author: NESBITT, Judge.

text:
    T.J. and D.M., juveniles, Appellants, v. The STATE of Florida, Appellee.
    No. 83-52.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   NESBITT, Judge.

Two juveniles appeal their adjudications of delinquency based upon loitering and prowling. We affirm.

A police officer received a “BOLO” regarding three black males attempting to snatch purses from vehicles stopped at a traffic light. The officer responded to the location indicated in the “BOLO,” which he referred to as a “high crime area,” and was told by a bystander that three black males had been trying to snatch purses from cars. The officer drove around the corner and observed three black males approaching the rear of a ear stopped at a traffic light. When they were about five feet from the car, the officer accelerated his marked police car in their direction, causing them-to look back at the officer. The three males then walked in a direction away from the officer. The officer stopped his car and called for them to stop, but they continued walking. At this point, the officer pulled his car around into their path to stop them. Once stopped, the officer asked the three what they were doing. They stated that they were selling avocados. Not seeing any avocados, the officer advised them of their Miranda rights and then asked them where the avocados were located. He was told they were under a nearby overpass. The officer was unable to locate any avocados in the indicated area and placed the three under arrest for loitering and prowling. Two of the three black males were juveniles. They were adjudicated delinquent and this appeal followed.

The juveniles agree with the state that the initial stop was a valid Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). They contend, however, that the initial statements concerning avocados should have been ruled inadmissible at trial because Miranda warnings were not given prior to the officer asking them what they were doing. The Supreme Court has held that Miranda warnings must precede interrogation initiated by law enforcement officers after a suspect “has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The juveniles argue that any Terry stop deprives a person of his freedom of action in a significant way so as to require Miranda warnings before police can ask any questions. We disagree.

The Supreme Court held in Terry that reasonable inquiries could be made by police during a Terry stop. 392 U.S. at 30. See also Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). In Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the Court found that:

[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question .... Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was applicable, and to which it is limited.

429 U.S. at 495, 97 S.Ct. at 714. The Court’s opinion in Mathiason indicates that Miranda warnings need not be given prior to questioning during an unintrusive Terry stop. United States v. Bautista, 684 F.2d 1286 (9th Cir.1982). Relying upon the language of the Supreme Court in Miranda and Mathiason, the ninth circuit court held in Bautista:

Miranda warnings are necessary even during a Terry stop if the suspect has been taken into custody or if the questioning otherwise takes place in a police dominated or compelling atmosphere, [citations omitted] However, Terry stops, though inherently somewhat coercive, do not usually involve the type of police dominated or compelling atmosphere which necessitates Miranda warnings.

684 F.2d at 1291. The court went on to find that the suspects involved were not “in custody” so as to require Miranda warnings, despite the fact that they had been handcuffed.

In the present case, the police officer merely pulled his car in front of the juveniles to stop them from walking away so he could investigate his suspicions of criminal activity in the area. The mere fact that the juveniles were stopped does not render them “in custody.” The stop amounted to no more than an unintrusive Terry stop. We find that the juveniles were not significantly deprived of their freedom of action, and that Miranda warnings were not necessary, during this initial Terry stop, before the officer asked the juveniles what they were doing. Bautista. See Mathiason; Terry; Miranda; Hardie v. State, 333 So.2d 13 (Fla.1976); State v. Paschal, 358 So.2d 73 (Fla. 1st DCA), cert. denied, 360 So.2d 1249 (Fla.1978).

When the juveniles told the officer they were selling avocados, and he observed that they had no avocados in their possession, the totality of the circumstances gave the officer probable cause to arrest them for loitering and prowling. See State v. Coron, 411 So.2d 237 (Fla. 3d DCA 1982). The juveniles were not acting in a manner usual for law-abiding individuals, and the totality of the circumstances warranted a justifiable and reasonable alarm or concern for the safety of persons or property in the vicinity. § 856.021(1), Fla. Stat. (1981). At this point, the officer advised the juveniles of their rights. After the Miranda warnings were given, the juveniles were given an opportunity to dispel the officer’s alarm as required by section 856.021(2). See State v. Ecker, 311 So.2d 104 (Fla.) cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). When the juveniles failed to dispel this alarm, the officer legitimately placed them under arrest for loitering and prowling.

Since we find no Miranda violation, the statements concerning the avocados were properly admissible and we accordingly affirm the adjudications of delinquency.

      . Even if the juveniles did not agree, we would find the initial stop to be a valid Terry stop.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Louis TIESO, a minor, By and Through his mother, next friend, and natural guardian, Graciela TIESO, and Graciela Tieso, individually, Appellants, v. Joanne FULCHER, Diana Huard, William Hunter, Clifford Bennett and Jack Flaherty, Appellees.
    No. 83-1678.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Richard A. Barnett and David M. Hammer, Hollywood, for appellants.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael K. McLe-more, Magill, Reid & Lewis and R. Fred Lewis, Talburt, Kubicki & Bradley and Gail L. Kniskern and Betsy E. Hartley, Lees-field & Blackburn and Joseph A. Glick, Miami, for appellees.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Alvarez v. DeAguirre, 395 So.2d 213 (Fla. 3d DCA 1981).


text:
    Irene ABELLA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2555.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Henry B. Rothblatt and Bradley R. Stark, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen. and Calvin Fox, Asst. Atty. Gen., Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Sullivan v. State, 441 So.2d 609 (Fla.1983); Slattery v. State, 433 So.2d 615 (Fla. 3d DCA 1983); Abella v. State, 429 So.2d 774 (Fla. 3d DCA 1983); Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); King v. Strickland, 714 F.2d 1481 (11th Cir.1983).


text:
    STATE ex rel. Gloria Jean GIBSON, Petitioner, v. R. Hudson OLLIFF, in his capacity as Circuit Judge, Fourth Judicial Circuit, Duval County, Florida, Respondent.
    No. AZ-346.
    District Court of Appeal of Florida, First District.
    June 6, 1984.

      Daniel A. Smith of Coxe, Schemer & Smith, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

This cause has been considered upon the Petition for Writ of Prohibition filed by petitioner, Gloria Jean Gibson. The court has considered the petition and the documents filed in this proceeding, heard argument of counsel, and considered the authorities cited by counsel for both parties. We have denied the petition by an order entered June 2, 1984, in which we stated that an opinion would follow. This opinion sets forth our reasons for the action taken.

Regarding petitioner’s first argument, upon the limited review permitted by the remedy of prohibition we have determined that the petitioner has failed to demonstrate that her scheduled trial presently set for June 4,1984, is barred by the constitutional prohibition against double jeopardy. Petitioner’s contention in this regard is based on the assertion that in the course of her first trial on February 7, 1984, her counsel was forced to move for a mistrial because of the prosecutor’s misconduct in knowingly failing to disclose to her counsel that a key witness for the prosecution had admitted to giving false testimony on his pretrial deposition taken by petitioner’s counsel. Although the trial court granted the motion for mistrial on this ground, in denying petitioner’s double jeopardy claim the trial court found that the prosecutor’s non-disclosure of the admission to him by the State’s witness was in violation of the discovery rule but was not willful and did not constitute prosecutorial misconduct. This finding, which we feel constrained to accept for the limited purpose of this application for prohibition, adversely disposes of petitioner’s contention that the prosecutor’s wrongful failure to disclose the false testimony was intended to provoke or “goad” petitioner into moving for a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Sherrod v. Franza, 427 So.2d 161 (Fla.1983).

We have further determined' that petitioner has failed to establish that her right to speedy trial under Rule 3.191(g), Florida Rules of Criminal Procedure, has been violated. The petition for prohibition discloses that prior to her February 7, 1984 trial which resulted in a mistrial, she executed a waiver of her right to speedy trial. Since neither the petition nor the appendix filed contemporaneously therewith set forth the text of the written waiver, this court ordered petitioner to supplement her petition by filing a copy of the waiver. Upon examination, we note that the written waiver, filed in the lower court on March 14, 1983, waives all rights to speedy trial under Rule 3.191, Florida Rules of Criminal Procedure, and under the constitutions of the United States and the State of Florida. The waiver is signed by petitioner, her counsel and by the assistant state attorney, and was also approved and signed by the trial judge. The waiver recites upon its face that it is “unlimited.” The trial court, in ruling upon petitioner's motion for discharge on speedy trial grounds, found that this waiver of speedy trial was “unlimited,” and we agree. Insofar as the characterization of petitioner’s waiver is based upon findings of fact, this court on petition for prohibition urging violation of the right of speedy trial is bound by the trial court’s findings. Sherrod v. Franza, supra.

Apparently, only one appellate court in Florida has thus far had occasion to rule upon the question whether a speedy trial waiver executed and filed prior to trial carries over after a trial which results in a mistrial, and thus operates as a waiver of all speedy trial rights under the rule, including the provisions of subdivision (g), Rule 3.191, which provides that retrial after a mistrial shall be held within ninety days. In State v. Ryder, 449 So.2d 398 (Fla.1984) [9 FLW 1014], opinion filed May 2, 1984, the Second District ruled that a written waiver operates to bar the assertion of the right to discharge under Rule 3.191, even though the defendant was not brought to trial within ninety days following a mistrial. The exact language and terminology employed in the written waiver dealt with in the Ryder case is not set forth in the opinion. However, we think that the waiver in this case is clearly and unequivocally an unlimited waiver which under the particular facts shown, operated to preclude the defendant’s reliance upon the speedy trial rights conferred by Rule 3.191. Petitioner has failed to demonstrate that her waiver was limited to the period preceding the commencement of her trial, or that in the interim, she took any action that may be considered as a withdrawal or repudiation of the waiver, until such time as she moved for discharge after the ninety day period under Rule 3.191(g) had expired. On the contrary, as demonstrated by counsel for respondent at oral argument before this court, subsequent to the mistrial, petitioner’s counsel filed in the court below a document (Defendant Gibson’s Response to Order of February 27, 1984, Relating to Discovery and Trial) which acknowledged and reaffirmed the existence of the unlimited waiver filed by petitioner, and by implication, its continued' effectiveness. This circumstance provides adequate support for the trial court’s ruling, which we find to be correct.

In view of our holding on the waiver issue, it is unnecessary for us to consider respondent’s additional contentions, supported with further references to the record below, that subsequent to the mistrial petitioner’s counsel entered into further agreements or otherwise consented to extension of the speedy trial rule by stipulations and agreements made in open court and approved by the trial judge, thus satisfying the requirements of subdivision (d)(2), Rule 3.191.

Accordingly, the Petition for Writ of Prohibition was DENIED.

SMITH, JOANOS and ZEHMER, JJ., concur.

      . The entire record of proceedings below is not before us in this prohibition proceeding and, of course, we cannot review this finding as would be the case on a plenary appeal from final judgment of conviction.


text:
    Roderick CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 84-33.
    District Court of Appeal of Florida, Second District.
    June 6, 1984.
    Roderick Campbell, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This appeal is from the summary denial of a pro se motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. The motion alleges violations of due process and ineffective assistance of counsel in two cases charging the appellant with burglary and grand theft. The motion further alleges ineffective assistance of counsel and involuntariness of guilty pleas in two robbery cases.

Because the allegations of the motion are somewhat confusing as they relate to the various cases, we asked that the state file a response in this court to the questions presented in the motion as to the separate cases mentioned. The state has filed a candid and helpful response which has enabled us to understand the various proceedings involving the appellant to which his motion is directed. We agree with the suggestion of the state that this case be remanded to the trial court to conduct an evidentiary hearing or to attach portions of the record which refute the appellant’s allegations.

Accordingly, we reverse the denial of the appellant’s motion and remand this ease to the trial court. On remand, the trial court may either again summarily deny the motion and attach to its order those portions of the record which conclusively show the appellant is entitled to no relief, or hold an evidentiary hearing and then rule on the grounds alleged in the motion. Fla.R. Crim.P. 3.850; Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982). To obtain further review any aggrieved party must appeal the new ruling of the trial court.

REVERSED AND REMANDED.

BOARDMAN, A.C.J., and DANAHY and SCHOONOVER, JJ., concur.


text:
    Leon DRIGGERS, Appellant, v. Hattie DRIGGERS, Appellee.
    No. AU-293.
    District Court of Appeal of Florida, First District.
    June 7, 1984.

      William E. Harris of Johnston, Harris & Gerde, Panama City, for appellant.
    John D. O’Brien, Panama City, for appel-lee.
   PER CURIAM.

The husband appeals a final judgment of dissolution awarding the wife his interest in a retail bait and tackle business. Although the final judgment does not explain the basis for the award, under the factual circumstances of this case, we find the award of the business is sustainable as either lump sum alimony or as a “special equity.”

The award was justified as lump sum alimony since it ensures an equitable distribution of property acquired during the marriage. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). The evidence reflects a justification for distribution of this property to the wife, and the husband’s economic status is not threatened since he was permitted to retain sole ownership of the wholesale shrimping business and the commercial fishing business, both of which were acquired during the marriage of the parties.

Moreover, the award was justified as a “special equity” since the wife contributed funds and services to the acquisition of this property above and beyond the performance of ordinary marital duties. Duncan v. Duncan, 379 So.2d 949 (Fla.1980). When the parties married, the bait and tackle business was closed. The husband testified that his cash value was worth “zero.” The wife gave the husband $9,300.00 to get the business going again and during the marriage she ran the bait and tackle business while the husband devoted his energy to the wholesale shrimping business and the commercial fishing business. When the husband had a heart attack and could not work for six to eight months, the wife operated the business without him.

We have considered the husband’s other point on appeal and find it to be totally without merit. The award to the wife of the husband’s interest in the bait and tackle business is AFFIRMED.

MILLS, SMITH and NIMMONS, JJ., concur.


author: WIGGINTON, Judge.

text:
    Jack Evans CHARPING, Sr., Appellant, v. DeHART ROOFING and Johns Eastern Company, Inc., Appellees.
    No. AV-116.
    District Court of Appeal of Florida, First District.
    June 7, 1984.

      Alex Lancaster, Sarasota, for appellant.
    David M. Mitchell, of Harkavy, Moxley, Mitchell & Stewart, Sarasota, for appellees.
   WIGGINTON, Judge.

Appellant/claimant appeals and appel-lees, employer/carrier, cross appeal the deputy commissioner’s order denying appellant’s wage loss claim on the basis that appellant voluntarily limited his employment. Having reviewed the record and considered all of the arguments raised, we affirm. However, Point II of appellee’s cross appeal merits some discussion.

On November 9, 1981, appellant injured his back while working for employer as a roofer. He had suffered back injuries previously and had been treated by Dr. Barnes, a neurosurgeon, from 1974 until 1978. Dr. Barnes, who was also appellant’s treating physician after the 1981 accident, testified that appellant had suffered an 8 to 10 percent anatomical impairment from his earlier back injury. He stated that appellant underwent back surgery in Georgia after he released appellant in 1978 and was unaware of the results of that surgery. Dr. Barnes testified that after reaching maximum medical improvement from the 1981 accident, appellant was left with an additional 5 percent impairment above the previous 8 to 10 percent rating. However, he stated that the restrictions he has imposed on appellant now are the same restrictions he imposed upon appellant in 1978.

In the order on appeal, the deputy commissioner included in his findings:

The claimant has a medical history of a prior back injury resulting in a permanent disability. On the date of the accident he was injured in a fall and this aggravated his preexisting back condition by an additional 5 percent anatomically, according to Dr. Barnes. I find that Dr. Barnes testimony is not imper-missibly speculative in this regard. I do know, however, that Dr. Barnes testified that the restrictions imposed on the claimant by virtue of this aggravation were not substantially or materially different from those as a result of the original unrelated accident.

The deputy commissioner went on to find that appellant is not entitled to benefits since he has not undertaken a good faith job search and voluntarily limited his employment. On cross appeal, employer/carrier question whether the record contains competent substantial evidence from which the deputy commissioner could make the apparent finding that appellant sustained a permanent impairment entitling him to consideration for wage loss benefits as a result of the accident. In our view, the deputy commissioner did not make such a finding. The above-quoted wording in his order amounts to mere surplusage for purposes of this point on appeal. The deputy commissioner made no finding that appellant has sustained an additional permanent disability as a result of the 1981 accident. Further, in making the above “finding” he did not lay any foundation for, nor would the record support, a future translation of the anatomical impairment rating given by Dr. Barnes into a permanent disability rating. Compare Photo Electronics Corporation v. Glick, 398 So.2d 900 (Fla. 1st DCA 1981). Thus, the above “finding” provides no basis for reversal.

AFFIRMED.

MILLS and SHIVERS, JJ., concur.


author: SHIVERS, Judge.

text:
    CITY OF MIAMI, Appellant, v. Sidney HARRIS, Appellee.
    No. AV-265.
    District Court of Appeal of Florida, First District.
    June 7, 1984.

      Jose Garcia-Pedrosa, City Atty., and Jorge L. Fernandez, Asst. City Atty., Miami, for appellant.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal, Susskind, Bloom & DeCastro, P.A., Miami, for appel-lee.
   SHIVERS, Judge.

In this workers’ compensation case, the self-insured employer appeals the deputy commissioner’s order directing the employer to reimburse the claimant for the funds he expended in the purchase of a therapeutic hospital bed. The employer contends that the deputy improperly considered the terms of the contract entered into between the claimant’s union and the employer in determining the claimant’s entitlement to reimbursement. We disagree with the employer’s contention. See Housknecht v. City of Dania, IRC Order 2-3276 (1977), cert. den., 377 So.2d 169 (Fla.1979); section 440.25(1), Florida Statutes (1978). Furthermore, we find that the bed was prescribed by an authorized, treating physician and was a reasonable and necessary medical expense. Compare Cedars of Lebanon Health Care v. Summerset, 409 So.2d 185 (Fla. 1st DCA 1982). Accordingly, the deputy’s order is AFFIRMED in all respects.

MILLS and WIGGINTON, JJ., concur.


text:
    WINTER PARK MEMORIAL HOSPITAL and All Risk Corporation of Florida, Appellants, v. Juanita BROWN, Appellee.
    No. AV-300.
    District Court of Appeal of Florida, First District.
    June 7, 1984.

      C. Thomas Ferrara of Ferrara & Smith, P.A., Altamonte Springs, for appellants.
    Robert C. Barrett and Robert A. Donahue of Cooper, Rissman, Weisberg & Jeffery, Orlando, for appellee.
   SHIVERS, Judge.

The employer/servicing agent in this workers’ compensation case appeal the deputy commissioner’s order finding claimant’s knee injury compensable and denying the employer/servicing agent’s notice defense. We affirm.

Claimant injured her right knee on April 26, 1982, when she slipped and fell on a wet kitchen floor while working for her employer as a salad maker. Claimant’s fall was witnessed by the employer’s head salad maker and a co-employee. The head salad maker called for the kitchen supervisor who thereafter came over and talked with claimant about her injury, although no accident report was filled out. At the time of her injury, claimant’s knee felt tender and a little funny, but claimant continued to work since she believed that she had not sustained a serious injury.

Claimant continued to work for the employer for the next several months. During this period of time, however, claimant experienced pain and tenderness in her knee with her knee becoming stiff at times and claimant being unable to kneel due to the pressure such put on her knee. In February of 1983, claimant quit her job with the employer herein when her knee began to swell and cause claimant increasing pain. Claimant went to see her family doctor, Dr. Stephen Van Ore, in connection with this problem.

Shortly after her visit with Dr. Van Ore, in late February or March of 1983, claimant was getting out of a car when her knee “slipped out of place” and then “slipped back into place” as claimant started up the steps to her house. Claimant again went to see Dr. Van Ore who referred claimant to Dr. Joseph Uricchio. Dr. Uricchio operated on claimant’s knee for a torn lateral meniscus on April 27, 1983. Dr. Uricchio’s office notes indicate that claimant initially related her knee problems to the “knee slipping” incident in February or March of 1983, rather than the “slip and fall” incident at the hospital in April of 1982. Claimant testified that later on she informed Dr. Uricchio, when it “dawned on her”, that her knee problems likely were the result of the slip and fall incident at the hospital. Dr. Uricchio did not dispute that claimant might have told him this.

Pursuant to deposition, Dr. Uricchio opined that a slip and fall type of injury would more likely cause a meniscal tear, such as claimant’s, than simply putting a leg out of a door to get out of a car. Dr. Uricchio also opined that a knee problem that has been present for a longer period of time would more likely give the decreased tone and atrophy such as was present in claimant’s leg, than one that was more recent. Finally, Dr. Uricchio testified that there was no medical evidence to confirm that claimant had dislocated her knee and that it was possible that claimant could have confused her knee slipping incident in 1983 with the locking that occurs in a knee from a meniscal tear.

In his order, the deputy found that claimant’s meniscal tear in her knee was more likely caused by claimant’s slip and fall at the hospital on April 26, 1982, than the knee slipping incident in 1983; and that the latter had no measurable effect on claimant’s knee problem. The deputy further found that claimant’s employer received notice of claimant’s accident and that, in any event, claimant prosecuted her claim with that degree of diligence that an ordinarily prudent person would have exercised under similar circumstances. The employer/servicing agent contend the deputy’s order is error. We disagree.

The employer/servicing agent first contend that the deputy erred in finding that claimant sustained a knee injury by accident arising out of her employment on April 26, 1982, as opposed to the knee slipping incident in February or March of 1983. To the contrary of the employer/servicing agent’s position, we find and hold that the deputy properly found that the slip and fall incident at the employer/hospital in April of 1982 was the more logical cause of claimant’s knee injury. We find that the medical testimony of Dr. Uricchio as detailed above, combined with the testimony of claimant as to the chronology of her knee problems, provides competent, substantial evidence upon which the deputy could find that claimant’s knee injury, and her resulting knee surgery, were related to the April 26th slip and fall incident at the hospital. See Custodis Const. v. Register, 435 So.2d 947 (Fla. 1st DCA 1983); see also Riddle v. Brevard County Bd. of Public Instruction, 286 So.2d 557 (Fla.1973); Hester v. Westchester General Hospital, 260 So.2d 505 (Fla.1972).

The employer/servicing agent next contend, interrelated with their first contention, that claimant’s disability was precipitated by claimant’s knee slipping incident, rather than the slip and fall incident at the hospital. In this regard, we refer the employer/servicing agent to Custodis Const., supra, at 949, which we find factually similar and controlling as to the instant case.

Finally, the employer/servicing agent contend that the deputy erred in finding that the employer had adequate notice of claimant’s accident. Again, we disagree with the employer/servicing agent’s contention. Here, claimant testified that the employer’s head salad maker, who witnessed claimant’s accident, directed claimant’s activity in the kitchen and that she (claimant) regarded this individual as her supervisor and/or boss. As such, we find that the head salad maker could be viewed as claimant’s ex officio supervisor to whom notice of the accident was sufficient. See Collier v. Ranch House Restaurants, Inc., 381 So.2d 270 (Fla. 1st DCA 1980), rev. denied, 389 So.2d 1114 (Fla.1980). Furthermore, claimant testified, and the deputy specifically found claimant’s testimony to be credible, that the kitchen supervisor was informed of claimant’s accident and witnessed the aftermath of such. Again, we find that this factual situation would constitute adequate notice to the employer. See Hester v. Westchester General Hospital, supra. Additionally, we agree with the deputy that, in any event, claimant prosecuted her claim with the degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances. See Riddle v. Brevard County Bd. of Public Instruction, supra.

Accordingly, the deputy’s order is AFFIRMED in all respects.

MILLS and WIGGINTON, JJ., concur.


text:
    WINN-DIXIE STORES, INC., Crawford and Company, Appellants, v. Richard SAFFOLD, Appellee.
    No. AV-353.
    District Court of Appeal of Florida, First District.
    June 7, 1984.

      David Lee Hart of Whittaker, Stump & Webster, P.A., Orlando, for appellants.
    Harry L. Lamb, Jr. of Woolfork, Perry & Lamb, P.A., Orlando, for appellee.
   WIGGINTON, Judge.

Appellants, employer/carrier, appeal that portion of the deputy commissioner’s order awarding appellee temporary total disability from May 16, 1983, and continuing. We affirm in part and reverse and remand in part.

On September 11, 1982, appellant injured his lower back and groin area in a work related accident. Employer/carrier provided immediate medical care. Over the next few months, employer/carrier provided ap-pellee with examination and treatment by three orthopedists, all of whom performed a battery of tests and concluded that appel-lee suffered no permanent impairment as a result of his injury. They each returned him to work with no substantial restrictions. Employer/carrier paid appellee temporary total disability benefits through the latest date on which a doctor found that he had reached maximum medical improvement.

After that date, appellee continued to complain of pain in his back and groin area. Without authorization, he saw Dr. Heard, an orthopedist, on February 28, 1983. Dr. Heard recommended another series of tests which would require hospitalization. In April, 1983, a hearing was held before the deputy commissioner on appellee’s claim for additional temporary total disability benefits and additional medical treatment. The deputy commissioner later entered an order denying the claim for additional temporary total disability benefits but directing employer/carrier to provide medical care under Dr. Heard.

Dr. Heard hospitalized appellee from April 27 until April 29, 1983, and conducted the tests. The test results showed no organic cause for appellee’s symptoms. Dr. Heard did recommend, however, that appel-lee receive “facet joint injections and blocks” for which he hospitalized appellee again from May 16 through June 4, 1983. On June 4, appellee had achieved no improvement so Dr. Heard fitted him with a fiberglass body jacket and sent him to a pain clinic to be treated by Dr. Kolin, a psychiatrist. The record contains no reports or depositions from Dr. Kolin, but Dr. Heard refers to Dr. Kolin in his reports, which are contained in the record. In his report, Dr. Heard concluded the following concerning appellee’s condition:

1. Chronic low back pain — etiology undetermined.

2. Anxiety and depression secondary to number 1.

In his June 14, 1983 report, Dr. Heard explained that Dr. Kolin felt that appellee has a severe depressive problem which may or may not be contributing to the continuation of his back problem. He found that no further orthopedic treatment was available and removed the body jacket, but he recommended that appellee continue to be seen by Dr. Kolin and he was of the opinion that appellee was not capable of returning to work at that time.

Employer/carrier challenge the deputy commissioner’s finding that appellee is entitled to temporary total disability benefits from May 16, 1983 and continuing. In his order, the deputy commissioner based that award on the “medical evidence and reports of Dr. Charles W. Heard, Claimant’s treating physician and the fact that Claimant has been referred and is being treated by Dr. Irving Kolin, psychiatrist, at the Pain Management Clinic .... ”

The record is devoid of competent substantial evidence to support the deputy commissioner’s award of temporary total disability benefits from May 16, 1983 and continuing. The only medical evidence in the record as to appellee’s condition and the causal relationship of his present condition to his industrial accident are the reports of Dr. Heard. Dr. Heard’s reports are a sufficient basis upon which to award temporary total disability benefits through the authorized hospitalization periods and follow-up conferences during which Dr. Heard was examining and treating appellee and for a reasonable recuperation period thereafter. Rodriguez v. Miami Baking Co., Inc., 430 So.2d 955 (Fla. 1st DCA 1983); Atkins v. Greenhut Construction Company, 447 So.2d 268, 8 FLW 2767 (Fla.1983). However, Dr. Heard’s reports and his references to Dr. Kolin’s opinions are an insufficient basis upon which to find a causal connection between appellee’s condition and his industrial accident, and upon which to find “continuing” temporary total disability. Therefore, we reverse that portion of the order awarding temporary total disability on a continuing basis and remand to the deputy commissioner for a determination of a reasonable recovery period after appellee’s June 24, 1983, conference with Dr. Heard, during which appellee may be found to have been temporarily totally disabled.

AFFIRMED in part and REVERSED and REMANDED in part.

MILLS and SHIVERS, JJ., concur.


text:
    BUTLER'S DAIRY and Whiting National Services, Inc., Appellants, v. Terry G. HONEYCUTT, Appellee.
    No. AW-39.
    District Court of Appeal of Florida, First District.
    June 7, 1984.
    Rehearing Denied June 27, 1984.

      Claire L. Hamner of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    James R. Hutchens of McDaniel, Ball & Hutchens, Sarasota, for appellee.
   SHIVERS, Judge.

The employer/carrier in this workers’ compensation case appeal the deputy commissioner’s order awarding the claimant permanent and total disability benefits. We affirm.

Claimant injured his back in a compensa-ble accident on September 4, 1979, when he was kicked by a couple of cows while working for his employer as a dairyman. Since the date of his accident to the present, claimant has received extensive medical treatment, both physical, including two unsuccessful back operations, and psychiatric. Claimant’s treating physician since 1979 to the present, Dr. Robert Massam, opined that claimant is 30% permanently physically impaired as a result of his accident. Claimant’s treating psychiatrist, Dr. J.A. Cruz, who first came into contact with claimant after claimant tried to commit suicide, testified that claimant is five to ten percent permanently psyehiatrically impaired due to his accident. In addition, Dr. Massam opined that claimant is 100% permanently physically impaired from returning to his previous job, and that claimant is unable to return to the labor market. This opinion of Dr. Massam was not shared by Dr. Cruz, nor was it shared by Dr. Robert Pfaff, who conducted a one-time independent examination of claimant; Dr. Pfaff opining that claimant could perform such work as assembly work, bench work, office work, or sales, provided claimant received additional training.

In 1983, claimant filed claim for permanent and total disability benefits. At hearing, the above-mentioned medical opinions were introduced. Additionally, rehabilitation expert Karl Melcher, who conducted a three day vocational evaluation of claimant, testified that claimant would not be a good candidate for rehabilitation and that claimant could not perform light work uninterruptedly. Claimant testified that he experiences periodic pain, especially after prolonged periods of sitting or standing, and that he has been unable to find work after inquiring about jobs at numerous places.

In the order on review, the deputy found that claimant is permanently and totally disabled within the meaning of the statute. Specifically, the deputy found that claimant is substantially permanently disabled, both psyehiatrically and anatomically, and that claimant is unable to do even light work uninterruptedly. The employer/carrier contend that this order is error. We disagree.

In essence, the employer/carrier contend that since Dr. Massam assigned claimant a 30% anatomical impairment, as opposed apparently to a 100% impairment, the deputy was precluded from awarding claimant permanent and total disability benefits. The employer/carrier cite this court’s recent decision in Frank’s Fine Meats v. Sherman, 443 So.2d 1055 (Fla. 1st DCA 1984), in support of their position. However, section 440.15(l)(b) (1979) does not require, nor does Frank’s Fine Meats mandate, that a claimant demonstrate that he or she is 100% physically disabled or physically broken and wrecked for all purposes except merely to live in order to claim permanent total disability benefits. See generally Port Everglades Terminal Co. v. Canty, 120 So.2d 596, 600 (Fla.1960). Rather, the claimant must be physically incapable of engaging in gainful employment and the burden is on the claimant to “establish that he is not able uninterruptedly to do even light work due to physical limitation.” Applying this standard to the case at hand, we find and hold that the testimony of Dr. Massam, as corroborated by the testimonies of Karl Melcher and claimant, provide competent, substantial evidence that claimant is not able uninterruptedly to do even light work due to physical limitation. Accordingly, claimant is entitled to permanent and total disability benefits. Compare H.S. Camp & Sons v. Flynn, 450 So.2d 577 (Fla. 1st DCA 1984).

The order on appeal is AFFIRMED.

MILLS and WIGGINTON, JJ., concur.


author: MILLS, Judge.

text:
    Paul B. ROSEMOND, Appellant, v. DeSOTO LAND AND CATTLE COMPANY and Integon Indemnity Corporation, Appellees.
    No. AU-53.
    District Court of Appeal of Florida, First District.
    June 8, 1984.
    Alex Lancaster, Sarasota, for appellant.
    Peter C. Burkert of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   MILLS, Judge.

The deputy commissioner correctly denied Rosemond’s claim for workers’ compensation benefits. There was competent substantial evidence to support the finding that there was not an employer/employee relationship between Rosemond and DeSo-to Land & Cattle Company.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


author: MILLS, Judge. NIMMONS, Judge,

text:
    Charles Anthony BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AU-207.
    District Court of Appeal of Florida, First District.
    June 8, 1984.

      Patrick H. Perry, Gainesville, for appellant.
    Jim Smith, Atty. Gen., Wallace E. Allbrit-ton, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Brown appeals his convictions for grand theft and possession of more than twenty grams of cannabis. Because the trial court erred in admitting into evidence results of a polygraph examination and testimony concerning those results, we reverse.

The State alleged that Brown, while training to be a jailer at the Dixie County Jail, took a barrel of marijuana from the evidence room of the jail without permission and for his own purposes. As a result, Brown was indicted for burglary, grand theft and possession of more than twenty grams of cannabis. He pleaded not guilty to all charges, and the case went to trial before a jury. The jury found Brown not guilty of burglary, but guilty of theft and possession as charged. The trial judge put Brown on probation for five years with the special conditions that he pay a fine and serve 364 days in jail.

During the investigation, but before Brown was arrested and charged, investigators sought to have Brown take a polygraph examination. He agreed and signed two documents provided by investigators before submitting to the examination. One of these documents was a stipulation between Brown and the state attorney providing that the results of the examination and the examiner’s opinion concerning those results were admissible “in the above-styled case.” The stipulation document, however, was styled ’’STATE OF FLORIDA -vs- INVESTIGATION.” The other document was a waiver form whereby Brown agreed to take the examination and agreed that anything he said or did during the examination or interview could be used as evidence against him in a court of law.

Before trial, Brown moved to suppress all evidence concerning the polygraph examination on the grounds that he had entered into the stipulation without informed consent and that the stipulation was invalid because it stipulated to admissibility in a nonexistent case. The motion was denied.

When the State had the examiner testify at trial concerning the examination results and when the State sought to introduce the actual polygraph charts into evidence, Brown objected for the same reasons set out in his suppression motion. The objections were overruled. The charts were admitted into evidence and the examiner testified that in his opinion, based on his analysis of the charts, Brown was lying when he denied taking the marijuana from the evidence room at the jail.

In the absence of a proper stipulation and upon objection, polygraph test results and testimony concerning those results are inadmissible. Codie v. State, 313 So.2d 754 (Fla.1975); Cumbie v. State, 327 So.2d 67 (Fla. 1st DCA 1976), reversed on other grounds, 345 So.2d 1061 (Fla.1977). In the case before us, there was a stipulation, but it was not a stipulation that polygraph evidence would be admissible in this case and in a court of law. At best, the stipulation document was proof of a somewhat nonsensical agreement that polygraph evidence was admissible in the State’s investigation into the theft of the marijuana. A stipulation concerning the admissibility of polygraph evidence is limited to its terms. Young v. State, 387 So.2d 512 (Fla. 1st DCA 1980). Consequently, the stipulation document in the case before us did not make the polygraph evidence admissible.

Unlike the stipulation document, the waiver form clearly provided that anything Brown did or said during the polygraph examination or interview could be used as evidence against him in a court of law. But the waiver form made no provision for admitting into evidence the polygraph test results or testimony concerning those results. The waiver form was therefore insufficient to show the parties stipulated that polygraph evidence would be admissible at trial.

Because neither the stipulation document nor the waiver form showed an agreement between the parties that the results of Brown’s polygraph test and testimony concerning those results would be admissible at trial, the trial court erred in admitting such results into evidence and allowing such testimony.

The issues Brown raises unrelated to the polygraph evidence are without merit. We cannot say, however, that the erroneous admission of polygraph evidence was harmless error.

The convictions are reversed and the case remanded for a new trial in accordance with this opinion.

SMITH, J., concurs.

NIMMONS, J., specially concurs.

NIMMONS, Judge,

specially concurring.

I concur in all respects with Judge Mills’ opinion. Even if the stipulation had been clear that the then unrepresented suspect was agreeing to the results of the polygraph examination being admissible in a possible future prosecution, it is certainly questionable that such a pre-prosecution agreement to the admissibility of otherwise legally incompetent evidence can be enforced in the face of objection duly raised. Such a result would tend to encourage a practice of law enforcement officials’ attempting to exact pre-prosecution agreements from unrepresented persons regarding the admissibility of all manner of evidence or testimony which would otherwise be incompetent and inadmissible.

      .These documents are reprinted below:
      STATE OF FLORIDA
      -vs-
      INVESTIGATION
      Defendant.
      STIPULATION
      It is hereby agreed and stipulated that BRAN-SON R. FISHER, JR., State Attorney’s Office, Live Oak, Florida is an expert polygraph (lie detector) examiner. It is also stipulated that any questions propounded by said examiner, relating to the above styled case and the answers thereto given by the Defendant, and the recordings of the said Defendant's reactions thereto and everything appertaining to said examination and entire results of said examination including the opinion of said examiner as to the truth or falsity of said answers, be received in evidence in the above-styled case either on behalf of the State or on behalf of the Defendant and that said Defendant hereby waives his constitutional privileges against self-incrimination to the extent that the same may be involved in the presentation in evidence of the foregoing matters. It is expressly stipulated that the foregoing shall not constitute a waiver of the Defendant’s privileges against self-incrimination except as set forth above.
      CONSENT FOR POLYGRAPH EXAMINATION AND WAIVER OF RIGHTS
      I, Charles A. Brown, do hereby freely and voluntarily submit to a polygraph examination to be administered by Branson R. Fisher, Jr., who has identified himself to me as a Polygraph Examiner, Investigator for the State Attorney’s Office, Third Judicial Circuit, Live Oak, Florida. I have been fully and fairly advised that:
      1. This examination or interview concerns marijuana stolen from the Dixie County Jail.
      2. I have the right to remain silent and cannot be forced or coerced in any way or manner to submit to this test or to be required to answer any questions.
      3. That anything I do or say can be used in evidence against me in a court of law.
      4. That I have a right to an attorney, either retained by me or appointed by the court if I cannot afford to hire an attorney, and that I have a right to talk to such attorney before saying anything or taking this examination, and, further, that I have a right to have that attorney present with me during this examination or any interview.

        5. If I decide to answer questions now and waive my rights to first talk with an attorney or have an attorney present with me during questioning, I will have the right to stop answering at any time until I talk to a lawyer. Being fully aware of and understanding what my rights are, I knowingly and voluntarily waive my foregoing rights and hereby consent and agree to this examination and interview. Absolutely no threats, promises or inducements of any kind have been made or offered to me.


text:
    COMMERCIAL CARRIER CORPORATION, Appellant, v. Elliott L. PORTER, (Deceased) Appellee.
    No. AY-173.
    District Court of Appeal of Florida, First District.
    June 8, 1984.
    Bernard J. Zimmerman of Sheffield, Kiser & Sutcliffe, Orlando, for appellant.
    Peter S. Schwedock of Pelzner, Schwe-dock, Finkelstein & Klausner, P.A., Miami, for appellee.
   PER CURIAM.

Commercial Carrier Corporation appeals the Deputy Commissioner’s order dated September 20, 1983, awarding claimant’s attorney $27,500.00 in attorneys fees, complaining that the order is inadequate to support the award. We agree.

In an earlier appeal, Commercial Carriers, Inc., v. Porter, 424 So.2d 155 (Fla. 1st DCA 1982) this Court reviewed an order in which the Deputy Commissioner had, among other things, awarded claimant’s attorney a fee of $36,500.00 based on a finding that claimant’s attorney had obtained $90,000 in benefits for claimant. In that appeal, we reversed and remanded the award of $36,500 in attorney’s fees expressly finding that there was not competent substantial evidence to support a finding that claimant’s counsel had obtained $90,000.00 in benefits and implicitly directing the Deputy Commissioner to determine what amount of benefits obtained by counsel’s efforts could be supported by such evidence. The Deputy Commissioner, in entering the order now being reviewed, apparently failed to understand the directive set forth in our opinion.

In his new order, the Deputy Commissioner did reduce the amount of the fee from $36,500 to $27,500. It is still, however, totally unclear as to what amount of benefits the Deputy Commissioner based his $27,500 award in that the order contains no new modified finding of the benefits received as a result of the representation by claimant by claimant’s attorney. In the order, the Deputy Commissioner simply stated that he had “considered the benefits in light of the District Court of Appeal’s decision, as well as all the findings made in the Order of September 2, 1981,” and awarded $27,500 in attorney’s fees.

In addition, there is confusion in the two numbered findings of the order on appeal. In paragraph one, the order states that $36,500 of the original award was based on 175 hours spent prosecuting the claim, exclusive of certain benefits reversed by our earlier opinion involving American Hospital or Dr. Paul Rivet. Nonetheless, in paragraph two, the DC awarded $27,500 in attorney’s fees based on both the “benefits” obtained, without quantifying them, and the findings of the September 1981 order (which had been set out as the employer’s tenacity in resisting the claim; the complexity of the issues; the time and labor involved; the fact a great contingency was involved; and claimant’s attorney’s expertise.)

The order being reviewed does not contain proper findings so as to permit an orderly review, nor does it advise the parties or the appellate court of the legal logic indulged in by the Deputy Commissioner. The Deputy Commissioner incorporated the factors from Lee Engineering and Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968) which he had considered in the 1981 order, and stated that he had found sufficient evidence to indicate that claimant’s attorney had expended 175 hours on the case. This Court, however, having reversed solely on the grounds that the Deputy Commissioner lacked competent substantial evidence on which to find the attorney had secured $90,000 in benefits, was asking the Deputy Commissioner on remand to delineate and quantify the amount of benefits secured for claimant which could be supported by competent substantial evidence. The court was not asking the Deputy Commissioner to shift his weight to a different leg and rely on the remaining, unaddressed Lee Engineering factors expressed in the September 1981 order. While the order on remand indicates the factors upon which the Deputy Commissioner relied in awarding $27,500 by incorporating the reversed order, Lee Engineering, supra, a fee cannot be approved where it does not appear that full consideration was given to all of the factors. M. Serra Corp. v. Garcia, 426 So.2d 1118, 1120 (Fla. 1st DCA 1983); City of Leesburg v. Padgett, 397 So.2d 732, 733 (Fla. 1st DCA 1981). The sixth listed factor to be considered under Lee Engineer ing is “the amount involved and the benefits resulting to the client.”

The Order of September 20, 1983, is REVERSED and REMANDED for further proceedings consistent with this opinion which shall include the listing of the specific benefits and their specific values secured for claimant by his attorney which are supported by competent substantial evidence.

WENTWORTH, JOANOS and BAR-FIELD, JJ., concur.

      . The Order on appeal reads as follows:
      THIS CAUSE came on before the undersigned Deputy Commissioner, pursuant to the remand by the First District Court of Appeal for re-determination of attorney fees, in light of the opinion filed on December 29, 1982, and, pursuant to that mandate, the undersigned makes the following findings:
      1. That the undersigned finds that Claimant’s counsel expended 175 hours in prosecuting the claim insofar as the original fee of $36,500.00 was concerned. No time was considered for the prosecution of the claim on behalf of American Hospital, or Dr. Paul Rivet.
      2. That the undersigned has considered the benefits in light of the District Court of Appeal’s decision, as well as all the findings made in the Order of September 21, 1981, and based upon this, the undersigned finds that claimant’s counsel is entitled to the sum of $27,500.00 as and for reasonable attorney's fees.
      WHEREFORE, the undersigned Deputy Commissioner Orders the Employer/Carrier to:
      1. Pay the law firm of Pelzner, Schwedock, Finkelstein and Klausner, PA, counsel for claimant, the sum of $27,500.00 as and for reasonable attorney’s fees.
      DONE AND ORDERED at Miami, Dade County, FL this 20 day of September, 1983.
      /s/ DAVID L. TRASK DEPUTY COMMISSIONER


author: WIGGINTON, Judge. MILLS, Judge,

text:
    ALCHAR WHOLESALE HARDWARE COMPANY and Zurich Insurance Company, Appellants, v. Michael MASON and Division of Workers’ Compensation, Appellees.
    No. AV-177.
    District Court of Appeal of Florida, First District.
    June 8, 1984.
    Rehearing Denied June 28, 1984.
    Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellants.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellees.
   WIGGINTON, Judge.

Appellants, employer/carrier, appeal that portion of the deputy commissioner’s order awarding wage loss benefits to appellee from March 16, 1983 and continuing. We affirm.

Employer/carrier contend that the deputy commissioner erred in awarding wage loss benefits on the basis of the evidence in the record because appellee’s job search was inadequate and appellee failed to cooperate with the carrier by completing and submitting job search forms. Competent substantial evidence supports the deputy commissioner’s finding of an adequate job search. Appellee testified, without contradiction, that during the period in question, he sought work three to four days a week and he gave an example of his work search and the procedures he followed. Employer/carrier did not contest that testimony upon cross-examination or rebuttal. The record is void of employer/carrier examining appellee as to his job'search effort. Unless the employer/carrier attacks the credibility of such a prima facie showing at the hearing, it shall stand, if accepted by the deputy commissioner. Under these circumstances, where otherwise repetitive testimony is given by limited examples and without challenge, then it shall be deemed sufficient to establish a basis for a good faith job search, if again, that testimony is deemed competent and accepted as sufficient by the deputy commissioner.

The main thrust of employer/earrier’s opposition to entitlement to wage loss benefits is appellee’s failure to file job search forms. However, this Court has visited that question previously in Clemmons v. Carroll, 438 So.2d 995 (Fla. 1st DCA 1983), declaring:

As a practical matter it would be wise for the careful claimant’s attorney to anticipate the employer/carrier’s need for work search information and supply it along with the request form. This would prevent unnecessary delays in cases where benefits are clearly due and in cases where the employer/carrier intends to controvert the request, the Claimant can take immediate steps to bring the matter before the deputy commissioner for determination. However, the law as interpreted by the First District Court of Appeal in Ardmore Farms probably does not require such a form to be filed. Therefore, if the work search information is not attached to the request for wage-loss benefits and the claimant has in fact conducted a good faith work search, the employer/carrier cannot escape liability for payment of such benefits based merely on the fact that such information was not included in the request. ...

AFFIRMED.

SHIVERS, J., concurs.

MILLS, J., dissents with written opinion.

MILLS, Judge,

dissenting.

I dissent. I would reverse.

Mason’s job search was inadequate. It was neither a diligent nor a good faith search. He failed to produce a list of the employers he contacted and he failed to give the reasons he was not hired.

The only evidence offered by Mason was that he had looked for work at a construction company and had reviewed some employment ads in a newspaper. He presented no evidence to show that he attempted to comply with the search requirements required by Walton v. Alco Distributors, Inc., 434 So.2d 60 (Fla. 1st DCA 1983).

In my judgment, if the self-executing intent of the new workers’ compensation act is to be fulfilled, a claimant seeking wage loss benefits must expeditiously file job search forms when requested by the employer / carrier.


text:
    Phyllis Ann PARKER, Appellant, v. CLOSET MAID CORPORATION and American States Insurance Company, Appellees.
    No. AV-182.
    District Court of Appeal of Florida, First District.
    June 8, 1984.
    Daniel L. Hightower of Green, Simmons, Green, Hightower & Gray, P.A., Ocala, for appellant.
    Bernard J. Zimmerman and Paul Morgan of Zimmerman, Shuffield, Kiser & Sut-cliffe, Ocala, for appellees.
   MILLS, Judge.

Although the deputy commissioner’s order could have been more complete, we find competent substantial evidence in the record to show that Parker was not permanently totally disabled.

AFFIRMED.

SHIVERS and WIGGINTON, JJ„ concur.


text:
    Anthony LOPEZ, Appellant, v. ANDY SAYYAH & ASSOCIATES and Michigan Mutual Insurance Company, Appellees.
    No. AW-209.
    District Court of Appeal of Florida, First District.
    June 8, 1984.
    Thomas R. Mooney and Sherry L. Davis of Meyers & Mooney, P.A., Orlando, for appellant.
    Bernard J. Zimmerman and Marshall S. Adler of. Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellees.
   MILLS, Judge.

The deputy commissioner correctly denied Lopez’ claim for temporary total disability benefits for the period from 1 May 1982 to 1 January 1983. The evidence showed that Lopez reached maximum medical improvement on 30 April 1982, that he was capable of engaging in work, and that he failed to perform an adequate work search.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


author: LEHAN, Judge.

text:
    Millicent A. BIGGS, Appellant, v. Selbourne A. BIGGS, Appellee.
    No. 83-2262.
    District Court of Appeal of Florida, Second District.
    June 8, 1984.
    James E. Aker of Icard, Merrill, Cullis, Timm & Furen, P.A., Sarasota, for appellant.

      No appearance for appellee.
   LEHAN, Judge.

In this action for reformation of a deed on grounds of mistake and unjust enrichment, plaintiff/mother contended that the deed to her home erroneously recited title to be in her and her son’s names as joint tenants with rights of survivorship. She contended that she entrusted the closing of the purchase to her son and did not discover that her son was a joint owner until after she received the deed in the mail. At the close of plaintiffs evidence the trial court granted defendant’s motion for dismissal with prejudice and entered judgment for defendant. Finding that the trial court erred in excluding parol evidence of the parties’ intentions regarding the ownership of the home, we reverse and remand for new trial.

In Roberts v. Pfeiffer, 135 So.2d 246 (Fla. 2d DCA 1961), cert. denied, 140 So.2d 116 (Fla.1962), this court held that parol evidence may be used to reform a deed.

Though it is true at law that parol evidence is inadmissible to vary the terms of a written instrument which is itself deemed to be the best evidence of what the parties intended, a court of equity is afforded much wider latitude. Equity may reform an instrument to express the true intent of the parties and in so doing will give consideration to equities arising from facts completely alien to the sense and construction of the instrument itself.

Id. at 248. See Spear v. MacDonald, 67 So.2d 630 (Fla.1953) (equity will allow parol evidence to reform a deed to reflect the intent of the parties).

The excluded evidence in this case included testimony of the mother, her daughter and the seller; the purchase contract; and letters from the mother’s attorney, the son, and the seller. On retrial, if a proper predicate is laid, that evidence should be admitted. The parol evidence rule does not bar its admission.

REVERSED AND REMANDED FOR NEW TRIAL.

RYDER, A.C.J., and SCHOONOVER, J., concur.


author: GRIMES, Judge.

text:
    Lucille RUBIO, Appellant, v. Mauricio RUBIO, Appellee.
    No. 83-2311.
    District Court of Appeal of Florida, Second District.
    June 8, 1984.

      C. Timothy Corcoran, III, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellant.
    Michael L. Kinney, Tampa, for appellee.
   GRIMES, Judge.

The wife appeals from an order denying her petition seeking to require her former husband to pay certain medical bills.

The parties were divorced in 1967. A property settlement agreement incorporated into the final judgment.provided in part:

7. The Husband agrees to pay for all reasonable and necessary medical and dental and ocular and pharmaceutical expense of the Wife indefinitely, not recklessly or needlessly incurred, including her present care by her physician Dr. Saul Holtzman of St. Petersburg, Florida, or any other physician selected by the Wife. This obligation shall terminate upon remarriage of Wife.

In a prior appearance before this court in which the husband unsuccessfully sought to limit his liability under that paragraph, we said in Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977):

The obligation of appellee as to these expenses is clearly and unambiguously spelled out. To permit a change of this provision would be contrary to the intent of the parties as reflected in the agreement into which they voluntarily entered.

Id. at 1095.

Thereafter, in 1982 the wife was involved in an automobile accident caused solely by the negligence of the other driver. As a result she was seriously injured and was hospitalized on four separate occasions to-talling approximately six and one-half weeks. Her medical expenses totalled $51,-590.69. A Blue Cross/Blue Shield policy acquired by the husband to protect himself against the obligations of paragraph 7 paid policy limits of $23,287.31. The wife’s personal PIP insurance paid policy limits of $10,000. In this proceeding the wife sought to require the husband to pay her unreimbursed medical expenses of $18,-303.38.

The negligent tort-feasor involved in the accident was a minor and had no personal financial ability to respond to the wife’s claim. However, he carried $25,000 in liability insurance which was paid in full to the wife. At the hearing on the wife’s claim against the husband, there was undisputed testimony that the value of the wife’s tort claim was actually $250,000 to $300,000. The court ultimately determined that the husband was not obligated to pay the wife the remaining $18,303.38 in un-reimbursed medical expenses. We reverse.

The agreement unequivocally requires that the husband pay for “all reasonable and necessary medical ... expense of the Wife indefinitely, not recklessly or needlessly incurred,_” There is no suggestion that the medical expenses in issue were recklessly or needlessly incurred, and there is no other limitation on the circumstances under which the wife may incur such expenses. The husband’s argument that the contract is silent with regard to medical expense incurred by reason of an accident must fail in light of the contract provision that requires the payment for all reasonable and necessary medical expenses.

Though not argued by the husband on appeal, the trial court reasoned that if the husband had paid the medical expenses, he would have a right of subro-gation against the tort-feasor and would therefore be entitled to be reimbursed out of the $25,000 recovered by the wife. However, one is not entitled to be subro-gated to the right of a creditor until the claim of the creditor against the debtor has been paid in full. Whyel v. Smith, 101 Fla. 971, 134 So. 552 (1931); Furlong v. Leybourne, 138 So.2d 352 (Fla. 3d DCA 1962). Since the value of the wife’s claim was established to be worth at least $250,000, it could hardly be said that she was paid in full by the receipt of $25,000. If the posture of the husband could be equated to that of an insurer, it would appear that the same result would ensue. According to 16 G. Couch, Cyclopedia of Insurance Law 2d § 61:64 (rev. ed. 1983):

[T]he insurer may in a given case have made the full payment required of it by its contract of insurance but this amount is not adequate to indemnify the insured in full. In such an instance, it has been held, in absence of waiver to the contrary, that no right of subrogation against the insured exists upon the part of the insurer where the insured’s actual loss exceeds the amount recovered from both the insurer and the wrongdoer, after deducting costs and expenses. In other words, the insurer has no right as against the insured where the compensation received by the insured is less than his loss.

Cf. Florida Farm Bureau Insurance Co. v. Martin, 377 So.2d 827 (Fla. 1st DCA 1979). (The limited financial responsibility of the tort-feasor caused the insureds to settle their claim for less than its worth. The court held that the insurer had no right of subrogation because the insureds’ total recovery from both the insurer and the tort-feasor did not exceed the amount of the insureds’ loss.) Applying these principles to the instant case, the wife will not receive a double recovery because the total of the husband’s obligation and the proceeds of the settlement is still less than the value of her claim.

We reverse the order denying the wife’s claim and direct that the husband be ordered to pay the medical expenses of $18,-303.38.

OTT, C.J., and RYDER, J., concur.


author: RYDER, Judge.

text:
    Thelma REDDING, f/k/a Thelma L. Powell, individually, Haletta Y. Powell, a minor, Yolanda D. Powell, a minor, and Sabrina N. Powell, a minor and Thelma Redding, f/k/a Thelma L. Powell, as the natural guardian of Haletta Y. Powell, Yolanda D. Powell and Sabrina N. Powell, Appellants, v. Zelma D. POWELL and Elma Anderson, Appellees.
    No. 83-1783.
    District Court of Appeal of Florida, Second District.
    June 15, 1984.

      Morris W. Milton of Williams & Milton, P.A., St. Petersburg, for appellants.
    William D. Slicker of Zewadski & White-lock, P.A., St. Petersburg, for appellees.
   RYDER, Judge.

Appellants, one of the original mortgagors and the other original mortgagor’s successors, seek review of the final summary judgment granting foreclosure in favor of appellees, the current holders of the note and mortgage. We reverse for several reasons.

Appellees brought suit to foreclose on a parcel of property equitably co-owned by appellants because of appellants’ alleged failure to make the final payment due on June 29, 1978 pursuant to the mortgage and note, and to maintain insurance on the property as required by the mortgage. Ap-pellees also alleged they had declared the entire amount owing under the note and mortgage to be due, and, therefore, appellants owed them $869.97 in principal, plus interest, expenses, and attorney’s fees. The note and mortgage were attached to the complaint. The $3,000.00 note stated the payments were “[pjayable at the rate of $80.00 per month including interest and principal commencing June 29, 1973 with remaining balance due June 29, 1978.” With respect to a default, the mortgage provided:

Should any of the above covenants be broken, then said note and all moneys secured hereby shall without demand, if the Mortgagee so elects, at once become due and payable and the mortgage be foreclosed, and all costs and expenses of collection of said moneys by foreclosure or otherwise, including solicitor’s fees should be paid by the Mortgagor, and the same are hereby secured.

In response, appellants filed an answer, three affirmative defenses, and a counterclaim. They denied any default had occurred and also denied that appellees were owed $689.97 in principal plus interest, expenses, and attorney’s fees. Appellants’ affirmative defenses were stated as follows:

(1) The Defendants have been ready, willing and able to pay off the mortgage since September of 1982 when it was first learned that a balance was still owed, but the Plaintiffs would not accept said money, although it was offered prior to any attempt by the Plaintiffs to collect on the mortgage.
(2) Since on or about February 21, 1983, the Plaintiff’s Attorney has had in his possession the sum of $873.13 to cover the principal and balance and interest due on the mortgage and reimbursement for a clearing fee.
(3) The Defendant only owed the Plaintiff $589.97 plus interest up to December 1, 1982. And any other sum of money paid by the Plaintiffs were a gift to Hal Powell their brother and son respectively for their personal convenience.

Finally, in the counterclaim appellants sued for an accounting and to compel appellees to give them a satisfaction of mortgage.

Subsequently, appellees filed a motion for summary judgment and attached the affidavit of appellee Zelma Powell, which merely restated verbatim what had been alleged in the complaint. Appellants then filed the affidavit of appellant Thelma Redding, f/k/a Powell, three days prior to the hearing on the motion for summary judgment. After a hearing on the motion, the trial court granted the aforementioned summary judgment in favor of appellees, and appellants timely appealed after the court denied their motion for rehearing.

Two of appellants’ contentions on appeal in support of reversal deserve our attention. The first of these is that appellees failed to conclusively refute appellants’ affirmative defenses, thereby precluding summary judgment as to appellees’ claim. The other argument is that the final summary judgment entered did not affect appellants’ counterclaim.

With respect to appellants’ first argument, it is clear that “for appellees to obtain a summary judgment it was incumbent upon them to establish the non-existence of any genuine issue of any material fact by either disproving or establishing the legal insufficiency of the appellant’s affirmative defenses.” Stewart v. Gore, 314 So.2d 10, 12 (Fla. 2d DCA 1975). First Independent Bank v. Stottlemyer & Shoemaker Lumber Co., 384 So.2d 952 (Fla. 2d DCA 1980); Howdeshell v. First National Bank of Clearwater, 369 So.2d 432 (Fla. 2d DCA 1979). Appellants’ first affirmative defense seems to be legally insufficient because, under the mortgage agreement, the holders had no duty after the remaining payment was not paid on June 29, 1978 to demand payment before foreclosing. It was undisputed that no payment was made by appellants on that date. However, appellants’ second and third affirmative defenses are legally sufficient and were not negated by the affidavit filed by appellees.

We believe appellants’ second defense sufficiently sets forth an affirmative defense of accord and satisfaction, Sapp v. Atlantic National Bank, 105 Fla. 507, 141 So. 605 (1932), and it involves a question of fact with regard to the intention of the parties that was not conclusively refuted by Zelma Powell’s affidavit. Howdeshell. The jury must resolve the conflict as to the intention of the parties and make the final determination as to the occurrence of an accord and satisfaction. Best Concrete Corp. v. Oswalt Engineering Service Corp., 188 So.2d 587 (Fla. 2d DCA 1967). Moreover, even should the trier of fact find that there has been no accord and satisfaction of the debt, it still must determine how much money appellees are entitled to under the mortgage and note. This is because Zelma Powell’s affidavit did not conclusively negate the third defense which sufficiently stated an affirmative defense of gift, Roe v. Roe, 91 Fla. 840, 124 So. 734 (1929), that is, that appellees’ predecessor in interest made a gift to appellants’ predecessor in interest of any sums of money owed over $589.97 plus interest. Howdeshell.

Lastly, we hold the summary judgment did not dispose of appellants’ counterclaim because the record indicates that neither appellees’ motion for summary judgment nor the court’s order granting summary judgment specifically mentioned or referred to the counterclaim. Faussner v. Wever, 432 So.2d 100 (Fla. 2d DCA 1983). We point out, however, that appellees are not precluded from filing a motion for summary judgment on remand as to the counterclaim in accordance with Faussner and Florida Rule of Civil Procedure 1.510.

REVERSED and REMANDED for proceedings consistent herewith.

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

      . "Plaintiffs, Zelma D. Powell and Elma Anderson, move this Court to enter an order of summary judgment against the defendants and as grounds therefore state: The pleadings, affidavits, and other documents in the record show that there is no genuine issue of material fact and the plaintiffs are entitled to summary judgment as a matter of law.”

      . Appellees’ contention that Thelma Redding’s affidavit was not timely filed is without merit. The document was stamped "filed” in the Clerk of the Circuit Court's office on July 22, three days prior to the hearing on the motion for summary judgment. See Fla.R.Civ.P. 1.510(c). However, even if the trial court did not consider this affidavit before granting the motion (the validity of this assertion is not clear from the record), we need not base our reversal on this apparent error.


text:
    Johanna ARGENTO, Appellant, v. Robert W. REYNOLDS and Betty Nicholas, a/k/a Bettie Nicholas, Appellees.
    No. 83-2257.
    District Court of Appeal of Florida, Second District.
    June 15, 1984.
    Richard M. Robbins of Robbins, Smith & Donnelly, Clearwater, for appellant.
    Daniel C. Kasaris of Yanchuck, Thompson, Young & Berman, P.A., St. Peters-burg, for appellee Reynolds.
    Warren J. Knaust of McCaughey, Knaust & Evans, P.A., St. Petersburg, for appellee Nicholas.
   RYDER, Judge.

Johanna Argento filed a complaint seeking damages based on two promissory notes. The face value of each note is $15,-000.00.

Appellees Robert Reynolds and Betty Nicholas raised several affirmative defenses. They alleged that the consideration for each note was $10,000.00; repayment of each note in the amount of $15,000.00 was to be on or before 180 days from the date of execution of the notes; each note provided for interest of $5,000.00 over a six-month period, thereby yielding interest of 100% per annum. The appellees further alleged that Argento willfully and knowingly charged or agreed to receive interest in excess of 45% per annum thereby rendering the alleged indebtedness unenforceable under the Criminal Usury Statute, section 687.071, Florida Statutes (1983).

Argento admitted that the interest rates implicit in the notes were in excess of the amounts permitted in section 687.071. She raised, however, several matters in avoidance of the affirmative defenses including estoppel, waiver and illegality. Argento also alleged that after discovering the infraction of section 687.071, she disavowed and repudiated any sums which would be attributable to a usurious interest rate, and sought payment of the principal amounts plus interest at the legal rate.

Argento testified at the nonjury trial. The trial court interrupted Argento during her explanation of the circumstances surrounding the transaction with the appel-lees. The court stated that the testimony established that the notes provided for an interest rate in excess of 45% in violation of section 687.071. No further testimony was permitted by the court. Argento’s complaint was dismissed; the trial court ruled that Argento could not recover any principal or interest under the notes. Following the denial of her motion for rehearing, Argento filed the present appeal.

Section 687.071(3), Florida Statutes (1983), provides:

Unless otherwise specifically allowed by law, any person making an extension of credit to any person, who shall willfully and knowingly charge, take or receive interest thereon at a rate exceeding 45 percent per annum or the equivalent rate for a longer or shorter period of time, whether directly or indirectly or conspire so to do, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The trial court concluded, without regard to the circumstances surrounding the loan transaction and without regard to the intent of Argento to violate Florida usury laws, that there was a violation of section 687.071. Following the precedent of Dixon v. Sharp, 276 So.2d 817 (Fla.1973), we must reverse.

The trial court prevented the parties from fully presenting evidence relating to the circumstances of the loan transactions. No evidence was presented of “a corrupt intent to take more than the legal rate for the use of the money loaned” (emphasis in original). Dixon at 819. Appellees have not established, and have not had the opportunity to establish, the intent element of usury by “clear and satisfactory evidence.” Id. at 820. “For the defense of usury to be established, the circumstances surrounding the entire agreement must be proved, and they must be carefully scrutinized by the court.” Id. at 821.

As the trial court did not allow the parties to present evidence as to the relevant circumstances involved in the transactions, which evidence would reflect on Argento’s intent, we reverse the decision below. We remand this case for further proceedings consistent with the principles of Dixon and the holding herein.

REVERSED and REMANDED.

OTT, C.J., and GRIMES, J., concur.


author: WENTWORTH, Judge. ERVIN, Chief Judge,

text:
    Darryl MANNING and James W. Phillips, Appellants, v. STATE of Florida, Appellee.
    Nos. AW-101, AW-102.
    District Court of Appeal of Florida, First District.
    June 21, 1984.
    Rehearing Denied July 17, 1984.

      Affirmed.
    P. Douglas Brinkmeyer, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellants seek review of judgments of conviction and sentences imposed for multiple burglaries, asserting that the trial court erred in departing from the Fla.R.Crim.P. 3.701 sentencing guidelines. We find that the trial court did not err, and we affirm the orders appealed based on circumstances relating to the offenses for which appellants were convicted, without regard to contemporareous charges which were nolle prossed.

Appellants Manning and Phillips were arrested and charged with numerous burglaries which occurred over a two-day period in June 1983. Both appellants admitted their guilt and entered pleas as to some of the burglary charges, in exchange for the state’s agreement to dismiss other charges. Manning pled and was adjudicated guilty of four burglaries; Phillips pled and was adjudicated guilty of three burglaries. At the sentencing hearing in November 1983 both appellants elected to be sentenced under the new sentencing guidelines which had recently been adopted by the Florida Supreme Court.

The guidelines scoresheets prepared for both appellants authorized any non-state prison sanction. At the sentencing hearing the prosecutor argued that appellants “constituted a two-man gang war.” In imposing sentence, the trial judge departed from the guidelines and imposed consecutive three-year terms of imprisonment for each offense, indicating that:

... the sentencing guidelines require a disposition which would be altogether inappropriate to this case. The Court is going to go outside the guidelines for sentencing in this case. My reasons for doing so is each of you went on a crime binge and created a two-man crime wave in Baker County, which cannot go unnoticed or will not be condoned by the people of this community. I’m not going to avoid my responsibilities as the conscience of this community and put you back on the streets ....

Fla.R.Crim.P. 3.701(b) states that the sentencing guidelines “are intended to eliminate unwarranted variation in the sentencing process by reducing the subjectivity in interpreting specific offense- and offender-related criteria and in defining their relative importance in the sentencing decision.” And Rule 3.701(b)(3) provides that the guidelines embody the principle that “the penalty imposed should be commensurate with the severity of the convicted offense and the circumstances surrounding the offense.” However, Rule 3.701(b)(6) states that:

... the sentencing guidelines are designed to aid the judge in the sentencing decision and are not intended to usurp judicial discretion ....

This provision also states that departures from presumptive guideline sentences may be made for articulated clear and convincing reasons.

Rule 3.701(d)(ll) re-emphasizes that departure from the guideline range of presumptive sentences should be made only for clear and convincing reasons. This rule, as effective at the time appellants were sentenced, also provided that:

Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.

Appellants contend that this provision precludes the trial court’s action in the present case, arguing that “the nature of the offenses ... is expressly prohibited from being used as a justification for sentencing outside the guidelines.” However, both the grammatical language and the logical import of the quoted rule would appear to preclude deviation only when predicated upon factors, related to either prior arrests or the instant offense, for which conviction has not been obtained. The rule has since been amended so as to replace what the Court refers to as the “cumbersome language,” and to clarify its intended effect. As amended, the rule now provides that:

Reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction. Reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.

In the present case the trial court’s expressed reason for deviating from the guidelines is supported by the temporal and geographical circumstances of the offenses for which appellants were convicted, each appellant being convicted of multiple contemporaneous offenses amply substantiating the court’s reference to a “crime binge” and “two-man crime wave.” Rule 3.701(d)(ll) therefore does not preclude such deviation, and the trial court did not err in so deviating for the reasons stated. The order appealed is affirmed.

BOOTH, J., concurs.

ERVIN, C.J., specially concurs with opinion.

ERVIN, Chief Judge,

specially concurring.

Were it not for the fact that the offenses were committed by appellants before October 1, 1983,1 would be of the view that the trial court’s deviation from the guidelines was reversible error. I strongly disagree with the majority’s apparent conclusion that Florida Rule of Criminal Procedure 3.701 b.6. provides a general escape-hatch for trial judges to ignore or depart from sentencing guidelines. The supreme court’s adoption of the guidelines in 1983, see In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983), represented the culmination of a six-year study of a sentencing process which was thoroughly lacking in uniformity and fraught with subjectivity. A long-existing concern over the disparity in sentences imposed for virtually the same conduct led to the establishment in January, 1978 of the Sentencing Study Committee by the Florida Supreme Court. See Chapter 79-362, Laws of Florida. The Study Committee, among other things, conducted a detailed survey of the sentencing practices of the circuit courts of the state to evaluate the feasibility of developing various sentence reform options on a statewide basis. Id. The Committee’s report in turn engendered a pilot project “to develop and implement structured sentencing guidelines .... ” Id. The study finally led to the creation of a Sentencing Commission whose purpose was to develop a system of sentencing guidelines on a statewide basis. § 921.001(1), Fla.Stat. (Supp.1982). The preamble to the act creating the Commission states in part the legislative purpose:

WHEREAS, disparity in sentencing practices exists in Florida because of the sentencing discretion our current system gives to our trial judges, leading some judges to give longer or shorter sentences than others for the same crime committed in different localities, and
WHEREAS, the Legislature has previously acknowledged its concern over the disparity in sentencing practices between the various judicial circuits in Florida by enacting chapter 79-362, Laws of Florida, and
WHEREAS, the Legislature believes that it is in the public interest for a system of sentencing guidelines to be developed and implemented on a statewide basis within the sentencing parameters established by the Florida Statutes and in furtherance of this goal it is necessary for the Legislature and the courts to join together in a cooperative sentencing reform effort aimed at assuring certainty of punishment for the guilty and equality of justice for all, ....

Ch. 82-145, Laws of Fla.

In 1983, the legislature authorized the Florida Supreme Court, upon receipt of the Commission’s recommendations, to develop by September 1, 1983, statewide sentencing guidelines. § 921.001(4)(a), Fla.Stat. (1983). In its adoption of the guidelines set forth in Florida Rule of Criminal Procedure 3.701, the court reiterated the same general concerns expressed by the legislature when it formed legislation establishing the Sentencing Commission: “Sentencing guidelines are intended to eliminate unwarranted variation in the sentencing process by reducing the subjectivity in interpreting specific offense — and offender — related criteria and in defining their relative importance in the sentencing decision.” Rule 3.701 b. Thus, we find an identical legislative and judicial purpose behind the establishment of the sentencing guidelines: The elimination of subjective variations in the sentencing process which had heretofore existed geographically — and indeed from judge-to-judge — throughout the state.

The history of the guidelines clearly reflects the remedial intent; as such they should be accorded a liberal construction so as to advance the remedy provided. Cf. Gaskins v. Mack, 91 Fla. 284, 107 So. 918 (1926); Amos v. Conkling, 99 Fla. 206, 126 So. 283 (1930). Conversely, exceptions to the guidelines should be narrowly construed. Cf. Farrey v. Bettendorf 96 So.2d 889 (Fla.1957). In applying a narrow interpretation to subsection d.ll, authorizing departures from the guidelines for only explicit reasons, in my judgment it is clear, by reference solely to the rule itself, that the deviation was unwarranted. This subsection prohibits a trial judge from considering “factors relating to either instant offense or prior arrests for which convictions have not been obtained.”

It is questionable that any interpretation need be placed upon the above words in that they appear to state plainly that any offense for which a defendant has been previously arrested, but not convicted — for any reason — cannot be considered as a factor influencing a departure. In the present case, the defendant was not convicted of any of the other offenses for which he had been arrested due to the simple reason that they were nolle prossed as part of a plea bargain agreement. Rule 3.701 d.ll., as it existed at the time appellant was sentenced, therefore, clearly prohibits a trial judge’s consideration of other arrests that did not result in convictions. Moreover, there is nothing in the amended rule suggesting that a contrary construction should be placed upon the revised language of subsection d.ll. Indeed, the following committee note was added to explain the amendment to the subsection: “Other factors, consistent and not in conflict with the statement of purpose, may be considered and utilized by the sentencing judge.” (e.s.) As previously observed, the statement of purpose, set out at 3.701 b., for creating the guidelines, was to establish a uniform set of standards to assist a trial judge in the sentence-making process and to reduce subjectivity in such process, as well as to assure that incarceration “sanctions used in sentencing convicted felons ... be the least restrictive necessary to achieve the purposes of the sentence.” I therefore maintain that subsection d.ll., when considered in pari materia with the statement of purpose, precludes a trial judge from considering prior arrests for which convictions were not obtained.

Nevertheless, as previously stated, the offenses in question occurred before October 1, 1983. Notwithstanding the rule, the legislature permits a trial judge to impose a sentence of imprisonment if he finds that “there is a probability that during the period of suspended sentence or probation the defendant will commit another crime.” § 921.005(a)(2), Fla.Stat. (1983). Although the judge in the case at issue did not articulate his reasons either in writing or with exact precision for imposing a sentence outside the guidelines, I think it can be reasonably concluded from the record that he found that, if released on probation, appellants would in all probability commit other crimes. His expressed reasons for not following the guidelines were that he could not “avoid [his] responsibilities as the conscience of this community and put you back on the streets to continue your ma-raudings and your victimization of the people of Baker County.” (emphasis supplied).

Because the legislature has recognized an additional ground for departure from guidelines, not provided by rule, as to offenses committed before October 1, 1983, I concur in the result reached.

      . Because we find that the deviation from the sentencing guidelines in the present case is permissible based upon the trial court’s consideration of factors attending the offenses for which appellants were convicted, we do not address appellee’s further assertion that Rule 3.701(d)(ll) should not preclude consideration of charges which are dismissed pursuant to plea bargain agreements.

      . See In Re Rules of Criminal Procedure, 439 So.2d 848 (Fla.1983).

      . See Amendment to Rules of Criminal Procedure, 451 So.2d 824 (Fla.1984).

      . The revision to subsection d.ll. states:

        Reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction. Reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.

      . No attack has been made to the court's refusal to follow the guidelines by reason of its failure to express its reasons for the deviation in writing as required by Rule 3.701 d.ll.