author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Joseph Ralph DiPRIMA, Appellant/Cross-Appellee, v. Jacqueline Mary DiPRIMA, Appellee/Cross-Appellant.
    No. 82-448.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1983.
    Rehearing Denied Aug. 9, 1983.

      Elting L. Storms of Storms, Krasny, Nor-mile, Dettmer <& Gillin, P.A., Melbourne, for appellant/cross-appellee.
    P.F. Nohrr, Melbourne, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellee/cross-appellant.
   FRANK D. UPCHURCH, Jr., Judge.

The husband, Joseph DiPrima, appeals from a judgment of dissolution. The wife, Jacqueline DiPrima, cross-appeals.

The husband contends that the court erred in awarding the wife $3,000 per month permanent alimony and $500 per month child support, in awarding her his interest in the marital home, and in awarding her a one-half interest in his one-half interest in a note (the “Carriage Park note”) as a special equity. The husband also contends the trial court erred in reserving jurisdiction as to the question of partition of the Rosewood Apartment property.

The wife contends that she was entitled to more in the way of equitable distribution or lump sum alimony, that the court erred in determining the balance due on the note, that the court erred in requiring her to transfer her interest in the stock of certain corporations to the husband without compensation, and in granting her only a partial award of attorney’s fees and costs.

The husband’s net worth was approximately $2,600,000, all of which was acquired during the twenty-year marriage. Three children were born of the marriage. The oldest one, nearly twenty, was away at college and was supported by the husband. The other two children, ages eighteen and thirteen, were living with the wife.

We conclude that in view of the assets and the substantial income of the husband (nearly $2,000 per week), the award of permanent alimony and child support to the wife was not an abuse of the trial court’s discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We further find no abuse of discretion in the award of the husband’s interest in the marital home to the wife. The court did not label the award as lump sum alimony or otherwise. The award here, however, can be sustained as lump sum alimony or “equitable distribution.” Canakaris. See also White v. White, 429 So.2d 730 (Fla. 1st DCA 1983); Mahan v. Mahan, 415 So.2d 146 (Fla. 2d DCA 1982); Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1981). It was also to some extent influenced by the transfer of the wife’s interest in certain corporations.

We also reject the husband’s contention that the trial court erred in reserving jurisdiction as to the question of partition of the Rosewood Apartment property. That property is owned by a partnership comprised of the parties and the husband’s parents. Since the parents only had an interest in the Rosewood property and were proper and necessary parties to any suit to partition, we see no obstacle to proceeding as the trial judge did, reserving jurisdiction to partition. The parents may be made parties in that action.

The wife argues in her cross-appeal that the court erred in finding the outstanding balance on the Carriage Park note to be $477,381. It is clear from the judgment that the court intended the wife and husband each to have a one-half interest in the mortgage. The wife’s interest was to be reduced by the amount of any additional federal income taxes “paid or to be paid ... either as a result of restructuring the sale because of the court’s award ... or any other increased [taxes which the husband] becomes obligated to pay as a result of” the award. Thereafter the balance was to be divided equally. The husband was required to furnish a statement from Carriage Park signed by a CPA showing the balance as of December 31, 1981. It is obvious the court intended the wife to have a one-half interest in that figure and that the finding by the court that the balance was $477,381 does not limit her to that amount. The husband also argues that the wife was not entitled to a special equity in the note. While technically this does not fit the “special equity” situation, see Canakaris at 1200; Duncan v. Duncan, 379 So.2d 949 (Fla.1980), it was clearly sustainable as lump sum alimony under a plan of equitable distribution. Canakaris; Firestone v. Firestone, 263 So.2d 223 (Fla.1972).

The wife next claims that the court erred in not awarding her a larger share of the marital assets. She points out that the couple accumulated all of their assets during a twenty-year marriage. In Canakaris, the supreme court observed that:

In granting lump sum alimony, the trial court should be guided by all relevant circumstances to insure ‘equity and justice between the parties.’ § 61.08, Fla. Stat. This Court recognized in Yandell v. Yandell [39 So.2d 554 (Fla.1949)] the broad scope of the trial judge’s discretion in granting lump sum alimony, consistent with the statutory mandate.
* * * * * *
A judge may award lump sum alimony to insure an equitable distribution of the property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status.

382 So.2d at 1201.

The husband maintains that because of the wife’s “misconduct” she was awarded far in excess of what she should have been awarded. The husband did not plead adultery, see section 61.08(1), Florida Statutes (1981), and admits there was no proof of same. While the husband concedes that the wife was an excellent mother, he testified as to “misconduct” consisting of unexplained absences and similar behavior. The court did not make a specific finding that the wife had misbehaved or neglected her obligations to the husband. The record does not reflect that this was a factor in his determination of her share of the marital assets. The wife contends that she is left with an estate of $645,270 (the husband says it is $688,270), while his estate is close to $2,600,000 after the award.

To date, no Florida court has held that marital assets must be divided on a 50/50 basis and we decline to so hold. The court in Canakaris stated:

We recognize that a trial court need not equalize the the financial position of the parties. However, a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and in viewing the totality of the circumstances, one spouse should not be ‘short-changed.’ Brown v. Brown.

Id. at 1204.

The wife did not show that she would pass from prosperity to misfortune, but rather the record reflects that under the provisions of the judgment she will be able to live in substantially the same manner as she was accustomed during the marriage. While we might be inclined to award the wife a greater amount had we been the trier of fact, we were not. We conclude that the award was within the trial court’s discretion. Canakaris.

The wife also argues that the court improperly required her to transfer her interest in certain corporations to the husband without compensation. There were several factors affecting the court’s decision. The court found that the value of the stock was misleading because of tax consequences. If the wife retained her interest in the corporations it was likely to lead to protracted litigation. The court also indicated that the transfer of stock in the corporations was in exchange for the husband’s interest in the marital home which the husband was required to convey to the wife. In light of these factors, we conclude that the trial court did not err on this point.

The last question involves the court’s award of only a portion of the wife’s attorney’s fees and costs. Testimony revealed that reasonable attorney’s fees for the wife’s attorneys would be $40,000 to $44,000. The wife had also incurred expert witness fees and some other costs. The court awarded the wife $15,500 as a “contribution” toward her attorney’s fees, $2,500 as a “contribution” toward the experts fees and ordered each party to pay one-half of the remaining costs of $1,219.60. We conclude this was error. In view of the size of the parties’ resulting estates and the husband’s income potential, the wife is entitled to her fees and costs. Locke v. Locke, 413 So.2d 431 (Fla. 3d DCA 1982). -

As to the award of alimony, child support and division of property, we AFFIRM. We REVERSE the judgment as to fees and costs and REMAND to the trial court to determine a reasonable fee for the services of the wife’s attorneys, including their services to the wife on appeal, and expert witness fees, plus other costs, and to require the husband to pay same.

DAUKSCH and COBB, JJ., concur.

      . See Brown v. Brown, 300 So.2d 719, 726 (Fla. 1st DCA 1974) in which the court stated, “[W]e are not engrafting upon the jurisprudence of this state the law of community property.”


source: Caselaw Access Project

author: ORPINGER, Chief Judge.

license: Public Domain

text:
    Ethel REAMS, Appellant, v. Blanche VAUGHN and Herman Vaughn, etc., and Marianne Goins, jointly and severally, Appellees.
    No. 82-803.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1983.
    Rehearing Denied Aug. 9, 1983.

      S.G. Green, Orlando, for appellant.
    Charles B. Tiffany, Kissimmee, for appel-lees.
   ORPINGER, Chief Judge.

After a jury had returned a verdict for plaintiff in an action for damages based on a claim of fraud and misrepresentation, the trial court granted defendants’ motion for directed verdict upon which he had reserved ruling, and alternatively, granted a new trial, basing both rulings on an “insufficiency of the evidence.” We reverse.

This unfortunate family dispute arose when appellant (plaintiff below) filed suit against her daughter, Blanche Vaughn, and her granddaughter, Marianne Goins, claiming that they had obtained $20,000 from her on the fraudulent promise that they would convey certain property to her; that they had only conveyed part of what they promised and that she would not have paid them the money had she known that they did not intend to convey all the property to her. Although the evidence at trial was sharply in dispute, there was evidence presented which would tend to support plaintiff’s complaint.

(a) The directed verdict.

On a motion for directed verdict, the court must view the evidence adduced and every conclusion therefrom in a light most favorable to the nonmoving party, resolving every conflict and inference for that party. This is the test at the trial level, Levine v. Frank, 311 So.2d 708, 710 (Fla. 3d DCA 1975), as well as the standard of review at the appellate level. McDonald v. McGowan, 402 So.2d 1197 (Fla. 5th DCA 1981). If, in applying this test, no view of the evidence could sustain a verdict for the party moved against, then the directed verdict was properly entered. Tester & Tesher, P.A., v. Rothfield, 387 So.2d 499 (Fla. 4th DCA 1980). This is so whether the motion for directed verdict is made prior to the verdict or after the verdict in accordance with a prior motion for directed verdict. Whitman v. Red Top Sedan Service, Inc., 218 So.2d 213 (Fla. 3d DCA 1969).

Considering the evidence presented and all inferences and conclusions therefrom in favor of the non-moving party, we conclude that there was evidence which would support plaintiff’s claim, so the entry of a directed verdict was error.

(b) The new trial.

Appellant first contends that the trial court had no authority to grant a new trial as alternative relief in the event the granting of a directed verdict was reversed on appeal. Appellant further contends that even if the trial court has this authority, it abused its discretion when it ordered the new trial.

Florida Rule of Civil Procedure 1.480(c) says:

A motion for a new trial may be joined with this motion [for a directed verdict] or a new trial may be requested in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

In Kaufman v. Sweet et al Corp., 144 So.2d 515 (Fla. 3d DCA 1962), the court specifically held that under the former rule (Rule 2.7, Fla.R.C.P.), it was proper for the trial court to grant a judgment n.o.v. and alternatively, to grant a new trial should the first order be reversed on appeal. This procedure has also been approved under the current rule. Navarro v. City of Miami, 402 So.2d 438 (Fla. 3d DCA 1981).

This court was faced with an order granting a motion for a directed verdict, and alternatively a new trial, in Kikis v. Ford Motor Co., 386 So.2d 306 (Fla. 5th DCA 1980). Although reversing both orders, no reference was made to the propriety of the procedure. However, the procedure was implicitly approved by the supreme court when, in reversing this court’s disapproval of the order granting a new trial, it said:

The district court’s apparent failure to apply this standard requires that we quash the decision and remand this cause solely for a reexamination of the trial court’s alternative grant of a new trial.

Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla.1981).

In Wackenhut v. Canty, 359 So.2d 430 (Fla.1978), the supreme court resolved conflicting rules of law governing appellate review of orders granting new trials. From this decision, we perceive the rule to be that a new trial can be granted only if the trial court concludes that the verdict rendered was contrary to the manifest weight of the evidence or if the jury was influenced by considerations outside the record. Additionally,

Although an order for new trial need not incant language to the effect that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of those two conclusions so that it will be susceptible of appellate review [citation omitted]. Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused.

359 So.2d at 435. The supreme court further reaffirmed its earlier determination in Hodge v. Jacksonville Terminal Co., 234 So.2d 645 (Fla.1970), that a finding by the trial court that a verdict was “contrary to the evidence” was not tantamount to a finding that the verdict was against the manifest weight of the evidence and was thus not a sufficient basis for the granting of a new trial.

Wackenhut sets the standard for the granting of a new trial and requires articulation of the reasons for granting it. Later decisions of the supreme court in Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980), and Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla.1982), reaffirm the rule of Wackenhut. Although the standard for appellate review is whether the trial court abused its broad discretion in granting a new trial, Kikis, before we can reach this question it must first appear that the grant of a new trial was based on one or more of those grounds set forth in Wackenhut —that the verdict is against the manifest weight of the evidence or that the verdict was influenced by matters or considerations outside of the record. No such finding is made here. The court’s finding that there was an “insufficiency of evidence” does not equate to a finding that it was against the manifest weight of the evidence, any more than does a finding that the verdict is “contrary to the evidence.” Hodge.

Thus we need not reach the question of the reasonableness of the trial court’s action, because the stated ground does not meet the test of sufficiency as a ground on which an order for new trial may be supported. Wackenhut. In setting aside a verdict and granting a new trial absent the proper finding, the trial court acts only as a seventh juror with veto power, and this it may not do. Wackenhut at 435.

The order granting the directed verdict for defendants, or alternatively granting a new trial, is reversed with directions to reinstate the final judgment for appellant based on the jury verdict.

REVERSED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.


author: PER CURIAM.

text:
    Joe Lee WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1523.
    District Court of Appeal of Florida, Third District.
    July 12, 1983.
    Rehearing Denied Aug. 24, 1983.
    Joe Lee Williams, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Williams appeals the denial of his motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850. His motion attacks the trial court’s retention of jurisdiction over one-third of the seventy-five-year sentence imposed upon him by succinctly stating that the trial court failed to state any reason for retaining jurisdiction. The form order denying relief recites, inter alia, that “the Court having examined the said Motion and finding that the allegations contained therein do not constitute legal grounds for granting a new trial or release of the prisoner,” the motion is denied.

Having been furnished nothing other than the motion and the order denying same, we must reverse the order denying relief and remand the cause to the trial court with directions to attach that part of the record that sets forth the “justification with individual particularity” for retention of jurisdiction, or, if no such record now exists, to make one. On the record before us, the trial court’s retention of jurisdiction is unlawful, see § 947.16(3)(a), Fla.Stat. (1981); Rosa v. State, 412 So.2d 891 (Fla. 3d DCA 1982), and the motion unquestionably set forth a legal ground showing that the “sentence is otherwise subject to collateral attack.” See Fla.R.Cr.P. 3.850.

If, as we suspect, there was some proper basis for denying the motion, a good deal of judicial labor would have been saved by making that basis appear of record rather than signing an inappropriate perfunctory order denying relief. If the record did not reflect the required statement of justification for retention of jurisdiction, then a good deal of judicial labor would have been saved by the trial court having immediately recognized and corrected this deficiency.

Reversed and remanded with directions.


text:
    Barry LAYTON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-769.
    District Court of Appeal of Florida, Third District.
    July 12, 1983.
    Rehearing Denied Aug. 24, 1983.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Because the prosecutor’s closing argument comment

“[As] you know, it doesn’t take a genius to figure out that Mr. Layton and Mr. Parker, as opposed to the other witnesses, have been sitting here in this courtroom with the advantage and ability to listen to how each witness testified ...”

is, particularly where Parker, the co-defendant, testified, “fairly susceptible,” David v. State, 369 So.2d 943, 944 (Fla.1979), of being interpreted by the jury as referring to Layton’s failure to testify, see Hall v. State, 364 So.2d 866 (Fla. 1st DCA 1978); Singleton v. State, 183 So.2d 245 (Fla. 2d DCA 1966), “regardless of its susceptibility to a different construction,” Trafficante v. State, 92 So.2d 811, 814 (Fla.1957); and because such a comment, although in the circumstances of this case unquestionably harmless, is reversible error without resort to the harmless error doctrine where, as here, the error is preserved by a timely overruled objection, David v. State, 369 So.2d 943; Trafficante v. State, 92 So.2d 811; Ramos v. State, 413 So.2d 1302 (Fla. 3d DCA 1982); Cunningham v. State, 404 So.2d 759 (Fla. 3d DCA 1981), we reverse and remand for a new trial.

For the benefit of the trial judge assigned to retry this case, we note that we have examined appellant’s other points on appeal and have found them to be without merit. We particularly note that the defendant’s post-arrest statement, since shown to be made after a knowing and intelligent waiver of Miranda rights and to be otherwise voluntary, was properly admitted in evidence and is entitled to admission on any retrial.

Reversed and remanded.

      .And preserved by an equally unsuccessful but unnecessary motion for mistrial, see Simpson v. State, 418 So.2d 984 (Fla.1982); Ramos v. State, 413 So.2d 1302 (Fla. 3d DCA 1982).


author: WENTWORTH, Judge.

text:
    O.T. SIMS & ASSOCIATES, and Travelers Insurance Co., Appellants, v. Chris J. MERCHANT, Appellee.
    No. AO-179.
    District Court of Appeal of Florida, First District.
    July 13, 1983.
    Rehearing Denied Aug. 12, 1983.

      Charles Vocelle of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellants.
    M. Blair Payne of Darby, Peele, Page & Bowdoin, Lake City, for appellee.
   WENTWORTH, Judge.

The employer and carrier (e/c) appeal an order of the deputy commissioner finding claimant temporarily partially disabled (TPD) from April 2, 1982, to July 12, 1982, and awarding payment of attorney’s fees. Claimant cross-appeals the determination of his average weekly wage. We affirm the points raised on appeal and reverse on the cross-appeal.

Claimant was injured on June 4, 1981, when his arm was caught in a conveyor belt at work. The e/c paid temporary total disability benefits until he was released for light duty work on January 12, 1982. At that time claimant returned to work for the employer doing the same job he had done prior to the accident. This was not light duty work, however, and claimant was laid off on March 12, 1982, because he was unable to perform as requested and the employer had no light duty to offer. Claimant searched unsuccessfully for employment from April through June of 1982. He was rehospitalized for additional surgery in July, and TTD benefits were reinstated at that time. A hearing was held on August 19, 1982, on the claim for TPD benefits, higher average weekly wage than that applied by the e/c, rehabilitation mileage reimbursement, and attorney’s fees.

There is substantial competent evidence in the record that claimant conducted a good faith work search which was unsuccessful except for $300 earned doing carpentry work for an individual. That amount was credited against the TPD award. The award of TPD benefits is therefore affirmed.

The claim in this case sought reimbursement for underpayment on the basis of miscalculation of claimant’s average weekly wage. The e/c had based claimant’s TTD benefits on an average weekly wage of $115.75. On appeal, they assert that their figure is proper under § 440.14(l)(f), the part-time worker provision. The deputy found, without explanation, that claimant’s average weekly wage was $115.75. We therefore assume that the deputy was applying § 440.14(l)(f), but find nothing in the record to substantiate the necessary predicate for application of that section, infra.

The purpose of the part-time worker provision for determining average weekly wage “is to prevent an employee who had voluntarily determined to limit his earnings from being paid compensation on the basis of a full-time employee in the same employment .... The statute recognizes that it would be inequitable to compensate a worker only on the basis of his part-time earnings or capacity if such status was not voluntarily assumed.” J.J. Murphy & Son, Inc. v. Gibbs, 137 So.2d 553, 560 (Fla.1962). Thus, in order to rebut the claimant’s testimony in this case and avail themselves of the limited payment rate, the e/c could have shown that the claimant

[1] had adopted part-time employment as his customary practice, and [2] that under normal working conditions he probably would have remained a part-time worker during the period of disability ... [and that he] [3] customarily works less than the full-time hours or full-time workweek of a similar employee in the same employment. § 440.14(l)(f), Fla.Stat.

The record contains no affirmative evidence that the foregoing criteria applied to claimant.

Instead we find that claimant adequately met his prima facie burden on this issue by testimony supporting his claim for an average weekly wage based on earnings during the five or six weeks preceding his accident when he said he worked “full time,” preceded by five weeks’ part-time work and a two-weeks trip. The only other evidence of claimant’s wages was the written statement of his stipulated earnings. That statement reflects only that claimant did not work substantially the whole of 13 weeks prior to the accident, and that his weekly earnings for each of the five weeks immediately preceding the accident were considerably more than for each of the first six or seven weeks of his employment with the employer. Thus, there is no proof that claimant had voluntarily adopted part-time work as his customary practice or that he would have remained part time. On the contrary the bare but unrefuted evidence is that he had adopted full-time work to the extent reflected by his schedule during the five weeks preceding the accident. Therefore, although the claimant could clearly have presented clearer or more specific evidence in order to assist the deputy, the application of § 440.14(l)(f) was error, and the record supports claimant’s asserted full-time weekly wage of $202.50. Florida Cast Stone v. Dehart, 418 So.2d 1271 (Fla. 1st DCA 1982); § 440.14(l)(d). The deputy’s finding on this issue is accordingly reversed and the order shall stand amended to reflect the claimed wage.

Finally, we address the e/c’s contention that the award of attorney’s fees was improper. E/c correctly note that the deputy did not make an express finding that the carrier acted in bad faith with regard to the handling of the claim, and contend that the award could be permitted under § 440.34, Florida Statutes, only if such a finding was made. The deputy should, of course, always make an express determination of bad faith when awarding attorney’s fees under § 440.34(3)(b), but we find that conclusion to be implicit in paragraph 11 of the order which states:

11. That claimant’s attorney is entitled to a fee in that the employer/carrier failed to provide the obvious benefits to the claimant resulting in economic detriment.

This determination is in our opinion adequately supported by evidence that the e/c (1) suddenly and without any asserted justification terminated claimant’s mileage payments for his rehabilitation travel after previously authorizing and paying same for one third of the authorized term; and (2) immediately terminated all benefits based solely on claimant’s release for light duty work, although they knew by virtue of employer’s termination of his employment that entitlement to temporary partial benefits could ensue for some reasonable period. See Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982).

The order as amended with regard to the claimant’s average weekly wage is affirmed.

ROBERT P. SMITH, Jr., C.J., and ZEH-MER, J., concur.

      .In the fall of 1981 the e/c authorized rehabilitation at Santa Fe Community College. This required claimant to travel 66 miles, three days a week. The e/c paid mileage for the first four weeks of the 12 week program, but terminated the payments after that. No explanation was offered for the termination in spite of several inquiries made by claimant. The e/c do not challenge that part of the order awarding mileage reimbursement.

      . The evidence shows that claimant also earned approximately $50 making deliveries for the employer between the time he was laid off and April 1982. If any error occurred in failure to credit that amount, we do not reach the point because we are referred to nothing showing that an opportunity for correction was accorded the deputy.

      . The sum of all of claimant’s weekly earnings divided by thirteen comes to $115.75.

      . Because claimant did not work substantially the whole of 13 weeks prior to the accident, § 440.14(l)(a) is inapplicable. There is no evidence of a similar employee, and claimant was not a minor or seasonal worker. Therefore subsections (l)(b), (c), and (e) are also inapplicable.

      . The sum of claimant’s earnings for the last five weeks divided by five equals the claimed wage of $202.50. The averaging of wages for a period less than 13 weeks is not, of course, a correct application of § 440.14(l)(a), but may in the absence of conflicting evidence suffice to show the full-time wages of a claimant under subsection (d) when other methods cannot reasonably be applied. Cf., Perkins v. Heller Brothers, IRC 2-3542; Butler Milwork v. Patterson, IRC 2-3539.

        .Cf., Holt v. Blue Ribbon Construction Co., 3 FCR 29 (1957). We note the absence of any .proof in the present case as to customary full-time working hours in the employment in question.


author: NIMMONS, Judge.

text:
    Ivia Jean NEWSOME, Appellant, v. DEPARTMENT OF CORRECTIONS of the STATE OF FLORIDA, Appellees.
    No. AO-320.
    District Court of Appeal of Florida, First District.
    July 13, 1983.
    Rehearing Denied Aug. 16, 1983.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, and Wagner, Cunningham, Vaughan & McLaughlin, Tampa, for appellant.
    Jim Smith, Atty. Gen., and Pamela L. Shields, Asst. Atty. Gen., for appellees.
   NIMMONS, Judge.

Appellant Newsome was raped and battered by one Eddie Dixon, a 17-year-old Florida Department of Corrections (DOC) inmate who, shortly before, had left a Florida Department of Transportation (DOT) work crew without permission during the lunch hour on September 11, 1980. New-some filed suit for damages against DOC and DOT for negligence in the supervision and control of Dixon. The trial court granted DOC’s motion for summary judgment on the grounds of sovereign immunity. DOT did not raise sovereign immunity in the trial court and Newsome’s cause of action against DOT is, therefore, not a subject of this appeal. For the reasons stated herein, we reverse the trial court’s order granting summary judgment in favor of DOC.

In 1979, Dixon committed two armed robberies in Polk County and was sentenced in each case concurrently as a Chapter 958 youthful offender to the custody of DOC for a term of five years, two years of which were to be by imprisonment followed by three years in a community control program. Dixon had not yet completed the imprisonment portion of the sentences.

After his placement in the Hillsborough Correctional Institution, a DOC correctional facility which housed medium and minimum custody youthful offenders, Dixon assaulted fellow inmates on two occasions, used abusive language towards correctional officers, and was involved in other prison rule violations.

Because of a perceived improvement in Dixon’s institutional conduct, he was reclassified by DOC in September, 1980, from medium to minimum risk pursuant to recommendation by a DOC classification team. He was then assigned to a DOT work detail pursuant to Section 945.11(1), Florida Statutes (1979), which provides:

The department [of corrections] is authorized to enter into agreements with such political subdivisions of the state, as defined by s. 1.01(9), and with such agencies and institutions of the state as might, under supervision of employees of the department [of corrections], use the services of inmates of correctional institutions and camps when it is determined by the department [of corrections] that such services will not be detrimental to the welfare of such inmates or the interests of the state in a program of rehabilitation.

In June, 1980, DOC entered into an agreement with DOT providing for DOT’s utilization of DOC prisoners to perform work tasks for DOT. Essentially, the agreement provided for the transportation by DOT of the inmates each day from DOC facilities to the DOT work center and the return of the inmates by DOT at the end of the workday. The agreement provided for DOT personnel to provide supervision of inmates while in custody of DOT and to “maintain specified custody and control of inmate work crews during all break and meal periods.”

It is undisputed that on the day in question the DOC inmates assigned to the DOT work detail, including Dixon, were in the custody of DOT personnel and that no DOC correctional officers or personnel were assigned to supervise the inmates while participating in the DOT work details. DOC contends, therefore, that it was not responsible for the alleged negligent supervision by DOT personnel of the inmates assigned for the day to the DOT work detail. We disagree.

Section 945.11 is a clear legislative mandate that DOC is responsible for the supervision of inmates assigned to DOT work details such as this. To the extent that DOC relies upon DOT or other agencies to carry out its statutory responsibility of providing adequate supervision of its inmates while on Section 945.11 work details, it does so at its peril. Regardless of whether DOC’s reclassification of Dixon from medium to minimum security may properly be regarded as a “discretionary” decision under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), and its recent progeny, DOC is not entitled to the shield of sovereign immunity in carrying out its statutory operational duty of supervising such inmates whether through its own employees or those of any other agency to whom it purports to delegate such responsibility.

We, therefore, reverse the trial court’s order granting summary judgment in favor of DOC and remand for further proceedings consistent with this opinion.

Reversed and remanded.

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

      . Notwithstanding the sentence’s provision for a three-year period of community control, we note that the statutory maximum period for the community control portion of a youthful offender sentence is two years. See Sections 958.05(2) and 958.10(1), Florida Statutes (1979). However, that is not in issue here.

      . We are mindful of the holding of this Court in State Dept. of Health v. O’Neal, 400 So.2d 28 (Fla. 1st DCA 1981), a worker’s compensation case in which we held § 945.11 was not a legislative mandate that DOC employees “directly supervise” the inmates while at the work detail. However, we also recognized that:
      “A cursory reading of Section 945.11 reveals the legislative intent that inmates shall remain under supervision of the DOC even while ‘on loan’ to another agency.” [400 So.2d at 29]


author: LARRY G. SMITH, Judge.

text:
    Robin R. VAUGHAN, Appellant, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, an Ohio corporation, Appellee.
    No. AO-442.
    District Court of Appeal of Florida, First District.
    July 13, 1983.
    Rehearing Denied Aug. 16, 1983.
    Tyrie W. Boyer, Boyer, Tanzler, Blackburn, Boyer & Nichols, Jacksonville, for appellant.
    Christopher A. White, Ellis E. Neder, Jr., P.A., Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

Appellant Vaughan seeks reversal of an order denying her request for an award of attorney’s fees against Progressive American Insurance Company (appellee), under Section 627.428(1), Florida Statutes. We affirm, on procedural grounds, the denial of attorney’s fees based upon our determination that there has been no “judgment or decree” rendered in favor of appellant, which is a'necessary predicate to an award of attorney’s fees under the statute. However, we further order that our affirmance is without prejudice to appellant’s right to seek the entry of a final judgment in her favor, and in connection therewith to renew her request for an award of attorney’s fees under the statute.

This controversy concerning attorney’s fees grows out of a declaratory action filed by the insurer, Progressive, to determine coverage under its policy issued to Jon T. Taylor (a defendant below). The circumstances giving rise to Progressive’s action are as follows: Appellant Vaughan was a passenger in an automobile driven by Taylor, which was involved in a motor vehicle collision with another automobile. Progressive had issued a policy to Taylor, providing liability and other coverage, which specifically insured yet a third automobile not involved in the collision. Vaughan filed suit against Taylor and the other vehicle driver, and joined Progressive and the other driver’s insurer. Progressive subsequently filed a complaint for declaratory judgment against Vaughan, Taylor, the other operator and his insurer, and obtained an order staying the negligence suit filed by Vaughan. The declaratory judgment actioned was scheduled for jury trial on July 26, 1982. On July 20, 1982, Progressive voluntarily dismissed Vaughan from the declaratory judgment action. The following day, Vaughan filed a motion and secured an order permitting her to re-enter the case as intervenor. At the trial, Vaughan’s motion for a directed verdict was granted against Progressive at the close of its case in chief. Vaughan then moved for attorney’s fees incurred in the defense of the declaratory judgment action, which was denied by the trial court’s order which is before us for review. A final judgment was entered in favor of Jon T. Taylor against Progressive, which found that the policy issued by Progressive provided coverage for Taylor on account of the accident, and specifically found that Progressive’s policy “provides liability, medical payment, and personal injury protection insurance for defendant, Jon T. Taylor, .... ” The final judgment makes no reference to appellant Vaughan, as noted in footnote 2, supra.

Appellant claims here, as she did below, that she is an “insured” entitled to the benefit of the attorney’s fees provision of Section 627.428(1), Florida Statutes. At the outset, we note that the trial court’s order rejecting appellant’s claim that she was an “insured” under the statute contains a discussion of Roberts v. Carter, 350 So.2d 78 (Fla.1977), which held that attorney’s fees under the statute are available only to the “contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.” (Emphasis supplied). The court’s order also cites decisions from this court, Aetna Life Insurance Company v. Sievert, 361 So.2d 747 (Fla. 1st DCA 1978), which denied recovery of fees, citing Roberts v. Carter, supra, and South Carolina Insurance Company v. Pensacola Home & Savings Association, 393 So.2d 1124 (Fla. 1st DCA 1978), which allowed attorney’s fees because the loss-payable mortgagee under the insurance policy was deemed “an insured” pursuant to the statute (Section 627.428(1)), thus factually distinguishing that case from Roberts v. Carter.

Appellant urges, however, that the trial court’s denial of attorney’s fees is contrary to the Florida Supreme Court’s recent decision in Industrial Fire & Casualty Insurance Company v. Prygrocki, 422 So.2d 314 (Fla. 1982), affirming Prygrocki v. Industrial Fire & Casualty Insurance Company, 407 So.2d 345 (Fla. 4th DCA 1981). In its Pry-grocki decision the Supreme Court made it clear that Roberts v. Carter’s use of the term “contracting insured” was not intended to prohibit “an insured” other than the contracting insured from recovering attorney’s fees under the statute. Id. at 316. We are inclined to agree with appellant that the trial court appears to have applied a pre-Prygrocki interpretation of Roberts v. Carter. We note, of course, that at the time of his ruling the trial judge below did not have the benefit of the Supreme Court’s authoritative decision in Prygrocki, since it was handed down subsequent to the order under review. We therefore emphasize that we affirm the denial of attorney’s fees only because an award of fees would have been premature at the stage at which the order was entered, and not because of our view as to the merits of the trial judge’s order.

Even assuming the application by the trial judge of an erroneous definition of “insured” as it pertains to entitlement of fees under the statute, however, we wish to make it perfectly clear that we could not on the record before us agree that appellant is necessarily entitled to an award of attorney’s fees. In order to fit this case into the Prygrocki mold, as appellant seeks to do, it is necessary to first determine whether she is an “omnibus insured” under the Progressive policy. Secondly, if she is an “omnibus insured” is she entitled to an award of fees only if the claims made by or against her derive from her status as an insured, or is she entitled to an award of attorney’s fees even if only her third-party beneficiary claims under the liability coverage are at stake? The parties are at odds on the matter of whether these questions have been clearly raised in the trial court. Whether or not they have been raised may depend, in part, upon interpretation of the allegations of Progressive’s declaratory judgment complaint, and the evidence presented and contentions made during the trial itself. The bare record before us, which contains no trial transcript and no final judgment as to Vaughan, does not permit us to answer these questions. It is clear, however, that these are matters which would properly be within the province of the trial court to consider upon the entry of a judgment in behalf of appellant, which has yet to be accomplished, and we decline to address these issues for the first time on this appeal. See, Morton v. Rafai, 339 So.2d 707 (Fla. 1st DCA 1976); City of Coral Gables v. Puiggros, 376 So.2d 281 (Fla. 3rd DCA 1979); Allender v. First Federal Savings & Loan Association, 389 So.2d 1226 (Fla. 5th DCA 1980). Furthermore, since the application for attorney’s fees is a post-trial proceeding, nothing would prevent the trial court on remand from considering any pertinent additional evidence that might be necessary to properly determine this issue.

Appellee has cross-appealed the award of costs to Vaughan, pointing out, without contradiction by appellant, that the Ganas deposition, for which an award of $185.00 was made, was not taken in connection with the instant litigation. On the record before us we are unable to determine the propriety of the award of this item of costs. However, in view of our disposition of the primary appeal, which will necessitate further proceedings in the trial court, we reverse the cost award of $185.00 for the Ganas deposition, and remand for further consideration as to the basis for taxation of this item of costs.

The order appealed from is affirmed in part, and reversed in part, and the cause is remanded to the trial court for further proceedings, including entry of a final judgment, upon application and after notice, adjudicating the rights and obligations of the parties, including appellant Vaughan’s claim for attorney’s fees.

JO ANOS and NIMMONS, JJ., concur.

      . Appellant also bases her claim for attorney’s fees on absence of a “justiciable issue,” Section 57.105, Florida Statutes. We find that the trial court properly rejected her claim on this ground.

      . See, Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1st DCA 1974); Travelers Indemnity Co. v. Chisholm, 384 So.2d 1360 (Fla. 2nd DCA 1980). Although appellant contends that the final judgment is in effect a judgment favorable to Vaughan, finding her an “omnibus insured,” we disagree. The final judgment does not specifically adjudicate Vaughan’s status as an “omnibus insured,” nor does it otherwise address the rights, duties or obligations of Progressive and appellant with respect to each other. The final judgment specifically adjudicates only the obligation of Progressive to defendant Taylor. By operation of law, of course, by finding that Progressive’s policy provides liability coverage to Taylor, the judgment effectively establishes Progressive’s potential liability for any judgment rendered against Taylor in appellant’s separate suit against him.

      . We note from portions of Taylor’s Progressive insurance policy appearing in the record that any person while occupying the “insured car” is an “insured person” under the medical payments and uninsured motorists coverage of the policy. However, there may be other factors or other policy provisions which may bear upon Vaughan’s status as an “omnibus insured,” and as previously indicated (see footnote 2), so far as the record before us discloses the trial judge has not made a determination of this issue.

      . Prygrocki does not expressly rule on whether attorney’s fees are awardable to one who is an “omnibus insured,” when the litigation in which the attorney’s fee question arises involves a claim under coverage provisions as to which the claimant is not an “insured.” We have noted, of course, Progressive’s contention that appellant has asserted no claim under the Progressive policy other than as a third party beneficiary with respect to the liability protection afforded to Taylor by Progressive. Although the record supports Progressive’s contention, it must be borne in mind that Progressive was the moving party in this declaratory judgment action, and appellant’s status as an “insured” for the purpose of claiming fees under the statute may well depend upon whether Progressive’s declaratory judgment complaint implicated appellant’s status as an insured under provisions other than the liability section of the policy.

      . Progressive’s declaratory judgment complaint recited, among other things, the filing of the suit by Vaughan against its insured, Taylor, and the fact that claims had been made against the policy issued by Progressive to Taylor in that litigation. Further, the complaint alleged that Progressive was in doubt whether its policy provided coverage for Taylor, and his motor vehicle involved in the accident, “and any claims which might arise out of said accident.” The complaint concluded with the request that the court render a declaratory judgment determining whether the policy “provided liability, medical payments or personal injury protection insurance for defendant, Taylor, and against which all or some of the parties in Case No. 81-12678-CA [Vaughan’s suit against Taylor] have potential claims, at the time of the subject accident.”

      . We find no indication that any request for a final judgment was ever made to the trial judge by appellant, nor was there a motion for rehearing after entry of the final judgment adjudicating the issues in the case only as pertains to Progressive and Taylor.


author: JOANOS, Judge.

text:
    FLORIDA PUBLIC SERVICE COMMISSION, Appellant, v. INDIANTOWN TELEPHONE SYSTEM, INC., et al., and Gulf Telephone Company, and Southern Bell Telephone and Telegraph Company, Appellees.
    No. AN-486.
    District Court of Appeal of Florida, First District.
    July 15, 1983.

      Patrick K. Wiggins, Deputy Gen. Counsel, Florida Public Service Com’n, Tallahassee, for appellant.
    David B. Erwin of Mason, Erwin & Horton, Tallahassee, and Lewis W. Petteway, Tallahassee, for Indiantown Telephone System, Inc., et al.
    Edwin B. Browning, Jr., Madison, and Lewis W. Petteway, Tallahassee, for Gulf Telephone Co.
    Earl B. Hadlow of Mahoney, Hadlow & Adams, Jacksonville, and William B. Bar-field, J. Lloyd Nault, II, Miami, for Southern Bell Tel. and Tel. Co.
   JOANOS, Judge.

The Public Service Commission (“PSC”) appeals an order of the Division of Administrative Hearings determining that the PSC’s notice of proposed agency action constituted a rule and therefore an invalid exercise of delegated authority due to failure to comply with the rulemaking requirements of Section 120.54, Florida Statutes. We reverse.

Section 364.07 gives the PSC the authority “to review intrastate [telephone] toll settlement agreements and disapprove any such agreement if such agreement is detrimental to the public interest.” Southern Bell has bilateral toll settlement agreements with the other telephone companies operating in Florida. These other companies periodically report their costs and revenues for intrastate long distance calls and Southern Bell determines how much revenue goes to each company. The agreements basically provide each company enough revenue to cover operation and maintenance plus a certain rate of return on the rate base invested in intrastate long distance service. This is based on Southern Bell’s rate of return for the last study period.

It is the PSC’s position that this system creates cross-subsidization among the customers of the different telephone companies. Initially, the PSC gave notice of a proposed rule which provided a method for the distribution of intrastate toll revenues. This proposed rule was successfully challenged by several telephone companies. On April 22, 1982, hearing officer Tremor issued a final order determining that the proposed rule, which was supposed to implement Section 364.07, Florida Statutes, exceeded the statutory grant of authority and was therefore invalid. The hearing officer noted that under Section 364.07, the PSC has the authority to disapprove intrastate toll settlement agreements which are determined to be detrimental to the public interest, and not only did the PSC fail to make a determination as to the public interest, but even if such a determination had been made, the PSC could only disapprove the agreements, it could not rewrite, change, or modify the agreements. The hearing officer found that the proposed rule would have this effect. This final order finding the proposed rule invalid was not appealed.

On May 21, 1982, the PSC, pursuant to Rule 25-22.29 Fla.Admin.Code, issued a Notice of Proposed Agency Action to each telephone company in the state, notifying of its “intent to disapprove all existing agreements for the division of intrastate toll revenues.” Set forth in the notice was a statement of the facts and a statement of policy that the basis of settlement in the intrastate toll settlement agreements rendered those “agreements detrimental to the public interest because it creates an inequitable system of cross-subsidization among local subscribers of the telephone companies.” This policy statement was explained in greater detail in the notice of proposed agency action including the following:

[t]o not be detrimental to the public interest, toll settlement agreements must provide for settlements that do not create such cross-subsidization among the local ratepayers of the various companies. To avoid such cross-subsidization, the toll settlement agreements must compensate each company for its cost of providing intrastate toll service. This cost of services includes the cost of capital, as well as operating expenses, taxes, and investments. With respect to the equity component of the cost of capital, the return on equity must recognize the financial leverage of the company.

A procedure was set forth for those affected to file petitions for hearings on the proposed agency action. The hearings would be held in accordance with the requirements of Section 120.57(1), (2), Florida Statutes. The notice further provided that if no petitions were filed, a final order would issue disapproving all toll settlement agreements and directing modified agreements to be submitted for review within 30 days.

The telephone companies (appellees) challenged the validity of the proposed agency action, contending it was actually a proposed rule under Section 120.54 and should be the subject of rulemaking procedures under that section. The PSC moved to dismiss the petitions challenging the notice, alleging the Division of Administrative Hearings lacked jurisdiction under Chapter 120; that the petitions stated no claim for which relief could be granted under Section 120.54; the notice was not a proposed rule, but was in the nature of a show cause order designed to focus disputed issues; and that the notice was not final agency action and would not become final until a hearing was held on the question whether the toll settlement agreements were detrimental to the public interest (petitions had been filed by several of the companies pursuant to the procedure set forth in the notice).

In a final order dated July 20,1982, hearing officer Williams determined that the PSC’s notice of proposed agency action constituted a rule and was an invalid exercise of delegated legislative authority for failure to comply with the rulemaking requirements of Section 120.54, Florida Statutes. Included in the hearing officer’s conclusions were that the purpose of the notice was to announce a policy position which applied industrywide; that the notice contained a statement of general applicability that implements, interprets, or prescribes law or policy; and that the statement contained “no temporal or geographic limitations, does not arise from a set of facts involved in the adjudication of an individual case and, by its own terms, will have future application to all toll settlement agreements.” The PSC appeals this final order.

On appeal, first of all the PSC contends that there is an important distinction between rules and proposed rules in the instant case. It is argued that there is a difference between challenging final agency action which is in effect a rule, even though not designated a rule by the agency, and an attempt to challenge as a proposed rule action which the agency has not designated a proposed rule. Appellant points out that while the appellees challenged the notice as a proposed rule, the hearing officer found that the action constituted a rule. Appellant argues that the notice did not constitute a rule or a proposed rule or any final agency action, but was intended only to define a controversy as a preliminary to an adjudicatory hearing, asserting its option to use non-rule proceedings to develop incipient policy and to use adjudication to develop the meaning of the phrase “detrimental to the public interest.” Appellees contend there should be no significant difference between rules and proposed rules in the present context, and that since the notice has the effect of prescribing law or policy and is of general applicability, it is in effect a rule and must be subject to rule-making requirements of Section 120.54. Appellees assert that the use of adjudication to develop incipient agency policy is limited to use in individual cases, and that an agency does not have complete discretion to ignore rulemaking in cases in which it is appropriate.

We conclude that in the present context, there is a significant difference between agency action which is in effect a rule and proposed agency action which is not designated by the agency as a proposed rule, but may be a rule in effect if finally adopted. This is the necessary result if the agency’s option to develop policy through either rule-making or adjudication is to be preserved. If, as the case law discussed infra indicates, an agency cannot be compelled to use rule-making as the sole means of developing agency policy, then the proposed action may not be challenged as a proposed rule unless it is designated as such by the agency.

The parties have directed us to and we have found no case which states that with regard to the development of policy in a case such as this one an agency has no option but to use rulemaking procedures. On the contrary, cases exist in which the courts indicated rulemaking would have been preferrable, but the agencies were not compelled to use that method as opposed to adjudication. In Florida Cities Water Co. v. Florida Public Service Commission, 884 So.2d 1280 (Fla.1980), the Florida Supreme Court stated that the PSC was not required to announce its new policy on deductions allowed in figuring rates in a rule proceeding. “Administrative agencies are not required to institute rulemaking procedures each time a new policy is developed ... although that form of proceeding is preferrable where established industry-wide policy is being altered.” In Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981), this court recognized that certain cases are more suited to rulemaking than to development of policy through adjudication, but indicated that the remedy is not to force rulemaking upon an agency, but to carefully review orders containing statements of policy to ensure that the policy is adequately explained. “[Tjhough we will ordinarily ‘withhold judicial imperatives’ for rulemak-ing, in deference to a coordinate branch of government, we are bound to give full effect to the APA’s ‘self-enforcing’ incentives for rulemaking — those requirements concerning orders by which ‘agencies will be pressed toward rulemaking by the necessity otherwise to explicate and defend policy repeatedly in Section 120.57 proceedings

In McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), this court stated:

The APA does not in terms require agencies to make rules of their policy statements of general applicability, nor does it explicity invalidate action taken to effectuate policy statements of that character which have not been legitimated by the rulemaking process. But that is the necessary effect of the APA if the prescribed rulemaking procedures are not to be atrophied by nonuse ....

Remedies are described for challenging final agency action which has the effect of a rule. The McDonald opinion also states, however, that “[tjhat APA does not chill the open development of policy by forbidding all utterance of it except within the strict rulemaking process of Section 120.54.” The requirement of rulemaking is “imposed only on policy statements of general applicability, i.e., those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law” (emphasis in original). The notice of proposed agency action in the present case does not, by its own effect, create rights, require compliance, or otherwise have the direct and consistent effect of law, because the proposed agency action did not become final agency action. The notice provided for challenges and adjudicatory hearings pursuant to Section 120.57, and petitions for such hearings were filed.

While it appears rulemaking would suit the type of policy being developed in the present case, and may even be preferra-ble in order not to waste resources by repeatedly explicating and defending the policy in Section 120.57 hearings, see e.g. Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983), and cases cited therein, there is no authority to compel the agency to choose rulemaking over adjudication in this ease. See also City of Tallahassee v. Florida Public Service Commission, 433 So.2d 505 (Fla.1983) and City of Plant City v. Mayo, 337 So.2d 966, 974-75 (Fla. 1976) (“no statutory or constitutional impediment to implementations of change [through individual rate case rather than broadbased rulemaking proceedings] so long as interested and affected parties have a forum in which to challenge any change and the basis on which the action is taken is supported by the record.”) Significantly, counsel for one of the appellees stated at oral argument that there would be no difficulty accepting policy development through adjudication had the telephone companies been notified individually of the proposed action and proceeded to individual hearings, instead of the single notice copies of which were sent to all of the telephone companies in the state. We conclude that the outcome of this case does not depend on whether the PSC deals with single or multiple parties and adjudication is not precluded because the orders resulting from Section 120.57 hearings may issue simultaneously rather than sequentially.

We hold that the PSC may proceed to develop the policy involved in the instant case through adjudication on a case-by-case basis. If the PSC continues to proceed only through adjudication, it will have to “ ‘explicate and defend policy repeatedly in Section 120.57 proceedings.’ ” Anheuser-Busch at 1182, for each company to which it intends to attempt to apply that policy.

The order determining that the notice of proposed agency action is a rule, and as such, invalid for failure to comply with rulemaking procedures is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

SHIVERS and WENTWORTH, JJ., concur.


author: MILLS, Judge.

text:
    Donald WADE, Appellant, v. STATE of Florida, Appellee.
    No. AQ-258.
    District Court of Appeal of Florida, First District.
    July 15, 1983.
    Rehearing Denied Aug. 5, 1983.
    Donald Wade, Pro. Per., Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   MILLS, Judge.

Having reviewed the record in this case which is- before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we find no reversible error and affirm.

BOOTH and SHIVERS, JJ., concur.


author: WIGGINTON, Judge. ERVIN, Chief Judge,

text:
    STATE of Florida, Appellant, v. Donald WADE, Appellee.
    No. AQ-259.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.
    Jim Smith, Atty. Gen., and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellant.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellee.
   WIGGINTON, Judge.

On September 9, 1982, two law enforcement officers responded to a reported burglary of a private residence. Upon arrival at the residence, the officers found the front door broken open; proceeding inside, they observed a shadow moving in the kitchen. The officers rushed in to find Wade attempting to leave through the kitchen door; despite an order to halt, Wade persisted in his efforts to exit the kitchen. One of the officers grabbed him from behind, but at the same moment the door opened; the two tumbled to the ground and a gunshot was heard. Immediately, the officer held Wade down while his partner searched him. A .22 calibre revolver was discovered concealed inside Wade’s pants on his left side, and when the gun discharged, the bullet had grazed his left hip. He was transported to a hospital for medical treatment where he was advised of his rights.

Wade was subsequently charged by information with the offenses of armed burglary, contrary to Section 810.02(2)(b), Florida Statutes, and possession of a firearm by a convicted felon, in violation of Section 790.-23(1), Florida Statutes. He successfully moved to sever the two counts.

A jury found Wade guilty of burglary of a dwelling instead of armed burglary as charged, having been instructed:

If you find that in the course of committing the burglary, the defendant was armed or armed himself within the structure with [an] explosive or dangerous weapon, you should find him guilty of burglary while armed.

The severed charge of possession of a firearm by a convicted felon was set for trial soon after. Asserting principles of collateral estoppel and double jeopardy, Wade moved to dismiss the charge. The trial court granted the motion, finding that the possession issue had been determined in favor of Wade in the first trial and, therefore, that principles of collateral estoppel would bar the state from further prosecution. We reverse.

The recent supreme court decision in Gragg v. State, 429 So.2d 1204 (Fla.1983), supplies the test to be applied under these circumstances:

[T]he test to determine whether collateral estoppel acts as a bar to further prosecution is not whether the factual issue in question was inherently decided by the jury’s prior verdict, but rather whether such factual issue was actually decided by the jury in reaching its verdict.

[Emphasis added] 429 So.2d at 1206.

Thus, we must determine whether by its verdict as to the count charging armed burglary, the jury actually decided the factual issue of whether Wade possessed a gun on the night in question. As that issue relates to the severed count charging possession of a firearm by a convicted felon, we hold that the jury did not make that factual determination.

In so holding, we distinguish the circumstances in this case from those in Gragg. In Gragg, the charged offenses of aggravated assault and aggravated battery, as well as possession of a firearm by a convicted felon, arose from a single episode during which Gragg allegedly pistol-whipped the victim and then beat the victim with his fists. Other than the victim’s own uncorroborated testimony, no other evidence of Gragg’s having possessed a gun was adduced. The jury returned verdicts of simple battery and simple assault. The supreme court reasoned that “[s]ince there was no evidence other than the victim’s testimony, that Gragg possessed a pistol that night, the jury must have actually decided that Gragg did not have a pistol.” Id.

On the contrary, here the obvious need not be emphasized but to note that Wade shot himself with his own gun. The presence of the gun was a fact; that the jury failed to take notice of that fact in choosing to convict Wade of simple burglary instead of armed burglary speaks only to the issue of whether he was armed or armed himself within the dwelling. The evidence presented at the first trial did not convince the jury that Wade possessed a gun while inside the dwelling. The jury decided to find in his favor on that issue, and ours is not to wonder why. However, the jury did not by that finding necessarily find that Wade had not possessed a gun outside the dwelling. Arguably, Wade could have armed himself once outside. Thus, two distinct episodes characterize this case and distinguish it from Gragg: Wade’s activity inside the dwelling and his activity outside the dwelling. In Gragg, the court had before it only one episode, and there is was clear that the jury did not have before it evidence suggesting beyond a reasonable doubt that Gragg possessed a firearm during that episode.

Accordingly, the trial court’s order dismissing the charge of possession of a firearm by a convicted felon is REVERSED and the case is REMANDED for trial on the severed count.

THOMPSON, J., concurs.

ERVIN, C.J., dissents with an opinion.

ERVIN, Chief Judge,

dissenting.

The facts recited in the majority’s opinion do not support any reasonable inference that Wade arguably could have armed himself once he was outside the dwelling. The jury’s return of a verdict finding Wade guilty of burglary .of a dwelling, rather than of armed burglary, can only logically be explained in terms of the jury’s undoubted power to grant a jury pardon to Wade by finding him guilty of a lesser offense necessarily included within that of the offense charged. See discussion in State v. Bruns, 429 So.2d 307, 310 (Fla.1983).

Gragg v. State, 429 So.2d 1204, 1206-07 (Fla.1983) requires “a court [, in determining whether collateral estoppel applies, to] limit its inquiry to whether there was a factual basis, rather than an emotional basis, upon which the jury’s verdict could have rested.” This I think the lower court properly did. I would therefore affirm the order of dismissal.

      . We are not at liberty to delve into the subjective minds of the jurors and to speculate as to other factors which might have influenced their decision. As the supreme court noted in Gragg:

      Collateral estoppel does not depend on whether there is any evidence to support the view that the jury may have exercised its pardon power. Practically every jury verdict of acquittal is susceptible to such an interpretation. A jury’s verdict may possibly be based upon a defendant’s demeanor or other matters not reflected by the record. For this reason courts should not speculate on whether the jury has reached its verdict through compassion or compromise. In determining whether collateral estoppel applies, a court should limit its inquiry to whether there was a factual basis, rather than an emotional basis, upon which the jury’s verdict could have rested.
      429 So.2d at 1206.


author: PER CURIAM. LARRY G. SMITH, Judge,

text:
    Anthony CARTER, Appellant, v. STATE of Florida, Appellee.
    No. AN-85.
    District Court of Appeal of Florida, First District.
    July 18, 1983.
    Rehearing Denied Aug. 22, 1983.

      Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

Carter appeals the jury trial judgment finding him guilty of carrying a concealed firearm, resisting an officer with violence and aggravated assault. We have examined his arguments and the record and discovered no reversible error as to the judgment. Carter also appeals his sentencing as a youthful offender to be in the custody of the Department of Corrections for six years; four to be served imprisoned and two to be served in a community control program, with a mandatory minimum of three years for the use of a firearm. We have refrained from examining Carter’s argument on this point as he did not raise it before the Circuit Judge. Therefore, we affirm on all points without prejudice for Carter to file a 3.850 motion as to the alleged sentencing error. See: Allen v. State, 424 So.2d 101 (Fla. 1st DCA 1982).

JOANOS and NIMMONS, JJ., concur.

LARRY G. SMITH, J., specially concurs with opinion.

LARRY G. SMITH, Judge,

specially concurring.

In Maness v. State, 341 So.2d 246 (Fla. 4th DCA 1977), the court said that if the state is not seeking to introduce a statement of the defendant into evidence, it is unnecessary to show that the defendant was properly warned of his constitutional rights, “and the attempt to make such a showing courts reversible error.” Id. at 247. As appellant’s brief points out, the prosecution in this case inquired of the arresting officer whether he had advised appellant of his constitutional rights, asked him how he did this, and then requested the officer to give “a brief synopsis” of these constitutional rights. In response, the officer proceeded to read to the jury the entire text of his Miranda warning card. No question was asked and no testimony was given concerning whether appellant did or did not make any statement after being warned of his rights.

Appellant’s contention that reversible error occurred because this testimony improperly called attention to the appellant’s exercise of his right to remain silent appears to have been disposed of adversely to appellant in Thomas v. State, 367 So.2d 260 (Fla. 3rd DCA 1979), cert. den. 378 So.2d 350 (Fla.1979). In Thomas, the prosecution presented the testimony of the arresting officer that the defendant signed a Constitutional Rights Warning Interrogation Form (which the officer stated was an advisement of his constitutional rights), and the warning form was introduced into evidence as an exhibit, but no subsequent statement by the defendant was introduced. I see no basic difference in the facts of this case, except here the officer simply read the rights warning card to the jury, as opposed to having the form introduced as an exhibit for the jury’s consideration. However, I would join the other courts in expressing disapproval of the practice of calling attention to the giving of this warning, without the introduction of a subsequent statement by the defendant, for I cannot see that it properly adds anything to the prosecution’s case and may — particularly in a case where the defendant does not testify or by other evidence attempt to explain his actions— call attention to his exercise of his right to remain silent. Here the potentially harmful effect of this evidence was attenuated by the officer’s testimony that appellant made statements attempting to explain his actions in resisting arrest before the officer gave the Miranda warnings. Furthermore, since appellant did testify in this case, there is less possibility that the jury could have been influenced by appellant’s post-arrest silence, although this would not prevent reversible error from occurring, since one of the reasons for excluding this type of evidence is that it tends to coerce an accused into testifying at his trial. See, McKnight v. United States, 115 F. 972 (6th Cir., Ky.); Jones v. State, 200 So.2d 574 (Fla. 3rd DCA 1967).

In the.final analysis, if the testimony in this case should be deemed to violate federal constitutional law, I would have no difficulty in finding that there is no reasonable possibility that this Miranda warning evidence contributed to appellant’s conviction. See, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). It should be noted, however, that Bennett v. State, 316 So.2d 41 (Fla.1975), holds that any comment on an accused’s exercise of his right to remain silent is reversible error, without regard for the harmless error doctrine. This holding was modified somewhat in Clark v. State, 363 So.2d 331 (Fla.1978), in which the court determined that the error is waived absent timely objection and motion for mistrial.

With the above additional comments, I join in the majority’s affirmance.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The risk of inadvertent comment and needless reversal, as in Harris v. State, 381 So.2d 260 (Fla. 5th DCA 1980), should also be considered.

      . The officer testified that upon his initial contact with appellant he stated “police officer” to appellant. During the ensuing struggle (the officer had to forcibly take a pistol away from appellant), appellant hollered “illegal search and seizure.” Shortly after being subdued, and before the officer said anything further to appellant, appellant told him: “I didn’t know you was a police officer.”


author: LARRY G. SMITH, Judge. NIMMONS, Judge,

text:
    Vaughn Beasley CORDLE, Van Beasley Cordle, Theodore Calvin Spears and Daniel Emerson Smith, Appellants, v. STATE of Florida, Appellee.
    Nos. AO-40, AO-41, and AO-42.
    District Court of Appeal of Florida, First District.
    July 18, 1983.
    Rehearing Denied Aug. 17, 1983.

      Jean Laramore of Laramore & Aye, P.A., Tallahassee, for appellants/Vaughn Cordle and Van Cordle.
    Jack M. Ross, Gainesville, for appellant/Theodore Spears.
    Michael L. Bryant, Gainesville, for appellant/Daniel Smith.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   LARRY G. SMITH, Judge.

We affirm appellants’ convictions, pursuant to jury verdict, of the offense of possession of marijuana in excess of 20 grams. Numerous grounds for reversal have been briefed and argued, some of which will not be discussed. We will discuss contentions regarding the alleged invalidity of the search warrant; improper exhibition of items of physical evidence to the jury; error in rulings on identification testimony; failure to prove the weight of the marijuana; and insufficient evidence of possession as to appellant Smith. We find no reversible error in these and other points raised by appellants.

The arrest and subsequent conviction of the appellants occurred under the following circumstances: A Piper Aztec airplane loaded with marijuana landed at the Gainesville Airport, Alachua County, Florida, at 12:21 a.m. on October 26, 1981. The pilots were later identified as Vaughn and Van Cordle, twin brothers. At approximately 4:00 a.m. the same morning, two other men later identified as appellants Spears and Smith arrived by van, whereupon the plane’s cargo was loaded into the van. Meanwhile, an alert Sunny South Aviation Company lineman who was present when the plane landed, had become suspicious because of certain unusual circumstances, including his personal observation of extra fuel tanks and box-shaped packages wrapped in green material and duct tape inside the plane. He telephoned an airport security officer, who in turn telephoned the Gainesville Police Department.

Officers were present on the scene when the van arrived and the unloading of the marijuana took place. The occupants of the van, appellants Spears and Smith, were apprehended and arrested at the scene. Through information obtained from the lineman, a cab driver, and the night desk clerk at the Holiday Inn, downtown Gaines-ville, officers traced the Cordle brothers to Room 525 of the Holiday Inn, where they were placed under arrest. On the next day, October 27, officer Squires of the Narcotics and Organized Crime Unit, Gainesville Police Department, obtained a search warrant and conducted a search of Room 525, Holiday Inn, the van, and the airplane. The search of Room 525 yielded various items, including a small baggy of marijuana, aeronautical charts, owner’s handbook for a Piper Aztec aircraft, a ballpoint pen with foreign writing, and a coin from Colombia, South America; a card containing radio frequencies and course coordinates, and ADIZ charts and maps showing routes to well known drug capitals in South America and the Carribean area; a bag containing flight manuals and aircraft logs, and other items.

We see no point in further belaboring the facts of this case. The two appellants Spears and Smith were caught “red handed” at the airport. Appellants Cordle were traced to the Holiday Inn where they were arrested, and at the trial were identified as the pilots of the airplane.

I.

We have carefully considered the contention of appellants Cordle that the court should have suppressed the evidence obtained from Room 525 because the affidavit upon which the warrant was issued contained material and false statements of fact. Alternatively, they contend that the trial court was in error in denying an evi-dentiary hearing to inquire into these alleged false statements. Neither contention has merit. It is apparent from examination of the affidavit, without consideration of the portions appellants contend were false, that it is more than sufficient to allege probable cause to believe that Room 525 contained evidence (the affidavit specified “a bag” containing maps, charts and other items) relating to the smuggling of the marijuana brought in on the airplane. The affidavit, with the questionable allegations excised, details the arrival of the plane, the facts learned from the airport lineman, the observation of the fuel tanks and bales inside, which the observing officers had ample reason to believe were cannabis; the unloading of the bales from the airplane and placement inside the van; the apprehension of appellants Spears and Smith, and other details which more than adequately established the existence of probable cause to believe that the airplane was being used for carrying a large quantity of cannabis. Furthermore, the affidavit recited that the lineman had obtained from one of the pilots of the plane a signed card (authority for the aircraft to remain overnight) in the name of “Bill Johnson,” from Lexington, Kentucky. The pilots were observed to leave the airport shortly after arrival in a City Cab. It further alleged that a City Cab Company driver had been located who furnished information that he picked up two subjects from the airport at approximately 12:40 a.m., who he then transported to the Holiday Inn in downtown Gainesville; and further, that the clerk of the downtown Holiday Inn in Gainesville had advised that two white males had checked into Room 525 at 1:04 a.m., registering under the name of “Bob Johnson,” from Lexington, Kentucky.

The discrepancies in the recitals of the affidavit as to the officers’ observation of marijuana at the airport, the use of the term “bladder tanks,” and the color and material of the nylon flight bag carried by one of the pilots do not, in our opinion, rise to the level of “deliberate falsehood or reckless disregard for the truth” within the requirements of Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). But even if these disputed details are disregarded, the affidavit is still sufficient to establish probable cause. The applicable law is stated in Franks v. Delaware, 438 U.S. at 171-172, 98 S.Ct. at 2684-2685:

There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affi-ant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth Amendment, to his hearing. Whether he will prevail at that hearing is, of course, another issue.

Applying the above law, we find that the trial judge correctly denied the motion to suppress based upon falsity of the search warrant affidavit, and also Correctly denied an evidentiary hearing on the motion. See, also, Mason v. State, 375 So.2d 1125 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 639 (Fla.1980).

II.

Appellants moved for a mistrial at the conclusion of the state’s case on the grounds that the state, over objection, had exhibited to the jury certain prejudicial items of physical evidence obtained from the search of the motel room and the plane, which were never admitted into evidence, and were later withdrawn by the state without explanation to the jury.

The bladder tank, some gas cans, a bag containing flight manuals and logs, and the card containing course coordinates and radio frequencies were admitted into evidence. Other items, including the baggie of marijuana found in Room 525, the Holiday Inn-Wildwood motel key, the ball point pen with foreign writing, and the coin from Colombia, South America, were excluded by ruling of the court. These excluded items were identified and testified about in the presence of the jury, but were later withdrawn by the state after the trial judge’s final ruling of exclusion. It appears that the prosecution followed the procedure of having the questionable items “provisionally” admitted, subject to objection, upon condition that their relevancy and admissibility would be subsequently established during the state’s case.

Appellants urge that because of the improper exposure to the jury of these excluded items of evidence, and the testimony concerning them, evidence of other criminal activity — smuggling, trafficking, or a conspiracy — was improperly permitted to be used against the appellants. Malcolm v. State, 415 So.2d 891 (Fla. 3rd DCA 1982).

We are unable to agree with appellants that reversible error was committed by the court. The items of evidence in question did not relate to any other crime, only to the crime charged. Items from the motel room tied appellants Cordle to the airplane, and to the appellants Spears and Smith. They were relevant and admissible to show knowledge on the part of appellants Cordle that the plane’s cargo was indeed marijuana. This evidence, though tending to connect appellants together in a smuggling or trafficking enterprise, was relevant for consideration in connection with the criminal act for which appellants were being tried.

We agree with appellee’s contention that evidence is not inadmissible merely because it tends to establish the existence of a conspiracy between codefendants to commit the substantive offense for which they are on trial, even though “conspiracy” is not formally charged. Damon v. State, 289 So.2d 720 (Fla.1973); Brown v. State, 128 Fla. 762, 175 So. 515 (Fla.1937). When considered separately, some of the items would seem to have no relevancy to the crimes for which appellants were on trial. However, relevancy may be established by consideration of all the other evidence in the case. See, Capo v. State, 406 So.2d 1242 (Fla. 1st DCA 1981).

III.

We turn next to appellants’ contention that the trial court erred in ruling on eye-witness identification objections. We find the trial judge was correct in these rulings. The trial court suppressed the out-of-court identification of appellants Cordle by the motel desk clerk. At trial the desk clerk testified, initially on cross-examination, that he could not positively state that the persons who registered in Room 525 under the name “Bob Johnson” address “Lexington, Kentucky,” were the same persons later that morning arrested in Room 525. The objection and motion to strike made during this testimony related to the admission of the room registration card. The trial court thereafter sustained an objection, on redirect, calling for the witness’ opinion as to whether they were the same persons, and also sustained further attempts to elicit in-court identification testimony after the witness stated that he could not positively identify the individuals who checked into Room 525. There was no error in the admission of the registration card for Room 525 under the name “Bob Johnson,” of “Lexington, Kentucky,” as evidence, considered together with other circumstances, tending to establish that the two individuals arrested in that room later that same morning were the same individuals who arrived in the airplane, gave the name of “Bill Johnson” of “Lexington, Kentucky,” at the airport, and were transported to the Holiday Inn motel by City Cab. As for the identification testimony of the airport lineman, there was no objection to his positive and unequivocal in-court identification of appellants. We have reviewed the contention that the trial court erred in denying the motion to suppress the lineman’s out-of-court as well as in-court identification and conclude that the presumptive correctness of the trial court’s rulings has not been overcome on this appeal.

IV.

We disagree with the contention that the evidence of possession was insufficient as to appellant Smith. Appellant Smith was the driver of the van, gave the lineman a tip “for his troubles,” and informed the airport employee that he and appellant Spears were there to pick up “machine parts” from the airplane. When Spears completed the loading of the van with marijuana from the plane, he drove the van to the front of the building where Smith was waiting. The state’s evidence was sufficient to create a jury issue as to appellant Smith’s joint custody and ability to maintain control over the marijuana, even though it was not shown that appellant Smith, in contrast to appellant Spears, was ever in actual physical possession of the bales of marijuana. Appellant Smith’s actions indelibly stamp him as a participant in the act of taking possession of the plane’s cargo, rather than one who was merely present at the scene, or in a dwelling or vehicle in which contraband is found. Cf. Shad v. State, 394 So.2d 1114 (Fla. 1st DCA 1981); Mishmash v. State, 423 So.2d 446 (Fla. 1st DCA 1983); Thompson v. State, 375 So.2d 633 (Fla. 4th DCA 1979).

As for appellant Smith’s knowledge that the cargo of the plane was contraband, the jury was entitled to infer such knowledge from the totality of the circumstances, including the plane’s late hour arrival, inconsistency in the statements made by the pilot concerning his lack of knowledge of anyone locally and the 4:00 telephone call and subsequent arrival of appellants Smith and Spears on the scene, appellant Smith’s actions indicating a purpose to lure the lineman away from the plane during the unloading, and the lack of a plausible explanation for a 4:00 a.m. pick-up of “machine parts.” Further, the Wildwood motel room key found in Room 525 of the Holiday Inn, where the Cordle brothers were arrested, tends to connect Spears and Smith with the Cordle brothers, whose possession and knowledge of the marijuana was clearly proven. In the face of strong inferences indicating appellant Smith’s knowledge of the contraband character of the plane’s contents, the jury was at liberty to reject the only other inference suggested by the evidence—that appellants Smith and Spears were there to unload “machine parts” from the plane. See, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The circumstances above outlined distinguish this case from Daudt v. State, 368 So.2d 52 (Fla. 2nd DCA 1979), and others cited by appellants, and clearly justify Smith’s conviction as an aider and abettor. Section 777.011, Florida Statutes. As noted in Thompson v. State, supra, Bourg v. United States, 286 F.2d 124 (5th Cir.1960), furnishes a good example of a case in which two occupants of a car by proof of their activities in concert and other evidence were shown to have joint possession of heroin. Proof of active participation by Smith here was much stronger than as to defendant Ledet in the Bourg case.

V.

Finally, as for the contention that the state failed to prove the weight of the marijuana, a necessary element under the offense proscribed by Section 893.13(l)(e), Florida Statutes (in excess of 20 grams), our reading of the record convinces us that a jury could reasonably conclude that technician Berger’s testimony concerning the weight of “these bales” (99 pounds, 13 ounces, not included wrappings), referred to the three bales of marijuana from which Berger had removed test samples, and did not refer to the four bales not shown to contain marijuana.

All other grounds for reversal have been considered and rejected.

The judgment and sentence as to each of the appellants is AFFIRMED.

JOANOS, J., concurs.

NIMMONS, J., specially concurs with opinion.

NIMMONS, Judge,

specially concurring.

I concur in the Court’s opinion. With respect to the exhibits offered by the State, which were “provisionally” admitted and then ultimately excluded by the court, I agree that the trial judge correctly denied the appellants’ motion for mistrial. The only error committed by the court with respect to such exhibits was error inuring to the benefit of appellants by the court’s ultimate exclusion thereof. I concur in the Court’s opinion that these articles were relevant and material and not inadmissible as “other crimes” evidence. Compare Malcolm v. State, 415 So.2d 891 (Fla. 3rd DCA 1982). The State’s failure to cross-appeal from the trial court’s ruling excluding such provisionally admitted evidence does not preclude our examination of the admissibility of such evidence in order to resolve the issue as to whether the trial court erred in denying the appellants’ motion for mistrial.

      . One of these items was a key to a motel room in Wildwood, Florida, which had earlier been occupied by appellants Smith and Spears.


text:
    Charles C. ANDERSON, Appellant, v. JUDICIAL ADMINISTRATIVE COMMISSION OF the STATE OF FLORIDA, Appellee.
    No. AO-492.
    District Court of Appeal of Florida, First District.
    July 18, 1983.
    Ben H. Ervin, Monticello, for appellant.
    Jim Smith, Atty. Gen., and Eric J. Taylor, Asst. Atty. Gen., for appellee.
   PER CURIAM.

- We affirm the summary judgment entered by the trial court in favor of appellee. Assuming without deciding here that appellant is entitled to judgment against a governmental entity on his declaratory judgment action, he is not entitled to judgment against the Judicial Administrative Commission.

Affirmed.

LARRY G. SMITH, JOANOS and NIM-MONS, JJ., concur.


author: FERGUSON, Judge.

text:
    Charles JOHNSON, Appellant, v. COMET STEEL ERECTION, INC., and Reliance Insurance Company, Appellees.
    No. 81-2179.
    District Court of Appeal of Florida, Third District.
    July 19, 1983.
    Rehearing Denied Aug. 24, 1983.

      Mark J. Feldman, Miami, for appellant.
    Paxton, Crow, Bragg & Austin and David Crow, West Palm Beach, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Where appellant, an employee of the general contractor, was injured as a result of the ordinary negligence of the subcontractor’s employee while both were employed on-site in the same construction project, the fact that appellant was a common laborer for the general contractor and the tort-feasor was a welder for the subcontractor did not make their work “unrelated” so that the immunity enjoyed by the subcontractor from suit by an employee of the general contractor would be inapplicable. While there is no direct precedent for determining what is related work under Section 440.11, Florida Statute (1981), several prior cases indicate the broad scope of immunity afforded a subcontractor for injuries to an employee of a general contractor. See Motchkavitz v. L.C. Boggs Industries, Inc., 407 So.2d 910 (Fla.1981); Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690 (1940); Williams v. Corbett Cranes, Inc., 396 So.2d 811 (Fla. 5th DCA 1981); Aderhold v. Blair Contracting Company, Inc., 350 So.2d 550 (Fla. 1st DCA 1977); Mack v. Cook & Pruitt Masonry, Inc., 186 So.2d 831 (Fla. 3d DCA 1966).

Affirmed.

      . Appellant concedes that the subcontractor is an employee of the general contractor so as to render applicable the fellow servant rule of Section 440.11, Florida Statute (1981). The sole issue on appeal is whether the subcontractor’s work is related to the work of the general contractor’s employee.

      . Parts of the applicable statutes relied upon by appellant provide:
      440.10 Liability for compensation.—
      In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors ... shall be deemed to be employed in one and the same business or establishment: and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees....
      440.11 Exclusiveness of liability.—
      (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to ... the employee .... The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable ... when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment, [emphasis supplied].


text:
    Berquis MENAGED, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and The Thin Weigh, Inc., et al., Appellees.
    No. 82-2599.
    District Court of Appeal of Florida, Third District.
    July 19, 1983.
    Rehearing Denied Aug. 24, 1983.
    Cohen & Cohen, and Herman Cohen, Miami Beach, for appellant.
    Barnett & Clark, and James Clark, Coral Gables, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Wright v. Coca Cola Bottling Co., 256 So.2d 56 (Fla. 4th DCA 1971); Fla. R.Civ.P. 1.470(b); see Robbins v. Robbins, 429 So.2d 424 at 431 (Fla. 3d DCA 1983); Fla.R.App.P. 9.200(b)(3).


text:
    A.Q.L. INC., and Canadian Universal Insurance, Ltd., Petitioners, v. Bruce GAHRING, Respondent.
    No. 83-777.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Aug. 24, 1983.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for petitioners.
    Robert F. Jordan of Conrad, Scherer & James, Fort Lauderdale, for respondent.
   PER CURIAM.

We deny this petition for common law certiorari. See Burroughs Corporation v. White Lumber Sales, Inc., 372 So.2d 122 (Fla. 4th DCA 1979).

Certiorari denied.

LETTS, DELL and WALDEN, JJ., concur.


text:
    Dennis Richard COOKISH, Appellant, v. STATE of Florida, Appellee.
    No. 82-1816.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Aug. 31, 1983.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm. See Bentley v. State, 411 So.2d 1361 (Fla. 4th DCA 1982).

AFFIRMED.

LETTS, HERSEY and WALDEN, JJ., concur.


text:
    CAR EXCHANGE, INC., Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 82-2547.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Aug. 31, 1983.
    Jerome L. Hall of Jerome L. Hall, P.A., Fort Lauderdale, for1 appellant.
    Christopher B. Knox of Burdick & Dona-hoe, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a final judgment entered in a replevin action. We reverse upon authority of Section 672.403 (1977) and Carlsen v. Rivera, 382 So.2d 825 (Fla. 4th DCA 1980).

Reversed.

LETTS, HERSEY and WALDEN, JJ., concur.