author: PER CURIAM. BOYD, Justice,

text:
    Charles Mallory VAUGHT, Appellant, v. STATE of Florida, Appellee.
    No. 63561.
    Supreme Court of Florida.
    Dec. 8, 1983.

      Wm. J. Sheppard, Elizabeth L. White and Steven H. Malone of the Law Offices of Wm. J. Sheppard, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a circuit court order denying Vaught’s motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Vaught is a state prisoner under sentence of death. The Governor of Florida has issued a warrant for execution of the sentence.

Vaught’s conviction of first-degree murder and his sentence of death were previously appealed to this Court. We affirmed both the conviction and sentence. Vaught v. State, 410 So.2d 147 (Fla.1982).

Vaught’s motion for post-conviction relief raised several claims, the main one being that he received ineffective assistance of counsel at his trial resulting in a denial of due process of law. The state moved to dismiss the motion on the ground of laches. In his order the trial judge found that laches provided valid grounds for dismissal of the motion, but he also considered the motion on its merits and found that the trial record conclusively showed that Vaught was entitled to no relief. Accordingly, the court denied the motion without an evidentiary hearing.

Before the trial judge and in its brief the state has argued that Vaught failed to pursue his 3.850 claims-with due diligence, that the state has been prejudiced because Vaught’s trial attorney died and is, therefore, unavailable to rebut or explain the matters forming the basis for the ineffective assistance of counsel claim, and, thus, that the claim should be dismissed because of laches. The record refutes this argument. Vaught’s privately retained counsel died in 1979. At that time, under Florida law, one could not contest the competency of privately retained counsel. Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967). The right to do so was not recognized until our decision in Vagner v. Wainwright, 398 So.2d 448 (Fla. 1981). Vaught argued his appeal on January 8, 1979, but we did not finally affirm his conviction and sentence until March 8, 1982. He filed for clemency in October of 1982, and his 3.850 motion was sworn to in March 1983 and filed on April 15, 1983, nine days after the Governor signed his death warrant. These circumstances do not justify dismissal on the grounds of laches.

The court also denied Vaught’s motion for post-conviction relief without an evidentiary hearing on the alternative ground that “the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief.” Fla.R. Crim.P. 3.850. Because the numerous assertions of trial counsel’s ineffectiveness were related to matters found in many parts of the record, the trial judge simply incorporated by reference the entire trial transcript into his order denying relief without a hearing. We find no error’ in this. See Raulerson v. State, 420 So.2d 567 (Fla.1982), cert. denied, — U.S.-, 103 S.Ct. 3752, 77 L.Ed.2d 1412 (1983). We disagree, however, that the transcript conclusively demonstrates that Vaught is entitled to no relief.

Vaught alleged a pattern of claimed egregious and blatant incompetence on the part of trial counsel and numerous omissions in counsel’s performance which resulted in his inability to competently represent Vaught at trial and sentencing. In accordance with the requirements of law, he also made specific allegations establishing the prejudicial impact of counsel’s performance on the trial proceedings. These included a failure to conduct pretrial preparation, research, and investigation and concluded with a claim of failure to present available mitigating evidence. While the trial errors may appear in the record, these omissions do not.

Neither do we feel that the record negates a claim of prejudice. Our case of Muhammad v. State, 426 So.2d 533 (Fla.1982), does not mandate a contrary result. In Muhammad we held that the factual allegations contained in the motion, even if proven, were insufficient to establish a claim of ineffective assistance of counsel. We cannot make that finding here.

Vaught was prepared to present evidence that at the time of trial his counsel was an inept lawyer. -He sought to demonstrate that general ineptness by showing specific omissions and commissions that likely affected his conviction and sentence. The trial judge should have given him an audience.

We reverse the order dismissing the petition with instructions to conduct an eviden-tiary hearing on Vaught’s claims. The stay of execution temporarily granted by this Court remains in effect.

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD and SHAW, JJ., concur.

BOYD, J., dissents with an opinion, with which EHRLICH, J., concurs.

ADKINS, J., dissents.

BOYD, Justice,

dissenting.

Although I agree that the denial of an evidentiary hearing was not justified on the ground of laches, I believe the alternative ground that the motion and record conclusively showed that appellant was entitled to no relief constituted a sufficient basis for denial of the motion without an eviden-tiary hearing. I therefore dissent to the reversal of the trial court’s order.

My review of the record of the original trial has revealed that the asserted instances of incompetency actually relate to matters of trial strategy and tactics. The representation given to appellant by his trial counsel was within the range of competence demanded of attorneys in capital cases. An examination of those portions of the trial transcript where the asserted deficient acts or omissions or their prejudicial effects are said to be found reveals that the charges of incompetency are without substance. The trial court was therefore correct in ruling that appellant has failed to show any specific acts or omissions amounting to serious deficiencies measurably below the expected standard of competence and which could have affected the outcome of the trial or sentencing proceeding. See, e.g., Palmes v. State, 425 So.2d 4 (Fla.1983); Muhammad v. State, 426 So.2d 583 (Fla.1982); Francois v. State, 423 So.2d 357 (Fla.1982); Straight v. Wainwright, 422 So.2d 827 (Fla.1982); Thomas v. State, 421 So.2d 160 (Fla.1982); Ruffin v. State, 420 So.2d 591 (Fla.1982); Songer v. State, 419 So.2d 1044 (Fla.1982).

The order denying appellant’s motion should be affirmed and the stay of execution lifted.

EHRLICH, J., concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Andrew P. MAVRIDES, Respondent.
    Nos. 63715, 62673.
    Supreme Court of Florida.
    Dec. 8, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needelman and Kenneth R. Mikos, Bar Counsels, Fort Lauderdale, for complainant.
    No appearance for respondent.
   PER CURIAM.

In this Bar disciplinary proceeding the referee has found the respondent, Andrew P. Mavrides, a member of The Florida Bar, guilty of eight instances of violation of the Code of Professional Responsibility. Considering the totality of the respondent’s conduct, the referee recommends disbarment. Mavrides has not contested the referee’s report.

It would appear that none of Mavrides’ derelictions, standing alone, would require disbarment. The cumulative demonstration of his acts, however, shows that he is unfit to practice law. We adopt the referee’s report and recommendation.

Andrew P. Mavrides is hereby disbarred from practicing law in Florida. A judgment for costs in the amount of $5,194.27 is entered against him.

It is so ordered.

ADKINS, Acting C.J., and BOYD, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: BOOTH, Judge. PER CURIAM.

text:
    Maurice FOX, Appellant/Cross-Appellee, v. TREASURE COAST REGIONAL PLANNING COUNCIL, Appellee/Cross-Appellant, v. FLORIDA LAND AND WATER ADJUDICATORY COMMISSION, Appellee/Cross-Appellee.
    Nos. VV-338, WW-339.
    District Court of Appeal of Florida, First District.
    March 22, 1983.
    Rehearing Denied and Clarification Granted Nov. 21, 1983.

      Parker D. Thomson, Richard J. Ovelmen and Douglas M. Halsey of Paul & Thomson, Miami, and Jon C. Moyle of Moyle, Jones & Flanigan, West Palm Beach, for appellant/cross-appellee.
    Roger G. Saberson, Delray Beach, for appellee/cross-appellant.
    Jim Smith, Atty. Gen., Tom Tedcastle, Asst. Atty. Gen., and Nancy G. Linnan, Asst. Deputy, for appellee/cross-appellee.
   BOOTH, Judge.

These consolidated cases are before us on appeal and cross-appeal from a final order of the Florida Land and Water Adjudicatory Commission (Commission) involving a development order for a Development of Regional Impact (“DRI”) issued by the Palm Beach County Board of County Commissioners (Palm Beach County) in September, 1974. The owner/developer (Fox) and the Treasure Coast Regional Planning Council (Planning Council) were unable to arrive at a development proposal that would both satisfy environmental concerns in preserving the wetland portions of the property and permit development in a manner satisfactory to the owner/developer. Fox has appealed, and the Planning Council has cross-appealed, the order below.

Fox seeks to develop his 1,704-acre tract as a retirement community containing 10,-004 living units, with a population cap of 18,416 persons. In his proposed development, dwelling units would be dispersed in 45 residential pods, some bordering on a lake, others on a golf course. The buildings would be single and mixed-story clusters, with a maximum rise of four stories. Two golf courses are proposed, as well as a 406-acre recreational lake, bicycle paths, tennis courts, and swimming pools. The most significant feature of the development is a proposed center for geriatric medicine, which would include a medical clinic with emergency facilities and rehabilitation services, a retirement hotel for disabled persons, a nursing home, and continuing education facilities to provide training for the staff of the center. The development proposal contemplates that the geriatric center will be owned and operated for public benefit by a non-profit corporation, and that land and $2,000,000 “seed” money will be donated by Fox for the center.

The property in question is bounded on the east by the West Palm Beach Water Catchment Area and is inundated during the wet season. Development in any manner will require drainage. Fox’s development proposal would allow development of essentially all 1,705 acres of the property, except for 14.5 acres of “natural areas.”

The alternate proposal developed by the Planning Council would confine development to the upland and low-value wetland portions of the property, approximately 654 acres, while prohibiting development on the remaining 1,051 acres of the tract, designated as “moderate” and “high value” wetlands. This would preserve the wetland areas with the highest environmental and ecological values, minimizing the negative environmental impact of the development.

In an attempt to equitably resolve the dispute, the Commission fashioned a compromise by affirming the development order issued by Palm Beach County, allowing development subject to several conditions imposed by the Commission, including various conditions relating to the geriatric center and a requirement that Fox preserve approximately 20 percent of the property in its natural state. The plan adopted by the Commission would require preservation of 338 acres of “high quality” wetlands located adjacent to the West Palm Beach Water Catchment Area.

The compromise plan adopted by the Commission was not one of the alternatives presented to, or considered by, the hearing officer. Both Fox and the Planning Council argue that there is insufficient evidence in the record to support the final order of the Commission. We agree and remand the cause to the Commission for further proceedings. In view of the lengthy and confused history of this dispute, however, some guidelines to the remand are appropriate.

Section 380.07, Florida Statutes, provides for the creation of the Florida Land and Water Adjudicatory Commission to hear appeals of development orders issued by local governments for developments classified as having a regional impact (“DRI”). The statute provides that the Commission shall, after a hearing, issue a decision either granting or denying permission to develop and that the Commission may attach conditions and restrictions to its decision. Section 380.08(3), Florida Statutes requires that a governmental agency denying a development permit specify its reasons in writing and state the changes, if any, that would make the proposed development eligible to receive the permit. Under Section 380.08(1), Florida Statutes, the governmental agency may not issue an order that is unduly restrictive or that constitutes a taking of property without the payment of full compensation.

In prior proceedings, beginning in 1974, Fox obtained Palm Beach County’s approval of the proposed development, the property was rezoned, and a development order issued. The Planning Council appealed to the Commission, and after litigation as to the timeliness of that appeal, the matter was presented to the hearing officer for a de novo hearing. In his recommended order of November 20, 1978, the hearing officer found* that the proposed development would have an unfavorable impact upon the environment and natural resources of the area and that this negative environmental impact would override the positive value of the proposed development. Accordingly, the hearing officer recommended that the development order issued by Palm Beach County, allowing the development as proposed by Fox, be set aside.

The Commission considered the recommended order and remanded the case to the hearing officer for further hearings to determine what changes in the development proposal would make the proposal eligible to receive the permit, in conformance with Section 380.08(3), Florida Statutes.

At the hearing on remand, the Planning Council proposed the plan previously described, preserving the moderate and high-value wetland areas of the property in their natural state, some 1,051 acres, and allowing development of 654 acres of upland and low-value wetland areas located in the south and west portions of the tract. The Planning Council presented, as an example of a possible use of the 654 acres suitable for development, an “alternate site plan” that included many of the attributes of the original development proposal and maintained approximately the same number of residential units as would have been included in the original proposal, but concentrated them in mid-rise structures averaging six to eight stories. In addition, the Planning Council presented another possible site plan that included the type of amenities provided in the original proposal, but reduced the number of residential units in proportion to the reduced land area available for development. The Planning Council also presented some evidence that the area suitable for development could be used for low-density residential estate-tract uses, including parcels ranging in size from one to five acres.

Shortly after the hearing on remand, this Court handed down its decision in Estuary Properties, Inc. v. Askew, 381 So.2d 1126 (Fla. 1st DCA 1979). Since the Estuary Properties decision involved substantially similar issues, the hearing officer directed the parties file legal memoranda regarding that decision. After consideration of the legal memoranda on this Court’s Estuary Properties decision and in reliance on that decision, the hearing officer entered his Supplemental Findings of Fact, Conclusions of Law and Recommended Order, in part as follows:

If development of the Fox Property were confined to the 654 acres identified as upland and low-value wetland, the remainder of the property which displays high or moderate wetland values could continue to function as a viable wetland, offering the wetland attributes set out in the original Recommended Order, and continuing to provide significant wildlife habitat for many species, including those endangered and threatened species identified in the original Recommended Order.
While the alternate site plan would accomplish the valid objective of preserving the wetland attributes of the Fox Property, it does not constitute a practical or feasible change in the application for development approval which would render the proposal eligible for a permit. The alternate site plan is neither finance-able nor marketable. If the Respondent is limited to the upland and low-value wetland areas of his property for development purposes, a retirement community of remotely the proposed magnitude would not be feasible. The evidence does not reveal any changes in the application for development approval which would accomodate both the essential attributes of the proposal and the preservation of wetland areas.
There are alternatives to a complete retirement community which could be developed at the Fox Property consistent with the goal of preserving the wetlands. Large estate tracts were suggested by two witnesses. Even in connection with these alternatives, however, development would need to be confined to the upland and low-value wetland areas, leaving the wetland areas to serve only as a visual and limited recreational amenity.
The alternate site plan proposed by T.C.R.P.C. would be a change in the proposed project that would preserve the wetland attributes of the Fox Property. Since, however, the ultimate site plan is neither marketable nor financeable, it does not constitute a change which is viable. It does not appear from the evidence that there are any viable changes to the application for development approval which could be made so as to preserve the wetland attributes of the property.
The evidence in this ease does not reveal any changes that can accomodate the goal of preserving the wetland areas of the Fox Property with a retirement community of remotely the proposed magnitude. Governmental action prohibiting the development of a large retirement community on the property would not necessarily be unduly restrictive, nor would it necessarily constitute a taking of the property in a constitutional sense.
On December 17, 1979, the First District Court of Appeal filed its decision in Estuary Properties, Inc. v. Askew, [381 So.2d 1126] (Case No. 11-419). The facts of the case are directly analogous to the facts of the instant matter, and the Court’s decision mandates that the Development Order issued by the Board of County Commissioners of Palm Beach County be affirmed, contrary to the recommendation set forth in the Recommended Order entered November 20, 1978.
In the instant matter, just as in Estuary Properties, the justification for denial of the application for development approval is preservation of a significant and valuable wetland environment. Just as in Estuary Properties, the wetland environment on the Fox Property is important to surrounding properties and to the region as a whole. Just as in Estuary Properties, the developer in this case is faced with governmental action that would limit his use of a portion of the property for a valuable public purpose. The Estuary Properties case and this matter are not logically distinguishable. The Court in Estuary Properties concluded that since denial of the application for development approval would constitute a “taking,” approval of the application was then mandated absent initiation of condemnation proceedings, (emphasis added)

Based on the foregoing findings of fact and conclusions of law, the hearing officer recommended that the Fox development, as originally proposed, be allowed and that the development order of the County be affirmed.

The Recommended Order indicates that the hearing officer interpreted Section 380.08(3), Florida Statutes, to require that changes specified under the statute leave essentially intact the development as originally proposed. However, the changes in the development proposal that make the development eligible to receive a permit need not preserve intact the “essential attributes” of the original development proposal, as long as the owner retains some reasonable, viable use of his property. Based on his finding that no alternative development proposal existed which would preserve both the wetlands and the essential attributes of the proposed development, and relying on this court’s opinion in Estuary Properties, supra, the hearing officer concluded that the development as originally proposed must be permitted or compensation paid for a taking of private property. Under the most recent decisions of the Florida Supreme Court, however, the focus is on the nature and extent of the interference with the landowner’s rights in the parcel as a whole in determining whether a taking of private property has occurred. Prohibition of development on certain portions of the tract does not in itself effect an unconstitutional taking.

This court’s decision in Estuary Properties, Inc. v. Askew, supra, relied on by the hearing officer, was reversed in pertinent part by the Florida Supreme Court in Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981). At the time the hearing officer made his determinations, he did not have the benefit of the Florida Supreme Court’s Estuary Properties decision, supra, which holds that the State can, through regulation, require a landowner to preserve endangered wetlands and can deny a landowner any developmental use of a portion of his property without compensation, so long as the tract as a whole retains a viable economic use. In Graham v. Estuary Properties, supra, the Florida Supreme Court held that Chapter 380 requires a balancing of the State’s interest in protecting the health, safety, and welfare of the public against the constitutionally protected private property interests of the landowner and that “the owner of private property is not entitled to the highest and best use of his property if that use will create a public harm.”

In the instant case, once the Planning Council had proven that an adverse environmental impact would result from the development as originally proposed, had presented evidence of a change in the development proposal that would protect the identified environmental values of the site (by indicating where on the tract development could be located), and had made a prima facie showing that such a change would not unduly restrict Fox’s use of his property or constitute a taking of his property without full compensation (by showing that there remains some economically reasonable use of the property as a whole), the Planning Council was not required to present a specific alternate development proposal to accommodate the desires or expectations of the landowner. Under the law as stated by the Florida Supreme Court, a taking will not be established merely because the agency denies a permit for the particular use that a property owner considers to be the most desirable or profitable use of the property, or because the agency totally denies use of some portion of the property. Estuary Properties and Key Haven, supra.

In the instant case, the recommended order on remand presented the Commission with two basic choices: (1) deny the development permit, with written reasons for denial and statement of any changes in the development proposal, supported by evidence of record, that would make the proposal eligible to receive a permit; or (2) grant the development permit, subject to any Commission-imposed conditions or restrictions meeting Chapter 380 requirements and supported by evidence of record.

Given a final order of the Commission, either denying or granting the permit with conditions and restrictions, Fox would then have a number of options: (1) conform his development to the conditions prescribed by the Commission, (2) present to Palm Beach County an alternate development proposal within the guidelines given him by the Commission, (3) seek review in circuit court of the Commission’s order, pursuant to Section 380.085, Florida Statutes, alleging that the Commission’s action was an unreasonable exercise of the State’s police power, or (4) seek review of the Commission’s order, in accordance with Chapter 120, Florida Statutes, for the purpose of determining whether the order was in accordance with existing statutes or rules and based on competent substantial evidence. See, Key Haven, supra.

In the instant case, after a final hearing at which the Commission heard arguments from the parties as well as comment by interested groups and individuals, the Commission decided to accept the hearing officer’s findings of fact and to grant Fox’s development permit, but subject to several conditions imposed by the Commission, including the requirement that Fox preserve 338 acres of his property in its natural state. There has been no finding, however, that the Commission’s plan would adequately preserve the wetland attributes of the Fox property so as to avoid the unfavorable impact of the development on the environment and natural resources of the region. Neither has there been a finding that the Commission’s plan is a reasonable restriction on the developer’s use of his land and not a taking of property in violation of Section 380.08(1), Florida Statutes. The record as developed before the hearing officer does not contain evidence to support either finding, since the compromise plan was first proposed at the final hearing before the Commission, which did not remand the cause to the hearing officer for the appropriate findings of fact to support its order. The fact that the Commission plan falls somewhere between the proposal presented by Fox and the proposal presented by the Planning Council does not of itself demonstrate that the Commission’s plan is an equitable substitute that meets the requirements of Chapter 380. The cause must accordingly be remanded to the Commission for further proceedings.

The case presented here involves both policy decisions and questions of fact, the latter requiring technical input. We recognize the discretion given the Commission under Sections 380.06 and .07, Florida Statutes, to make policy decisions that implement the legislative purposes outlined in Section 380.021, Florida Statutes. However, when fact-finding functions have been delegated to a hearing officer, the Commission must rely in its determinations upon the record developed before the hearing officer. We do not hold that the Commission may not itself formulate a compromise solution that will provide a balance between the public and private interests involved, so long as the record establishes that the compromise complies with the requirements of Chapter 380, Florida Statutes. Failing that, however, remand to the hearing officer is required.

This cause is accordingly remanded to the Commission with directions for remand to the hearing officer. The Commission shall direct the hearing officer to reconsider the evidence before him, including the Planning Council’s proposal, in light of the Florida Supreme Court’s decisions in Estuary Properties and Key Haven, supra. If the Commission chooses to give further consideration to its own compromise plan for development of the property, the Commission shall also direct the hearing officer to make findings of fact, including taking any additional evidence necessary, with respect to that plan’s compliance with the requirements of Chapter 380. We do not intend by this direction on remand to limit or preclude any other proposals or compromises which the .parties may wish to present to the hearing officer.

We find without merit appellant’s assertion that Section 380.07(4), Florida Statutes, is an unconstitutional delegation of power to the Commission allowing a standardless review of local government DRI development orders. See, Graham v. Estuary Properties, Inc., 399 So.2d at 1378. In view of the options available to the Commission and to the parties before it, however, we find it unnecessary to address at this time the other issues raised on appeal, which may be resolved by the parties on remand.

ERVIN and THOMPSON, JJ., concur.

ON REHEARING AND CLARIFICATION

PER CURIAM.

Motions for rehearing filed by appellant/cross-appellee Fox and appel-lee/ cross-appellant Treasure Coast Regional Planning Council are denied. Motion of appellant/cross-appellee Fox for clarification is granted for the purpose of stating that the list of options available to the landowner on issuance of a final order by the Commission, page nine of opinion, is not an exclusive list.

ERVIN, C.J., and BOOTH and THOMPSON, JJ., concur.

      .In its brief, the Commission acknowledges that remand is appropriate if the evidence is insufficient to support its order:
      Should this Court find that the record is insufficient to support the order of the Governor and Cabinet as the evidence introduced largely addressed the wetlands as a whole rather than the particular 338 acres preserved under the Florida Land and Water Adjudicatory Commission Order, a remand for further evidence would be appropriate. Such a remand would permit the interests of the State of Florida to be represented rather than just the individual interests of the developer and Treasure Coast Regional Planning Council.

      . Fox v. South Florida Regional Planning Council, 327 So.2d 56 (Fla. 1st DCA 1976), cert. denied, 336 So.2d 1181 (Fla.1976).

      . Whether less ambitious development could be undertaken on the property without damaging the wildlife habitat or the wetland values was not addressed in the initial hearing.

      . Section 380.08(3), Florida Statutes:
      (3) If any governmental agency denies a development permit under this chapter, it shall specify its reasons in writing and indicate any changes in the development proposal that would make it eligible to receive the permit.

      . See, Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981); Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982). See also, Penn Central Transportation Company v. City of New York, 438 U.S. 104, 57 L.Ed.2d 631, 98 S.Ct. 2646, rehearing denied, 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 198 (1978).

      . Graham v. Estuary Properties, 399 So.2d at 1382. See also, Key Haven Associated Enterprises, supra.


author: NESBITT, Judge. BASKIN, Judge

text:
    Edgar PIMENTEL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1200.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Rehearing Denied Oct. 10, 1983.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

We affirm the defendant’s conviction of second degree murder as a youthful offender upon a holding that: (a) the defendant's own testimony that he shot the victim accidentally and not to protect himself precluded the necessity of any instruction on self defense. See generally Pearson v. State, 221 So.2d 760 (Fla. 2d DCA 1969) (jury instruction on entrapment is not required where defendant denies having committed the alleged crime); and (b) the evidence was legally sufficient to establish the crime of second degree murder.

The defendant also challenges his sentence on the basis that the trial court failed to reduce to writing its decision that the defendant be sentenced as an adult. While it is true that Section 39.111(6)(d) requires as much, we find that where the transcript which is part of the record contains the requisite findings, the necessity of a writing has been satisfied. See Thompson v. State, 328 So.2d 1 (Fla.1976) (aggravating and mitigating circumstances justifying death penalty); McGriff v. State, 417 So.2d 300 (Fla. 3d DCA 1982) (imposing one year minimum mandatory sentence); McClain v. State, 356 So.2d 1256 (Fla. 2d DCA 1978) (habitual offender); Eastwood v. Hall, 258 So.2d 269 (Fla. 2d DCA 1972) (waiver of speedy trial rule). The cases relied upon by the defendant, Rhoden v. State, 421 So.2d 780 (Fla. 2d DCA 1982), Proctor v. State, 373 So.2d 450 (Fla. 2d DCA 1979), Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979) are distinguishable in that the record in those cases failed to contain an indication that the requisite criteria had been considered.

Upon the state’s suggestion in McGriff, supra, after affirming the sentence, we remanded to the trial judge to reduce his findings to writing. In the present case, no such suggestion has been made by the state, and we find that procedure to be unnecessary. Thompson, supra; Eastwood, supra. Accordingly, we affirm in all respects.

BASKIN, Judge

(dissenting).

The evidence presented at trial failed to establish that Pimentel acted with a depraved mind regardless of human life, an essential element of second degree murder. Ramsey v. State, 114 Fla. 766, 154 So. 855 (1934); Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978); Raneri v. State, 255 So.2d 291 (Fla. 1st DCA 1971). At most, the state established that appellant’s acts constituted culpable negligence. McCray v. State, 350 So.2d 1126 (Fla. 2d DCA 1977). I would, therefore, reduce the conviction to manslaughter.

      . There is no contention raised, nor could there be, that the record does not contain the requisite findings and reasons. The trial court systematically considered each criterion and analyzed it in light of the facts of this case to reach its conclusion that the defendant should be sentenced as an adult.

      . We would also add to that list Sawyer v. State, 421 So.2d 4 (Fla. 3d DCA 1982) and Bunch v. State, 399 So.2d 471 (Fla. 2d DCA 1981).

      . Even if this distinction did not exist, we would reach today’s conclusion based on the supreme court opinion in Thompson v. State, supra.


text:
    Joseph TURNQUIST, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1817.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny Her-shoff Brill, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Williams v. State, 425 So.2d 591 (Fla. 3d DCA 1982).


text:
    Benjamin LERNER, Appellant, v. Seymour LITWIN, Appellee.
    No. 83-341.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Kramer & Golden and Richard Golden, Miami Beach, for appellant.
    Jack D. Burris, Miami Beach, for appel-lee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Carnes v. Harris, 256 So.2d 237 (Fla. 3d DCA 1972).


text:
    Robert Lavaris HORTON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-794.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Talavera, 243 So.2d 595 (Fla.1971); Roberts v. State, 164 So.2d 817 (Fla.1964); Rankin v. State, 143 So.2d 193 (Fla.1962); Damon v. State, 397 So.2d 1224 (Fla. 3d DCA 1981); Andrews v. State, 372 So.2d 143 (Fla. 3d DCA 1979); Tifford v. State, 334 So.2d 91 (Fla. 3d DCA 1976); Section 924.33 Florida Statutes (1981).


text:
    Arthur Lee MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1755.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the appellant’s conviction on the authority of Parrish v. State, 366 So.2d 530 (Fla. 3d DCA 1979), but reverse the three-year minimum mandatory term of imprisonment and remand to the trial court with directions to vacate that portion of the sentence, see Earnest v. State, 351 So.2d 957 (Fla.1977); Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980).

Affirmed in part, reversed in part and remanded with directions.


text:
    Jack McKENLEY and Bonnie McKenley, his wife, Appellants, v. PARKWAY GENERAL HOSPITAL, INC., Appellee.
    No. 82-2488.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Rehearing Denied Nov. 7, 1983.

      Jerold Hart, North Miami Beach, for appellants.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Pope v. Cruise Boat Company, Inc., 380 So.2d 1151 (Fla. 3d DCA 1980); Memorial Park, Inc. v. Spinelli, 342 So.2d 829 (Fla. 2d DCA 1977). Compare Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983).


text:
    John ROXO, Appellant, v. Jay CRAVEN and Sentry Insurance, a foreign corporation, Appellees.
    No. 83-575.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Rehearing Denied Nov. 7, 1983.
    Gene Flinn, Kenneth E. Cohen, Miami, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, Richard A. Sherman, Fort Lauderdale, for appellees.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Appellant was injured in an automobile collision. A final summary judgment was entered in favor of appellee, owner of the vehicle that collided with appellant, and the appellee’s insurance carrier.

The record on appeal convinces us that there are genuine issues of material fact which have not been eliminated and which preclude a summary disposition of the cause. Therefore we conclude that the trial court erred in entering summary final judgment.

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

Reversed and remanded.


text:
    SOUTHERN CONTRACTORS, INC., Appellant, v. AMERICAN BANKERS INSURANCE GROUP, American Bankers Life Assurance Company of Florida, and American Bankers Insurance Company of Florida, Appellees.
    No. 83-1013.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Schultz & Hollander and Robert A. So-love and Howard J. Hollander, Miami, for appellant.
    Jorden, Melrose & Schuette and Robert J. Schaffer and Victoria L. Baden, Miami, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Mehler v. Huston, 57 So.2d 836 (Fla.1952); Socarras v. Claughton Hotels, Inc., 374 So.2d 1057 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 760 (Fla.1980).


text:
    Clayton WAY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2194.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Clayton Way, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Because the appellant’s motion for post-conviction relief raised one or more grounds which, if true, present a legally sufficient claim of ineffective assistance of counsel, we remand to the trial court to attach the portion of the record which conclusively shows that the defendant is not entitled to relief or to conduct an evidentia-ry hearing in accordance with Florida Rule of Criminal Procedure 3.850 and Walker v. State, 432 So.2d 727 (Fla. 3d DCA 1983).


author: COWART, Judge.

text:
    Robert B. ENTE, Appellant, v. Ruth H. ENTE, Appellee.
    No. 82-735.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1983.

      David R. Best and Kimberly A. Ashby of Maguire, Voorhis & Wells, P.A., Orlando, for appellant.
    Michael S. Wilson, Orlando, for appellee.
   COWART, Judge.

This case involves the propriety of an award of lump sum alimony and of permanent periodic alimony rather than rehabilitative alimony.

At the time of dissolution of their marriage the parties had been married twenty-six years. The two children of the marriage were adults. Both parties are educated and industrious. The husband, an administrator, earned $31,200 a year gross plus some fringe benefits. Except for a year at the time of the birth of the oldest child, the wife has worked during the marriage, owns her own bookkeeping service, and is studying accounting. She has declined a job offer of $11,000 per year because she can earn more in her own business.

With immaterial exceptions, all assets of the parties were accumulated during the marriage and, except for the marital home, the trial court made an equitable distribution by dividing the marital assets equally. The trial court ordered the marital home to be sold at partition sale and the proceeds distributed (a) $4,000 to the husband to repay a life insurance loan used to acquire the house, (b) $30,000 to the wife as lump sum alimony and (c) the remainder to be split equally between the parties. The husband was also ordered to pay the wife $450 per month as permanent periodic alimony. The husband appeals the lump sum and periodic alimony awards.

As explained in Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981), in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the Florida Supreme Court created an ambiguity in the legal meaning of the term “lump sum alimony” when it cited Yandell v. Yandell, 39 So.2d 554 (Fla.1949), which used the term to refer to an exceptional one time payment to meet and discharge a spousal support obligation and also, citing Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dism’d 307 So.2d 186 (Fla.1975), used the term to describe the tool which a trial court can use to make an equitable distribution of marital assets between the parties. Brown had used the term in the property distribution sense when it noted that “lump sum alimony is no longer frowned upon in adjusting the marital wealth of the parties at the time of dissolution of the marriage.” 300 So.2d at 725. See also Lynch v. Lynch, 437 So.2d 234 (Fla. 5th DCA 1983).

As the trial judge in this case did not state the purpose of the lump sum alimony award we review it to determine if it was properly a single payment of spousal support or a part of an equitable distribution of marital assets or erroneous.

The wife testified at trial that she considered the parties marriage to be a “fifty-fifty marriage” and the trial judge stated an intention to divide the marital assets equally and did so, except as to the proceeds of the sale of the marital home. While the concept of “equitable distribution” has not been held to require an absolutely equal division of the marital assets, this court has indicated that is a good starting point, see Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981). Since Canakaris, some cases have upheld some equitable distributions that were not equal and some cases have reversed equitable distributions that were not equal; but more importantly it should be noted that the cases have consistently upheld an equal division as being an equitable distribution. Equality of treatment of equals is equitable and normally giving each marital partner a substantially equal share of the purely marital accumulations cannot be said to shortchange or to unfairly endanger the economic status of the other partner. The word “substantially” is used because of the impracticability of precisely dividing unlike items evenly, although an even division is the objective. Further, as in Canakaris, sometimes the parties separate and go their own ways and in effect discontinue their marital, economic and other relationships, long before a legal proceeding to formally dissolve the marriage is instituted. Therefore the period within which marital property is accumulated by joint effort may not always be perfectly coextensive with the dates of marriage and dissolution and necessarily adjustments must be made. In cases where a trial judge determines that considerations of equity dictate a departure from an equal distribution we strongly recommend that the reason, and the specific findings of fact supporting the reason, be set forth. Therefore, the $30,000 lump sum award cannot be justified or affirmed as part of the equitable distribution of the marital assets in this case. Neither do the facts in this case meet the Yandell standard for the award of a single payment of spousal support.

The determination of whether rehabilitative or permanent periodic alimony should be awarded in a particular case depends, first, on the determination of a question of fact, i.e., whether the spouse has the present or potential ability of self-support and, second, on the correct application of the legal principles involved in the conceptual basis for rehabilitative alimony and permanent periodic alimony.

If in this case the marital home sold for $100,000 ($10,000 below its appraised value), after the $29,000 mortgage and the $4,000 life insurance loan is repaid and the balance of $67,000 is divided equally, the wife’s share, $33,500 plus the approximately $19,700 received from the distribution of other assets, would equal about $53,200 in liquid assets, which, when invested, will yield a substantial return to augment the wife’s own earnings. In addition the wife owns her own business and one-half of a remainder interest in a condominium and other separate property. There is substantial competent evidence of the wife’s ability to support herself. She has more formal education than her husband and can attain an accounting degree in a few years. She is 46 years old, is in good health, has the ability to run her own business, and does not have the impediment of minor children. This seems to be an ideal case for rehabilitative rather than permanent alimony. Support alimony does not have for its purpose the equalizing of the individual and different earning abilities of the parties.

This court has recently considered at length the purposes of rehabilitative alimony and permanent periodic alimony and held that where, as here, a spouse has the capacity or potential for self-support, rehabilitative alimony and not permanent periodic alimony should be awarded. Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983).

Accordingly, the award of lump sum alimony and permanent periodic alimony is reversed and this case is remanded to the trial court for consideration of an award of rehabilitative alimony and for further proceedings consistent with this opinion.

REVERSED.

ORFINGER, C.J., and COBB, J., concur.

      . See, e.g., Grimmett v. Grimmett, 425 So.2d 545 (Fla. 4th DCA 1982).

      . "Aequitas est aequalitas” or "equality is equity” is an ancient maxim. See J. Morgan, An English Version of Legal Maxims 11 (3rd ed. 1878).


author: ORFINGER, Chief Judge.

text:
    Robert J. SINGLETON, Appellant, v. WEST VOLUSIA HOSPITAL AUTHORITY, Appellee.
    No. 82-1151.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1983.
    Daniel J. Roberson of Roberson & Roberson, DeLand, for appellant.
    James W. Smith of Smith, Schoder & Rouse, P.A., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

In this medical malpractice action, the trial court granted defendant’s motion for directed verdict at the close of plaintiffs evidence. Plaintiff appeals and we reverse.

Contrary to defendant’s contention, there was evidence presented from which a jury could conclude that the employees of the defendant hospital could have diagnosed plaintiffs condition on the three occasions when he came there complaining of severe abdominal pains, had he been checked properly. There was also testimony that when plaintiffs mother called the hospital on a fourth occasion to advise that plaintiff was still experiencing severe pain, she was told not to bring him back. Plaintiff’s medical expert testified that under the circumstances, this conduct deviated from the accepted standard of medical care, and that had the proper tests been performed, plaintiffs appendicitis could have been diagnosed before his appendix ruptured. This evidence is sufficient to show a causal relationship between the alleged negligent acts of defendant and the ultimate aggravation of plaintiff’s medical condition. See Eli Witt Cigar and Tobacco Company v. Matatics, 55 So.2d 549 (Fla.1951); Jacksonville Electric Co. v. Cubbage, 58 Fla. 287, 51 So. 139 (Fla.1910); Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977).

Because there was evidence, when viewed in the light most favorable to plaintiff, upon which a verdict for plaintiff could be sustained, the entry of a directed verdict for defendant was error. Reams v. Vaughn, 435 So.2d 879 (Fla. 5th DCA 1983); American Motors Corporation v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981).

REVERSED and REMANDED for a new trial.

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


text:
    Donald Leroy BENTZONI, Appellant, v. Prudence Martin BENTZONI, Appellee.
    No. 82-1706.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1983.

      Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellant.
    John V. Doyle, Daytona Beach, for appel-lee.
   ORFINGER, Chief Judge.

The former husband appeals from an order of the trial court denying his petition to terminate an award of rehabilitative alimony, which he requested on the ground that the former wife was “currently living in a state of open cohabitation with [another man] and is being fully supported and maintained by him.” The final judgment dissolving the marriage had awarded the wife rehabilitative alimony of $100.00 per week for thirty-six weeks. We reverse the order and remand for further proceedings.

The evidence before the trial court indicates without contradiction that the former wife is living with another man in a rented condominium apartment in Fort Myers Beach. While she contends that this is only an “informal living arrangement,” it is clear that the relationship between the parties has all the attributes of a marriage except for the wedding ceremony. The former wife admits that a child has been born of this relationship, that her new partner pays the rent, buys the groceries and pays for a maid to clean the apartment. She contends that she pays some of the expenses, such as utilities, and otherwise “pays her own bills” with money she borrows from her mother because she is not employed. The former wife contends that because her friend does not completely support her, and because she still has no marketable skills (although she is attending real estate school and is taking a typing course) the evidence supports the conclusion that she has not been rehabilitated, and the trial court’s order is thus correct. The husband, on the other hand, says that the former wife is now being supported by her live-in friend, so rehabilitative alimony should terminate.

Although there are circumstances under which a live-in arrangement would not and should not be given the legal effect of marriage, it is clear that in determining whether an alimony award to a recipient spouse should be terminated, the fact that such spouse is now living with and being supported by another must be taken into consideration. Because the facts of this case indicate that the new relationship is tantamount to a marriage, we will consider the recipient spouse’s entitlement to a continuation of the rehabilitative alimony award as though she had remarried.

The Florida courts which have considered this problem are not in accord. The Third District Court of Appeal has unequivocally held that remarriage of the recipient spouse automatically terminates his or her right to continue receiving rehabilitative alimony. Blackmon v. Blackmon, 307 So.2d 887 (Fla. 3d DCA 1974). On the other hand, the Second District Court of Appeal has held that because rehabilitative alimony is paid for a specific purpose not necessarily related to the recipient spouse’s remarriage, such an award should not automatically terminate upon such remarriage, but termination should depend on whether that event has served the rehabilitative purpose. Frye v. Frye, 385 So.2d 1383 (Fla. 2d DCA 1980).

In Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976), the opinion stated, in dictum, that remarriage of the recipient spouse would require termination of rehabilitative alimony. That dictum has recently been rejected by that court in Kissinger v. Mason, 436 So.2d 1049 (Fla. 1st DCA 1983), where an order terminating rehabilitative alimony based solely upon the remarriage of the recipient wife was reversed.

The Frye court suggests that the decision in Richter v. Richter, 344 So.2d 889 (Fla. 4th DCA 1977), aligns the Fourth District with those courts which hold that remarriage of the recipient spouse automatically terminates rehabilitative alimony {Frye at 1387), and that conclusion may certainly be implied from the opinion. In Richter, the final judgment of dissolution awarded the wife rehabilitative alimony for a specified period and then provided that remarriage of the wife would not terminate the award. The appellate court held that it was error for the final judgment to provide that remarriage would not terminate the award, and struck that portion of the final judgment. It did not say that remarriage would terminate the award. In the light of the concurring opinion, we do not believe that the Fourth District has taken the position that rehabilitative alimony automatically terminates upon remarriage of the recipient spouse. The concurring opinion (Dauksch, J.) warrants repetition here:

I understand rehabilitative alimony to be meant to assist the recipient in making a life for herself when the support from her former husband is no longer available or necessary. It is the impetus to shake prior reliances and live free. Without the statutory availability of rehabilitative alimony the court might have awarded lump sum alimony payable in installments or permanent periodic alimony to accomplish the same purpose. But these types of awards are too speculative and have the onerous ring of unnecessary support, in some cases. Rehabilitative alimony is a bit speculative but is usually awarded for a purpose, for example, to obtain an education, a certificate or some retraining in a former occupation. The amount needed is more easily determined but it is not an absolute, in most instances. Therefore the court should not absolutely have said rehabilitative alimony shall continue regardless of remarriage. Very possibly the remarriage might accomplish the rehabilitation in that the former wife has established herself in the occupation of housewife and receives her income and support from that source. On the other hand, a remarriage may not demonstrate the absolute rehabilitation of the wife. The days when women married for support have passed and the roles of the partners to a marriage are not stereotyped but vary from family to family. Thus for this court to determine that rehabilitation occurs or doesn’t occur upon remarriage is not grounded on reason. The provision that rehabilitative alimony would continue regardless of remarriage should be amended to read may continue regardless of remarriage in order to give to the parties an opportunity to “show cause” if remarriage occurs. I agree with the result in the majority opinion but resist the implication therein that rehabilitative alimony must always cease upon remarriage.

Id. at 890.

In Kristensen v. Kristensen, 433 So.2d 598 (Fla. 5th DCA 1983), this court held that the facts of that case warranted a reversal of an order awarding a wife rehabilitative alimony, because the record clearly indicated that the wife had “rehabilitated” herself to her new life style and that she was receiving and expected to receive support from the man with whom she had been living even prior to the dissolution of her marriage. That case does not support, however, the principle that remarriage (or a relationship tantamount to a remarriage) automatically terminates a rehabilitative alimony award, because it looks to the particular circumstances rather than merely the relationship in determining if the award is proper.

We choose to follow the principle espoused in Frye, that because rehabilitative alimony is paid for a specific purpose not necessarily related to the recipient spouse’s support or remarriage, such remarriage should not necessarily terminate the award. Where, however, it appears that the rehabilitative alimony award serves at least some support purpose, and the support of the recipient spouse has been undertaken by another, at least that portion of the award representing support should be terminated. The evidence here shows, without contradiction, that the former wife is being supported to some extent by her boyfriend, and to that extent at least, the former husband’s obligation should have been terminated.

We therefore reverse the order and remand the case to the trial court for further proceedings, specifically, to determine if the intended rehabilitation has occurred, and if not, to determine the extent to which the rehabilitative alimony award represents support of the former wife. If the wife now derives support from another source, that portion of the rehabilitative alimony award should be terminated.

REVERSED and REMANDED.

DAUKSCH and COWART, JJ., concur.


author: DAUKSCH, Judge.

text:
    CITY OF ORLANDO, Appellant, v. ORLANDO PROFESSIONAL FIRE FIGHTERS LOCAL 1365, Appellee.
    No. 83-195.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1983.
    Thomas P. Moran and Christopher A. Detzel of Subin, Shams, Rosenbluth & Moran, P.A., Orlando, for appellant.
    Tobe Lev and Joseph Egan, Jr. of Egan, Williams & Lev, Orlando, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order of the Florida Public Employees Relations Commission which resulted from an unfair labor practice charge filed by the Fire Fighters Union against the city.

The fire fighters allege it is an unfair labor practice for the city to refuse to allow the employees to have a voice in the criteria and standards to be applied in the selection of persons to serve as Captains in the fire department. The city says it is not an unfair labor practice. Because captains are managerial and supervisory personnel it is solely within the discretion of the employer, so says the city, as to who is selected to so serve. A well-reasoned opinion authored by Judge Orfinger issued from this court regarding the same issue as it applies to police lieutenants in City of Orlando v. Orange County Police Benevolent Association, 435 So.2d 275 (1983, Fla. 5th DCA). We adopt the reasoning and result of that decision and thus reverse the order. The matter is remanded to the Commission with directions to dismiss the unfair labor practice charge.

REVERSED and REMANDED.

SHARP, J., and MIZE, Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Kenneth A. SOWERS and Larry Gene Johnston, Appellees.
    Nos. 83-489, 83-493.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellant.
    James Russo, Public Defender, and John D. Galluzzo, Asst. Public Defender, Sanford, for appellees.
   DAUKSCH, Judge.

This is an appeal from a county court order suppressing evidence in a criminal case and from the declaration in that order that Section 316.1932(l)(a), Florida Statutes (1982) is unconstitutional. Jurisdiction for our review of that order is pursuant to Rule 9.140(c), Section 26.012(1) and Section 924.08(2).

The order appealed declares the statute unconstitutional because it violates the Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution and Article 1, Section 9 and Section 12 of the Florida Constitution. The order “precludes the State Attorney of the Eighteenth Judicial Circuit In and For Seminole County, Florida from introducing into evidence at the trial in this cause the fact that the aforesaid Defendant refused to submit to a chemical test for intoxication on or about October 14,1982 or from making any reference to said fact.”

It would be rather superfluous for us to write a detailed analytical opinion discussing the issue, and our decision regarding it, because not only has appellee “confessed error” and declined to file a brief, but the case is controlled by a U.S. Supreme Court case issued just before the trial judge s order here on appeal. In South Dakota v. Neville, — U.S. -, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) the supreme court held that a suspected drunk driver’s refusal to submit to a blood-alcohol test can be used as evidence at trial. The -introduction of the evidence is no more violative of the Florida Constitution than it is violative of the U.S. Constitution, in our opinion, and thus it is admissible at trial. Our ruling is not based upon the 1983 amendment to Article I, Section 12 of the Florida Constitution, thus we have not considered whether that amendment is retroactively applied. See State v. Lavazzoli, 434 So.2d 321 (Fla.1983). Our opinion is based upon the reasoning of South Dakota v. Neville.

The order appealed is reversed and this cause remanded for further proceedings.

REVERSED and REMANDED.

COBB and COWART, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Oliver Cornelius WILLIAMS, Respondent.
    No. 83-819.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1983.
    Douglas Cheshire, Jr., State Atty., and Charles E. Heim, Asst. State Atty., Titus-ville, for petitioner.
    Arthur J. Kutsche, Asst. Public Defender, Titusville, for respondent.
   DAUKSCH, Judge.

This case is before us for a very limited review, by certiorari, of a pre-trial order which holds: “That a necessary element of the offense charged in Count I, solicitation to commit the offense of trafficking in stolen property, is proof that the item involved was stolen.” Since the original ruling upon which this order was based was made during trial, we would not ordinarily have jurisdiction to consider this matter raised by the state. However, because both counsel stipulated to a mistrial after the ruling during trial, the respondent can be tried again. That makes the ruling a pre-trial ruling.

We assume jurisdiction because the ruling, if upheld, would operate to preclude the state from presenting its case at trial and no remedy for the state exists by way of appeal. See State v. Horvatch, 413 So.2d 469 (Fla. 4th DCA 1982); State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982). Because there is no adequate remedy by appeal and because we deem the order to have departed from the essential requirements of law, we accept jurisdiction and quash the order. Combs v. State, 436 So.2d 93 (Fla.1983).

In the stipulated statement in this case it was agreed by both lawyers that:

The Defendant was charged by way of Amended Information with Count I, solicitation to commit a criminal offense, to wit: trafficking in stolen property, and Count II, trafficking in stolen property. The two Counts regarded separate incidents.
At a trial of the cause, it was established that a law enforcement operation was created aimed at detecting and investigating individuals involved in dealing in stolen property. A business known as “J & J Trading Post” was established. It advertised itself as purchaser of items on a cash basis with no questions asked. It was staffed by law enforcement personnel acting in an undercover capacity. A one-way mirror at the rear of the store permitted clandestine monitoring of all transactions.
On October 14, 1982 the Defendant came to J & J Trading Post with an air conditioner from which the serial number had been removed. The Defendant at the time stated to James Blair, an undercover officer, “You’ve got to move this and move it fast ... It’s brand new ... This thing’s hot.” The air conditioner was purchased for $200.00 cash.
At the trial, the State proffered the air conditioner offered for sale by the Defendant and evidence as to his representations about it, including the videotape of the event. Testimony established that the actual source of the air conditioner could not be determined due to the removal of the serial numnber [sic]. The State presented no evidence that the air conditioner was stolen other than evidence of the Defendant’s representation that it was “hot.”
The Defendant objected to the introduction of the air conditioner and all evidence regarding his representations to James Blair. The Circuit Court sustained the objection, ruling that such evidence was irrelevant and immaterial holding that: (1) proof the item offered for sale was stolen was a necessary element of solicitation to commit the offense of trafficking in stolen property, and (2) the State failed to prove the proffered air conditioner was stolen.
After so ruling and upon motion of both Defendant and the State, the Circuit Court declared a mistrial as to both Counts.

Respondent has not furnished us with any authority to support the lower court’s order. We are of the opinion that there is no substantial difference between “soliciting” to traffic in stolen property and “endeavoring” to traffic in stolen property for the purposes of this decision. In both State v. Skinner, 397 So.2d 389 (Fla. 1st DCA 1981) and Padgett v. State, 378 So.2d 118 (Fla. 1st DCA 1980) the appellate court held that a person could be convicted of endeavoring to traffic in stolen goods even though it was established that the goods were not stolen. In Padgett the defendant thought the goods were stolen, but they were not. Here the defendant told the person he is alleged to have solicited that the air conditioner was “hot,” “it’s brand new,” and “You’ve got to move this and move it fast.” Even though the state cannot prove the item is stolen property (partly because the serial number was removed) that does not prevent a jury from logically and properly concluding that the defendant was soliciting the policeman to traffic in stolen property. In fact, based on that testimony, it’s rather obvious.

State v. Rios, 409 So.2d 241 (Fla. 3d DCA 1982) says that the crime of endeavoring to traffic in stolen property is established when it is proved at trial that the defendant committed “an overt act manifesting criminal intent directed toward committing the substantive crime of trafficking.”

We agree with the Rios opinion and, as we said, find no reason to require the proof that the property was stolen in a solicitation to traffic case as opposed to an endeavoring to traffic case. Thus we quash the order and remand this matter to the trial court for further proceedings.

Writ GRANTED; order QUASHED.

COBB and SHARP, JJ., concur.


author: ANSTEAD, Chief Judge.

text:
    MOBIL OIL CORPORATION (“Mobil”), Appellant, v. Michael PATRICK, Appellee.
    No. 82-2195.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Rehearing Denied Jan. 16, 1984.
    W. Peter Burns and James P. Murray of Steel, Hector & Davis, Miami, for appellant.
    Richard L. Kopel of Richard L. Kopel, P.A., Fort Lauderdale, for appellee.
   ANSTEAD, Chief Judge.

This is a timely appeal by Mobil of an award of punitive damages to Michael Patrick. Patrick was awarded $1,000.00 in compensatory damages and $50,000.00 in punitive damages as a result of an incident in which gasoline was spilled on him at Mobil’s loading facility. We reverse.

Mobil operates a gasoline truck loading facility in Port Everglades. In late August of 1978 a new truck loading mechanism was installed at the facility. The automated facilities were apparently installed in anticipation of the enactment of stricter government safety regulations. The new mechanism was designed to shut off automatically after feeding a specified number of gallons of gasoline into a tanker truck. Shortly after installation, it was observed that the valves that stopped the pumps sometimes malfunctioned resulting in under filling or over filling of the tanks. The valve manufacturer recommended that Mobil temporarily take the pumps out of service to fix the problem. Instead, Mobil had a manufacturer’s representative attempt to adjust the valves, and tried to negotiate with the manufacturer and local mechanics in order to obtain the best price for the repairs. Mobil’s trucks also contained their own overflow valves to prevent gasoline spills when the pump loading valves did not shut off properly, but these valves too sometimes malfunctioned. On December 20, 1978, Patrick, a painter temporarily on the premises to paint curbings, was doused with gasoline when the loading valve and the overflow valve both malfunctioned while a gasoline truck was being loaded.

Neither Patrick nor his employer had been warned to look out for spills. Patrick had been on the job for some two weeks prior to the accident and had observed no other spills. However, one witness estimated that as many as fifteen overflows of varying proportions occurred after installation of the new system, although Patrick was the only person to be injured. During the same time period several thousand loading operations were performed without spills. The loading facility itself was designed to minimize the risk of fire or other danger. Tankers were grounded to prevent the buildup of static electricity, no smoking was allowed, and the area was specifically designed to allow recovery of any gasoline spilled from the trucks. Ordinarily only a truck driver would be on the premises during loading and he would position himself to stop the pumps manually if an overflow occurred in order to avoid the danger of a spill. The valve problem was remedied soon after Patrick’s accident by adjustment and recalibration of the valves.

It is well established in Florida that punitive damages may be awarded in a negligence case if the tortfeasor’s conduct is sufficiently egregious. While the verbal formulas used to describe that conduct appear abstract and virtually meaningless, it is clear that negligence alone, even gross negligence, cannot be the basis for an award of punitive damages:

Punitive damages cannot be assessed for mere negligent conduct, but must be based on behavior which indicates a wanton disregard for the rights of others. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). Even gross negligence, by itself, will not support an award of punitive damages. Florida Power Corp. v. Scudder, 350 So.2d 106 (Fla. 2d DCA 1977), cert. denied, 362 So.2d 1056 (Fla.), appeal dismissed, 439 U.S. 922 [99 S.Ct. 303, 58 L.Ed.2d 315] (1978). In Clooney v. Geeting, 352 So.2d 1216 (Fla. 2d DCA 1977), the plaintiff alleged that an employer knew its employee was not physically or mentally able to drive its truck. The court held that this knowledge was not sufficient to sustain a claim for punitive damages because the allegations did not show the necessary malice or wanton, willful or outrageous conduct. “[GJross negligence is not enough to give rise to punitive damages — there must be a wilful and wanton disregard for the rights of others.” Id. at 1219.

U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla.1983). Measured by this standard, we do not believe Mobil’s conduct has been shown to be sufficiently egregious to sustain the punitive damage award.

We agree that the jury could conclude that Mobil knew of the danger of gasoline spills and was negligent in remedying the situation and failing to warn Patrick of the danger. However, in light of the absence of prior injuries, and considering the nature of the tanker loading area and the manner in which the loading operations were carried out, we do not believe that Mobil’s conduct in failing to anticipate the risk of injury by a spill could properly be characterized as wilful and wanton. There is no evidence in the record for example, that the overflows actually constituted a danger to human safety up until the time of the incident involved herein. Indeed, one of the reasons for having the automated facilities was to eliminate personal handling of the loading devices and the attendant danger involved. It appears to have been pure coincidence that placed Patrick beside the tanker truck, but outside the view of the tanker driver, at the time of the simultaneous malfunction of both sets of valves. As noted, ordinarily only the truck driver would be nearby and he would intentionally position himself so he could avoid danger and shut down the pumps if an overflow took place. There is simply no evidence in the record from which the jury could conclude that Mobil’s failure to warn or delay in fixing the valves would probably result in human injury.

Accordingly, we reverse the judgment entered by the trial court and remand with instructions that the provisions contained therein for punitive damages be stricken.

HURLEY, J., and WESSEL, JOHN D., Associate Judge, concur.