and conversion of a vessel. It seems the vessel had been placed in custodia legis during an admiralty proceeding. When Roily Marine refused to comply with an order of the United States District Court to release the vessel to Expeditions, a writ of restitution was obtained and a United States Marshal effected the release of the vessel.

During the present litigation, Expeditions served subpoenas duces tecum upon two United States Marshals for the taking of their deposition. The United States Attorney filed a motion to quash the subpoenas on the ground that Expeditions had failed to comply with the Code of Federal Regulations, which requires persons seeking to depose Department of Justice employees to submit a statement to the United States Attorney setting forth a summary of the testimony and its relevance to the proceedings. The motion to quash was granted and the trial court awarded attorney’s fees of $250.00 to the United States.

Expeditions contends that the trial court erred in a) awarding attorney’s fees to a non-party and b) in awarding attorney’s fees without adducing expert testimony on the value of the services rendered. We agree and reverse.

There is no authority supporting an award of attorney’s fees in this case. Fees are allowable to parties on the basis of a contract or statute, or for bringing a fund or property into court. Fees may also be awarded to parties in appropriate circumstances as a sanction. However, the United States is not a party to this suit, nor has any of the aforementioned eventualities been shown to exist.

Accordingly, the award of attorney’s fees is reversed.

HURLEY and GLICKSTEIN, JJ., concur.


author: PER CURIAM. •

text:
    CITY OF HALLANDALE, Appellant, v. ACMAR ENGINEERING CORP., etc., et al., Appellees.
    No. 83-1893.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    John G. Fletcher, South Miami, and Steven L. Josias, Fort Lauderdale, for appellant.
    Marion E. Sibley of Sibley, Giblin, Leven-son & Glaser, Miami Beach, and Ira M. Elegant of Buchbinder & Elegant, P.A., Miami, for appellees.
   PER CURIAM. •

Our review of the record satisfies us that the actions of the appellant caused appel-lees to prepare additional sheets and supplements to their plans in an effort to meet appellant’s objections. Such actions amounted to a change in circumstances which necessitated the trial court’s action in entering its interim order which extended the time for compliance with the final judgment granting an injunction. We find that the trial judge acted properly and within his discretion. See, Jackson Grain Co. et al. v. Lee, 150 Fla. 232, 7 So.2d 143 (1942).

Accordingly, we affirm the trial court’s order.

AFFIRMED.

HURLEY, DELL and WALDEN, JJ., concur.


text:
    SELECTED RISKS INSURANCE COMPANY, Petitioner, v. Maurice WHITE and Bella White, his wife, Respondents.
    No. 83-2518.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Jonathan L. Gaines and Scott R. Anselmo of Fleming, O’Bryan & Fleming, Fort Lauderdale, for petitioner.
    Robert Pasin of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for respondents.
   GLICKSTEIN, Judge.

Petitioner, defendant below, objected to the following two parts of interrogatories propounded to its insured:

10. Have you ever made or given any statement, whether oral or in writing, to anyone regarding the happening of the alleged occurrence, and if so, for each such statement please state:
(e) The substance and content, as best as you recall, of each statement.
11. Please state whether or not, to your knowledge or to the knowledge of any agent, employee or attorney of yours, any statement in any form was obtained, secured, or received by any person, regarding in any way the happening of the alleged occurrence, and if so, state:
(g) The substance of the statement.

Petitioner did answer all queries regarding the existence of recorded and written statements, indicating that they were made to a representative of the insurance company and a police officer, respectively. Petitioner refused to disclose the substance of the statements. After hearing petitioner’s objections, which were based upon work product and privilege, the trial court denied the objections. Petitioner seeks review of this order. We grant its petition for certiorari, quash the order of the trial court and remand — as to the recorded statement — for proceedings consistent with the decision of this court in Cotton States Mutual Insurance Co. v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984).

Petitioner correctly cites Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970), for the proposition that a party may not be forced through discovery to set out the contents of statements taken in preparation for trial. Respondents’ suggestion that they sought only “generally the type of information” contained in the statements is belied by the interrogatory asking for the “substance and content” of each statement. The petitioner indicated those persons holding the statements and when they were made, which is all that is required by Surf Drugs, see 236 So.2d at 113.

The key to this petition is whether the statement was taken in preparation for litigation. On this question, we are guided by Cotton States Mutual Insurance Co. v. Turtle Reef Associates, wherein this court held the work product privilege applicable to statements prepared by an investigator or insurer only where legal action is contemplated. In Cotton States, as here, the trial judge’s order did not reveal his reasons for requiring discovery, nor whether he had made a finding as to the purpose of the statements. As in Cotton States, the trial court should make a finding regarding whether the statement was in the ordinary course of business or in preparation for litigation. If it has been made in preparation for trial, the statement’s substance would be protected per Cotton States and cases cited therein.

As for the written statement, those statements made to investigating police officers are privileged by operation of Section 316.066(4), Florida Statutes (1983):

(4) Each accident report made by a person involved in an accident shall be without prejudice to the individual so reporting and shall be for the confidential use of the department or other state agencies having use of the records for accident prevention purposes, except that the department may disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies his presence at such accident, and except that the department shall disclose the final judicial disposition of the case, indicating which, if any, of the parties were found guilty. No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the department shall furnish upon demand of any person who has, or claims to have, made such a report or upon demand of any court a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or a failure to comply with the requirements that such a report be made to the department, [emphasis added.]

Subsection (4) provides, as indicated, that the reports shall be for the confidential use of the department, with certain exceptions not relevant here. If the statements may be disclosed to anyone who requests them during discovery, they can hardly be said to be confidential. The purpose of this privilege is encouraging people to report truthfully to police to aid their investigation without fear of penalty. Permitting discovery of the report would not further this purpose. This conclusion is bolstered by footnote four at 548 in Nationwide Insurance Co. v. Monroe, 276 So.2d 547 (Fla. 2d DCA), cert. denied, 283 So.2d 366 (Fla.1973). Although the footnote is dictum, in it the court said that a statement given in compliance with the statute requiring the report is immune from discovery except as to its existence.

ANSTEAD, C.J., and LETTS, J., concur.


author: SHARP, Judge.

text:
    In re The Marriage of Robert M. MORRIS, Appellant, v. Sonja M. MORRIS, Appellee.
    No. 82-1492.
    District Court of Appeal of Florida, Fifth District.
    March 29, 1984.

      Gordon V. Frederick, Sanford, for appellant.
    Newman D. Brock, Altamonte Springs, for appellee.
   SHARP, Judge.

The former husband appeals from a final judgment in a dissolution case. He argues that the lower court’s award of $100.00 per week for support of the minor child, its award of $800.00 per month permanent alimony to the appellee, its division of marital property by way of equitable distribution, and its award of costs and attorney’s fees to appellee was an abuse of discretion. We affirm.

The parties in this case had been married for twenty years and they had two children. At the time of the dissolution the wife was not employed outside the home; nor had she been since the parties married. This was because she elected to fulfill the traditional role of wife and mother and also because her husband did not want her to work outside the home. She was forty-four at the time of the dissolution. Prior to the marriage she had worked a short time as a bookkeeper, and the trial judge speculated that at best she might be able to earn a maximum of $7,000.00 to $8,000.00 a year. The court divided the marital assets roughly in half, but the assets awarded to appellee were not income-producing.

The amount of the husband’s actual net earnings were in dispute: between $30,-080.00 and $37,000.00 per year. The trial court remarked that the husband’s current income from his recently commenced solo law practice was below his past level of earnings and below his real potential. The court said it intended to award combined child support and alimony of approximately thirty-eight percent (38%) of appellant’s net income — a percentage within currently established guidelines.

The judgment appears to us to fall within the bounds of judicial discretion accorded to trial courts in dissolution cases. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981); McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977). Accordingly, we

AFFIRM.

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

DAUKSCH, J., dissents, without opinion.


text:
    Kenneth BURTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1418.
    District Court of Appeal of Florida, Second District.
    March 30, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Defendant was charged with possession of marijuana, trespass, resisting arrest without violence, battery on a law enforcement officer, possession of drug paraphernalia, and improper exhibition of a dangerous weapon. The state nolle pressed the resisting arrest charge. The jury acquitted the defendant of possession of marijuana and returned guilty verdicts on the remaining charges.

We find defendant’s issues on appeal to be without merit, with one exception. The defendant is correct that one of the written judgments and sentences does not conform to the jury verdict in that it reflects that defendant was convicted and sentenced for possession of marijuana and resisting arrest without violence. See Hicks v. State, 411 So.2d 1025 (Fla. 2d DCA 1982).

Therefore, we affirm the judgments and sentences for trespass, battery on a law enforcement officer, possession of drug paraphernalia, and improper exhibition of a dangerous weapon. We VACATE the judgments and sentences for possession of marijuana and resisting arrest without violence and REMAND to the trial court for correction of judgment and sentence.

AFFIRMED IN PART, REVERSED IN PART.

HOBSON, A.C.J., and SCHEB and LE-HAN, JJ., concur.


author: LEHAN, Judge.

text:
    Terrance M. BRITTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1633.
    District Court of Appeal of Florida, Second District.
    March 30, 1984.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

This is an appeal from the denial of a petition for writ of habeas corpus, which alleged that defective extradition papers were transmitted from the Governor of New York to the Governor of Florida. Petitioner contends that there was inadequate compliance with section 941.03, Florida Statutes (1981), requiring that a demand for extradition be accompanied by certain documentation. We find various of the grounds for petitioner’s contention to be hypertechnical and without merit. See State v. Soto, 423 So.2d 362 (Fla.1982). But we agree with one of those grounds and therefore reverse.

The documents annexed to the demand from New York included an indictment, an arrest warrant for sentencing, and a certificate of conviction. Under Blasi v. State, 192 So.2d 307 (Fla. 4th DCA 1966), the document submitted with the demand must correspond to the stage in the proceedings to which the case against a defendant had progressed.

[I]f the person demanded has been tried, convicted and sentenced, and had broken the terms of his probation, then the demanding state is required to accompany the demand with a copy of the sentence imposed, together with a statement that the person claimed has broken the terms of his probation, and, in such event, it is not necessary that the demand be accompanied by a copy of the indictment or information under which the person was tried and convicted. In other words, the alternative applicable to a particular case must be selected and used.

Id. at 309.

Since the record indicates that the extradition proceedings here occurred after the petitioner had been tried, convicted, and sentenced, an authenticated “copy of a judgment of conviction or of a sentence imposed in execution thereof” must be provided. § 941.03, Fla.Stat. (1981).

In the case at bar, no such copy was provided. Instead, there was a certificate of conviction signed by the clerk of the New York court. However much one may rationalize that the clerk of a court is capable of writing a conclusion of what happened in his court, the fact remains that this certificate is only that — a conclusion. We are not entitled to ignore the statutory requirement in issue by characterizing it as hypertechnical. If the legislature intended that something less than the document representing the official court action of conviction or sentence would be sufficient and that the risk, however small, of a mistake in someone’s conclusion as to the effect of that court action was acceptable, we must presume section 941.03 would have said so. The law commonly requires actual documents, as opposed to conclusory statements concerning those documents, and we see no justification for requiring less in an extradition proceeding involving the deprivation of liberty when the statutory requirement is explicit. Therefore the documents are insufficient to comply with the statute.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

SCHEB, A.C.J., and SCHOONOVER, J„ concur.


author: RYDER, Judge.

text:
    BENEFICIAL STANDARD LIFE INSURANCE COMPANY, Appellant, v. Willa H. FORSYTH, Appellee.
    No. 82-2861.
    District Court of Appeal of Florida, Second District.
    March 30, 1984.

      Charles P. Schropp and Raymond T. Elli-gett, Jr. of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellant.
    Roy B. Dalton, Jr., P.A., Orlando, for appellee.
   RYDER, Judge.

Beneficial Standard Life Insurance Company (Beneficial) appeals from a final judgment awarding $20,000 to Willa H. Forsyth based upon her deceased husband’s insurance policy which provides coverage for death or dismemberment caused by accident or hospital care required because of accident. The issue presented in this appeal is whether the insurance policy provides coverage for the death of the insured which occurred as a result of surgery, where there was no misstep during that surgery. We hold the trial court erred in finding that the insurance policy provides coverage to the deceased, Glenn Forsyth, and therefore reverse the award of damages to Mrs. Forsyth.

Mrs. Forsyth filed suit in November 1981, seeking the recovery of benefits under the accidental death insurance policy issued by Beneficial. Ultimately, the case was presented to the trial court on the basis of certain stipulated facts.

The stipulated facts reveal that Mrs. For-syth is the widow of Glenn Forsyth, who died on August 18, 1980, following an elective jaw-wiring surgical procedure performed on August 14, 1980. Prior to his death, Mr. Forsyth had applied to Beneficial for a policy of insurance providing coverage for accidental death benefits. The policy was issued and was in force and effect at the time of the surgical procedure.

The stipulation explains that the surgery was undertaken so that Mr. Forsyth’s jaws would be wired together to inhibit the ingestion of solid food thereby causing him to lose weight. At the time of the surgery, Mr. Forsyth was suffering from morbid obesity, congestive heart failure, and uncontrolled hypertension. It was made clear that Mr. Forsyth's health rendered him less likely to survive surgical complications than an otherwise healthy individual.

The parties further stipulated that Mr. Forsyth died as a result of complications which developed during the surgery. A pulmonary embolism developed causing cardiac and respiratory arrest. It was agreed that the embolism was caused by the surgery, although the death was unexpected and unanticipated from a medical standpoint. The parties acknowledged that the development of a pulmonary embolism is one of the many risks of surgery which, although possible, was not anticipated to develop during the type of surgery performed on Mr. Forsyth.

Beneficial’s insurance policy provides coverage to Mr. Forsyth in the amount of $20,000. The policy indicates the type of coverage as: “ACCIDENT ONLY INSURANCE. This insurance provides coverage for death, dismemberment, and hospital care caused by accident.” The policy provides for benefits where the insured suffers injury and the injury results directly and independently of all other causes in certain enumerated losses.

The insurance policy specifically defines two terms: “injury” and “hospital.” The definition given for “injury” is “bodily injury caused by an accident occurring anywhere in the world while this policy is in force.” Nowhere does the policy define “accident” or “accidental death.”

We note that the trial court found Mr. Forsyth’s prior physical condition or infirmities to be immaterial. The court acknowledged the stipulation of the parties that the cause of death was the surgical procedure. The court pointed out that the insurance policy did not require “that the loss be caused solely by external, violent, and accidental means.”

Although the learned trial judge specifically stated he did not believe that the “man-on-the-street” would describe For-syth’s death as accidental, he, nevertheless, ruled in favor of Mrs. Forsyth, indicating that he felt constrained to do so pursuant to Braley v. American Home Assurance Co., 354 So.2d 904 (Fla. 2d DCA), cert. denied, 359 So.2d 1210 (Fla.1978); and Roberson v. United Services Automobile Association, 330 So.2d 745 (Fla. 1st DCA), cert. denied, 342 So.2d 1104 (Fla.1976). The court awarded Mrs. Forsyth $20,000, the amount of coverage provided for in the policy. Following the trial court’s decision and the denial of Beneficial’s motion for rehearing, notice of appeal was timely filed.

This court has previously addressed the standards to be applied in cases of this ilk. In Braley v. American Home Assurance Co., this court aligned itself with those courts which utilize a “man-on-the-street” test when the term “accident” is not defined in the policy. That test requires the finder-of-fact to consider the facts of the particular case as viewed through the eyes of the average, everyday “man-on-the-street.” Braley at 905.

Braley requires the finder-of-fact to review the particular facts before it as if it were an average person “on-the-street.” This test was used by the trial court to make the determination that the death of Mr. Forsyth was not accidental. In so reading Braley, the trial court was led astray by the dicta therein referring to various definitions of the word “accident.” Braley’s injury was susceptible to being held accidental because it could have been found to be the unexpected result of the usual performance of his duties. This is a far cry from a death which results from the voluntary submission to elective surgery in which no mishap has occurred during the operative procedure.

The trial court has also cited Roberson v. United Services Automobile Association as requiring the holding that Mr. Forsyth’s death was accidental. In that case, the plaintiff suffered a “cerebral vascular accident” while stooping to examine a stove in his trailer. The court there found that “accident” is customarily “defined as an unexpected or unusual event; ... something which happens by chance and without design; it is an event from an unknown cause.” Roberson at 746.

The trial judge was mistaken in his reliance on Roberson as the circumstances involved therein were totally different from those involved in the present case. Roberson does not control in situations where an individual voluntarily submits himself to elective surgery.

The principle of law which we find to be applicable is enunciated in 10 Couch on Insurance (Second) § 41.113 (Rev.Ed. 1982).

When there is no initial or preceding occurrence which comes within the coverage of a policy, and the insured undergoes medical treatment for the purpose of curing a disease or other unhealthy or abnormal condition, the mere fact that the insured dies or is injured as the result of such treatment does not constitute an accident, is not accidental, nor caused by accidental means. Otherwise stated, if an operation is not necessitated by an injury resulting from an accident, death occurring during or following the operation can be considered “accidental” only when it is the result of mishap or misadventure in operative procedure.

Applying the facts admitted by the parties in the stipulated record to this principle, it is clear that Mr. Forsyth’s death was not an accident within the meaning of the insurance policy. There was no misstep or miscue during the operation on Mr. Forsyth. The embolism and death were foreseeable, albeit unanticipated results of this surgical procedure. See Body v. United Insurance Co. of America, 72 Ill.App.3d 594, 28 Ill.Dec. 820, 391 N.E.2d 19 (1979); McMahan v. Mutual Benefit Health & Accident Association, 33 Wash.2d 415, 206 P.2d 292 (1949). That the embolism was not expected to develop does not change the result: Mr. Forsyth’s death was not accidental under the terms of the insurance policy.

We REVERSE and REMAND with directions that judgment be entered in favor of appellant Beneficial Standard Life Insurance Company.

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

      . For a contrary view, see INA Life Insurance Co. v. Brundin, 533 P.2d 236 (Alaska 1975) (the insurance policy involved was found to be sufficiently broad to encompass unintended death or injury “despite lack of any identifiable accidental causative agent”).


text:
    SAFECO INSURANCE OF AMERICA, Appellant, v. Melvin T. GOLDBERGER, Trustee, and Hofco, Inc., a Florida corporation, Appellees. HOFCO, INC., a Florida corporation, Appellant, v. Melvin T. GOLDBERGER, Trustee, Appellee.
    Nos. 83-1363, 83-1397.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Dan B. Guernsey of Welbaum, Zook, Jones & Williams, Miami, for appellant— Safeco.
    Curtis G. Levine of Baskin & Sears, P.A., Boca Raton, for appellee — Goldberger.
   PER CURIAM.

In Goldberger v. Hofco, Inc., 422 So.2d 898 (Fla. 4th DCA 1982), we in part reversed a final judgment and remanded the cause with instructions to enter an amended final judgment in accordance with our opinion.

Unfortunately, the trial judge did not completely do as we ordered and we must again reverse in part and remand for him to do so now. Our earlier opinion, referred to above, specifically directed the award of interest “after the date of the arbitration award.” Notwithstanding, no such interest was awarded and we remand with directions to again amend the final judgment to provide for interest from the date of the arbitration award. See Stuart v. Hertz Corp., 381 So.2d 1161 (Fla. 4th DCA 1980).

REVERSED IN PART.

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