author: SHIVERS, Judge.

text:
    Jose Ramon ESCRIBANO, Appellant, v. WESTINGHOUSE ELECTRIC COMPANY and Gates McDonald (Servicing Agent), Appellees.
    No. AY-174.
    District Court of Appeal of Florida, First District.
    July 12, 1984.

      Scott B. Gorman, of Morris & Rosen, P.A., Tampa, for appellant.
    Charles A. Zinn, of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appel-lees.
   SHIVERS, Judge.

In this workers’ compensation case, Es-cribano appeals an order of the deputy commissioner which dismisses Escribano’s claim based on the running of the Statute of Limitations, section 440.19(2), Florida Statutes (1979). Appellant contends that the deputy commissioner erred in finding that the statute had run. We agree, reverse and remand.

Escribano was employed by Westinghouse from 1951 until 1981, working as a cleaner, metal finisher, and finally as a welder. Claimant was injured in a compen-sable industrial accident in 1971 when he tripped over a cable and felt pain in his low back. On November 13, 1979, claimant suffered a new industrial accident when he was carrying a piece of metal, tripped and twisted his back.

Appellant was a regular customer of the Westinghouse company medical facility, particularly after his back injury in 1971. He was treated in this medical facility for all types of ailments, both work related and non-work related. After his accident on November 13, 1979, claimant was seen by Dr. Tagliarini, the company doctor, who diagnosed muscle strain and prescribed norgesic forte and heat. On November 14, 1979, claimant returned to the clinic but declined heat due to having “no pain.” Claimant returned to the clinic a number of times over the course of the next year but none of these visits were because of back pain.

On March 12, 1981, claimant returned to the clinic complaining of back pain. The clinic’s entry for this date states, “4 p. cl o back pain — recurring—started last night— no unusual activity.” Dr. Tagliarini again prescribed norgesic forte, a muscle relaxant, to be taken for 7-10 days. Although claimant returned to the clinic a number of times after March 12, 1981, none of these visits were for back pain. On November 25, 1981, claimant’s employment was terminated because the plant was closed.

Dr. Vega, an orthopedic surgeon, and Dr. Rydell, a neurologic surgeon, testified that claimant’s underlying problem was degenerative disc disease. Both doctors testified, however, that the 1979 accident aggravated this pre-existing condition. Dr. Vega reported that if claimant declines corrective surgery, he will remain with a permanent disability of 15% of the body as a whole, of which 10% is related to the accident of 1979. Dr. Rydell stated that claimant has a 10% permanent disability of which the 1979 accident is responsible for approximately 5%.

On July 6, 1982, Escribano filed a claim for benefits resulting from the November 13, 1979 accident. The deputy commissioner denied the claim based on the Statute of Limitations. He found that claimant owed a responsibility to the employer to put the employer on notice at the time of claimant’s treatment on March 12, 1981, if he were contending that his back pain was related to his employment. The deputy commissioner also specifically found that the medical treatment rendered on March 12, 1981, was not furnished on account of the injury occurring in November 1979.

The relevant statutory provisions, section 440.19(2)(a) and (b), Florida Statutes (1979), read as follows:

(2)(a) The right to compensation for disability, impairment, or wage loss under this chapter shall be barred unless a claim therefor which meets the requirements of paragraph (d) is filed within 2 years after the time of injury, except that, if payment of compensation has been made or remedial treatment has been furnished by the employer on account of such injury, a claim may be filed within 2 years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer.
(b) All rights for remedial attention under this section shall be barred unless a claim therefor which meets the requirements of paragraph (d) is filed with the division within 2 years after the time of injury, except that, if payment of compensation has been made or remedial attention has been furnished by the employer without an award on account of such injury, a claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last remedial attention furnished by the employer; and all rights for remedial attention under this section pursuant to the terms of ári award shall be barred unless a further claim therefor is filed with the division within 2 years after the entry of such award, except that, if payment of compensation has been made or remedial attention has been furnished by the employer under the terms of the award, a further claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last remedial attention furnished by the employer. However, no statute of limitations shall apply to the right for remedial attention relating to the insertion or attachment of a prosthetic device to any part of the body,

(emphasis added).

The deputy commissioner’s factual finding that the medical treatment rendered on March 12, 1981, was not furnished “on account of” the injury of November 1979 is not supported by competent, substantial evidence. In Watson v. Delta Airlines, Inc., 288 So.2d 193 (Fla.1973), the claimant had a preexisting knee condition but then suffered a compensable accident injuring his knee in February 1968. He sustained a noncompensable additional injury to the knee in December 1969, and received medical care for his knee in January 1970. The claim was filed in May 1970. The Judge of Industrial Claims found that the Statute of Limitations had run because the medical treatment in January 1970 was related to the intervening, noncompensable injury in December of 1969 rather than the 1968 compensable injury. The Industrial Relations Commission affirmed, but the Florida Supreme Court reversed and stated:

The Judge’s finding that the injury was related solely to the injury of December 18, 1969, is not supported by the record. In fact, the uncontradicted medical testimony is to the contrary. Both doctors testified that the claimant’s current condition is the result of all prior injuries to his left knee, including the non-compensable hamstring. Dr. Kurz-ner, when asked whether he could attribute any of the disability to claimant to the hamstring sprain, stated:
“This young fellow has had a disability of the knee for quite a period of time. He has had minor injuries on several different occasions. It is kind of hard to evaluate which is giving him which. I am being perfectly honest with you, sir.”

288 So.2d at 195.

In the instant case, even assuming that claimant’s back pain of March 1981 was partially caused by the natural progression of his degenerative disc disease, the 1979 injury was also partially responsible since it is uncontradicted that the November 1979 accident aggravated claimant’s preexisting condition and increased his percentage of disability. In other words, the treatment on March 12, 1981, would not be solely due to the preexisting condition. We note that the medical recorder who documented appellant’s clinic visit on March 12, 1981, called the back pain “recurring” and noted that the pain began after no unusual activity. The same medication was prescribed on March 12, 1981, that had been prescribed on November 13, 1979, after the accident. When Dr. Tagliarini was asked whether he prescribed the medication on March 12, 1981, in reference to the industrial accident or to the natural progression of claimant’s back problems, Dr. Tagliarini replied, “I don’t know that I could differentiate.” Dr. Ta-gliarini related claimant’s back problem on March 12, 1981, “to a man who has had previous back problems and has a tendency to recurrent backache.” In light of Watson, we find that the instant record could only support a finding that the medical treatment furnished by employer to the claimant on March 12, 1981, was on account of the injury of November 1979.

The deputy commissioner also erred in stating that notice was required to the employer that the medical treatment of March 12, 1981, was in regard to the injury of November 1979. As this court stated in Seamco Laboratories, Inc. v. Pearson, 424 So.2d 898, 900 (Fla. 1st DCA 1982), “It is the remedial treatment that tolls the statute, not the report of the treatment.”

REVERSED and REMANDED.

MILLS and WIGGINTON, JJ., concur.


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    Mark DeFRIEST, Appellant, v. STATE of Florida, Appellee.
    No. AV-220.
    District Court of Appeal of Florida, First District.
    July 12, 1984.

      Michael Allen, Public Defender, Charlene V. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace Allbrit-ton, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

DeFriest appeals from convictions and sentences for inmate possession of contraband. He contends the trial court erred in refusing to give a requested jury instruction and in denying motions for judgment of acquittal. We affirm.

DeFriest, an inmate at the Florida State Prison, was confined to a one-man cell. On 30 December 1982, authorities searched the cell. They found a knife hidden in a shoe. They also found seven live rounds of .22 caliber ammunition and two empty .22 caliber shell casings hidden in a slipper and in a felt-tip marker. The authorities removed the cover from an air vent in the cell and found an object resembling an ice pick.

The State ultimately charged DeFriest with two counts of inmate possession of contraband (Section 944.47, Florida Statutes (1981)). Count I charged possession of an explosive substance; specifically, ammunition and shell casings. Count II charged possession of weapons; specifically, the knife and the ice pick-type object.

DeFriest first argues the trial court erred in refusing to instruct the jury on the definition of “explosive” provided in Section 790.001(5), Florida Statutes (1981), and the exclusions from that definition provided in paragraphs (a)-(d) of Section 790.001(5). Section 790.001(5) provides:

(5) “Explosive” means any chemical compound or mixture that has the property of yielding readily to combustion or oxidation upon application of heat, flame, or shock, including but not limited to dynamite, nitroglycerine, trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps, and detonators; but not including:
(a) Shotgun shells, cartridges or ammunition for firearms;
(b) Fireworks as defined in s. 791.01;
(c) Smokeless propellant powder or small arms ammunition primers, if possessed, purchased, sold, transported, or used in compliance with s. 552.241;
(d) Black powder in quantities not to exceed that authorized by chapter 552, or by any rules or regulations promulgated thereunder by the Department of Insurance, when used for, or intended to be used for, the manufacture of target and sporting ammunition or for use in muzzle-loading flint or percussion weapons.

The trial court’s refusal to instruct the jury on the above statutory provisions was proper for three reasons. First, the definitions of Section 790.001 are necessarily controlling only as the defined terms are used in Chapter 790. DeFriest was charged under Chapter 944. Although the definitions in Chapter 790 may apply elsewhere if application would be reasonable, Hartman v. State, 403 So.2d 1030 (Fla. 4th DCA 1981), we do not think the statutory definition of “explosive” contained in Chapter 790, dealing with weapons and firearms among the general public, reasonably applies to a statute in Chapter 944, regulating conduct at state correctional institutions. Surely, live ammunition is just the kind of dangerous item the legislature intended to keep out of the hands of prison inmates by operation of Section 944.47.

Second, even if the definition of “explosive” in Section 790.001(5) does apply to Section 944.47, it does not follow that the exclusions of Section 790.001(5)(a)-(d) also apply. Whatever the purpose of excluding shotgun shells, cartridges, ammunition for firearms and the like from the statutory definition of “explosive” in Chapter 790, we can find no logical reason for excluding those items from “explosive substance” as that term is used in Section 944.47.

Finally, although DeFriest argues that the definition of “explosive” in Section 790.001(5) is the only definition of “explosive” contained in the Florida Statutes, we note that Section 552.081(1) and Section 552.081(2), Florida Statutes (1981) define “explosive materials” and “explosives” respectively. DeFriest gives no reason why these definitions are less applicable to Section 944.47 than the definition in Section 790.001(5). We think the definitions in Chapter 552, regulating the manufacture, distribution and use of explosives among the general public, are equally inapplicable to Section 944.47. Statutes having different purposes and subjects should not be construed in pari materia.

DeFriest next contends the trial court erred in denying his motion for judgment of acquittal as to Count I. He argues “that .22 caliber cartridges and used cartridge shells are not explosive substances for purposes of prosecution pursuant to Section 944.47, Florida Statutes (1981).”

The State’s expert witness testified he examined the .22 caliber ammunition and shell casings taken from DeFriest’s cell. He stated that some of the ammunition contained viable propellant powder and that propellant powder was definitely an explosive substance. This was prima facie evidence that DeFriest possessed an explosive substance.

We also find no error in the trial court’s denial of DeFriest’s motion for judgment of acquittal as to both counts. The State produced evidence that the premises on which the contraband was found were in DeFriest’s exclusive possession and control. His knowledge of and ability to maintain control over the contraband could therefore be inferred. State v. Craig, 413 So.2d 863 (Fla. 1st DCA 1982); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967). DeFriest never rebutted this inference.

AFFIRMED.

SHIVERS and WIGGINTON, JJ„ concur.


text:
    FRITO LAY INC., National Union Fire Insurance Company and Crawford & Company, Appellants, v. Marilyn Sue ANDERSON, Appellee.
    No. AV-330.
    District Court of Appeal of Florida, First District.
    July 12, 1984.

      Bernard J. Zimmerman and Robert E. Mansbach, Jr. of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellants.
    J. David Parrish, of Hurt & Parrish, Orlando, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   SHIVERS, Judge.

The employer/carrier in this workers’ compensation case appeal the deputy commissioner’s order granting claimant’s Petition for Modification and directing that claimant receive continuing medical treatment from Dr. Michael Gutman. We affirm.

First, we find and hold that the medical testimonies of Drs. Gutman and Blood, together with the testimony of claimant and claimant’s medical records, provide competent, substantial evidence upon which the deputy could find that claimant developed psychiatric problems that were not known, or that had not manifested themselves in sufficient degree, to be subject to proof at the time of the initial order, i.e., a change of condition, and that these problems were causally related to the industrial accident. See General Electric Co. v. Osborne, 394 So.2d 1089 (Fla. 1st DCA 1981). Next, we find and hold that the deputy did not abuse his discretion in ordering that claimant receive treatment from the date of hearing forward from claimant’s unauthorized, treating physician, Dr. Gutman, since there is competent, substantial evidence showing good cause why claimant should remain under the successful treatment of Dr. Gutman, as opposed to the treatment offered by the employer/carrier. See section 440.13(2), Florida Statutes (1981) (providing, in pertinent part, that “a deputy commissioner may at any time, for good cause shown, in the deputy commissioner’s discretion, order a change in such remedial attention, care, or attendance.”); Robinson v. Howard Hall Company, 219 So.2d 688, 691 (Fla.1969).

The deputy reserved jurisdiction for the determination of a reasonable attorney’s fee. We interpret this reservation to be whether a fee should be awarded, and if so, its reasonableness.

The deputy’s order is AFFIRMED.

MILLS and WIGGINTON, JJ., concur.


text:
    Henry Lee PRIMOUS, Appellant, v. STATE of Florida, Appellee.
    No. AW-8.
    District Court of Appeal of Florida, First District.
    July 12, 1984.
    Michael Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John Tiedemann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

We affirm Primous’ conviction and sentence for grand theft of an automobile. The admission of similar fact evidence was proper pursuant to Section 90.404(2)(a), Florida Statutes (1983). See Williams v. State, 110 So.2d 654 (Fla.1959).

AFFIRMED.

SHIVERS and WIGGINTON, JJ„ concur.


text:
    Tony Bernard MILTON, Appellant, v. STATE of Florida, Appellee.
    No. AW-319.
    District Court of Appeal of Florida, First District.
    July 12, 1984.
    Michael E. Allen, Public Defender; and Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Henri C. Caw-thon, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   SHIVERS, Judge.

Appellant appeals his order of probation contending that it is contrary to Fresneda v. State, 347 So.2d 1021 (Fla.1977). We affirm in part and reverse in part.

First, we affirm the assessment against appellant of the expense incurred by the City of Havana in its investigation relating to appellant’s sale of cannabis. In this regard, we find the decision in Cuba v. State, 362 So.2d 29 (Fla. 3d DCA 1978)-persuasive and adopt its reasoning on whether the state is an aggrieved party for purposes of section 948.03(1)(g), Florida Statutes. See also Ballance v. State, 447 So.2d 974 (Fla. 1st DCA 1984), wherein this court implicitly approved Cuba.

Second, we reverse and remand this cause to the trial judge for the purpose of providing appellant with reasonable notice of the proposed restitution and to afford appellant an opportunity to be heard on the amount of the restitution. Here, restitution was ordered at the same time as appellant was placed on probation at the sentencing hearing. This does not satisfy the notice requirements mandated by Fresneda, supra. See also Blincoe v. State, 371 So.2d 595 (Fla. 1st DCA 1979); DiOrio v. State, 359 So.2d 45 (Fla. 2d DCA 1978). Accordingly, this cause is remanded for the purpose of conducting a restitution hearing as required by Fresneda.

AFFIRMED in part, REVERSED in part and REMANDED with directions.

MILLS and WIGGINTON, JJ, concur.


text:
    BOCA BANANA BOAT and Canal Insurance Company C/O Bruns Casualty General Agency, Inc., Appellants, v. Sherry CARTER, Appellee.
    No. AX-285.
    District Court of Appeal of Florida, First District.
    July 12, 1984.
    Albert P. Massey, III, of Pyszka & Kes-sler, P.A., Fort Lauderdale, for appellants.
    Eugene N. Betts, P.A., Fort Lauderdale, for appellee.
   MILLS, Judge.

The • employer/carrier appeal from a workers’ compensation order contending the deputy’s finding that Carter sustained a compensable injury is not supported by competent substantial evidence. We do not agree and affirm.

Carter was a waitress at the Boca Banana Boat, a restaurant in Fort Lauder-dale. On 18 July 1983, while going into the kitchen, she slipped on some water, fell, and injured her shoulder, neck, and back. She was treated for her injuries by Dr. Bruns, who diagnosed a possible lumbar herniation. Carter began wearing a back support and returned to work.

On 15 August 1983, Carter was on the job carrying a tray of glasses. She testified that she felt a sharp pain in her back. She again fell, struck her head, went into a seizure, and sustained serious damage to her teeth. Doris Dixon, who witnessed the fall, testified that she saw Carter grab her back and then fall. Dr. Perry testified that he did not know whether Carter slipped and fell or whether she had a seizure and fell.

The employer/carrier argue that Carter’s testimony does not reveal what caused her to fall, that Doris Dixon’s testimony is consistent with Carter having had a seizure before falling, and that the medical testimony about the cause of Carter’s fall is also unclear.

Apparently, the employer/carrier contend that Carter’s injuries resulted from an idiopathic fall, and, therefore, are not com-pensable. Not so. Clearly, there is competent substantial evidence that Carter’s back pain caused her to fall.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    Pfilip G. HUNT, Jr., Appellant, v. SLIPPERY DIP OF JACKSONVILLE, INC., Appellee.
    No. AU-325.
    District Court of Appeal of Florida, First District.
    July 13, 1984.
    Douglas H. Morford of Ulmer, Murchison, Ashby, Taylor & Corrigan, Jacksonville, for appellant.
    William T. Stone of Cowles, Coker, Myers, Schickel & Pierce, Jacksonville, for appellee.
   PER CURIAM.

This is an appeal from a summary final judgment in favor of appellee, Slippery Dip of Jacksonville, Inc., in a negligence action. We affirm.

The appellant was injured at a water slide operated by the appellee. The appellant, who was 18 years old at the time of the injury, was attempting to “jump the wall,” which consisted of crossing over a concrete wall that separated two adjoining troughs. Before the appellant’s accident, he had been down the slide 20 to 25 times that day (usually attempting to “jump the wall” in tandem with his girlfriend, who successfully completed the maneuver while appellant did not) and had used the same slide on two previous occasions. The trial judge entered the summary final judgment against the appellant upon the authority of Vermont Mutual Insurance Company v. Conway, 358 So.2d 123 (Fla. 1st DCA 1978), and Ball v. Ates, 369 So.2d 1023 (Fla. 1st DCA 1979). We agree with the trial judge. The applicable rule in those cases is that a defendant’s knowledge of a danger must be superior to that of a business invitee in order to create a duty on the part of the defendant to warn. In the instant case, the record shows that the knowledge of the appellant/invitee of the risk involved in using the water slide was at least equal to that of the appellee. Furthermore, the record indicates that the slide was designed to allow jumping the wall, and there was no evidence of a latent or hidden defect m the slide.

AFFIRMED.

BOOTH, SMITH and SHIVERS, JJ., concur.


text:
    SIMPSON MOTORS and Lynn Underwriting Company, Appellants, v. Julius B. WILSON, Appellee.
    No. AU-398.
    District Court of Appeal of Florida, First District.
    July 13, 1984.
    Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellants.
    Thomas R. Mooney and Sherry L. Davis of Meyers & Mooney, P.A., Orlando, for appellee.
   MILLS, Judge.

The employer/carrier appeal from a workers’ compensation order contending the deputy commissioner erred in finding that Wilson conducted an adequate work search between March and June 1983. Wilson cross appeals arguing that the deputy erred in finding that Wilson was not permanently totally disabled. We affirm.

Although there was evidence that Wilson did not cooperate with the employer/carrier’s rehabilitation specialist and that Wilson only called some rather than visited all of the prospective employers listed on his job list, evidence was presented by Wilson’s rehabilitation specialist that Wilson was cooperative and they visited 38 businesses most likely to employ him with no success.

Whether a claimant has conducted an adequate work search is a factual determination for the deputy. Clay Hyder Trucking v. Persinger, 416 So.2d 900 (Fla. 1st DCA 1982). There is competent substantial evidence supporting the deputy’s finding.

Wilson’s rehabilitation specialist stated there were jobs Wilson could do. Dr. Pearson stated in his deposition that if Wilson indicated he wanted to work, he would recommend certain limitations.

This was competent substantial evidence supporting the deputy’s finding that Wilson was not permanently totally disabled.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Michael J. LUCAS, Jr. and Elizabeth N. Lucas, Appellants, v. Neal D. EVANS, Jr., Tom B. Stewart, Jr., Alan C. Winter, Jr., Earl Brown and Julian Warren, Appellees.
    No. AV-132.
    District Court of Appeal of Florida, First District.
    July 13, 1984.
    Nathan Weil, III of Weil, Johnson & Benson, Jacksonville, for appellants.
    Stanley B. Gelman, Griffin Helwig, and Neal D. Evans, Jr., Jacksonville, for appel-lees.
   ERVIN, Chief Judge.

Appellants challenge the trial court’s final judgment requiring certain improvements to offices leased to appellees and awarding the appellees’ attorneys’ fees. Appellees (lessees) cross-appeal the court’s failure to require the appellants to make other improvements to the property as required either by two leases or by law in existence at the time of the leases’ execution. We affirm the judgment as to issues raised on appeal, but, as to the cross-appeal, reverse and remand.

In 1972, appellees-lessees entered into two leases of office space with Rowlab, Inc., appellants’ predecessor. The leases required that Rowlab perform certain remodeling and repair work, as described in the plans and specifications attached and made a part of the leases. During the lessees’ tenancy, numerous breaches by Rowlab occurred, including the failure to bring the premises up to the standards required by the plans and specifications. Understanding Rowlab to be in financial difficulty, the lessees did not then insist upon adherence to the remodeling schedule specified in the leases.

In 1980, the appellants acquired title to. the property from Rowlab. Before the purchase, they sought a release from the lessees, seeking to release them from all liability for Rowlab’s breaches. The release was obtained with the express understanding that appellants would agree, which they did, to make all repairs and improvements necessary to conform the property to the plans and specifications attached to the leases. After the appellants acquired title, additional breaches occurred. Repairs and improvements were not performed, and the appellees filed the suit below, seeking declaratory judgment, specific performance, injunctive and other relief.

Summary judgment was entered in favor of the appellees, resulting in the entry of a final judgment, ordering the appellants to undertake certain improvements to the leased premises, including installation of restroom exhaust fans, and awarding to appellees attorney’s fees in the amount of $25,100. The judgment, however, did not require appellants to make certain repairs to the sidewalks and curbs, or to perform the cornice work as described in the plans and specifications.

The appellants allege error in the judgment finding that installation of restroom exhaust fans was required by a provision of the Florida Administrative Code which was not in effect at the time the leases were executed. This contention, however, misperceives the foundation of the trial court’s ruling. The order directing appellants to install the fans was based on a finding that such action was necessary to conform the property to the standards of the plans and specifications, as the appellants are required to do by the terms of the leases, which placed such burden first on Rowlab and then on its successors in interest. While the failure of the lessees to press Rowlab to perform the work during its period of financial trouble may have waived the leases’ requirement of performance within specified time periods, our consideration of the lessees’ intent in not insisting on Rowlab’s performance dictates that their action should not be so broadly construed as to waive impliedly the covenanted performance itself. See 22 Fla. Jur.2d Estoppel and Waiver § 89. Additionally, the release given to the appellants was expressly conditioned upon their agreement to perform the repairs and improvements necessary to conform the premises to the requirements of the leases. Thus, even had the terms of the leases been waived, the release constitutes an independent contract binding the Lucases to the performance ordered by the court below. See 10 Fla.Jur.2d Compromise, Accord and Release §§ 24, 35.

The award of attorney’s fees is a matter committed to sound judicial discretion, not to be disturbed on appeal, absent a showing of clear abuse of discretion. 3 Fla.Jur.2d Appellate Review § 339. The trial court’s award was supported by the affidavits of three reputable attorneys familiar both with the work of lessees’ counsel as well as the legal fees prevailing in the area. Affiants attested to having reviewed the case file, the applicable law, and factors established by the Code of Professional Responsibility in formulating their opinions as to a reasonable fee. As the affidavits constitute sufficient bases for the determination of an attorney’s fee, and the actual fee awarded was significantly less than the figures suggested, no abuse of discretion warranting the intervention of this court has been shown.

As to the cross-appeal, the trial court’s failure to order compliance with the plans and specifications regarding the sidewalk, curb and cornice work is contrary to its findings of fact and law otherwise made. The order predicated upon pretrial conference and plaintiff’s motion for partial summary judgment clearly states that these matters were repairs and improvements required by the plans and specifications of the leases and that such had not been performed in compliance with the standards required by the specifications. The final judgment held that the appellants were bound by the leases and ordered them to make other improvements conforming the premises to the specifications. Inconsistently, however, the work on the sidewalks, curbs and cornice was not included in the order directing specific performance. As there is no apparent reason to distinguish the appellants’ obligation to perform this work from their obligation to install restroom exhaust fans and do other work necessary to conform the premises to the specifications, we reverse and remand for entry of an order affording appellee such other relief as is consistent with this opinion.

BOOTH and WENTWORTH, JJ., concur.


text:
    Jay Mark TIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. AW-149.
    District Court of Appeal of Florida, First District.
    July 13, 1984.

      Michael Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Andrea Smith Hillyer, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Appellant appeals the sentence imposed by the trial judge for his violation of Florida Statutes Section 316.1931 (1982), i.e., DWI manslaughter. We affirm appellant’s conviction, but vacate the written sentencing order, and remand the cause so that a corrected written sentencing order may be entered which conforms to the sentence as orally pronounced.

At the sentencing hearing, the trial judge orally pronounced that appellant be committed to the Department of Corrections for twelve (12) years and that he pay a $10,000 fine. This is a legal sentence. Sections 782.07, 775.082, and 775.083, Florida Statutes (1981). In his written sentencing order, the trial judge recited that appellant be committed to the Department of Corrections for twelve (12) years and that he pay a $12,000 fine. This is not a legal sentence. Id. However, the oral pronouncement of sentence controls and the written order must be corrected to conform to the oral pronouncement. See Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982); Sandstrom v. State, 390 So.2d 448 (Fla. 4th DCA 1980), rev. denied, 397 So.2d 779 (Fla.1981).

Accordingly, appellant’s conviction is affirmed, the written sentencing order is vacated, and this cause is remanded so that a corrected written sentencing order may be entered which conforms to the sentence as orally pronounced.

MILLS and WIGGINTON, JJ., concur.


author: NIMMONS, Judge. BARFIELD, Judge,

text:
    In re FORFEITURE OF one 1979 MAZDA AUTOMOBILE, VIN # FA4UV521728. STATE of Florida, Appellant, v. Ludwig Oddo BAGLIONI, Appellee.
    No. AW-438.
    District Court of Appeal of Florida, First District.
    July 13, 1984.

      Jim Smith, Atty. Gen., and William P. White, Jr., Asst. State Atty., for appellant.
    William B. Richbourg, Pensacola, for ap-pellee.
   NIMMONS, Judge.

The trial court initially entered judgment for the state forfeiting a motor vehicle pursuant to Sections 932.701-932.704, Florida Statutes (1983), the “Florida Contraband Forfeiture Act.” However, the trial court granted rehearing, vacated the previous judgment and ordered the vehicle restored to the owner, Ludwig Oddo Baglioni. The state appeals from that order. We reverse.

Apparently, there were evidentiary hearings before the trial court prior to the entry of the judgment of forfeiture and upon rehearing. However, we have not been furnished with a transcript of such hearings. Counsel for the state makes the statement in his brief that “the factual issues [have] been resolved by stipulation of the parties.” Apparently, the stipulation referred to by the state consists of certain statements contained in a “memorandum letter” written to the trial court by Baglioni’s attorney in support of his motion for- rehearing. Counsel for the state quotes the following portion of opposing counsel’s letter in the statement of facts of his brief:

The facts necessary for the determination of this motion are very simple. The State, at the forfeiture hearing, proved that the owner of the vehicle in question, Ludwig Baglioni, transported a passenger to and from a local shopping center. That the passenger made contact with undercover officers and proceeded to sell them some substance, apparently marijuana, for $20.00. The substance was contained in a brown paper bag which the passenger obtained from somewhere inside the vehicle in question.

We will assume those to be the facts inasmuch as Baglioni’s answer brief has no statement of facts section and does not otherwise take issue with such facts.

On rehearing in the trial court, Baglioni asserted, as he does on appeal, that the following portion of Section 932.703(1) is controlling:

(1) * * * In any incident in which possession of any contraband article defined in s. 932.701(2)(a)-(d) constitutes a felony, the vessel, motor vehicle, aircraft, or personal property in or on which such contraband article is located at the time of seizure shall be contraband subject to forfeiture.

And, since the parties also stipulated in the lower court that only 8.9 grams of marijuana was involved, Baglioni reasons that the above-quoted statutory provision is not satisfied.

But the fact that the above-quoted provision allows forfeiture of a vehicle in which a “felony amount” of marijuana is found does not preclude the operation of other provisions of the Act which do contemplate forfeiture of a vehicle used in a statutorily proscribed manner notwithstanding the fact that the possession of the contraband (in this case, marijuana) is not a felony. Under Section 932.702(3), it is unlawful to use a motor vehicle to facilitate the sale of any contraband article including any controlled substance regardless of the quantity and Section 932.703(1) specifically provides for the seizure of any motor vehicle “which has been or is being used in violation of any provision of s. 932.702.” See One 1976 Dodge Van v. State, 447 So.2d 984 (Fla. 1st DCA 1984). Further, Section 932.701(2) defines “contraband article” and includes the following:

(e) Any personal property, including, but not limited to, any item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, or currency, which has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony.

The fact that only 8.9 grams of marijuana was involved in the instant case would not render subsection (e) inapplicable because the sale of any quantity of marijuana is a felony, and, apparently, evidence of sale of the marijuana was presented at one of the evidentiary hearings. From the skeletal facts which have been furnished us by the parties, it appears that the trier of the fact might well have found evidentiary support for forfeiture under the above additional provisions of the Act.

Insofar as the availability to the state of Section 932.701(2)(e) (quoted above) as a ground justifying forfeiture, Baglioni argues that since the operative provisions of 932.703(1) refer only to 932.701(2)(a)-(d), the provisions of (e) may not be relied upon as a basis for forfeiture. The Fourth District Court of Appeal has rejected a similar argument in In Re Forfeiture of One 1973 Mercedes, 423 So.2d 535 (Fla. 4th DCA 1982). That court pointed out that the 1980 Legislature, in overhauling much of the Act, added section 943.41(2)(e) which thereby “expressly provides an additional basis on which to seize a motor vehicle.” The court went on to state:

Appellees accurately point out, however, that the legislature neglected to include any reference in section 943.43(1) to the newly added subsection 943.41(2)(d). They argue that such omission is fatal. While we concur in recognizing the omission, we find such to have been cured by section 943.44(1), Florida Statutes (Supp.1980).

Id. at 537. We agree with the reasoning of our sister court.

The trial court’s order denying forfeiture was, as articulated by the trial court, based upon the failure of the Legislature when it added Section 932.701(2)(e), to include reference to that new subsection in Section 932.703(1). This was error.

The order appealed is therefore reversed. On remand, the trial court will consider the evidence presented and determine the state’s entitlement to forfeiture based upon the construction of the pertinent provisions of the Act as discussed herein. REVERSED AND REMANDED.

THOMPSON, J., concurs.

BARFIELD, J., specially concurs.

BARFIELD, Judge,

specially concurring:

I concur in the reversal of the trial court, but I do not agree that section 932.702(3) should be the basis. Section 932.702(1) is an appropriate authority for this case.

      . The Act, previously numbered Sections 943.-41-.44, was renumbered as Sections 932.-701-.704 by Chapter 80-68, Laws of Florida. Section 943.41(2)(e) thus became Section 932.-701(2)(e).

      . Section 943.44(1), relied upon by the Fourth District, was renumbered to 932.704(1) and provides:
      "(1) The state attorney within whose jurisdiction the contraband article, vessel, motor vehicle, aircraft, or other personal property has been seized because of its use or attempted use in violation of any provisions of law dealing with contraband, or such attorney as may be employed by the seizing agency, shall promptly proceed against the contraband article, vessel, motor vehicle, aircraft, or other personal property by rule to show cause in the circuit court within the jurisdiction in which the seizure or the offense occurred and may have such contraband article, vessel, motor vehicle, aircraft, or other personal property forfeited to the use of, or to be sold by, the law enforcement agency making the seizure, upon producing due proof that the contraband article, vessel, motor vehicle, aircraft, or other personal property was being used in violation of the provisions of such law. The final order of forfeiture by the court shall perfect the state’s right and interest in and title to such property and shall relate back to the date of seizure.”


author: J0AN0S, Judge.

text:
    Troy M. OATSVALL, Appellant, v. STATE of Florida, Appellee.
    No. AY-9.
    District Court of Appeal of Florida, First District.
    July 13, 1984.
    Troy M. Oatsvall, pro se.
    Jim Smith, Atty. Gen., and Wallace All-britton, Asst. Atty. Gen., Tallahassee, for appellee.
   J0AN0S, Judge.

Oatsvall appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. His motion alleged that his plea of guilty to the charge of larceny of an automobile was entered involuntarily because it was not made with an understanding of the nature of the charge or the consequences of the plea. No portion of the file or record was attached to the order denying appellant’s motion. Instead, the order recited that the trial court had reviewed the motion and found “that the defendant is entitled to no relief.”

Appellant’s motion appears to be facially sufficient. Therefore, it was error for the trial court to summarily deny the motion, and this cause is reversed and remanded with directions to the trial court to attach portions of the record which conclusively show that appellant is entitled to no relief or to conduct an evidentiary hearing on the allegations presented in the motion. See: State v. Reynolds, 238 So.2d 598 (Fla.1970); Wilcox v. State, 267 So.2d 15 (Fla. 1st DCA 1972).

REVERSED and REMANDED.

SMITH and ZEHMER, JJ., concur.


text:
    Johnny L. COACH, Appellant, v. STATE of Florida, Appellee.
    No. AY-221.
    District Court of Appeal of Florida, First District.
    July 13, 1984.
    Johnny L. Coach, pro se, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant’s rule 3.850 motion, including the sworn memorandum of law, is facially insufficient for failure to allege specific facts in support of the allegations of ineffective assistance of counsel. Rule 3.850(e), Fla.R.Crim.P.; see, Daniels v. State, 450 So.2d 601 (Fla. 4th DCA 1984).

AFFIRMED without prejudice to refile a motion that fully complies with rule 3.850.

SMITH, JOANOS and ZEHMER, JJ., concur.


text:
    Terry MOORE, Appellant, v. STATE of Florida, Appellee.
    No. AY-308.
    District Court of Appeal of Florida, First District.
    July 13, 1984.

      Terry Moore, pro se.
    No appearance for appellee.
   PER CURIAM.

Moore appeals the denial of his motion for post-conviction relief filed pursuant to Florida Rules of Criminal Procedure 3.850. In his motion appellant alleged that the trial court erred when it convicted and sentenced him on two counts of robbery and one count of aggravated assault, because aggravated assault is a lesser included offense of armed robbery. Appellant’s motion is insufficient to support the claim for relief sought, for he does not state facts in the petition which are sufficient to show that his rights under the double jeopardy provisions of the Florida and United States Constitution have been violated. The assertion of conclusions of law without specific allegations of fact in support is not adequate in making a claim for relief under Rule 3.850. See: McElroy v. State, 436 So.2d 417 (Fla. 1st DCA 1983).

The order denying the motion for post-conviction relief is AFFIRMED.

SMITH, JOANOS and ZEHMER, JJ., concur.

      . The Florida Supreme Court has recently held that aggravated assault is not a necessarily lesser included offense of armed robbery. State v. Baker, 452 So. 927 (Fla.1984).


author: SMITH, Judge.

text:
    Mirth K. BROWN, Appellant, v. Dwight D. BROWN, Appellee.
    No. AN-149.
    District Court of Appeal of Florida, First District.
    July 18, 1984.
    Donald L. Braddock of Howell, Liles, Braddock & Milton, Jacksonville, for appellant.

      Kathleen F. Dekker of Brown & Camper, Tallahassee, for appellee.
   OPINION FOLLOWING REMAND FOR SUPPLEMENTAL PROCEEDINGS

SMITH, Judge.

As stated in our original opinion, Brown v. Brown, 440 So.2d 16 (Fla. 1st DCA 1983), the trial court modified a final judgment of dissolution of marriage by terminating an award of permanent, periodic alimony, but made no provision concerning retention of jurisdiction for the purpose of re-instituting alimony at a future date. As further stated in our original opinion, this court was in doubt whether the trial court actually addressed the question of retention of jurisdiction, or if the court did, whether the correct rule of law was applied. In order to obtain clarification on these issues, we temporarily relinquished jurisdiction to the trial court for a period of thirty days for further proceedings consistent with our opinion. By separate order, mandate with respect to the order appealed was withheld pending these supplemental proceedings in the trial court.

Unfortunately, at the time of our remand, the original trial judge was no longer in service as a circuit judge. Instead, the matter was brought on for hearing before another circuit judge of the same circuit, who entered an order modifying the order appealed by inserting a provision reserving jurisdiction for a future award of alimony upon a proper showing in event circumstances dictated such an award.

In briefs filed subsequent to the supplemental proceedings, appellee (husband) asserts that the order on supplemental proceedings should be reversed because consideration by a judge other than the original trial judge was not the type of consideration contemplated by this court’s orders, and for the further reason that the modification on supplemental proceedings was entered without a complete review of the record of the prior proceedings. We agree that the trial judge’s order retaining jurisdiction must be reversed because under the circumstances, the successor judge should have conducted a trial de novo on the issue of retention of jurisdiction. Delehant v. Delehant, 409 So.2d 213 (Fla. 4th DCA 1982); Dash v. Dash, 306 So.2d 543 (Fla. 3d DCA 1974); and see generally Courts and Judges, 13 Fla.Jur.2d, Section 230, page 356.

We wish to stress that in this instance, the successor judge should not be faulted for his failure to conduct a more extensive hearing on the issue of retention of jurisdiction. As noted previously, this court was unaware that the original trial judge would not be available to consider this question when it relinquished jurisdiction for a period of only thirty days. We recognize that thirty days did not give the parties or the successor judge enough time for a trial de novo, and we would not have placed this time constraint upon the trial judge had we known of these particular circumstances.

We are not unmindful that a trial de novo would be a considerable expense to the parties. Therefore, we point out that the parties may wish to stipulate to any portions of the original record which are relevant to a determination of this issue. Dash, supra at 545.

We adhere to our original opinion and decision filed October 26, 1983, except that portion temporarily relinquishing jurisdiction for determination of whether jurisdiction should be reserved for a future award of alimony. We hereby modify that portion of the opinion to reflect that insofar as the modification order which is the subject of our original opinion and decision fails to contain a reservation of jurisdiction for purposes of consideration of a future award of alimony, the same is reversed, and our prior order withholding issuance of mandate in this cause is discharged. The order of modification entered on supplemental proceedings is reversed, and this cause is remanded for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part in accordance with modification of original opinion and decision; order on supplemental proceedings reversed, and the cause is remanded.

WENTWORTH and JOANOS, JJ., concur.


text:
    William R. D’ANNA, Appellant, v. STATE of Florida, Appellee.
    No. AT-363.
    District Court of Appeal of Florida, First District.
    July 18, 1984.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant appeals from two convictions for robbery with a firearm, Section 812.13, Florida Statutes (1981). He was charged under a two-count amended information, both counts arising out of a single incident occurring at a Zippy Mart convenience store in Jacksonville, Florida, on November 20, 1982. Appellant raises four points on appeal, only one of which requires extended discussion. Finding no merit to any of his grounds for appeal, we affirm appellant’s convictions.

Appellant contends the trial court erred in allowing the introduction into evidence at his trial below of six photographs shown to one of the robbery victims by a detective of the Jacksonville Sheriff’s Office investigating the appellant’s case. The photographs consisted of a front and side view of each individual, including the appellant, with a placard indicating that the photographs had been taken by the Jacksonville Sheriffs Office. The placards found in each photograph also indicated the date of each individual’s arrest for the offense for which they had been photographed. Appellant’s photograph was dated October 9, 1982, and apparently was taken after an earlier arrest on an aggravated assault charge. The photographs were admitted into evidence over appellant’s objection that they constituted “mug shots” and thus were highly prejudicial because of their presumed tendency to be interpreted by the jury as showing that appellant had been arrested for other offenses in the past. Appellant’s argument, correct in the abstract, is nevertheless unavailing in the case at bar.

The law is, of course, clear that the admission into evidence, or even the mere mention, of “mug shots” constitutes error. Whitehead v. State, 279 So.2d 99 (Fla. 2d DCA 1973); Mancebo v. State, 350 So.2d 1098 (Fla. 3d DCA 1977); Houston v. State, 360 So.2d 468 (Fla. 3d DCA 1978). This is so because “an accused’s right to a fair and impartial jury is violated when the jury is improperly made aware of [a] defendant’s arrest for unrelated crimes ...” Duncan v. State, 450 So.2d 242, 245 (Fla. 1st DCA 1984). Although the photographs introduced below were not specifically referred to in front of the jury as “mug shots,” there is little doubt that the jury could have so interpreted them. Rucker v. State, 307 So.2d 830 (Fla. 3d DCA 1974), vacated on other grounds, 330 So.2d 470 (Fla.1976) (photographs introduced at defendant’s trial contained name of arresting law enforcement agency, date of arrest, and case identification number); see also Wilding v. State, 427 So.2d 1069, 1070 (Fla. 2d DCA 1983).

However, it is likewise clear that the introduction per se of “mug shots” into evidence is not reversible error. Loftin v. State, 273 So.2d 70, 71 (Fla.1973); State v. Rucker, 330 So.2d 470 (Fla.1976). Rather, the reviewing court must examine “the entire record and surrounding circumstances,” Loftin, supra at 71, to determine whether the error must be considered harmless. See also Williams v. State, 438 So.2d 152 (Fla. 3d DCA 1983), cause dismissed, 443 So.2d 981 (Fla.1983). Among the factors to be considered are the extent of other clear, unequivocal evidence of identification of the defendant rendered in-court, Loftin, supra at 71, whether the photographs were “cropped” so as to hide the identity of the photographing agency, Houston v. State, supra at 469, whether a curative instruction was given, Marshall v. State, 439 So.2d 973, 974 (Fla. 3d DCA 1983), and the extent to which the photographs or reference to them at trial refer to a defendant’s past criminal record. Sims v. State, 444 So.2d 922 (Fla.1983); see also Loftin v. State, supra at 71, (question is the extent to which a “mug shot” or reference to same is a “definite statement” conveying to the jury a defendant’s prior criminal propensity, distinguishing Jones v. State, 194 So.2d 24 (Fla. 3d DCA 1976)).

Judged by the foregoing standards, the introduction of “mug shots” complained of here must be considered harmless error. The evidence identifying appellant as the perpetrator of the Zippy Mart robbery was overwhelming: the unequivocal in-court identifications by three eyewitnesses, including the two victims; testimony of a fingerprint expert that appellant’s fingerprints were found on a soft drink container handled by the robber at the time of the offense; a series of photographs taken of the appellant inside the store by a hidden camera; and last, but not least, appellant confessed to committing the offenses subsequent to his arrest. Although the photographs here were not “cropped,” they were introduced without reference being made to them as “mug shots,” and with appellant’s photograph being only one of six available for the jury’s perusal. No other attention was called to the photographs beyond their intrinsic quality as “mug shots.” Loftin v. State, supra at 71; cf. Houston v. State, 360 So.2d 468 (Fla. 3d DCA 1978); Russell v. State, 445 So.2d 1091 (Fla. 3d DCA 1984) (witness responded to question from the State as to the source of a photograph of the defendant that the photograph came from “a photo book of people that we’ve arrested in the past; it’s like a mug book”). Furthermore, appellant did not request a curative instruction from the trial court below. Such an instruction has often been found sufficient to cure the prejudice resulting from introduction of “mug shots,” Williams v. State, supra at 153, n. 1; Evans v. State, 422 So.2d 60 (Fla. 3d DCA 1982); Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1980). Accordingly, while appellant has shown error, our review of the entire record and circumstances persuades us that the error was harmless. Thus, reversible error has not been shown. State v. Rucker, 330 So.2d 470 (Fla.1976).

This court notes, however, the impropriety of the introduction of the photographs here complained of. As previously noted, the law is crystal clear that the introduction of “mug shots” is error, and that to do so involves a grave risk of undue prejudice to a defendant. Houston v. State, supra. That the evidence of guilt in the case at bar was overwhelming is not an excuse for introducing other evidence that potentially affects adversely an accused’s right to a fair trial. Straight v. State, 397 So.2d 903 (Fla.1981), cited in Duncan v. State, supra at 245. Failure to heed the clear mandate of the case law on “mug shots” in the future may result in reversal of convictions obtained in otherwise meritorious prosecutions.

We have examined appellants other points on appeal, and find them to be without merit. Delap v. State, 440 So.2d 1242, 1254 (Fla.1983); Tascano v. State, 393 So.2d 540 (Fla.1980); Lee v. State, 410 So.2d 182, 183-4 (Fla. 2d DCA 1982); Lamb v. State, 354 So.2d 124 (Fla. 3d DCA 1978).

Accordingly, the judgments and convictions appealed from are AFFIRMED.

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

      . Appellant was arrested for the instant offenses on November 29, 1982.

      . It is clear from the record that the assistant state attorney below was aware of the potential prejudice introduction of the “mug shots" might cause appellant. It is also clear that he made an effort, along with the trial court, to alleviate the prejudice by "cropping" the back of appellant’s photograph. However, it was the front of the photographs that needed “cropping,” in order to conceal the name of the photographing agency, date of arrest, etc.


text:
    Floyd Steve HUSK, Appellant, v. STATE of Florida, Appellee.
    No. AV-77.
    District Court of Appeal of Florida, First District.
    July 18, 1984.

      Quentin T. Till, P.A., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Andrea Smith Hil-lyer, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Husk appeals from the trial court’s order committing him to further involuntary hospitalization. He contends the order is not supported by a preponderance of the evidence; the trial court failed to consider alternatives to involuntary hospitalization; the trial court erred in appointing Doctors Sail and Larsen to re-examine him; and Section 916.15(1), Florida Statutes (1983), is unconstitutionally vague. We do not agree and affirm.

In 1981, Husk was charged with sexual battery and attempted first degree murder. At the ensuing trial, Doctors Sail, Larsen and McMahon testified that Husk was insane at the time of the offense and incompetent to stand trial. Doctors Miller, Mann, and Mullin testified that Husk was sane at the time of the offense and competent to stand trial. The jury found Husk not guilty by reason of insanity. Following that verdict, the trial court committed Husk to HRS pursuant to Rule 3.217, Fla. R.Cr.P.

Four months later, HRS reported to the circuit court in Duval County that Husk no longer met the criteria for involuntary hospitalization. Husk was subsequently returned to the Duval County Jail where, pursuant to a court order, he was examined by Doctors Sail and Larsen, two of the same psychiatrists who had testified at his trial that he was insane. Those two doctors later testified that Husk was still mentally ill, still met the criteria for involuntary hospitalization, was in need of alcohol and drug abuse treatment, was dangerous, and had a high potential for explosive violence to himself and others. On the basis of that testimony, the trial court entered an order on 15 October 1982 committing Husk to further involuntary hospitalization.

Husk appealed from that order, contending that the evidence was insufficient to support the trial court’s finding that he was in need of further involuntary hospitalization and that the trial court erred in appointing Doctors Sail and Larsen to reexamine him. This court affirmed the order of 11 October 1983, finding that the evidence clearly showed that Husk was still mentally ill and, because of his illness, was manifestly dangerous to himself and others. The court further found that any objection to the appointment of Doctors Sail and Larsen had not been preserved for appellate review. Husk v. State, 438 So.2d 989 (Fla. 1st DCA 1983).

During the pendency of that appeal, HRS filed another report with the trial court, stating again that Husk no longer met the criteria for involuntary commitment. On 26 May 1983, the trial court ordered Husk returned again to Duval County for evaluation. Once again, this time over objection by Husk’s attorney, the trial court appointed Doctors Sail and Larsen to evaluate Husk.

Dr. Sail testified that he would not change his diagnosis of paranoid schizophrenia except that he felt it was presently in remission. He said that Husk was probably still dangerous and that he would almost certainly be dangerous if he stopped taking his medication or if he were to take alcohol or other mind-altering drugs. He also stated that Husk should remain in a treatment facility and that the safest alternative would be to put him in the state hospital.

Dr. Larsen stated that Husk is a danger to himself or other people, that at the present time Husk is pre-psychotic or potentially psychotic, and that he should definitely be sent to Chattahoochee.

The trial court also received testimony from Dr. Fjordbak, a psychiatrist on the staff at Florida State Hospital. He stated that Husk no longer met the criteria for involuntary hospitalization. He agreed that Husk was dangerous, but he did not feel that it was the result of any mental illness. He refused to recommend that Husk be released from the hospital. He recommended that Husk receive considerable ongoing structure, ongoing psychotherapy, and a closely supervised residence.

Various other testimony was also received, including that of Dr. Leano, another psychiatrist at'Florida State Hospital. He stated that he had seen no signs that Husk would be a danger to himself or others and recommended that he be released from Chattahoochee.

After considering the evidence, the trial court on 7 September 1983 entered its order committing Husk once again to involuntary hospitalization.

The record contains clear and convincing evidence to support the trial court’s determination that Husk meets the criteria for further involuntary hospitalization. Dr. Sail told the court that Husk was still a paranoid schizophrenic, that he would definitely be dangerous if medication ceased, and that he should remain in Chattahoochee. Dr. Larsen told the court that Husk is a danger to himself and to others and should be recommitted to Chattahoochee. Dr. Fjordbak told the court that Husk no longer met the criteria for involuntary hospitalization but refused to make a recommendation that he be released. Moreover, the alternative criteria in Section 394.-467(l)(b)(4)(b) were met in this case. All of the experts agreed that Husk is dangerous. Doctors Sail and Larsen agreed that Husk is mentally ill. All of the experts recommended further hospitalization of some sort.

The record is clear that the trial court considered alternatives to placing Husk in Chattahoochee.

It is obvious from the language of Section 916.11(2) that the appointment of psychiatrists is within the discretion of the trial court. The experts appointed by a court to determine the mental compentency of Husk were independent; they were neither prosecution nor defense witnesses but were neutral experts working for the court. The trial court fully complied with Section 916.11(2) by appointing “a psychiatrist ... designated by the district mental health board.”

Husk’s argument is spurious that Section 916.15(1), Florida Statutes, which requires that the trial court find an aequit-tee “manifestly dangerous” before ordering involuntary hospitalization, is unconstitutional. Statutes are presumptively constitutional. Husk has failed to cite any legal authority to overcome that presumption.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    Christine THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. AV-440.
    District Court of Appeal of Florida, First District.
    July 18, 1984.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

This appeal is before us from the trial court’s order revoking appellant’s probation. Appellant raises the sole issue of whether the state adequately proved that she had the present financial ability to make restitution. For the reasons stated below, we answer that question in the negative and reverse and remand for further consideration.

Pursuant to a guilty plea, appellant was convicted of public assistance fraud and placed on four years probation. One of the conditions of her probation was to pay $720 in restitution.

An affidavit of violation of probation was subsequently filed alleging that appellant violated her probation by failing to file reports; by allegedly shoplifting items from a department store; by failing to follow the instructions of her probation officer; and by failing to make any restitution payments, thereby violating conditions (1), (5) and (8), and special condition (9) of the probation order, respectively. At the revocation hearing, appellant’s probation officer testified that appellant’s sole source of income was derived from monthly payments of $223 from the Aid to Families with Dependent Children Program (AFDC), and food stamps valued at $214. Appellant testified that she has three children. The state produced no other evidence concerning appellant's financial status.

The trial court concluded that the evidence was insufficient from which to find a violation of probation based on the shoplifting count, but did find that appellant had violated the other conditions as alleged, specifically finding that appellant had the ability to pay. The court revoked probation and sentenced appellant to ten months in the county jail.

Although the trial court arguably made the specific determination of appellant’s ability to make restitution payments as was contemplated by this Court in Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978), it can only be concluded that the court did so by considering appellant’s receipt of the AFDC monies and the food stamps. In M.P. v. State, 443 So.2d 482 (Fla. 2d DCA 1984), the second district unequivocally held that payments received under the AFDC program should not be considered by the trial court in its assessment of present ability to comply with a court’s restitution order. The second district reasoned:

Diversion of such public-assistance payments to satisfy appellant’s pre-existing restitution obligation would, of course, frustrate the legislative intent and purpose underlying the need for such financial assistance. See §§ 409.235, .185, Florida Statutes (1981).

Id. We adopt the second district’s holding and reasoning as our own. We also note that such conclusion is consistent with the legislative mandate embodied in section 775.089(2), Florida Statutes (1983), that, in determining the amount and method of payment of restitution, the trial court shall consider not only the financial resources of the defendant, but “the burden the payment of restitution will impose on the defendant,” as well (emphasis added). Clearly, requiring appellant to make restitution from funds earmarked for the support and care of her three children would jeopardize the welfare of innocents. We cannot countenance such a result. Accordingly, we hold the trial court erred in finding that appellant violated condition (9) of her probation order.

Nevertheless, the trial court’s finding that appellant violated conditions (1) and (8) still stands. Both the failure to file reports and the failure to follow the probation officer’s supervisory instructions, though technical, are valid grounds for revoking probation. Haynes v. State, 440 So.2d 661 (Fla. 1st DCA 1983); Bates v. State, 424 So.2d 927 (Fla. 1st DCA 1983); Chappell v. State, 429 So.2d 84 (Fla. 5th DCA 1983); Hutchinson v. State, 428 So.2d 739 (Fla. 2d DCA 1983). However, where a portion of the revocation order is reversed and the violation or violations stricken as invalid grounds for revocation, but the remainder of the order is affirmed, we have traditionally remanded for reconsideration where we cannot determine from the record whether the trial court would have revoked probation and imposed the same sentence on the remaining grounds. We cannot make that determination here, and therefore remand for reconsideration. See Gammon v. State, 451 So.2d 1042 (Fla. 1st DCA 1984); Haynes v. State; Bates v. State; Blake v. State, 433 So.2d 611 (Fla. 1st DCA 1983); and also Edwards v. State, 439 So.2d 1028 (Fla. 3d DCA 1983).

REVERSED and REMANDED.

MILLS and SHIVERS, JJ., concur.


text:
    Juanita HOLLAND, Appellant, v. David E. HOLLAND, as Personal Representative of the Estate of Joseph Edward Holland, Deceased, Appellee.
    No. AW-206.
    District Court of Appeal of Florida, First District.
    July 18, 1984.

      Bill A. Corbin, Blountstown, for appellant.
    Charles M. Wynn and Herman D. Lara-more, Marianna, for appellee.
   PER CURIAM.

Appellant, Juanita Holland, appeals the denial of her motion to set aside a default and final judgment entered against her and the denial of her claim in the decedent’s estate. We affirm.

Appellant and Joseph Holland were married on August 22, 1959. Mr. Holland subsequently petitioned for dissolution of the marriage on August 20, 1980, alleging that the parties had cohabited as husband and wife until August 19, 1980 and that the marriage was irretrievably broken. The petition was duly served upon appellant, who testified in the court below that she did not file any responsive pleadings to her husband’s petition for dissolution of the marriage since he assured her several times that he would drop the proceedings. However, Mr. Holland pursued the divorce proceeding, and consequently, a default and final judgment were entered against appellant granting the divorce. The parties lived together as husband and wife throughout the entire time the divorce proceeding was pending before the trial court and thereafter until Mr. Holland died in 1983. Appellant testified that she never received a copy of the final judgment granting the divorce.

Approximately six to eight months before Mr. Holland died, appellant learned that she and Mr. Holland were divorced. However, appellant waited until two and one-half months after her husband’s death before filing a motion to set aside the default and final judgment entered against her. Appellant testified that her reason for not taking any immediate action to vacate the divorce decree was that Mr. Holland promised to remarry her.

Mr. Holland died intestate without the parties being remarried. Two and one-half months later, appellant filed a motion to set aside the default and final judgment pursuant to Rule 1.540, Florida Rules of Civil Procedure, alleging that Mr. Holland “must have” committed a fraud upon the court in obtaining the divorce.

The facts of this case are unfortunate, but the law requires clear and convincing evidence of the fraud, particularly where the party charged with fraud is deceased. Barnes v. Willis, 65 Fla. 363, 61 So. 828, 829 (1913); Grammer v. Grammer, 80 So.2d 457, 461 (Fla.1955); First National Bank of Clearwater v. Bourquin, 310 So.2d 310, 311 (Fla. 1st DCA 1975). The evidence adduced in the lower court does not amount to clear and convincing evidence that Mr. Holland obtained the divorce from appellant through fraud upon the court. Therefore, we must affirm the decision of the lower court in denying appellant the requested relief. AFFIRMED.

ERVIN, C.J., and BOOTH and WENT-WORTH, JJ., concur.

      . Assuming the time for claims against Mr. Holland’s estate has not expired, our decision does not preclude the possibility of the appellant filing suit in quantum meruit for the value of her services in caring for and nursing her former husband during his final illness. Yeats v. Moody, 128 Fla. 658, 175 So. 719 (1937).


text:
    McCRORY STORES and Rapid Adjusting Corporation (Serviced by Crawford & Company), Appellants, v. Leslie M. PENCE, Appellee.
    No. AW-227.
    District Court of Appeal of Florida, First District.
    July 18, 1984.
    Bernard J. Zimmerman and Paul J. Morgan of Zimmerman, Shuffield, Kiser & Sut-cliffe, Orlando, for appellants.
    Irvin A. Meyers and Sherry L. Davis of Meyers & Mooney, P.A., Orlando, for ap-pellee.
   MILLS, Judge.

The employer/carrier appeal from the deputy commissioner’s order in this workers’ compensation case awarding Pence medical expenses and an attorney’s fee. The employer/carrier contend the deputy erred in making the awards because his medical expense award was not supported by competent substantial evidence. We agree and reverse.

Pence was a store manager employed by McCrory’s Stores. On 2 June 1982, a cleaning crew came in after store hours to clean the floors. Pence assisted by moving some boxes off the floor onto the counters. This activity involved some bending and stooping. Pence spent that night in the store on a couch. The next morning, his back was stiff and he experienced difficulty in straightening up. He could remember no accident, no pain, no unusual incident.

Pence continued to work until sometime in July 1982. It does not appear from the record why he stopped at that time. In August 1982, Pence was at home in his kitchen when he twisted and thereafter felt severe pain in his left leg. He was taken to the hospital by ambulance and surgery was performed for a herniated disc.

On each of the several group insurance forms prepared by Pence in July, August, and September, he failed to mention any work related incident and marked on the form that he had not sustained any accidents.

Pence went back to work on 1 December 1982 and continued to work until April 1983. On 13 April 1983, he filed a notice of injury report with the employer. He filed his claim for benefits on 14 June 1983, requesting medical expenses, attorney’s fees, and TTD benefits from 15 July 1982 to 1 December 1982.

The claimant testified at the hearing that he had had minor back problems for about ten years. He also testified that in May 1982 he injured his back while working on a lawnmower at home. He further testified that he did not report the accident to his employer until April 1983 because he did not realize that such accidents could be compensable.

About six weeks following the alleged accident at work, Pence first saw Dr. Matthews. He did not tell him of the incident at work, but did tell him of the incident with the lawnmower. At his deposition, Dr. Matthews was asked whether, in spite of the fact that he initially attributed Pence’s condition to the lawnmower incident, the back condition was related to the incident of 2 June 1982. His response was as follows:

I think that it’s been well established that repetitive bending, leaning, lifting and twisting at the same time, cause tremendous interdiscal pressures in the low back. This is documented. If indeed he had done excessive or unusual bending, lifting and twisting repetitively at the same time, and this was followed by sciatica and numbness, I would have to say that would be a competent cause for a bulging disc or a herniated disc.

The deputy entered an order finding that Pence suffered an injury by accident arising out of and in the course of his employment on 2 June 1982. Although he found that Pence was temporarily totally disabled from 2 June 1982 through 1 December 1982, he did not award TTD benefits because Pence was paid his regular salary or long-term disability benefits during that period. He did, however, order the E/C to pay all medical expenses related to the treatment of Pence’s back condition. He also found that Pence’s lawyer was entitled to a reasonable attorney’s fee. Jurisdiction was reserved to determine the amount.

Pence never gave Dr. Matthews a history of an industrial accident. Instead, he told the doctor that he injured himself while stooping over to work on his lawnmower at home. Dr. Matthews attributed Pence’s ruptured disc to the lawnmower incident of May 1982.

There was no evidence to support the deputy commissioner’s finding that Pence suffered an “accident” on 2 June 1982. Although Pence indicated he had done some lifting prior to going to sleep on the couch, he did not experience even a sore muscle as a result of that lifting. Where there is no sudden event or result, there has not been ah “accident” on which compensability may be based. Seminole Transport Lines, Inc. v. Gotto, 8 FCR 200 (1973). Pence testified that he did not believe he had suffered an accident at the time. Moreover, Pence admitted that he had had minor back trouble for the past ten years.

REVERSED.

SHIVERS and WIGGINTON, JJ., concur.


text:
    BOYD-SCARP ENTERPRISES, INC. and State Farm Fire & Casualty Company, Appellants, v. Charlie SAUNDERS and d/b/a Saunders Electric and Commercial Union Insurance Company, Appellees.
    No. AU-336.
    District Court of Appeal of Florida, First District.
    July 19, 1984.

      Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellant.
    Beth A. Ferguson of Meyers & Mooney, Orlando, for appellee/claimant.
    Ronald S. Webster of Whittaker, Pyle, Stump & Webster, Orlando, for appel-lee/carrier.
   SMITH, Judge.

The employer/carrier appeal a deputy commissioner's order granting workers' compensation benefits to claimant. The primary issue for our consideration is whether the deputy commissioner erred in finding that the claimant was a “statutory employee” of Boyd-Scarp Enterprises, Inc., pursuant to Section 440.10(1), Florida Statutes (1981), and was not an independent contractor. We disagree with the deputy commissioner’s findings on this primary issue and reverse.

Boyd-Scarp is a general contractor engaged in the construction business, performing all of its work exclusively through subcontractors. On December 28, 1982, claimant, a master electrician and sole proprietor of Saunders Electric, was given the job by Boyd-Scarp of rewiring a burned-out house. Claimant was to be paid for “time and material,” was given wiring plans and specifications to follow, and was responsible for providing his own materials, tools and help. He was not actively supervised by anyone from Boyd-Scarp during the actual performance of the work. While working in the attic of the burned out house, claimant accidently stepped on a broken board and fell ten feet onto a concrete floor, suffering a severe spinal cord injury. After approximately two-and-one-half months in various hospitals, he was discharged on March 25, 1983, and was confined to a wheelchair with impaired use of his hips and legs and no ability to use his ankles.

When claimant was organizing his business in July 1982, he had secured workers’ compensation insurance coverage from Commercial Union Insurance Company. He had specifically elected not to be considered an employee of his business; therefore, since he had no other employees, his premium was a base minimum figure. Claimant was pleased with this arrangement because he was specifically seeking a low cost policy.

On March 7, 1983, claimant filed a claim for temporary total disability benefits and other workers’ compensation benefits against Boyd-Scarp and its carrier, State Farm Fire and Casualty Company, and also against Saunders Electric and its carrier, Commercial Union Insurance Company. Boyd-Scarp/State Farm defended on the ground that claimant was not an employee of Boyd-Scarp nor an employee of a subcontractor on the job, but was a sole proprietor/independent contractor who had affirmatively chosen not to be covered under his own business’s workers’ compensation policy. Saunders Electric/Commercial Union defended on the ground that claimant had voluntarily elected not to be covered under the Commercial Union policy. On August 8, 1983, the deputy commissioner entered his final order ruling that claimant was not covered under the Commercial Union policy, hut was covered by State Farm as a “statutory employee” of Boyd-Scarp. The deputy commissioner based this ruling upon a finding that claimant was not an independent contractor, but was a subcontractor of Boyd-Scarp.

Boyd-Scarp urges five points on appeal. Initially, we affirm the deputy commissioner’s finding that claimant was not covered under his policy of insurance with Commercial Union. We are not persuaded by Boyd-Scarp’s arguments that Commercial Union waived its right to deny coverage to claimant or that it should be es-topped to deny coverage. It is clear, however, that claimant voluntarily elected not to be considered an employee of his business and, accordingly, was not covered by the Commercial Union policy. See, Sections 440.02(2)(c), 440.05, Florida Statutes (1981).

We reverse, however, the deputy commissioner’s finding that claimant was covered under the State Farm policy as a “statutory employee” of Boyd-Scarp. Section 440.10(1), Florida Statutes (1981), states that a contractor must provide workers’ compensation coverage to all employees of a subcontractor when such employees have not been provided coverage by the subcontractor. This “statutory employee” language is only applicable to “employees” of a subcontractor. Pursuant to Section 440.02(2)(c), Florida Statutes (1981), a sole proprietor may affirmatively elect to be considered an employee of his business. If such election is made, then the sole proprietor would be considered an employee for purposes of Section 440.10(1). In this case, claimant affirmatively chose not to be considered an employee of his sole proprietorship; therefore, he cannot be a “statutory employee” of the general contractor, Boyd-Scarp. Cf. Vallina v. Fuego Construction Co., 443 So.2d 320 (Fla. 1st DCA 1983), in which this court affirmed the ruling of a deputy commissioner denying compensation benefits to a subcontractor’s president who had elected to be exempt from coverage under the Workers’ Compensation Act, and therefore was not deemed to be an employee of the general contractor under Section 440.10, Florida Statutes, with respect to injuries incurred while working at the general contractor’s construction site.

General common law principles also dictate a finding that claimant was not an employee of his sole proprietorship, Saunders Electric Company. As was held in Stevens v. International Builders of Florida, Inc., 207 So.2d 287 (Fla. 3d DCA 1968), a sole proprietor may not be his own employee because there is no entity apart from the individual which could be considered the individual’s employer. See, also, Chase v. Tenbroeck, 399 So.2d 57 (Fla. 3d DCA 1981). Accordingly, under both statutory and case law, it is clear that claimant is not an employee of his sole proprietorship and, therefore, is not a statutory employee of Boyd-Scarp pursuant to Section 440.10(1), Florida Statutes.

Although claimant was not a statutory employee of Boyd-Scarp, we have considered the question whether he nevertheless should be considered an actual employee of Boyd-Scarp pursuant to the broad language of Section 440.02(2)(a), Florida Statutes, which defines the term “employee,” as “every person engaged in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, .... ” Although this language is rather all-encompassing, it must be read in pari materia with subsection (d), paragraph 1, which provides that the term “employee” does not include an “independent contractor.” Section 440.-02(2)(d)l.

Here, the deputy commissioner affirmatively found that claimant was not an independent contractor, basing his determination upon three factors: (1) claimant was to be paid on the basis of time expended and materials used; (2) claimant was supervised by a Boyd-Scarp superintendent; and (3) the work performed by claimant was part of the work of the general contractor and not a distinctly different occupation. This latter finding was apparently made to rule out consideration of Section 440.-02(2)(d)2, in determining claimant’s employment status. Notwithstanding these specific findings, we are compelled to disagree with the result and reverse the deputy commissioner’s ruling on this issue.

In Stevens, supra, the Third District set forth the general factors to be considered in determining whether an individual is an employee or an independent contractor. It is clear that such a determination is normally for the finder of fact and must depend upon the peculiar facts of each case. Pearson v. Harris, 449 So.2d 339 (Fla. 1st DCA 1984); Stevens, supra; Gregg v. Weller Grocery Company, 151 So.2d 450 (Fla. 3d DCA 1963). Upon a complete review of the record, however, we find that on this point the deputy commissioner gave incorrect legal effect to the facts to the extent that they were correctly found, and that he also to some extent made factual findings which are not supported by competent, substantial evidence. Some confusion on the question of the claimant’s employment status is evidenced by the deputy commissioner's finding that although claimant was not an independent contractor, he was a subcontractor. In the context of these proceedings, at least, we are aware of no theory upon which these terms may be considered mutually exclusive. The issue for decision by the deputy commissioner was whether claimant was an employee of Boyd-Scarp, under any theory, or whether he was an independent contractor.

While we are not permitted to reweigh the evidence, we must rule based upon the record before us, that the uncon-troverted evidence establishes claimant’s relationship as one of independent contractor, rather than employee, of Boyd-Scarp. Contrary to the deputy commissioner’s finding, the claimant was not actively supervised in the performance of his duties by anyone from Boyd-Scarp. Also, contrary to the deputy commissioner's finding, claimant was a master electrician engaged in a special vocation distinctly different from that of Boyd-Scarp, since Boyd-Scarp was in the general contracting business, performing all of its work exclusively through subcontractors. The claimant provided his own materials, his own tools, and hired his own helpers; he was responsible only for the end result of his work; and he was employed as a subcontractor on a limited basis with respect to only one job. On the basis of these facts, claimant was an independent contractor, not an employee. Admittedly, the claimant testified that he was paid on the basis of time expended and materials used. However, this method of payment was explained as being customary on jobs such as claimant was doing, because of the inherent difficulty in determining in advance the amount of work and materials that ultimately may be required in restoring burned out buildings. Furthermore, claimant was not carried on Boyd-Searp’s books as an employee, and there were no payroll deductions. As reiterated in Saudi Arabian Airlines v. Dunn, 438 So.2d 116 (Fla. 1st DCA 1983), the payment of wages is the least important factor in determining the character of the relationship, the essential elements being the right of control and the right to direct the manner in which the work shall be done. The method of payment alone is simply not controlling, and cannot override the abundant evidence establishing that claimant was an independent contractor.

Summarizing, the claimant voluntarily elected to be excluded from coverage under his own company’s workers’ compensation policy with Commercial Union. He voluntarily chose not to be considered an employee of his business; therefore, not being an “employee” of a subcontractor, he was not a statutory employee of Boyd-Scarp. He was hired as an independent contractor; therefore, he was not an actual employee of Boyd-Scarp. In short, claimant is not entitled to recovery of workers’ compensation benefits from either Boyd-Scarp/State Farm or Saunders Electric/Commercial Union. Because of our resolution of these issues, the remaining issues raised by appellant are moot.

REVERSED.

WENTWORTH and BARFIELD, JJ., concur.


author: BOOTH, Judge.

text:
    BARNACLE BILL’S SEAFOOD GALLEY, INC., Appellant/Cross-Appellee, v. Larry R. FORD, Appellee/Cross-Appellant.
    No. AW-21.
    District Court of Appeal of Florida, First District.
    July 19, 1984.
    C. LeDon Anchors of Estergren, Fortune, Anchors & Powell, Fort Walton, for appellant/cross-appellee.
    Charles A. Wade, Crestview, for appel-lee/cross-appellant.
   BOOTH, Judge.

This cause is before us on appeal from a final judgment canceling a lease agreement, and on cross appeal from a summary judgment based on res judicata.

The Okaloosa Island Authority leased two lots to Larry R. Ford for 99 years. In 1972, Ford subleased the two lots, along with the building on them, to Mitchel Bena-quis and Ruth Puhalla Kondrat, who in turn assigned the sublease to Barnacle Bill’s Seafood Galley, Inc. The relevant terms of the lease are as follows: (1) Barnacle Bill’s was to pay rent of $600 per month to Ford for ten years; (2) Barnacle Bill’s had the option to renew the lease for another ten years at $750 per month; (3) two percent of Barnacle Bill’s gross revenue from operation of its restaurant on the property was to be paid directly to the Okaloosa Island Authority each month.

The sublease from Ford, as originally drafted, required the two percent assessment on the gross revenues from the operation of the restaurant to be paid directly to Ford. However, the Island Authority would not approve the sublease unless the two percent assessment was made payable directly to the Island Authority, and the change was accordingly made in the lease to obtain the Island Authority’s approval.

On June 23, 1975, the Okaloosa Island Authority was abolished, and all its powers, duties, and functions were given to the County Commissioners of Okaloosa County. Chapter 75-456, Laws of Florida. The County Commissioners were not given the power to collect the two percent assessment on gross revenue, and Barnacle Bill’s ceased paying the assessment. The County did, however, impose an ad valorem tax on the leased property in 1975. Barnacle Bill’s did not pay this tax, nor did Ford. Years of litigation determined that the County Commission had the power to impose such a tax.

Also in 1975, Barnacle Bill’s filed suit asking that Ford be required, pursuant to the lease, to repair the leased building, which was damaged by a storm. Ford filed a counterclaim for cancellation of the lease, in part alleging that Barnacle Bill’s breached the lease agreement by discontinuing payment of the two percent assessment and by not paying the ad valorem tax. This part of the counterclaim was dismissed on Barnacle Bill’s motion, which asserted that Ford was not the proper party to claim unjust enrichment resulting from non-payment of assessment and taxes. Ford subsequently appealed all issues in the case except dismissal of the counterclaim, and the First District Court of Appeal affirmed. Ford v. Barnacle Bill’s Seafood Galley, Inc., 350 So.2d 838 (Fla. 1st DCA 1977).

On April 20, 1981, Ford brought this action for declaratory relief, again pleading in part that the non-payment of the assessment/tax was a breach, and also the lease was unjust and unfair. Barnacle Bill’s contended it was not liable for the two percent assessment because the Okaloosa Island Authority no longer existed and was not liable for ad valorem taxes since this was not provided under the lease. Barnacle Bill’s denies the lease was unjust and unfair.

In November of 1981, the trial judge granted Barnacle Bill’s motion for summary judgment on the “non-payment of assessment as breach” section of the complaint, relying on the doctrine of res judica-ta. In November of 1983, the trial court entered final judgment canceling the lease based on a finding that there would be a substantial windfall to Barnacle Bill’s if the lease were to be enforced and the court’s determination that the minds of the parties never met under actual existing conditions.

On appeal, the two principal issues argued were (1) whether it was error to cancel the lease, a cancellation apparently based on the theory of mutual mistake argued below, the “mistake” being belief in the continued existence of the Island Authority, and (2) whether the doctrine of res judicata is properly applicable here.

The first issue is answered in the affirmative. The doctrine of mutual mistake is not applicable under the facts here since, by definition, the mutual mistake of fact must be of a fact existing at the time of the contract and not as to a future event. The abolition of the Okaloosa Island Authority occurred years after the contract was entered into. Any erroneous beliefs as to the future existence of the Authority was not mistake of fact.

As to the second issue, summary judgment based on res judicata should not have been granted. There being no clear and convincing evidence that the merits of the former case were considered in the dismissal of Ford’s counterclaim, the 1976 judgment relied on as a basis for the res judicata ruling was not a decision on the merits. Res judicata therefore does not apply.

Accordingly, both the final judgment and the summary judgment entered below are reversed. Both parties agree that entry of the summary judgment based on res judica-ta precluded consideration of other matters asserted by Ford. Therefore, on remand, the trial court may consider reformation of the lease or cancellation of the renewal option based on an alleged breach of the agreement. The trial court, based on appropriate findings, may reform the lease and under a theory of partial impossibility or partial impracticability resulting from the abolition of the Island Authority, may order payment to Ford of the percentage assessment formerly payable by Barnacle Bill’s to the Island Authority or such other relief as may be appropriate.

Accordingly, the cause is reversed and remanded.

ERVIN, C.J., and WENTWORTH, J., concur.

      . Created under Chapter 29336, Laws of Florida 1953.

      . Still pending in the Circuit Court, Okaloosa County, is a suit filed by Stokes, Tax Collector of Okaloosa County, against Larry Ford to recover from Ford the ad valorem taxes due for the years 1975 through 1979. A partial summary judgment was entered in that suit in 1981 in favor of the tax collector and against Ford in the amount of $8,765.97. Still pending is the claim of Ford, as third party plaintiff, against Barnacle Bill’s, as third party defendant, requesting reformation of the lease and seeking recovery from Barnacle Bill’s of taxes found payable.

      . Trial court’s order of November 23, 1981:
      The Court finds that all issues relating to the payment of ad valorem taxes raised in the pending lawsuit were the same issues and facts raised in Case No. 75-2112, that the same persons and parties to that action were parties to the present action, all of which claims were dismissed by the Circuit Judge in Civil Action No. 75-2112,_

      . Trial court’s final judgment of October 20, 1983:
      That because of the circumstances having changed so since the parties entered into their agreement — which included the renewal clause which is the provision in issue — the Defendant, BARNACLE BILL’S SEAFOOD GALLEY, INC., would receive a substantial windfall if the lease were enforced.
      Neither party intended the present result when they contracted, and in reality, the minds of the parties have never met under the actual existing conditions.

      . Beals v. Tri B Associates, 644 P.2d 78 (Colo.App.1982); Shear v. National Rifle Association of America, 606 F.2d 1251 (D.C.Cir.1979); United States v. Garland, 122 F.2d 118 (4th Cir.1941). Restatement (Second) of Contracts § 151 Comment (1979):
      [T]he erroneous belief must relate to the facts as they exist at the time of the making of the contract. A party’s prediction or judgment as to events to occur in the future, even if erroneous, is not a "mistake” as that word is defined here.

      . Restatement of Contracts § 463 (1932); Restatement (Second) of Contracts § 270 (1979):
      Partial Impracticability
      Where only part of an obligor’s performance is impracticable, his duty to render the remaining part is unaffected if
      (a) it is still practicable for him to render performance that is substantial, taking account of any reasonable substitute performance that he is under a duty to render; or
      (b) the obligee, within a reasonable time, agrees to render any remaining performance in full and to allow the obligor to retain any performance that has already been rendered.

      Illustrations:

      2. A contracts with B to deliver all of B’s requirements of milk during the following year at B's loading platform at 200 Lincoln Street. Before A begins performance, the loading platform is accidentally destroyed by fire, but B has an equally suitable platform across the street at 201 Lincoln Street. Neither A’s nor B’s duties are affected, except that A is to deliver and B is to accept milk at 201 Lincoln Street.
      3. A contracts to sell and B to buy a quantity of wheat "f.o.b. Kosmos Streamer at Seattle.” Before delivery, an outbreak of war makes Kos-mos line ships unavailable at Seattle, but delivery on that line's loading dock remains possible and is a commercially reasonable substitute. Neither A’s nor B’s duties are affected, except that A is to deliver and B is to accept wheat at the Kosmos line’s loading dock. B may have a claim under the rules stated in § 272(1) based on A’s failure to load the wheat for which he has been paid.


text:
    J.E.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. AW-55.
    District Court of Appeal of Florida, First District.
    July 19, 1984.
    Michael E. Allen, Public Defender, Virginia Daire, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tide-mann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

The sole issue raised by this appeal from an order adjudicating J.E.S. guilty of burglary of a dwelling is whether a bicycle stolen by him from the driveway of the victim’s home was within the curtilage of the home. It was.

Section 810.011(2), Florida Statutes (1983), defines a “dwelling” as “a building or conveyance of any kind ... together with the curtilage thereof.” (Emphasis added) Likewise, a “structure” is defined in Section 810.011(1) as “a building of any kind ... together with the curtilage thereof.” (Emphasis added)

In Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974), this court held that “[jjust as the yard, horse-lot and stables used in connection with a dwelling in bygone days were considered as part of the curtilage, so are garages, driveways and parking areas of today.”

In State v. Musselwhite, 402 So.2d 1235 (Fla. 2d DCA 1981), the Second District Court of Appeal held that “[w]e agree with the Joyner court and hold that a driveway to one’s residence is within the curtilage of that property.”

Although the cited cases involved search and seizure issues rather than burglary of a dwelling issue, in my opinion, a curtilage is a curtilage is a curtilage.

Having determined the issue raised by J.E.S. adversely to him, we affirm the order.

SHIVERS and WIGGINTON, JJ., concur.


text:
    CFM DISTRIBUTING and Iowa National Mutual Insurance Company, Appellants, v. Harvey ALPERT, Appellee.
    No. AW-262.
    District Court of Appeal of Florida, First District.
    July 19, 1984.
    Bernard J. Zimmerman, of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellants.
    George J. Adler, of George J. Adler, P.A., Orlando, for appellee.
   WIGGINTON, Judge.

The employer/carrier in this workers’ compensation case appeal the deputy commissioner’s order granting claimant’s “Motion to Set Aside and/or Vacate” a prior order approving a joint petition for lump sum settlement. Because the evidence at the time of the settlement hearing clearly established that claimant had not reached maximum medical improvement six months prior to the settlement, we affirm. See section 440.20(12)(a), Florida Statutes (Supp.1980); and D’Amico v. Marina Inn & Yacht Harbor, Inc., 444 So.2d 1038 (Fla. 1st DCA 1984).

MILLS and SHIVERS, JJ., concur.