text:
    SEARS, ROEBUCK AND COMPANY, Appellant, v. Rafael VIERA and Division of Workers’ Compensation, Appellees.
    No. AS-22.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1983.

      H. George Kagan, of Miller, Hodges & Kagan Professional Association, Miami, for appellant.
    Jay M. Levy of Hershoff & Levy, Miami, for appellee Rafael Viera.
    No appearance for appellee Division of Workers’ Compensation.
   WIGGINTON, Judge.

The self-insured employer disagrees with the deputy commissioner’s retroactive authorization of treatment by claimant’s chiropractor, and with his inclusion of unreported tips in claimant’s average weekly wage. Claimant contests the deputy commissioner’s failure to assess penalties against the employer for late payment of temporary total disability benefits, and with his failure to compute the compensation rate using claimant’s recomputed average weekly wage based on the unreported tips. We affirm in part and reverse in part.

We affirm the deputy’s retroactive authorization of chiropractic treatment. The record reveals that the employer authorized a long line of orthopedic surgeons and neurologists to treat claimant’s lower back injury. However, claimant objected to the treatment rendered by these physicians, which might have ultimately led to surgery, and requested the treatment of Dr. Mark Baum, a chiropractor, or any other chiropractor chosen by the employer. The employer, “miffed” at claimant’s audacity, refused to acquiesce and did not authorize any chiropractor or alternative care, instead choosing to rest on the laurels of the previously authorized physicians. Claimant, nonetheless, proceeded to undergo unauthorized, but successful, treatment by Dr. Baum, subsequently seeking payment of his bills by the employer, conditioned upon the treatment’s “reasonableness and necessity” being approved by the deputy.

In this appeal, the employer relies on our recent holdings in Commercial Carriers, Inc. v. Porter, 424 So.2d 155 (Fla. 1st DCA 1982) and City of Fort Lauderdale v. Flanders, 416 So.2d 1234 (Fla. 1st DCA 1982) for reversal, arguing that it was claimant’s duty to seek prior authorization from the deputy commissioner since the employer had authorized treatment by other physicians. On the other hand, claimant argues that the employer had the responsibility to go before the deputy when it objected to his request for chiropractic care. The deputy commissioner agreed and held that once claimant objected to the services rendered by the authorized physicians and requested alternative care, it was the employer’s duty, under section 440.13(2), Florida Statutes (1981),

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

The deputy’s conclusion properly coordinates the legislative mandate contained in subsections (1) and (2) of section 440.13, and is not inconsistent with our holdings in Commercial Carriers, Inc. v. Porter and City of Fort Lauderdale v. Flanders. In Porter, the claimant was not seeking alternative treatment as such, but merely additional care. Therefore, he was first required to seek prior approval from the deputy commissioner for the unauthorized care, demonstrating good cause therefor. Section 440.13(2); see also Mt. Sinai Medical Center v. Lack, 381 So.2d 304 (Fla. 1st DCA 1980); and Delta Airlines v. Underwood, 406 So.2d 1188 (Fla. 1st DCA 1981) (absent an emergency, a claimant cannot arbitrarily change physicians without seeking prior approval from the deputy commissioner).

In Flanders, the employer did not fail to provide medical treatment since it provided the claimant alternative care. We held:

Therefore, [claimant] was not entitled to undergo unauthorized treatment and later have the reasonableness and necessity of that treatment approved after the fact by a deputy commissioner. [Claimant] should have sought prior approval of the surgery from the deputy commissioner.

416 So.2d 1234 at 1235. In the instant case, the employer utterly failed in its duty by totally disregarding claimant’s request, neither providing the alternative care nor seeking a deputy commissioner’s determination that “a change in medical attendance is not for the best interests of the injured employee . ... ” Section 440.13(2). Therefore, claimant was entitled to the retroactive authorization of treatment by Dr. Baum. Orange County Board of County Commissioners v. Davis, 440 So.2d 462 (1983).

However, we reverse the portion of the deputy’s order increasing claimant’s average weekly wage by the amount of tips conceded by claimant to have been received without the knowledge of the employer. Section 440.02(12), Florida Statutes (1981), defines “wages” as including “gratuities received in the course of employment from others than the employer, only when such gratuities are received with the knowledge of the employer.” (e.s.) “Knowledge” as used in section 440.02(12) was defined by the Industrial Relations Commission as being

actual knowledge of not only the fact that gratuities are received, but also the amount of the gratuities, except where the employer closes his eyes to the obvious, or fails to make a good faith effort to determine the amount of gratuities being received by employees.

Julian’s Dining Room & Lounge v. Olsen, IRC Order 2-2770 (April 30, 1975), cert. denied, 330 So.2d 20 (Fla.1976); Top of the Home Restaurant v. Mourino, IRC Order 2-3490 (July 26,1978). In the present case, no evidence was offered to show that the employer knew or could have been expected to know that claimant had been receiving the tips. On the other hand, it was uncon-troverted that claimant had not reported the tips to the employer. Unreported wages may not be included in the wage computations. Holiday Inn v. Pope, 402 So.2d 1303 (Fla. 1st DCA 1981).

We now address claimant’s points on cross appeal. First, regarding the denial of penalties, there was shown no statutory exception applicable to the general rule outlined in section 440.20(7), Florida Statutes (1981). Therefore the deputy erred in failing to award claimant penalties due to the employer’s belated payments of temporary total disability benefits. Williams v. Brannen Prestress Co., Inc., 404 So.2d 1125 (Fla. 1st DCA 1981). That portion of the order is reversed and the deputy is instructed to award the appropriate amount of penalties.

Second, regarding claimant’s compensation rate, because of our holding the tips to be improperly included in claimant’s average weekly wage, we find no error in the deputy’s failure to increase the rate commensurate with his increasing claimant’s average weekly wage to include the tips. The deputy’s order in that regard is therefore affirmed.

AFFIRMED in part, REVERSED in part, and remanded for further proceedings consistent with this opinion.

ROBERT P. SMITH, Jr. and BOOTH, JJ., concur.

      . Section 440.13 provides in relevant part:
      (1) ..., the employer shall furnish to the employee such remedial treatment, care, and attendance under the direction and supervision of a qualified physician or surgeon or other recognized practitioner, nurse, or hospital and for such period as the nature of the injury or the process of recovery may require .... If the employer fails to provide the same after request by the injured employee, such injured employee may do so at the expense of the employer, the reasonableness and the necessity to be approved by a deputy commissioner.

      (2) If an injured employee objects to the medical attendance furnished by the employer, it shall be the duty of the employer to select another physician to treat the injured employee unless a deputy commissioner determines that a change in medical attendance is not for the best interests of the injured employee; however, a deputy commissioner may at any time, for good cause shown, in the deputy commissioner’s discretion, order a change in such remedial attention, care, or attendance.


source: Caselaw Access Project

author: JOANOS, Judge.

license: Public Domain

text:
    Lester Byron McCLENDON, Appellant, v. STATE of Florida, Appellee.
    No. AS-165.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1983.

      Louis 0. Frost, Jr., Public Defender, and Mark Rosenblum, Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and Clyde M. Collins, Jr., Asst. Atty. Gen., Jacksonville, for appellee.
   JOANOS, Judge.

At about 2:30 a.m. on November 14,1982, Officer McDonald, who had stopped his vehicle and was in the process of issuing a citation to a motorist, observed a motorcycle run a red light. McDonald radioed Officer Baxter, who had driven past McDonald a short time before, to “stop the black motorcycle coming from behind you.” Baxter stopped appellant, who was riding the only motorcycle Baxter saw, and then called McDonald to find out why he wanted him to stop the motorcycle. McDonald told Baxter he had seen the motorcycle run the red light and he wanted Baxter to issue a traffic citation. When Baxter approached appellant McClendon to issue the citation, he observed a medium-sized bulge in the pocket area of appellant’s jacket. Baxter patted the area, felt a hard object, and about that time the pocket fell open revealing a pistol. Baxter seized the pistol and arrested McClendon for carrying a concealed firearm and possession of a firearm by a convicted felon, and he was later adjudicated guilty of both offenses. Baxter also cited appellant for running the red light. Baxter later said that when he observed him, McClendon was complying with all traffic laws.

McClendon appeals the denial of his motion to suppress evidence, arguing that both the stop and the subsequent frisk were illegal. McClendon contends Baxter was not authorized to stop him for the traffic infraction because the violation did not occur in Baxter’s presence, therefore it was not authorized by Section 901.15(5), Florida Statutes, and it was a non-criminal infraction, see Section 318.14(1), Florida Statutes, therefore the stop was not authorized by Section 901.151, Florida Statutes.

Although appellee’s brief is unresponsive to the issue of the significance of the violation being a non-criminal traffic infraction, we have concluded that the denial of the motion to suppress should be upheld on the authority of Section 901.18, which provides:

A peace officer making a lawful arrest may command the aid of persons he deems necessary -to make the arrest. A person commanded to aid shall render assistance as directed by the officer. A person commanded to aid a peace officer shall have the same authority to arrest as that peace officer and shall not be civilly liable for any reasonable conduct in rendering assistance to that officer.

McClendon argues that even if the stop was valid, the frisk which led to the discovery of the firearm was not authorized because Baxter did not encounter him under circumstances indicating he had violated any criminal law, suggesting that only if he had moved his hand towards the pocket where the bulge was observed would Baxter have been justified in conducting a frisk. We disagree and conclude that the protective action taken by Baxter was justified under the circumstances, specifically because of the time of day, the fact that Officer Baxter was alone, and because of the visible bulge in McClendon’s pocket.

AFFIRMED.

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

      . 901.15 When arrest by officer without warrant is lawful. — A peace officer may arrest a person without a warrant when:

      (5) A violation of chapter 316 has been committed in the presence of the officer. Such arrest may be made immediately or on fresh pursuit.

      . 901.151 Stop and Frisk Law.—

      (2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.


author: PER CURIAM.

text:
    TOWN OF PALM BEACH, Appellant, v. REGCO DEVELOPMENTS, INC., a Florida corporation, and B. Gernon, Inc., a Florida corporation, Appellees.
    Nos. 82-242, 82-1113.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Maureen A. Hackett and John C. Randolph of Johnston, Sasser, Randolph & Weaver, West Palm Beach, for appellant.
    Dennis J. Powers of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellees.
   PER CURIAM.

We find no error in the trial court judgment which critically found that the property in question was “grandfathered” in as an existing non-conforming use as concerns the Town’s new zoning ordinance. Fortunato v. City of Coral Gables, 47 So.2d 321 (Fla.1950); Town of Palm Beach Zoning Code § 8.10 (1981); 101A C.J.S., Zoning and Land Planning § 154; 73 Am.Jur.2d, Statutes, § 313. Moreover, we find that the use under the former ordinance was proper under the authority of Ocean’s Edge Development Corp. v. Town of Juno Beach, 430 So.2d 472 (Fla. 4th DCA 1983).

AFFIRMED.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


text:
    NATIONAL RAILROAD PASSENGER CORPORATION d/b/a Amtrak and Seaboard Coast Line Railroad Company, Appellants, v. Ruth ELBERT, Appellee.
    No. 82-2428.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Kenneth L. Ryskamp of Goodwin, Rys-kamp, Welcher & Carrier, P.A., Miami, for appellants.
    Sheldon J. Schlesinger, P.A., Fort Laud-erdale, and Joel D. Eaton of Podhurst, Or-seck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for appellee.
   PER CURIAM.

Affirmed on the authority of William Passalacqua Builders, Inc. v. Mayfair House Association, Inc., 395 So.2d 1171 (Fla. 4th DCA 1981).

GLICKSTEIN and WALDEN, JJ., and GOLDMAN, MURRAY, Associate Judge, concur.


author: GLICKSTEIN, Judge.

text:
    Kendrick Lovonous STAFFORD, Appellant, v. STATE of Florida, Appellee.
    No. 83-228.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Richard L. Jorandby, Public Defender, Margaret Good, Asst. Public Defender, and Tom Wm. Odom, Certified Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Having reviewed the transcripts of the violation of probation hearing and the change of plea, we find no error as to appellant’s first two points on appeal. However, the third point requires remand, which we do.

Briefly, the trial court, having properly found appellant to be in violation of his probation, then sentenced him to thirty years’ imprisonment for the original charge of robbery with a weapon. However, it retained jurisdiction pursuant to section 947.16, Florida Statutes (1981), without stating the basis with “individual particularity.” See Mobley v. State, 409 So.2d 1031 (Fla.1982); LaChance v. State, 396 So.2d 1234, 1235 (Fla. 2d DCA 1981). Subsequently, in writing, the trial court stated with particularity its reasons for retaining jurisdiction. Appellant had no opportunity to respond to the written order. See Thornton v. State, 442 So.2d 1104 (Fla. 4th DCA 1983). Accordingly, we reverse the order retaining jurisdiction, and remand with direction that appellant be given an opportunity to hear and respond at an appropriate sentencing to be conducted should the trial court seek to retain jurisdiction.

The following remarks are not directed to the retention of jurisdiction but to the fact that this gifted youngster, blessed with vast athletic ability, has now wasted all of the opportunity which those gifts have and would have provided — higher education being the most important. If there is any lesson to be learned from this tragic waste, it is that we are all trustees of our individual gifts; and that, somehow, we adults have to permanently instill in our children this awareness. Perhaps someday there will emerge a generation of parents who will not have to suffer being told by their grown children how they regret having lightly given up those avenues of self-expression that could have enriched their lives.

WALDEN, J., and GOLDMAN, MURRAY, Associate Judge, concur.

      . The court said:
      Further the Court, pursuant to Section 947.-163A will retain jurisdiction over the defendant for the first one-third of that time. The Court specifically finding with respect to the original charge that it was of such a heinous nature and didn’t involve the use of a firearm and potential use of such force, the Court will retain jurisdiction.

      . In accordance with Section 947.16(3)(a), Florida Statutes, this Order is justified by the following specific findings of fact:
      1. The defendant was convicted of Robbery on January 13, 1983.
      2. The defendant carried a blank pistol during the course of the Robbery, with the intent to scare the victim and during the course of the Robbery, the defendant threatened to shoot the victim.

        3. The Defendant’s pattern of criminal conduct has convinced the Court that he is a danger to the community. The Defendant committed the violation of probation only four months after being placed on probation by the Court.
      4. The Court believes that it is in the best interests of society that the Defendant remain incarcerated for at least one-third of the sentence imposed.
      5.Such retention of jurisdiction is required in order to assure this Court that the Defendant serves an appropriate term of incarceration.


text:
    HERITAGE REALTY AND INVESTMENTS, INC., a Florida corporation, Appellant, v. Robert MASSY, Appellee.
    No. 83-242.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Mark Perlman, Fort Lauderdale, for appellant.
    Martin G. Brooks of Martin G. Brooks, P.A., Hollywood, for appellee.
   PER CURIAM.

This is an appeal from a final summary judgment based on the res judicata effect of a prior judgment entered on the same cause of action between the same parties in earlier litigation. This is a controversy over a real estate commission. The appellant, a real estate broker, sued for recovery of a commission alleged to be due from defendant. The initial action was disposed of by a judgment on the pleadings in favor of the defendant. Counsel for plaintiff considered this judgment erroneous but, unfortunately, did not seek rehearing and did not appeal from it. Instead, counsel filed a totally new lawsuit alleging the same cause of action. The initial action was filed in 1980, and the instant action in 1982. The court dismissed the 1982 action based on the res judicata effect of the final judgment of the earlier suit. No error has been made to appear on the part of the court.

The judgment is thus affirmed in all respects.

AFFIRMED.

BERANEK, DELL and WALDEN, JJ.,. concur.


author: DOWNEY, Judge.

text:
    In re the ADOPTION OF P.R. McD. and J.T. McD., minors.
    No. 83-329.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant (Natural Father).
    Glenn H. Mitchell of Mitchell, Hanser & Schwartz, West Palm Beach, for appellees.
   DOWNEY, Judge.

On January 19,1982, appellees, filed a petition for the adoption of two minor children. Appellant, the natural father of the children, filed an objection to the petition, but later executed a written consent to adoption, followed by a notice of intention to withdraw consent. At a final hearing on the matter, the trial court entered an involuntary dismissal against appellant and later issued a final judgment of adoption. Appellant timely appeals this order of adoption.

At the final hearing the natural father adduced evidence that he suffers from emotional problems and had been a patient in a Community Mental Health Center. At the time he signed the consent in question, he was a part time resident in a halfway house. The night before the consent was executed, his aunt told him that, if he did not sign a consent to the adoption of his two children, his children would be taken away by the Department of Health and Rehabilitative Services. She advised him that absent such consent the kids would end up on welfare. Appellant’s wife also visited him a short time before he signed the consent and told him she understood from his aunt that the only way to prevent HRS from taking custody of the children was to sign the consent. The next day the adoptive parents and another relative picked appellant up and took him to a flower shop where he executed the consent form. Appellant further testified that his wife told him she would “throw him out” if he refused to sign. Finally, appellant testified that he was told by the adoptive father just prior to executing the consent that the adoptive father could get the children back once the consent was signed; appellant called a few days later to ask if the adoptive parents had gotten the children and was told they had. Appellant also testified that someone else had told him he could revoke his consent within a year.

Consent to adoption can not be withdrawn on a mere whim or because of a change of heart. Section 63.082(5), Florida Statutes (1981), provides that consent may only be withdrawn when the court finds that the consent was obtained by fraud or duress. Based upon the aforementioned evidence, we believe that appellant made a prima facie case of duress. Thus, an involuntary dismissal was not indicated. For that reason we reverse the judgment appealed from and remand the cause for further proceedings.

REVERSED AND REMANDED, with directions.

BERANEK and WALDEN, JJ., concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    William WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 83-384.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals an order revoking his probation. The defendant allegedly committed one robbery and engaged in a conspiracy to commit another robbery. He was also charged with several other technical violations relating to monthly reports, costs of supervision, and change of residence. The only evidence supporting the robbery violation was hearsay testimony. A finding of violation based solely on hearsay is erroneous. Reeves v. State, 366 So.2d 1229 (Fla. 2d DCA 1979), and Combs v. State, 351 So.2d 1103 (Fla. 4th DCA 1977).

We, therefore, vacate the violation based on defendant’s alleged participation in the robbery and affirm the overall revocation of his probation based on the remaining violations. Adequate evidence supported the technical violations and the conspiracy violation.

AFFIRMED.

BERANEK and DELL, JJ., concur.

ANSTEAD, C.J., dissents in part with opinion.

ANSTEAD, Chief Judge,

dissenting in part:

The violation of probation predicated on the finding that appellant engaged in a conspiracy to commit robbery should also be stricken because the finding was predicated on hearsay testimony. The only evidence presented to establish that a conspiracy existed was the testimony of a police officer that an informant had told him of the conspiracy. That proof would not even be admissible at a trial, and, while perhaps it is not reversible error to receive it in a probation revocation proceeding, such evidence may not serve as the sole predicate for establishing an essential element of an alleged probation violation. While the case law is confusing, I believe the rule to be that while the formal rules of trial procedure, including the receipt of evidence, do not apply at probation violation proceedings, the state must still submit competent proof, in the form of evidence that would be admissible at a criminal trial, of any alleged violation of probation. In other words, it is not necessarily harmful or reversible error to receive incompetent evidence in a revocation proceeding so long as other, competent proof is presented to sustain the finding of a violation.


text:
    HOUDAILLE INDUSTRIES, INC., Appellant, v. William MARKHAM, as Property Appraiser of Broward County, Florida, and Lester L. Bauer, as Tax Collector of Broward County, Florida, Appellees.
    No. 83-1059.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.

      Susan Wright and Richard A. Goetz of Hodgson, Russ, Andrews, Woods & Goodyear, Fort Lauderdale, for appellant.
    Gaylord A. Wood, Jr., of Law Office of Gaylord A. Wood, Jr., Fort Lauderdale, for appellee, William Markham.
   PER CURIAM.

Houdaille Industries, Inc., appeals the assessment of tangible personal property taxes on improvements to office space occupied by it as a subtenant. We reverse.

The appellant company is bound in a sublease to the terms of the main lease between the landlord and tenant. One of the provisions of that lease provides that all installations, alterations, additions, or improvements made by the tenant except for movable furniture, partitions, trade fixtures, and equipment which can be removed without material damage to the premises shall immediately upon being installed become the property of the landlord and shall remain with the premises as a part thereof on the expiration of the lease term.

This provision of the lease controls as to the ownership of the items. The landlord became the owner upon installation. The lease is a further expression of the parties’ intent as to the characterization of the property as realty. In addition, the improvements here involved would by their very nature be considered fixtures and a part of the real estate even in the absence of the lease provision. By virtue of the agreement of the parties to the lease and the nature of the property, all items being contested here are the property of the landlord and are part of the premises. Thus, the property appraiser erred in taxing these improvements as tangible personal property rather than as fixtures. The improvements are owned by and are taxable to the lessor as real property.

REVERSED AND REMANDED.

BERANEK, DELL and WALDEN, JJ., concur.

      . The improvements initially in dispute consisted of interior walls, marble flooring, carpeting, pipes, ducts, electrical wiring, central air conditioning, ceilings, and an internal stairway. Immediately before trial, the property appraiser did concede that certain of these items were inappropriately taxed.


text:
    Matthew TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. AO-338.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1983.

      Kathleen F. Dekker of Brown & Camper, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

In this appeal of a judgment and sentence for grand theft, appellant contends the trial court committed reversible error in two respects: (1) by failing to make a sufficient and proper inquiry when defendant sought self-representation and waiver of his right to counsel at trial, and (2) by convicting and sentencing defendant without informing him of his right to counsel and without securing a waiver of counsel. We agree on both points and reverse.

On the day of trial, Mr. Murrell, an assistant public defender, was scheduled to represent appellant. During jury selection, Mr. Murrell informed the judge that he and appellant disagreed on who should serve on the jury. Appellant wanted to excuse several prospective jurors, but Mr. Murrell took the position that counsel should make that decision, and if appellant wanted to conduct his own case, he would like to withdraw as appellant’s attorney. The judge told appellant that if he wanted to pick his own jury, Mr. Murrell would be permitted to withdraw and appellant could go to trial without a lawyer, but that a person who represents himself normally represents a fool. Further, the judge informed appellant that he had the right to represent himself, and he would not require Mr. Mur-rell to represent appellant if appellant had no confidence in his ability to do so. At one point the judge asked appellant if he felt competent to conduct the case, although appellant’s response did not answer the question. The judge then told appellant to make his decision, and noted that he did not know the nature of appellant’s history. After a brief discussion of why appellant did not think Mr. Murrell had picked a good jury, the judge told appellant to talk with his lawyer for a few minutes and make his decision. After a recess, appellant announced that he would represent himself. Mr. Murrell was permitted to stay in order to answer questions, but the court said, “We are not going to dwell on this case with having you ask Mr. Murrell every time you ask a question,” and he informed appellant he would be held to the rules of criminal procedure.

This exchange does not satisfy the requirement of an inquiry to demonstrate on the record that appellant’s decision was intelligently and voluntarily made. When a defendant indicates a desire to represent himself, the trial court has a duty

to make the defendant aware of the benefits he must relinquish, and the dangers and disadvantages of self-representation. Thereafter the trial court must determine whether defendant has made his choice voluntarily and intelligently. We have further held that the trial court should determine whether unusual circumstances exist which would cause the accused to be deprived of a fair trial if permitted to conduct his own defense, and that the purpose of such inquiries, such as the accused’s age, mental derangement, lack of knowledge, education or inexperience in criminal proceedings, is to make certain that defendant is aware of the disadvantage under which he is placing himself by waiving counsel.

Keene v. State, 420 So.2d 908, 910 (Fla. 1st DCA 1982). See also Costello v. Carlisle, 413 So.2d 834 (Fla. 1st DCA 1982); Robinson v. State, 368 So.2d 674 (Fla. 1st DCA 1979); Ausby v. State, 358 So.2d 562 (Fla. 1st DCA 1978).

The record of proceedings before the trial court at the time the decision was made to permit appellant to represent himself contains no information as to appellant’s age, mental status, lack of knowledge, education or experience in criminal proceedings from which the conclusion can be drawn that appellant’s decision was intelligent and voluntary. The statements to appellant that only a fool represents himself and he would be held to the rules of criminal procedure do not adequately demonstrate that appellant made his decision with his eyes open as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), with which we must comply. See Ausby, supra. Therefore, we reverse and remand for a new trial.

Appellant also argues the trial court erred in failing to renew the offer of assistance of counsel at the sentencing proceeding. We agree. See Fla.R.Crim.P. 3.111(d)(1), (5); Baranko v. State, 406 So.2d 1271 (Fla. 1st DCA 1981); and Billions v. State, 399 So.2d 1086 (Fla. 1st DCA 1981).

REVERSED and REMANDED for a new trial.

LARRY G. SMITH, J., concurs.

WENTWORTH, J., dissents without opinion.


author: NIMMONS, Judge.

text:
    C.A.B. ST. GEORGE, an Underwriter at Lloyd’s of London, for himself and other Underwriters at Lloyd’s of London subscribing to Insurance Policy AV-208-77, Appellants, v. John P. HARRIS, Appellee.
    No. AR-30.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1983.

      Carol A. Fenello of Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for appellants.
    Louis K. Rosenbloum of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellee.
   NIMMONS, Judge.

This is an interlocutory appeal from an order granting plaintiff/appellee’s motion for partial summary judgment on the issue of liability. Appellee cross-appeals. John Harris, individually and for the use and benefit of City National Bank (the owner of a security interest in the subject aircraft) brought this action to recover on an insurance policy issued by defendants/appellants (hereafter Underwriters) insuring a 1967 Cessna aircraft for, among other coverages, loss due to theft.

The trial court’s order determined that the plaintiff was entitled to recover from Underwriters and that the measure of damages would be the full value of the aircraft at the time of its loss, less deductible and salvage which was received by City National Bank (hereafter Bank). We affirm in part and reverse in part.

At the time of the airplane’s theft, the subject insurance policy was in effect and provided that an insured loss would be payable as interest may appear to owner Harris and the Bank. In October, 1979, the airplane was reported to be missing. Harris did not thereafter make any further monthly payments to the Bank as required by the security agreement. On March 7, 1980, Harris executed a proof of loss for the insured value of the airplane ($36,000) less the deductible ($250). Two weeks later, Harris was informed by the Federal Bureau of Investigation that the airplane had been seized in Georgia as a result of its alleged involvement in drug trafficking in South America. Meanwhile, a representative of Underwriters called the Bank and advised that the Drug Enforcement Agency was releasing the airplane to Underwriters. According to the Bank’s representative, Underwriters made it clear to him that Underwriters were going to return the plane to Destín, Florida (the place from which it was stolen), cancel the policy and “walk away from it.” Instead, the Bank arranged with Underwriters for the Bank to repossess the airplane in Georgia under the terms of the security agreement and the repossession was accomplished on April 2, 1980. The Bank had been unable to reach Harris to inform him of its plans for repossession which had been worked out with Underwriters.

Underwriters assert that the measure of damages provided for in the appealed order is contrary to the following terms of the insurance policy:

The liability of the Insurer for direct physical loss of or damage to the aircraft shall not exceed the amount of insurance set out in the Declarations, less the applicable deductible, nor what it would cost to repair or replace the aircraft or parts thereof with other of like kind and quality, and without compensation for loss of use. The Insurer may pay for the loss in money or may repair or replace the aircraft or parts thereof, as aforesaid, or may return any stolen property with payment for any resultant damage thereto at any time before the loss is paid or the property is so replaced, or may take all or such part of the aircraft at the agreed or appraised value, but there shall be no abandonment to the Insurer, (emphasis supplied)

Underwriters claim that their liability for loss or damage to the insured property is strictly limited by the above settlement options provided for in the insuring agreement. In effect, they say that they returned the stolen airplane to the insured when it was lawfully repossessed with their consent by the Bank, the loss payee under the policy. However, this argument ignores the fact that the Underwriters made no offer or tender of payment for “resultant damages” and thus cannot be said to have elected that settlement option, that is, “return [of the] stolen property with payment for any resultant damage.” Of course, the Underwriters cannot escape liability simply because they fail to exercise any of the settlement options provided for in their insurance contract.

Underwriters concede there was a theft and, although the airplane was recovered, they also concede that damage as a result of the theft was covered by the policy. As stated in Sunny South Aircraft Service, Inc. v. American Fire and Casualty Company, 140 So.2d 78 (Fla. 3rd DCA 1962):

[W]e hold the loss occurred when the theft took place. Total loss from the theft was avoided by the return of the aircraft. Its condition, when returned, measured the amount of the loss, (emphasis supplied)

140 So.2d at 81. No settlement option under the policy having been exercised by the Underwriters, we hold that the proper measure of recovery under the policy is the difference in the market value at the time of the theft and at the time of its recovery less the deductible provided for in the policy. The general rule has been stated thusly:

Where an airplane has been damaged but not totally destroyed, the measure of damages applied by the courts has generally been the difference in the market value of the plane immediately before and immediately after the injury.

8 Am.Jur.2d Aviation § 33; Compare McMinis v. Phillips, 351 So.2d 1141 (Fla. 1st DCA 1977); and Airtech Service, Inc. v. MacDonald Construction Company, 150 So.2d 465 (Fla. 3rd DCA 1963).

The error in the trial court’s order is its damages formula which provides for market value at the time of the theft less salvage received by the Bank. Of course, if at trial on the damages issues the evidence shows a total loss of the airplane as a result of the theft, the market value of the airplane at the time of the theft less its salvage value would be the correct measure of recovery under the policy.

On cross-appeal, Harris, who conceded in the lower court that he was in default under the security agreement and that the Bank repossessed the security and had the right to do so, contends that he is entitled to recover the full value of the airplane at the time of the theft without reduction except for the $250 deductible amount. Harris reasons that the Underwriters, in effect, “took” the aircraft and that they, therefore, exercised one of the insuring agreement’s settlement options which allowed Underwriters to “take all or such part of the aircraft at the agreed or appraised value.” Harris, therefore, concludes that the trial court erroneously provided for the aircraft’s value at the time of theft to be reduced by any amount except the deductible. We disagree that the facts of this case and the insuring agreement lend themselves to such a strained interpretation which would result in a substantial windfall to Harris.

Lastly, we point out that, although appel-lee/eross-appellant Harris has appeared in this interlocutory appeal only in his individual capacity, the plaintiff in the case below is Harris, individually and for the use and benefit of the Bank. No determination has been made by the trial court as to the amount of the insurance proceeds, if any, which Harris will be entitled to in his individual capacity and we, therefore, have no occasion to consider that question.

We affirm in part and reverse in part and remand for further proceedings consistent with this opinion.

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


author: ROBERT P. SMITH, Jr., Judge.

text:
    In re Forfeiture of the following described property: ALCOHOLIC BEVERAGES SEIZED FROM SAUL’S ELKS CLUB ON JUNE 30, 1982. STATE of Florida, Appellant, v. Saul COBB, Appellee.
    No. AR-135.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1983.
    Ernest M. Page, III, Asst. State Atty., Live Oak, for appellant.
    Donald K. Rudser, Jasper, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The state appeals from a circuit court order dismissing the state’s civil proceedings, sec. 932.704, Fla.Stat. (1981), for forfeiture of alcoholic beverages allegedly used or to be used unlawfully on the premises of “Saul’s Elks Club” in Jasper, where the beverages were seized. The court ruled that by electing to prosecute Saul Cobb for a liquor misdemeanor under section 562.12, and by holding the alleged contraband for eventual disposition as provided in that statute, the state was bound to return the goods to the owner Cobb, as necessarily implied by that statute, upon his acquittal or discharge of the offense charged. The state could not then, the court ruled, seek civil forfeiture of the same liquor as contraband for like reasons under section 932.704. Alternatively the court held that the state did not satisfy the requirement of 932.704 that the state “promptly proceed against the contraband article” seized, in that the state seized the liquor by warrant on June 30, 1982, but did not begin civil forfeiture proceedings until January 4, 1983. We reverse the circuit court’s judgment and reinstate the civil forfeiture proceedings.

Under section 562.12 it is a second degree misdemeanor to sell alcoholic beverages without a license or, if one is a licensee, to sell in a manner not permitted by the license; or to possess nonsaleable alcoholic beverages with intent to sell them. Subsection (2) provides in relevant part:

Upon the arrest of any licensee or other person charged with a violation of this section, the arresting officer shall take into his custody all alcoholic beverages found in the possession, custody, or control of the person arrested ... and safely keep and preserve the same and have it forthcoming at any investigation, prosecution, or other proceeding for the violation of this section and for the destruction of the same as provided herein. Upon the conviction of the person arrested for the violation of this section, the judge of the court trying the case, after notice ... shall issue ... a written order adjudging and declaring the alcoholic beverages forfeited and directing ... [disposal] of the alcoholic beverages as provided in s. 562.44 or s. 568.10.

On June 30, 1982, law enforcement officers searched the premises of “Saul’s Elks Club” pursuant to a warrant, and there seized the alcoholic beverages that are the subject of this case. A felony information was then filed against appellee Cobb in the circuit court of Hamilton County, alleging section 562.12 misdemeanors committed on June 30, 1982, and Cobb’s prior conviction of another similar offense. Sec. 562.45(1). In due course the circuit court dismissed the felony repeat-offender charge, because Cobb had not been extended the right to counsel during the earlier conviction, and transferred the remnant misdemeanor charge to the county court. That court dismissed that charge on January 3, 1983, for want of a speedy trial. The next day Cobb moved in county court for return of the property seized, and on January 5 the state initiated civil proceedings in circuit court pursuant to the Florida Contraband Forfeiture Act, sections 932.701 et seq.

Alcoholic beverages kept for illegal sale are contraband subject to the Act. Sec. 932.701(2)(c). Section 932.704(1) provides in part:

The state attorney within whose jurisdiction the contraband article, ... has been seized because of its use or attempted use in violation of any provisions of law dealing with contraband, ... shall promptly proceed against the contraband article, ... by rule to show cause in the circuit court within the jurisdiction in which the seizure or the offense occurred and may have such contraband article, ... forfeited to the use of, or to be sold by, the law enforcement agency making the seizure, upon producing due proof that the contraband article, ... was being used in violation of the provisions of such law. The final order of forfeiture by the court shall perfect the state’s right and interest in and title to such property and shall relate back to the date of seizure.

Referring to section 562.12 and its joint provision for criminal prosecution and for forfeiture of seized alcoholic contraband, the circuit court stated:

[I]t can readily be seen that the provisions for disposing of alcoholic beverages which have been seized under a criminal charge initiated under Chapter 562 must be used according to that section. It is a well known rule of statutory construction that specific statutory provisions take priority and precedence over general statutory provisions, and such a situation is evident here. The general forfeiture statute under Chapter 932 applies to all contraband of a general nature and Chapter 562 applies specifically to that type of article which is used as delineated in the Information filed against the Defendant. Once the State chose to file an Information against the Defendant under Chapter 562 the State is bound to follow the provisions of Chapter 562 regarding forfeiture. Under section 562.12 the forfeiture does not take effect until and unless there is a conviction of the person arrested for the violation. If there is no conviction then the Court has no authority to forfeit the beverages to the charging agency.

The circuit court’s judgment does not rest upon res judicata considerations, and the judgment is not here defended on the theory that discharging an accused of unlawful possession of contraband forecloses later proceedings to forfeit property that is made contraband by the owner’s unlawful intent with respect to it. As we have held, forfeiture proceedings are civil in nature, and “[njeither conviction nor acquittal. in the companion criminal case is relevant to the civil forfeiture proceeding.” City of Tallahassee v. One Yellow 1979 Fiat, etc., 414 So.2d 1100, 1102 (Fla. 1st DCA 1982). State v. Dubose, 152 Fla. 304, 11 So.2d 477 (1943) concludes that potential issue.

The circuit court’s order suggests that the enactment of 562.12, within a chapter entitled “Beverage Law: Enforcement,” displaced to that extent the forfeiture processes of 932.701, and exempted contraband alcohol from forfeiture under the omnibus civil statute. We respectfully disagree. The criminal statute itself gives no hint of that purpose, and we know of no other basis on which a provision of forfeiture remedies ancillary to criminal prosecutions should be held to make those remedies exclusive, repealing direct civil remedies against contraband “equipment, liquid or solid, which is being used or intended to be used in violation of the beverage or tobacco laws of the state.” Sec. 932.701(2)(c). To imply such a repealing or exempting purpose would make a criminal prosecution the only method of reaching such contraband.

Authorized civil proceedings against contraband alcohol were thus not deauthor-ized by 562.12, and the acquittal or other discharge of a person criminally charged under 562.12 does not preclude civil proceedings. We find no other basis for concluding that by prosecuting Cobb the State elected to forego authorized remedies of civil forfeiture.

The circuit court’s alternative ground for dismissing these chapter 932 proceedings is that, as appears in the excerpt of section 932.704(1) quoted above, the state attorney is directed to “promptly proceed against the contraband article” after its seizure. In delaying initiation of these proceedings for six months, from June 30, 1982, the date of seizure, until January 5, 1983, the court held, “the State has waited an inordinate amount of time,” and compared the case to federal decisions extracted in Sandidge v. State ex rel. City of Oviedo, 424 So.2d 152, 153 (Fla. 5th DCA 1982), which Sandidge distinguished as involving “greater delays than the six-month total period here.”

The federal decisions are indeed of value in determining whether the Florida prosecutor did or did not “promptly proceed” in seeking forfeiture of this alleged contraband liquor. Constitutional due process considerations charge Florida’s statutory words with significance, and similar “promptness” requirements in federal statutes, e.g., 19 U.S.C. 1604, are read in that light. The trilogy of October 1982 decisions by the Court of Appeals for the Ninth Circuit illustrate how varying circumstances, including the reason for any delay as well as its length, determine the issue. United States v. Two Hundred Ninety-Five Ivory Carvings, 689 F.2d 850 (9th Cir.1982); United States v. Forty-Seven Thousand Nine Hundred Eighty Dollars, etc., 689 F.2d 858 (9th Cir.1982); United States v. Thirteen (13) Machine Guns and One (1) Silencer, 689 F.2d 861 (9th Cir.1982).

Because under certain federal statutes the owner of seized goods may take the initiative in beginning administrative proceedings for the return of his goods, there is some debate among federal eourts concerning the significance of the owner not so proceeding, though he may later complain of the government’s delay. E.g., United States v. One Motor Yacht Named Mercury, 527 F.2d 1112 (1st Cir.1975). That there is no corresponding Florida remission procedure is all the more reason to place firmly upon the State a burden of explaining and justifying any delay of significant time, such as the six months period we are concerned with here. Since important property rights are compromised by seizure, the burden of proceeding promptly or of justifying delay must necessarily be upon the State, and that burden is not carried by a simple assertion that the owner has not demonstrated prejudice, Two Hundred Ninety-Five Ivory Carvings, supra, 689 F.2d at 855, as by showing that the goods seized are of a rapidly depreciable kind. United States v. One 1970 Ford Pickup, 564 F.2d 864, 866 (9th Cir.1977).

Here the reasonableness of the six-month delay hinges upon its purpose, which was plainly that in those six months appel-lee Cobb was being criminally prosecuted and the seized goods were held in compliance with the requirement of section 562.-12(2) that the arresting officer “safely keep and preserve the same and have it forthcoming at any investigation, prosecution, or other proceeding for the violation of this section and for the destruction of the same as provided herein.”

The total period of delay after seizure was in this case six months, not a particularly long prosecution period. Of the six, slightly more than two months elapsed between the seizure and the institution of criminal proceedings, on October 13, 1982. Though there is no explicit evidence in this record accounting for that two-month-plus period of presumed investigation and logistical preparation for prosecuting, neither that period nor the total period of six months appears on its face to be unreasonable. Were either period significantly longer, more explicit evidence of diligence would reasonably be required. We would not go so far as to say that a lengthy investigation and prosecution is its own justification for delaying civil forfeiture proceedings, but cf. Sandidge, supra, 424 So.2d at 153 (“We do not consider the time between the seizure ... and the conclusion of the related criminal proceedings ... to be part of the formula for determining ‘promptness’.... ”). At some point in a lengthy investigation and prosecution, no doubt the prosecuting authorities, holding property that is not tainted with illegality by its very essence, must in deference to property rights submit their de facto forfeiture for judicial approval. The court, not the prosecutor acting by unilateral decision, may then take measures appropriate to guard the purposes of the statute, protect any lawful claim of the owner, and preserve other legitimate interests, for example the owner’s privilege against self-incrimination. See Thirteen (13) Machine Guns and One (1) Silencer, supra, 689 F.2d at 864.

Given the delay in this case of only six months, most oí which were consumed by a truncated criminal prosecution in which the seized liquor was held pursuant to the requirements of section 562.12(2), we find no failuré to “promptly proceed” such as would preclude civil forfeiture proceedings which were begun immediately upon the termination of the prosecution.

' REVERSED. •

SHIVERS and NIMMONS, JJ., concur.


author: ZEHMER, Judge.

text:
    Ray THOMPSON, Appellant, v. Lilian B. KORUPP, Appellee.
    No. AR-373.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1983.

      Michael W. Mead, Fort Walton Beach, for appellant.
    George C. Cox, Fort Walton Beach, for appellee.
   ZEHMER, Judge.

Ray Thompson and Lilian B. Korupp, married in 1972, were divorced in 1977. After the divorce, Ms. Korupp’s minor child remained in the custody of Mr. Thompson. The child had been born out of wedlock prior to Thompson and Korupp’s marriage, and the natural father of the child was Udo Grudzinski, a resident of Germany. From the time the child was fourteen years of age until he reached eighteen, Mr. Thompson and the child resided in the former marital home and Mr. Thompson cared for and supported the child. During this same time period Ms. Korupp, who no longer lived with Mr. Thompson, was receiving child support payments from Udo Grudzinski and accumulated nearly $15,000 in such payments. When the child reached eighteen years of age, Thompson filed a complaint against Korupp, on a quasi-contract theory with respect to the child support payments received by her, seeking an accounting and a judgment in the amount of $15,000 (representing the amount of money he spent in raising the minor child since the parties were divorced). The trial court ruled against Thompson and entered final judgment for Korupp. Thompson appeals, contending that the trial court erred as a matter of law when it failed to recognize the existence of a quasi-contract on behalf of Thompson with respect to the support payments received by Korupp. We affirm.

There is competent substantial evidence in the record showing that Thompson was compensated by Korupp for care of her child by his exclusive use and possession of the marital home until the child reached eighteen years of age and by his claiming the child as a dependent for income tax and military benefit purposes. Pursuant to the divorce decree, Korupp had the right to partition the marital home one year after the divorce, but did not attempt to do so until Thompson filed this action.

Nor, as appellant argues, has appel-lee necessarily been unjustly enriched by the support payments not passed on to him. Child support payments are for the benefit of the child, not the parent, and a recipient of support payments receives the monies not in his or her own right, but in trust for the child as the cestui que trust. Crone- baugh v. Van Dyke, 415 So.2d 738 (Fla. 5th DCA 1982); Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979). Korupp contends that she has saved nearly all of the child support payments received from the child’s natural father to be used for the benefit of the child’s future education. This is commendable and in keeping with the rule of law that support payments are for the benefit of the child, not the parent.

We affirm the judgment of the trial court denying Thompson an accounting and recovery based on unjust enrichment. We specifically note, however, that our decision does not pass upon, and thus is without prejudice to, the child’s right to bring an action for an accounting, for imposition of a trust, or to otherwise establish a legitimate claim to his child support payments held by Korupp.

AFFIRMED.

MILLS and SHIVERS, JJ., concur.


text:
    Jimmy Darryl McGUIRE, Appellant, v. STATE of Florida, Appellee.
    No. AS-20.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1983.
    Richard M. Davis, Perry, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant was tried and convicted on charges of second degree murder stemming from a stabbing incident on the night of August 19, 1982. Appellant contends on appeal that his conviction should be reversed because the state failed to prove that the appellant was the aggressor and that the appellant’s actions evidenced a “depraved mind regardless of human life.” Section 782.04(2), Florida Statutes (1981).

After a complete and thorough review of the record, we find that there is sufficient competent substantial evidence in the record from which the jury could determine that the appellant was the aggressor and that his actions evidenced a “depraved mind regardless of human life.” Although the testimony of the various witnesses is somewhat conflicting, it is not within our province in these circumstances to override the verdict of the jury with respect to questions of fact. Land v. State, 59 So.2d 370 (Fla.1952).

AFFIRMED.

MILLS, SHIVERS and ZEHMER, JJ., concur.


text:
    William D. WALTERS, Appellant, v. Beverly WILDT, Appellee.
    No. AU-122.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1983.
    Carle A. Felton, Jr., Jacksonville, for appellant.
    C. Rufus Pennington, III, Jacksonville, for appellee.
   PER CURIAM.

We affirm the trial court’s order denying appellant’s motion to dismiss and quash service of process and holding that in person-am jurisdiction over appellant was properly acquired. Sections 48.193(l)(f) and 48.194, Florida Statutes (1981); World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Lacy v. Force V. Corporation, 403 So.2d 1050 (Fla. 1st DCA 1981).

AFFIRMED.

ERVIN, C.J., and THOMPSON and NIM-MONS, JJ., concur.


author: COBB, Judge.

text:
    Willis Buford HIERS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1136.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1983.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

At a revocation hearing stemming from charges of child abuse, disorderly intoxication, and battery, the probationer, William Hiers, sought to introduce testimony that he had been advised (albeit erroneously) by his probation officer that he was no longer on probation prior to the alleged criminal offenses. The court rejected this proffered defense as irrelevant, and revoked Hiers’s probation. On appeal from the order revoking his probation, Hiers relies on Gardner v. State, 365 So.2d 1053 (Fla. 4th DCA 1978), contending that his reasonable belief that he was no longer on probation precludes the court from finding a willful violation.

In Gardner the lower court entered a probation order stating that Gardner had indicated a wish to return to Missouri. Shortly thereafter, Gardner was charged with violating the order by remaining in Florida. The evidence adduced at the hearing indicated he was on his way to Missouri when his car brakes failed and he was in the process of having them repaired when arrested. The appellate court stated:

We reverse the trial court’s finding in this regard because the condition of probation was not sufficiently definite to advise the defendant that he had to return to Missouri under pain of violation. Furthermore, assuming the condition valid, the evidence did not show that he failed to comply with it willfully.

365 So.2d at 1054.

Gardner is distinguishable from the instant case. First, unlike Gardner, Hiers does not challenge as vague the probation condition which the court found he had violated, to-wit: to refrain from violating the law. Second, in Gardner, unlike the instant case, the conduct which was the basis for the revocation was legal apart from the probation order. When, as in the instant case, the probationer violates, a probation condition by committing a crime, he demonstrates his unsuitability for probation, notwithstanding his belief that he is no longer on probation. Section 948.01(3), Florida Statutes (1981), provides in relevant part:

If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt, and in either case stay and withhold the imposition of sentence upon such defendant, and shall place him upon probation under the supervision and control of the department for the duration of such probation.

In summary, to allow as a defense to a probation violation stemming from the commission of a crime the probationer’s lack of knowledge regarding his probationary status would “make a mockery of the very philosophy underlying the concept of probation, namely that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society.” Martin v. State, 243 So.2d 189, 191 (Fla. 4th DCA), cert. denied, 247 So.2d 63 (Fla.1971). Accordingly, the order of revocation is

AFFIRMED.

SHARP and COWART, JJ., concur.

      . Compare: State v. Stafford, 437 So.2d 232 (Fla. 5th DCA 1983) [8 FLW 2313] (wherein this court found no error in an order revoking probation which was based on Stafford having committed burglary, even though Stafford was not on probation but on parole at the time of the offense).


author: COBB, Judge. DAUKSCH, Judge,

text:
    Deborah Dale Brazier GERLACH, Appellant/Cross-Appellee, v. Leo TREPANIER, Appellee/Cross-Appellant.
    No. 83-182.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1983.
    James P. Kelaher of Nolan Carter, P.A., Orlando, for appellant/cross-appellee.
    George L. Winslow, Jr., Orlando, and William Patrick Fulford of Wright, Fulford & Winslow, Orlando, for appellee/cross-appel-lant.
   COBB, Judge.

Appellant, plaintiff below, Deborah Ger-lach, was injured while watching a motorcycle race held on appellee/defendant Leo Trepanier’s land. The jury returned a verdict for Gerlach, although finding her 90% negligent. Gerlach appeals the trial court’s ruling excluding certain unpaid medical bills, which she contends resulted in a reduced award. Trepanier cross-appeals, contending that the trial court erred in denying his motion for a directed verdict. We reverse and remand for entry of judgment for the defendant.

Gerlach’s injuries occurred during a race, organized and run by a man named Lawrence Hiatt, who owned land adjoining Trepanier’s. Hiatt used Trepanier’s land as part of the race route, in return for a credit to Trepanier on a previously owed bill. Gerlach’s complaint never alleged any tor-tious conduct on Trepanier’s part; rather, it alleged only that Trepanier was liable for not providing safe premises simply because he owned the land where Hiatt, as the organizer of the race, had negligently failed to set up proper crowd control barriers. These allegations do not provide a cause of action against Trepanier. A lessor is not liable for injuries sustained on the premises where the lessor has surrendered the entire possession and control of the premises to a lessee. That is the situation here. See Wingard v. McDonald, 348 So.2d 573 (Fla. 1st DCA 1977), cert. denied, 358 So.2d 132 (Fla.1978); Gross v. Hatmaker, 173 So.2d 158 (Fla. 2d DCA 1965).

Gerlach’s complaint failed to allege a cause of action against Trepanier and, consequently, the proof at trial failed to establish that he breached any duty. Therefore, Trepanier’s motion for a directed verdict should have been granted, and the trial court’s failure to do so was error. Appellant’s counsel contended at oral argument before this court that the issue of the existence of a duty on Trepanier’s part was not properly preserved for appellate review. We feel the issue was encompassed within the standard of care argument raised by the cross-appellant, and thus was properly preserved for our consideration.

An additional argument raised by the cross-appellant, and much debated by the parties, concerned Gerlach’s status on the property at the time of the accident. While such an inquiry is relevant in a premises liability case, it has no application to the instant case, where the injury was not caused by a defect in the land. See Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967 (Fla.1977); Hix v. Billen, 284 So.2d 209 (Fla.1973); Whitlock v. Elich, 409 So.2d 110 (Fla. 5th DCA 1982).

The cause is reversed and remanded for entry of judgment for the defendant. Thus, the damage issue raised by the appellant is moot.

REVERSED and REMANDED with instructions.

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

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent;

Primarily, I do not agree the cross-appeal sufficiently raises the issue which the opinion uses to reverse the judgment. Secondly, that issue was not raised for the trial judge’s benefit and was thus waived. I would affirm the cross-appeal. As to the medical bills issue raised by the main appeal, I would affirm because the plaintiff did not prove the excluded bills were either; one, necessary and reasonable or, two, paid by plaintiff. This is a minimal requirement before a defendant should be obliged to pay.

      . The jury found total damages of $15,000, with final judgment being entered for Gerlach for $1,500.


text:
    Howard WESTLAKE, Appellant, v. STATE of Florida, Appellee.
    No. 83-266.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1983.

      Joseph W. DuRocher, Public Defender, and Roger L. Weeden, Asst. Public Defender, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kelly Overstreet Johnson, Asst. Atty. Gen., Tallahassee, for appellee.
   COBB, Judge.

This is an appeal by Howard Westlake from an involuntary commitment proceeding under section 394.467, Florida Statutes (Supp.1982). The appealed order for involuntary placement is dated February 16, 1983, and shows on its face that Westlake’s commitment was “for a period not to exceed six (6) months.”

The Florida Supreme Court previously has upheld the constitutionality of such a proceeding. In re Beverly, 342 So.2d 481 (Fla.1977). Subsequently, in State v. Kinner, 398 So.2d 1360 (Fla.1981), an attack was made on the constitutionality of section 393.063(22), Florida Statutes (1977), which defines the term “Retardation” as used in the Baker Act; a question was also raised as to the sufficiency of the evidence to support confinement. After finding the challenged statute constitutional, the court said:

Mr. Kinner’s release makes the second issue, whether the evidence supported his confinement, moot. We, therefore, need not make a decision as to the findings of fact of the trial court.

398 So.2d at 1363.

The issue of mootness in the instant case is governed, by reason of stare decisis, by the Florida Supreme Court’s holding in Kin-ner. When queried by the appellate panel at oral argument as to the issue of mootness in the instant case, given the prior release of Westlake, counsel for the appellant urged this court that the case should not be considered as moot because of the stigma attached to an involuntary commitment for treatment of mental illness.

Although such stigma was judicially recognized by at least one federal court as the basis for determining the proper quantum of proof to be applied to civil commitment proceedings, that same court relied on the possibility of collateral legal, not social, consequences as a basis for rejecting the mootness argument presented there. In re Ballay, 482 F.2d 648 (D.C.Cir.1973). No such collateral legal consequences (e.g., restriction of voting rights, jury service, driver’s licenses or gun licenses) have been suggested to us in the instant case. We observe, moreover, that the most salutory relief available to a person wrongfully committed would be release pursuant to a timely petition for writ of habeas corpus, not an impractical appeal which cannot avert short-term confinement. In any event, we are governed by the precedent of the Florida Supreme Court (Kinner) rather than that of the federal courts in determining an issue such as mootness of an appeal.

For the foregoing reasons, the appeal herein is

DISMISSED.

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


text:
    Jose Pablo FERRER, Appellant, v. STATE of Florida, Appellee.
    No. AN-11.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.
    See also Fla.App., 434 So.2d 15.

      Richard A. Beiley, Benedict P. Kuehne and Jacqueline E. Shapiro of Bierman, Son-nett, Beiley, Shohat & Sale, Miami, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Appellant, Jose Pablo Ferrer, appeals from his conviction for the offense of trafficking in marijuana, contending among arguments that the trial court erred in denying his motion to suppress physical evidence seized subsequent to a non-consensual search not incident to arrest. We agree and reverse.

The record shows that one Palacios was driving a rental truck north on Interstate 75 in Hamilton County at 4:00 a.m. on December 1,1981, when he failed to stop at an agricultural inspection station. Inspector Davis, a uniformed officer on duty at the time, pursued and stopped the vehicle, informing Palacios that the truck was required to stop at the station and that the cargo area needed to be inspected. Palac-ios, who neither spoke nor understood English, responded, “No English.” Davis attempted to explain that he needed to inspect the cargo area and motioned for Pal-acios to open the door. Palacios responded to Davis’s gestures by opening the door. At that point, Ferrer, who had been following the truck in an automobile and had stopped, told Inspector Davis that he was responsible for the cargo and that he would rather that Davis not open the boxes for fear of loss or damage to ceramic vases supposedly packed inside. Davis then told Ferrer and Palacios to return to the station, where Palacios again opened the cargo area door in response to motions by Davis. By that time, Hamilton County Sheriff’s Deputy Beck had approached the open cargo area, smelled marijuana within, and proceeded to open the boxes in it, which were found to contain marijuana.

Ferrer’s motion to suppress alleged that he denied Inspector Davis permission to open up the boxes and that the evidence seized was the fruit of an illegal search and seizure. The trial court denied the motion. We reverse. This court has already determined in Palacios’s appeal that he did not knowingly, freely and voluntarily consent to the search. Palacios v. State, 434 So.2d 1031 (Fla. 1st DCA 1983). Since the state relies upon Palacios’s consent as justification for the search, there being no contention that Ferrer consented, although he was present and manifested his responsibility for the truck’s contents, the search was without lawful authority.

Accordingly, Ferrer’s conviction is REVERSED.

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


text:
    B.P. CONSTRUCTION, INC. and Esis, Inc., Appellants, v. Oscar GARCIA, Appellee.
    No. AQ-396.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.

      H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.
    Lawrence M. Malman, Miami, for appel-lee.
   PER CURIAM.

This cause is before us on appeal from an order of the deputy commissioner finding claimant’s low back injury causally connected to his industrial accident and awarding TTD benefits, wage-loss benefits, and attorney fees. We affirm in part and reverse in part.

Oscar Garcia, a 52-year-old, illiterate construction laborer who speaks little English, was injured in a compensable accident on June 12, 1980, when the truck in which he was riding flipped over several times. He was treated by several doctors, including Dr. Bustillo, an orthopedist, who diagnosed a cervical strain, dorsal strain, and mild osteoarthritic degenerative changes of the spine (which probably preexisted the accident), treated claimant with analgesics and muscle relaxants, and released him on October 24, 1980 with a five percent permanent partial impairment.

Claimant returned to work on September 26, 1980 and worked “on and off” until May, 1981, when he quit work because of pain. On June 5, 1981, claimant saw Dr. Grusky, a chiropractor, who found muscle spasms in the entire spine, restriction of movement in the cervical and lumbar spine with accompanying pain, tenderness in the shoulder, headaches, and neck ache, and subluxations in the cervical and lumbar spine. Dr. Grusky found claimant to be MMI on October 28, 1981, with a ten percent impairment of the whole man, based on chronic subluxation of the L-5 vertebra, in line with the AMA Guides, and instructed claimant not to do work that required lifting and bending. On December 14, claimant worked three hours picking tomatoes, but had to quit because of the pain; he has not worked since that time.

After several evidentiary hearings, the deputy issued an order finding claimant TTD from June 13, 1980 to December 18, 1980 and from June 5, 1981 to October 27, 1981. The deputy found claimant MMI as of October 28, 1981, with a ten percent permanent physical impairment, and awarded wage-loss benefits from that date and continuing. Claimant’s attorney claimed a fee against the employer/carrier on the theory of bad faith. The employer/carrier conceded bad faith with regard to the period from June 13,1980 to September 18, 1980, but denied acting in bad faith with respect to the remainder of the claim. The deputy found that the employer/carrier acted in bad faith with regard to the handling of the entire claim, by failing to conduct an investigation and pay compensation. The parties stipulated to the statutory schedule for attorney fees, and the deputy awarded claimant attorney fees of $3,274.69, based upon the benefits secured as of November 28, 1982. The deputy also awarded attorney fees of 15 percent of any future wage-loss benefits, to be paid every six months.

Competent, substantial evidence in the record supports the deputy’s findings that claimant’s low back injury was causally connected to the industrial accident, that he was temporarily totally disabled as a result of the injury from June 5, 1981 through October 27,1981, and that his injury resulted in a permanent impairment rating of ten percent of the body as a whole. The deputy’s award of TTD benefits from June 5, 1981 through October 27, 1981 is affirmed. We must, however, reverse the deputy’s award of wage-loss benefits from October 28, 1981 and continuing, since the record does not demonstrate that claimant conducted an adequate work search, or that a work search was medically excused.

Claimant’s one attempt to return to work (picking tomatoes) required constant bending and lifting, activities specifically proscribed by claimant’s attending physician, Dr. Grusky. Although it is true that claimant is uneducated and speaks little English, that his work experience has in the past been in construction work and field labor, and that he has physical limitations (lifting and bending), there is no medical evidence that he is incapable of doing any kind of work. A single unsuccessful attempt to undertake an employment which requires activities specifically proscribed by the treating physician does not constitute a good faith effort to test employability. Because claimant has failed to meet his burden of demonstrating an adequate work search or a medical excuse for his failure to conduct such a search, the deputy’s award of wage-loss benefits from October 28, 1981 is reversed, without prejudice to claimant’s right to seek wage-loss benefits subsequent to that date based upon an adequate work search.

The parties stipulated that a reasonable attorney fee would be one assessed according to the schedule set out in Section 440.34(1), providing a fee which is a percentage of the total amount of benefits secured; the parties disagree, however, on which benefits should be included in this determination. The employer/carrier admit that they insufficiently investigated the claim for TTD benefits for the period immediately following the accident; they assert that attorney fees should be based on the amount of benefits paid for that period only, and not on subsequent benefits paid claimant. We hold that the deputy correctly found that attorney fees should be determined on the basis of total benefits secured as a result of the intervention of claimant’s attorney, intervention which was necessitated by the employer/carrier’s failure to timely investigate and pay the initial claim. The award of attorney fees based upon the total benefits secured as of November 28, 1982 is affirmed.

The deputy’s award of attorney fees based upon 15 percent of future wage-loss benefits that may be paid to the claimant is reversed. Santa Rosa Marble, Inc. v. Ubieta, 436 So.2d 311 (Fla. 1st DCA, 1983).

The cause is remanded to the deputy commissioner for proceedings consistent herein.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.

      . TTD benefits for the period from June 13, 1980 to December 18, 1980 were paid July 20, 1981, with credit for an overpayment.

      . We note that the total amount of benefits upon which attorney fees are calculated will have to be redetermined and the attorney fees recalculated, and remand to the deputy commissioner for that purpose.


author: SHIVERS, Judge.

text:
    Hugh C. LYNCH, Appellant, v. W.H. FANNING, Jr., Appellee.
    No. AR-13.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.
    Siegfried F. Kessler of Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton Beach, for appellant.
    Richard H. Powell of Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellee.
   SHIVERS, Judge.

Lynch appeals the summary judgment granted in favor of Fanning. He contends that the trial court erred in ruling as a matter of law that he had a duty to ensure that he was purchasing the property described in a survey furnished to him by the seller of said property, that is, Fanning. We reverse.

Lynch purchased a tract of property in Okaloosa County from Fanning. Prior to such purchase, Fanning obtained a survey of the property from a registered surveyor. The survey indicated in its legal description that the subject property had 125 feet of water frontage. The lot drawing contained on the survey did not reflect or measure the water frontage. A copy of this survey was furnished to Lynch. Lynch also obtained a print-out of the Multiple Listing Service describing the property as “Lot 20, Cobb’s Point” having 125 feet of water frontage. Additionally, Lynch reviewed an undated and unrecorded plat of the property which plat reflected this property as having 125 feet of water frontage. This plat was furnished to Lynch by his real estate agent. Also, Lynch inspected the road frontage of the subject property prior to his purchase, but due to the density of the timber on the property, did not inspect the water frontage.

Lynch submitted a written offer to purchase the subject property which, after amendment, was accepted by Fanning. The contract contained no reference to water frontage, but did give Lynch the right to secure a survey prior to closing. Lynch did not exercise his right to conduct a survey and closed on the transaction about two months after submitting his offer to purchase.

Approximately thirteen months subsequent to closing, Lynch obtained a survey of the property in connection with the construction of a sea wall. This survey indicated that the water frontage of the property was 96 feet, rather than 125 feet. Lynch then instituted an action against Fanning for breach of contract seeking therein damages. Fanning moved for summary judgment. This motion was granted; the court found that as a matter of law Lynch had the duty to ensure that he was purchasing the property described in the legal description furnished to Lynch by the seller, Fanning, and that Lynch chose of his own volition not to take advantage of his contractual right to conduct his own survey. The trial court also found that there was no evidence of fraudulent misrepresentation or concealment by Fanning and that both Fanning and Lynch believed that the subject property consisted of 125 feet of water frontage.

In Held v. Trafford Realty Co., 414 So.2d 631 (Fla. 5th DCA 1982), the Fifth District Court of Appeal stated that an innocent misrepresentation of a material fact acted upon by the other party to a real estate contract, to such party’s detriment, is basis for a cause of action. Appellee’s argument in Held that the buyer could have discovered the representation to be false, i.e., that the subject property was not ocean front property, by conducting a survey, as the buyer had a contractual right to do, was held not to eliminate the buyer’s cause of action. Similarly, we conclude and hold that Lynch’s contractual right to secure a survey should not eliminate his cause of action.

Accordingly, the summary judgment is REVERSED and the cause is REMANDED to the trial court to conduct proceedings consistent with this opinion.

REVERSED and REMANDED.

MILLS and ZEHMER, JJ., concur.