text:
    Amos ODOM, Appellant, v. WEKIVA CONCRETE PRODUCTS and Aetna Insurance Company, Appellees.
    No. AS-342.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1983.

      Steven Burrage and Robert D. Melton, Orlando, for appellant.
    James M. Hess of Driscoll, Langston & Kane, Orlando, for appellees.
   NIMMONS, Judge.

Odom appeals from the deputy commissioner’s order denying his claim for wage-loss benefits. We reverse and remand.

At hearing, a private” investigator employed by the employer/carrier (E/C) testified that he attempted to verify Odom’s job search list by visiting seventeen . of the twenty employers listed. Over claimant’s hearsay objections, counsel for E/C was allowed to elicit the investigator’s testimony concerning the results of his investigation. The investigator testified that the foreman at Nettie’s Nursery, a place where Odom claimed to have attempted to secure employment on eight occasions, did not know Odom and had no recollection of Odom.

The deputy also overruled claimant’s objections to the investigator’s testimony that the personnel coordinator at a Ralston-Pu-rina plant, another place Odom claimed to have applied for employment, told him that they did not have an employment application on Odom and that she had no recollection of Odom having looked for employment there. Finally, E/C’s counsel was permitted to ask the investigator, again over objection, whether any of the rest of the prospective employers on the list had any application of Odom on file or had any recollection of Odom to which the investigator answered in the negative.

It is apparent from the deputy’s order that his denial of Odom’s claim for wage-loss benefits was grounded upon the deputy’s finding of insufficiency in Odom’s job search. It is equally clear that the deputy’s determination in this respect was substantially influenced by the above-referred testimony of the E/C’s investigator. The order summarized the investigator’s testimony and stated that the deputy accepted it as true. The order, after describing the investigator’s testimony as to what the foreman at Nettie’s Nursery had informed him, recited:

Thus, it must be concluded that the claimant, in fact, had not applied for work at Nettie’s nursery, as testified.

The testimony of the investigator was obviously hearsay under the rules of evidence. See Section 90.801, Florida Statutes (1981). Although Section 440.29(1), Florida Statutes (1981), provides, in part, that in compensation hearings “the deputy commissioner shall not be bound by technical or formal rules of procedure, except as provided by this chapter,” neither that section nor any other section of Chapter 440 or the Workers Compensation Rules excepts workers compensation hearings from the applicability of the rules of evidence. Indeed, the rules of evidence have been routinely applied in workers compensation hearings. See Osceola County Commissioners v. Thomas, 416 So.2d 903 (Fla. 1st DCA 1982) (hearsay); Butch’s Concrete v. Henderson, 414 So.2d 652 (Fla. 1st DCA 1982) (hearsay); Jones Brothers Landscaping v. Howard, I.R.C. Order 2-3317 (Jan. 16, 1978) (hearsay); Sentry Indemnity Company, I.R.C. Order 2-2905 (Jan. 21, 1976) (hearsay); Romagoza v. Marie of Miami, Inc., I.R.C. Order 2-2777 (June 2, 1975) (hearsay); Spencer v. Chai Convalescent Homes, Inc., I.R.C. Order 2-2768 (Apr. 21, 1975) (hearsay); but cf. Jarvis v. Miami Retreat Foundation, 128 So.2d 393 (Fla.1961).

Moreover, since the “general law of evidence” was applicable to compensation proceedings prior to the effective date of the Florida Evidence Code (Chapter 90, Florida Statutes), the Evidence Code is applicable to such proceedings by virtue of the provisions of Section 90.103(1) of the Code.

There are, however, decisions which have suggested a relaxed application of the rules of evidence in workers compensation cases. In Ezell-Titterton, Inc. v. A.K.F., 234 So.2d 360 (Fla.1970), the Court stated:

The Judge was not in error in overruling the employer’s objections to introduction of certain hearsay evidence in claimant’s behalf for whatever probative value it might have had on the issue of decedent’s acknowledgment of the child. Rules of procedure less technical than those followed by the courts 'are applied to hearings under our Workmen’s Compensation Act. Even where strict eviden-tiary rules are invoked, such evidence as introduced in the instant case may be admissible under the pedigree exception to the hearsay rule for purposes of determining the child’s paternity.

[234 So.2d at 365]. See also Jarvis v. Miami Retreat Foundation, supra.

The E/C relies particularly on obiter dictum contained in a footnote in Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982), wherein this Court observed:

Common sense tells us, for example, that there may be many reasons why a particular person may not be hired for a particular job, and there is no guarantee that the job applicant will be able to learn, much less testify at the hearing, to the real reason why he was not employed. Established ease law requires the claimant to show that his inability to secure work is due to his injury, or that because of his injury, he is suffering a loss of wage-earning capacity as to work he is capable of performing. Montgomery Ward and Company v. Hayes, 172 So.2d 581 (Fla.1965). The nature of these and other work search requirements as a practical matter calls for a great deal of opinion and “hearsay” evidence. It is obviously not practical for a claimant to subpoena 57 different employers to testify why the claimant did not secure a job for which there was an opening. We note in the case before us that, upon objection by the E/C’s attorney, the deputy commissioner restricted the claimant’s testimony concerning the reasons given by his prospective employers as to why he was not given a job.

[411 So.2d at 925, footnote 13]. In Flesche, supra, the court neither considered nor decided any issue regarding applicability of the rules of evidence. The footnote comment indicates a receptive view to the notion that some flexibility should be tolerated in application of the hearsay rule to work search evidence in compensation proceedings. We do not disagree with the Flesche dictum. However, the substantial hearsay testimony allowed over repeated objections in the case sub judice clearly went to the very heart of the issue being litigated. We do not believe that the courts’ expressions in Ezell-Titterton, Jarvis or Flesche can reasonably be read as sanctioning the virtual abandonment of the hearsay rule that would necessarily result from our approval of the kind of hearsay testimony involved in this case.

Whether the deputy would have found that the claimant’s job search was inadequate absent the inadmissible testimony of the private investigator is not for us to say. On remand, the deputy will reconsider the evidence without regard to such testimony.

The claimant also contends that the deputy erred in denying wage-loss benefits for the months of January and February, 1983. The E/C concedes, and we agree, that the period of time properly before the deputy on claimant’s wage-loss claim was May 1, 1972, through December 31, 1982, and that the deputy’s order denying wage-loss benefits through the February 9, 1983, date of hearing was improper.

Finally, the claimant asserts that the order should be reversed on the grounds that the order was entered more than thirty days after the hearing contrary to the provisions of Section 440.25(3)(b), Florida Statutes (1981). The hearing was held on February 9, 1983, and the order was entered on March 28, 1983. The thirty-day statutory requirement is directory only, Scottie-Craft Boat Corporation v. Smith, 336 So.2d 1150 (Fla.1976), and no prejudice has been shown to have occurred as a result of the order having been entered subsequent to the thirty-day period.

The deputy’s order is reversed and the cause is remanded for the deputy’s reconsideration of the subject claim and the entry of a new order on the basis of the existing evidence without consideration of the above-referred hearsay testimony.

REVERSED and REMANDED.

WENTWORTH and ZEHMER, JJ., concur.

      . It is interesting to note that prior to a legislative amendment in 1941, Comp.Gen.Laws Supp. 1936, § 5966(29) (a predecessor to Section 440.-29) specifically provided that workers compensation proceedings would not be bound either "by technical or statutory rules of evidence” or "technical or formal rules of procedure." The 1941 amendment struck the former, that is, the clause pertaining to the rules of evidence. Chapter 20672, § 10, Laws of Florida 1941.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    ROYAL CROWN BOTTLERS OF FLORIDA and the Home Insurance Company, Appellants, v. Diomedes HERNANDEZ, Appellee.
    No. AS-377.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1983.

      Susan R. Whaley and Richard R. Crooke, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    John A. Williamson, of Barrs, Williamson & Levens, Tampa, for appellee.
   WENTWORTH, Judge.

The employer and carrier (e/c) appeal an order awarding claimant permanent partial disability benefits computed at 60% of the body as a whole, based on loss of wage earning capacity. The e/c argue that the award in excess of the 30% accepted anatomical rating is not supported by competent substantial evidence. We agree and reverse.

Claimant suffered a back injury on July 25, 1977, and reached maximum medical improvement (MMI) on February 26, 1980. Claimant was then awarded temporary total rehabilitation benefits. His rehabilitation program included high school courses in reading, arithmetic and English as well as a two-week training period at McDonald Training Center in a program called “Jobs for Industry.” As part of the latter program, claimant was placed in a simulated job situation with managerial responsibilities. The rehabilitation professional who worked with claimant testified that he had good motivation, skills, and working habits. However, there were days when he did not show up for work because he was complaining of pain. The expert recommended self employment. Claimant also testified that because of his pain, he was unable to work regularly and believed that his best opportunity would be to go into business for himself so that his hours could be flexible. It is undisputed that claimant made no attempt to work other than his participation in the Jobs for Industry program.

Claimant’s complaints of pain are corroborated by the latest report of his treating physician who understood that claimant was searching for work that did not require heavy lifting “and in which he can be absent on certain days if his pain becomes more intense.” However, as noted, claimant did not attempt to find or perform any job, other than occasional plumbing work with a friend, and the medical evidence does not establish any continuing medication except aspirin, nor any predictable expectation of absenteeism. Claimant relies largely on the testimony of the rehabilitation expert, and asserts that his testimony establishes that claimant could not be placed because he was unable to work regularly.

It may be that, given the proper predicate, a program such as the one in which claimant participated might demonstrate an economic loss when the alleged inability to work is substantiated by independent observations and conclusions of the rehabilitation expert and expressly confirmed by such testimony. We have reviewed the expert’s testimony in this case, however, and find it to be entirely inadequate to support such a conclusion. Representative of such testimony are the following excerpts:

Q. Do you know if there were any efforts made on the part of Mr. Hernandez or Voc. Rehab, to place him in a bookkeeping-type situation or a tax service-type situation or anything of that type?
A. Yes. Well, basically, the idea was this special temporary program to explore those opportunities to see if we can have chances of forseeing an opportunity to place him probably on on-the-job training or look for a temporary type of a job where he would be able to go; much of the nature of this type.
Q. Do you know if he actually had a job outside of Jobs for Industry? Do you know if he has actually gone out looking for light-duty type work, from things he has told you or from your own knowledge or otherwise?
A. In a few conversations, we have discovered — I feel we did made some efforts to — I don’t really — I can’t exactly tell you when. I think — he has always shown interest in returning to work.

He stated simply that because of his complaints of pain claimant did not always show up for scheduled activity. He did not testify that he reached a conscious decision that claimant was unemployable. The only definite fact that can be gleaned from the expert’s ambiguous testimony is that no attempts were made to find employment for which claimant might be suited, his bouts with pain notwithstanding. We find nothing in this record supporting excusal of the well settled evidentiary requirement that a disability rating based on loss of wage earning capacity must generally be supported by evidence of a job search.

The order awarding benefits in excess of the claimant’s physical impairment and attorney’s fees is therefore reversed.

NIMMONS and ZEHMER, JJ., concur.


author: PER CURIAM.

text:
    Robert C. DABLER, Appellant, v. STATE of Florida, Appellee.
    No. 82-1897.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1983.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Robert Dabler appeals a judgment and sentence imposed upon him following rendition of an order revoking his probation order.

Dabler's attorney filed an Anders brief. Although notified of his right to file an additional brief, Dabler chose not to do so. After an independent examination of the record and the law, we find no merit to this appeal.

However, as pointed out by Dabler’s attorney in the Anders brief, Dabler may not have been awarded the proper amount of credit for time served. The sentence order indicates that he is to receive 12 days of credit. However, he spent 10 days in jail from the date of his arrest for violating the probation order until the date the probation order was revoked, and, based upon a comment by the trial court at the probation revocation hearing, it appears that he served 4 days in jail before being placed on probation. Thus, he may be entitled to 14 days of credit.

Accordingly, we affirm the judgment, but remand to the trial court with directions to ascertain whether Dabler has been awarded the proper amount of credit for time served. If he has been awarded the right amount of credit, the sentence is affirmed. If he has not been, the sentence must be corrected to reflect the proper amount of credit, and, as corrected, affirmed.

HOBSON, A.C.J., and RYDER and CAMPBELL, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: SCHEB, Judge.

text:
    ELLIS FIRST NATIONAL BANK OF WEST PASCO, Appellant, v. Mariam C. DOWNING, Appellee.
    No. 82-2472.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1983.
    Bertha P. Sanchez of Villanti & Sanchez, New Port Richey, for appellant.
    Robert M. Focht, New Port Richey, for appellee.
   SCHEB, Judge.

Appellant, Ellis National Bank of West Pasco, was named personal representative of the Estate of William Downing. The bank appeals an order denying its motion to strike the claim of Mariam C. Downing, who sought to take an elective share of her husband’s estate. We find merit in appellant’s position.

Mr. and Mrs. Downing met in 1978. Each had been previously married. On January 17, 1979, they signed an antenup-tial agreement whereby they released all claims against each other’s estates. Two days after the signing of the agreement, they married. Mr. Downing died about a year and a half later, and Mrs. Downing filed for an elective share of her husband’s estate pursuant to section 732.201, Florida Statutes (1981). The bank interposed the Downings’ antenuptial agreement and contended that by signing the agreement, Mrs. Downing had relinquished all claims against her husband’s estate.

After a nonjury trial the court concluded that Mrs. Downing had not validly relinquished her right to claim an elective share of the estate. This appeal by the bank ensued bringing into focus the validity of the antenuptial agreement.

In concluding that Mrs. Downing had not voluntarily executed the agreement, the trial judge based his ruling on the following factual findings: (1) the failure of Mr. Downing to make any provision for his wife; (2) the inadequacy of disclosure by Mr. Downing of his true assets; (3) the brief time between the first presentation of the agreement to Mrs. Downing and its execution; and (4) Mrs. Downing’s lack of legal representation, her age [71], and her lack of sophistication. Considering the totality of circumstances and relying on this court’s opinion in Lutgert v. Lutgert, 338 So.2d 1111 (Fla. 2d DCA 1976), the court determined that Mrs. Downing had not voluntarily entered into the agreement.

Historically, for an antenuptial agreement to be valid in the probate context, it was essential that it include a fair and reasonable provision for the wife, or be based on a fair disclosure of the husband’s assets, or at least a showing that the wife had a general knowledge of the husband’s assets. Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962). The rule was later extended to dissolution of marriage situations. Posner v. Posner, 233 So.2d 381 (Fla.1970).

Subsequent to the supreme court’s decisions in Del Vecchio and Posner, the legislature, in 1974, enacted section 732.-702(2) pertaining to antenuptial agreements and the rights of a surviving spouse. That section, as amended in 1975, stipulates:

Each spouse shall make a fair disclosure to the other of his or her estate if the agreement, contract, or waiver is executed after marriage. No disclosure shall be required for an agreement, contract, or waiver executed before marriage.

(Emphasis supplied.) This statute was in effect when the Downings entered into their agreement. Consequently, the court’s findings concerning the inadequacy of the provisions for the wife and the absence of a fair disclosure do not support the trial court’s conclusion.

Further, the trial court erred in relying on Lutgert v. Lutgert, which deals solely with an antenuptial agreement in the context of a dissolution of marriage action. Weintraub v. Weintraub, 417 So.2d 629 (Fla.1982). The statute overrides the guidelines of Del Vecchio in the context of a probate proceeding. Coleman v. Estate of Coleman, 439 So.2d 1016 (Fla. 1st DCA 1983). Notwithstanding the statutory provision, an antenuptial agreement may still be challenged. For example, an agreement may be set aside if one of the signatures was coerced or improperly obtained, or if one of the parties was incompetent at the time the agreement was signed. Estate of Roberts v. Roberts, 388 So.2d 216 (Fla.1980).

Here, the trial court was concerned not only about the lack of provisions for the wife and unfair disclosure but also about the short period between the presentation and execution of the agreement, the lack of legal representation, and Mrs. Downing’s lack of business sophistication. The evidence, however, disclosed that Mrs. Downing attended a business college for one year and was employed in various business and governmental offices during her working career. She testified that Mr. Downing had discussed the agreement with her five or six days before their marriage. The legal secretary for Mr. Bilirakis, the attorney who drafted the agreement, testified that she informed Mrs. Downing that she was free to seek counsel before signing the agreement. Mrs. Downing did not dispute this testimony. In fact, when asked at trial, “You signed the agreement voluntarily on January 17, 1979?” she replied, “Yes, I did.”

The evidence does not indicate that Mrs. Downing was either coerced or incompetent to sign the agreement, or that she entered into the agreement involuntarily. Accordingly, we direct the trial court to grant the bank’s motion to strike the claims of Mrs. Downing filed against her husband’s estate.

REVERSED.

OTT, C.J., and LEHAN, J., concur.


author: RYDER, Judge.

text:
    Modesto MONTE, Appellant, v. STATE of Florida, Appellee.
    No. 82-2492.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1983.
    Jerry Hill, Public Defender, Bartow and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Modesto Monte appeals his judgment and sentence for attempted second degree murder. In this appeal, Monte contends the trial court committed reversible error regarding the participation of a court-appointed language interpreter during his guilty plea and the failure to appoint an interpreter for his subsequent sentencing proceeding. As to the former contention we affirm, but as to the latter we reverse.

Monte, a Spanish-speaking resident and employee of the Santiago Labor Camp located in Hillsborough County, was charged with the attempted first degree murder of a man at another labor camp also situated in Hillsborough County. Thereafter, a public defender was appointed on Monte’s behalf, and counsel requested that the court appoint an interpreter to translate an alleged confession and witnesses’ statements, all apparently given in the Spanish language. Defense counsel also requested that the court appoint a translator for trial because of Monte’s inability to understand the English language. The first motion was granted shortly after it was filed, but the second motion apparently was left pending.

On August 9, 1982, after plea negotiations between the state attorney and defense counsel, a guilty plea hearing was conducted. The state agreed to accept a plea of guilty to the amended charge of second degree murder with the understanding that the trial court would order a presentence investigation and sentence Monte to no more than seven years in prison. Additionally, Monte was to cooperate with the state in its efforts to bring charges against other individuals allegedly involved in the crime. During the hearing, defense counsel asked the court to consider imposing a lesser sentence because of the testimony Monte had already given the authorities. Defense counsel advised the court that he was satisfied the state could prove a prima facie case, and stated that he had advised Monte of the maximum penalty-

Prior to accepting the plea, the trial court ruled an interpreter was necessary and swore in an interpreter to translate from English to Spanish and vice versa. The record does not reveal whether the specific oath required by section 90.606(3) was administered, and neither an agreement stipulating to the interpreter’s qualifications nor a statement concerning those qualifications appears in the record. Thereafter, the record reflects that Monte was sworn by the interpreter, and the following colloquy occurred:

THE COURT: Ask him if he is Modesto Monte?
THE INTERPRETER: Yes, Your Hon- or.
THE COURT: Ask him if he understands that he is charged with attempted murder in the first degree; Case No. 82-1223?
THE INTERPRETER: Yes, sir.
THE COURT: Would you tell him that his lawyer has tendered a plea of guilty to that charge for him and that the State has agreed to an amended charge of attempted murder, second degree. Would you tell him that his attorney has tendered a guilty plea of attempted murder in the second degree.
THE INTERPRETER: Yes, sir, Your Honor.
THE COURT: Ask him if he pleads guilty because he is guilty. I need to know if he is guilty or not guilty.
THE INTERPRETER: Yes, Your Hon- or.
THE COURT: Would you ask him if anybody has promised him anything other than the fact that he would be pleading for the seven year cap in this matter?
THE INTERPRETER: No.
THE COURT: Would you ask him if anybody has threatened him in any way to get him to plead guilty to this offense.
THE INTERPRETER: No.
THE COURT: Would you ask him if he understands that he has a right to a trial in regard to this offense, and if he accepts this plea, he has waived his right to a trial.
THE INTERPRETER: He understands the charge. (Emphasis added).

After this colloquy, the trial court accepted the plea, adjudicated Monte guilty, and ordered a presentence investigation. The sentencing date was postponed. Subsequently, on October 26, 1982, Monte appeared with counsel for sentencing. No interpreter was present. Defense counsel apparently did not request an interpreter for sentencing purposes, and the trial court did not appoint an interpreter on its own. At the brief hearing, the trial judge stated he had examined the presentence investigation report; he then sentenced Monte to the seven-year prison term pursuant to the plea agreement. However, at no time during the hearing did the court give Monte an opportunity to comment on the proposed sentence. The written judgment and sentence was then entered. Thereafter, Monte filed a timely notice of appeal.

Monte first argues that his plea was not voluntarily and intelligently entered because the interpreter failed to accurately translate the discussion in which the court sought to determine whether his plea was valid. Monte then argues it was error for the trial court to sentence him without an interpreter being present to translate the proceedings, including any comments he had which might have prohibited or mitigated the sentence that was imposed.

First, we are precluded from reversing the judgment on the basis that the plea was not voluntarily and knowingly entered because Monte failed to file below a motion to withdraw his guilty plea. Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979); Cf. Kadar v. State, 370 So.2d 1231 (Fla. 4th DCA 1979). Nevertheless, because the record suggests that insufficient procedures were utilized concerning the interpreter’s participation in the acceptance of the plea, we briefly discuss the contention in the hope that similar problems do not occur after remand.

We emphasize, as we must, that the decision to appoint an interpreter in accordance with section 90.606, Florida Statutes (1981), is a matter largely within the trial court’s discretion, Watson v. State, 190 So.2d 161 (Fla.), cert. denied, 389 U.S. 960, 88 S.Ct. 339, 19 L.Ed.2d 369 (1966), and the determination of the particular interpreter’s qualifications will not be reversed absent a clear abuse of discretion, Kaelin v. State, 410 So.2d 1355 (Fla. 4th DCA 1982). With these principles in mind, we observe that the record does not contain any mention of the qualifications of the court-appointed interpreter, his name, the specific oath required by section 90.606(3), or instructions which the trial court gave the interpreter concerning his participation in the plea proceeding. Furthermore, the plea colloquy is subject to differing interpretations as to whether the trial court’s questions were accurately transmitted to Monte and whether Monte understood and personally responded to those questions. Significantly, the interpreter merely responded “yes” or “no” to the court’s requests made to the interpreter, such as— “Would you tell him ..., Would you ask him if ...,” or “Ask him if ...,” and further, the interpreter’s reply that Monte “understands the charge” in response to the trial court’s advisement as to waiver of the right to trial lends support to Monte’s argument that the translation was not adequate and therefore the plea not valid. See Balderrama v. State, 433 So.2d 1311, 1313 (Fla. 2d DCA 1983). Nevertheless, although we mention these imperfections in the plea hearing as previously stated, we do not decide the merits of Monte’s first point on appeal.

With respect to Monte’s second contention, we hold that it was reversible error in this case for the court to fail to appoint an interpreter at the sentencing proceeding even though defense counsel failed to raise the issue at that hearing. Once the trial court agreed Monte had a language problem and appointed an interpreter for the plea hearing, fundamental fairness as it relates to a non-English speaking defendant such as Monte requires an interpreter be appointed for sentencing as well, absent a valid waiver or the presence of other circumstances which would enable Monte to comprehend the sentencing proceeding. Cf. Balderrama, supra; see also § 90.606. Neither exception was present in this case. The requirement of an interpreter at the sentencing hearing ensures that a non-English speaking defendant is truly “present” at sentencing as contemplated by Florida Rule of Criminal Procedure 3.180(a)(9) and not merely physically there without the ability to understand or comment on the proceedings which will culminate in a circumscription of his liberty. Our system of justice has evolved too far for a defendant’s acknowledged language problem to cause him to be placed in a position before the court which is not equal to that of an English-speaking defendant in terms of communicative opportunities. Therefore, we hold the trial court’s failure to appoint an interpreter for sentencing constituted reversible error which can be corrected on appeal.

Accordingly, we affirm the judgment, but vacate the sentence and remand for resentencing, wherein the trial court is directed to appoint a “duly qualified” interpreter to assist Monte during the sentence hearing.

AFFIRMED in part, REVERSED in part.

OTT, C.J., and DANAHY, J., concur.

      . Section 90.606, Florida Statutes (1981), provides as follows:
      Interpreters and translators.—
      (1) When a judge determines that a witness cannot hear or understand the English language, or cannot express himself in English sufficiently to be understood, an interpreter who is duly qualified to interpret for the witness shall be sworn to do so.
      (2) A person who serves in the role of interpreter or translator in any action or proceeding is subject to all the provisions of this chapter relating to witnesses.
      (3) An interpreter shall take an oath that he will make a true interpretation of the questions asked and the answers given and that he will make a true translation into English of any writing which he is required by his duties
      to decipher or translate, (emphasis supplied) The parties have not cited to us nor are we aware of any other statutory provision, Florida Rule of Criminal Procedure, or Thirteenth Judicial Circuit local administrative rule which further addresses the use of language interpreters during criminal proceedings. Cf. Fed.R.Evid. 604, which implements Fed.R.Crim.P. 28. See generally 3 J. Weinstein, Weinstein’s Evidence ¶ 604 (1982).

      . We point out, however, that Monte did not object to a failure to administer the oath or to the interpreter's qualifications.

      . Monte is not precluded from filing a motion for post-conviction relief in order to challenge the validity of his plea. See Balderrama v. State, 433 So.2d 1311 (Fla. 2d DCA 1983).

      . Until formal rules are promulgated, we suggest the following procedures which we believe will reduce the problems incurred in determining, both at trial and on appeal, the validity of a guilty plea of a non-English speaking defendant. The trial court and defense counsel should ensure that:
      (1) the specific oath required by section 90.-606(3) is administered to and taken by the interpreter and is made a matter of record;
      (2) the court directly and personally addresses each of his inquiries to the defendant in English and each question is recorded;
      (3) the interpreter immediately translates each of the court’s questions to the defendant in the language comprehended by the accused. The translation need not be recorded if the court reporter notes the questions are being translated and communicated to the defendant;
      (4) the defendant directly and personally addresses each of his responses to the court in the language comprehended by the defendant; however, the responses need not be recorded if the court reporter notes the responses are being made personally by the defendant;
      (5) the interpreter, thereafter, translates each of the defendant’s responses to the court in English and each response is recorded. A word for word translation aids in guaranteeing that the interpreter only serves as a communication conduit for the court and the interested parties, unless otherwise required. Cf. United States v. Diaz Berrios, 441 F.2d 1125 (2d Cir. 1971). Furthermore, the above procedures help to make certain that the plea colloquy of a non-English speaking defendant is conducted in accordance with the requirements of Florida Rule of Criminal Procedure 3.172(c).

      . We do not wish for our comments to discourage trial courts from appointing language interpreters in appropriate cases and acknowledge the efforts of trial courts, such as the court below, which endeavor to protect the rights of non-English speaking defendants.


text:
    Nathaniel SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 83-630.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1983.
    Jerry Hill, Public Defender, L.S. Alper-stein, Asst. Public Defender, Bartow.
    Nathaniel Shaw, pro se.

      Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Nathaniel Shaw appeals a judgment and sentence rendered following an order denying his motion to discharge under Florida Rule of Criminal Procedure 3.191.

Shaw’s attorney filed an Anders brief. Upon notification of this fact, Shaw filed a pro se brief. After an independent examination of the record and the law, we find no merit to this appeal.

Accordingly, the judgment and sentence are affirmed.

AFFIRMED.

HOBSON, A.C.J., and RYDER and CAMPBELL, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). -•


author: CAMPBELL, Judge.

text:
    Dude EMSHWILLER, Appellant, v. STATE of Florida, Appellee.
    No. 83-908.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1983.

      Jerry Hill, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, Dude Emshwiller, appeals his judgment and sentence of three years for the offense of grand theft. We affirm.

This appeal presents to us a rather confused record in regard to the exact crime with which appellant was charged and convicted. In sorting through the confusion, we must decide whether or not “retail theft” of merchandise, as defined in section 812.015, Florida Statutes (1981), where value is alleged and proved, is a separate criminal offense from “theft” as contemplated by section 812.014, Florida Statutes (1981). We hold that it is not and, in doing so, are in conflict with Tobe v. State, 435 So.2d 401 (Fla. 3d DCA 1983). The caption of the information charging appellant below is titled an “Information for Retail Theft.” The body of the information charges that appellant did “unlawfully take possession of, or carry away, merchandise of a value of $100 or more,” with the intent to deprive the owner of the “full retail value of said property; contrary to chapter 812.014/812.015, Florida Statutes.” It is apparent that throughout the proceedings below, appellant, appellee, State of Florida, and the court considered that appellant was charged with and tried for grand theft of the second degree. Appellant consented to a verdict form that had three options for the jury: “guilty of grand theft as charged,” “guilty of petit theft as included” and “not guilty.” The jury selected the option of “guilty of grand theft as charged.”

At the charge conference below, appellant requested a specific instruction as to the definition of market value, urging upon the trial judge the classic definition of “what a willing seller is willing to accept and a willing buyer is willing to pay when neither is compelled to sell or buy.” The appellee instead successfully urged upon the trial judge the definition of retail theft as contained in the Standard Jury Instructions in Misdemeanor Cases. The trial judge agreed, specifically stating that he did not “think we are dealing with market value.”

On the same day as the jury returned its verdict, the trial judge entered a judgment adjudicating appellant guilty of “Retail Theft” with the words “Grand Theft” entered parenthetically thereunder, and citing “812.014/812.015” as the “Offense Statute Number(s).” Sentencing was continued pending completion of a pre-sentence investigation. On the day of sentencing, inexplicably, another judgment was entered which adjudicated appellant guilty of “Retail Theft.” This second judgment states only “retail theft” as the crime for which appellant was convicted. While it makes no reference to “Grand Theft,” it cites as the “Offense Statute Number(s)” only section “812.014(2)(b)(l).”

Our colleagues at the Third District Court of Appeal held in Tobe that under section 812.015, “retail theft” of merchandise where its sale value is alleged and proved, is a second degree misdemeanor, separate and apart from a “theft” under section 812.014. The Standard Jury Instructions In Misdemeanor Cases include an instruction on such an offense. However, we cannot conclude that such a separate offense exists where the sale value of the merchandise is alleged and proved. While section 812.015(l)(d) defines “retail theft,” nowhere in section 812.015 is any specific punishment prescribed for “retail theft,” nor is it designated either a felony or a misdemeanor. Only in section 812.-015(2) is punishment referred to in regard to “theft,” and that subsection is an enhancement provision that refers to “a second or subsequent conviction for petit theft involving merchandise.” (Emphasis supplied.) Section 812.014(2)(c) does provide that theft of any property not specified in section 812.014(2)(a) or (b), is petit theft and a misdemeanor of the second degree. However, we conclude that theft of merchandise offered for sale in a retail establishment is included in section 812.-014(2)(a) or (b), if the sale price is $100 or more. Further, we cannot perceive when the “value of merchandise” as defined in section 812.015(l)(e) would ever be less than the market value of the property at the time and place of the offense, as “value” is defined in section 812.012(9)(a). Therefore, if the sale price of merchandise is $100 or more, the theft of that merchandise is an offense under section 812.-014(2)(a) or (b), and if less than $100, it is petit theft under section 812.014(2)(c). We arrive at our conclusion that there is no separate crime of “retail theft” of merchandise where value is alleged and proved by an analysis of the legislative history of what are now sections 812.014 and 812.015, Florida Statutes (1981).

In 1973, larceny and related crimes were the subject of chapter 811, Florida Statutes (1973). The criminal offense then, commonly known as “shoplifting,” was a specific criminal offense defined in subsection 811.021(l)(d) of the general larceny statute, section 811.021, Florida Statutes (1973). On the other hand, section 811.022, Florida Statutes (1973), was entitled “Shoplifting; penalties; prima facie evidence of concealment; detention and arrest; exemption from false arrest.” Regardless of what that title stated, section 811.022, Florida Statutes (1973) merely set forth the arrest procedures and exemptions from liability therefrom, when there was probable cause for arresting a person for the offense of “shoplifting,” provided for in section 811.-021(l)(d), Florida Statutes (1973). In section 40, chapter 74-383, Laws of Florida (1974), the legislature redefined larceny and transferred the larceny statute from section 811.021 to section 812.021. “Shoplifting” continued to be defined as a specific offense in subsection 812.021(l)(d). However, section 65, chapter 74-383 transferred section 811.022, which dealt with the arrest procedures in a “shoplifting” case, to chapter 901 being the chapter of Florida Statutes entitled “Arrests.”

In 1975, the legislature, by chapter 75-144, changed the title of section 901.34 from “shoplifting” to “retail theft,” and added a penalty for resisting arrest. In 1977, the legislature enacted chapter 77-342, Laws of Florida (1977) which, among other things, repealed section 812.021, the general larceny statute, and enacted in its place the new “theft” statute, now section 812.014, Florida Statutes (1983). In 1978, by chapter 78-348, the legislature again amended section 812.014, Florida Statutes (1977) to add “knowingly” to the definition of theft. At the same time, the retail theft arrest statute, section 901.34 was repealed and re-enacted, with amendments, as section 812.015. This new section still did not create a crime of “retail theft” of merchandise separate from “theft” as provided for in section 812.014. It did enhance the penalties on a second or subsequent conviction for “petit theft,” and provided more detailed arrest procedures, but it created no new crime of retail theft of merchandise where its sale value is alleged and proved.

We conclude that the trial judge’s statement that he did not “think we are dealing with market value” is not entirely correct. We do, however, conclude that the instructions he gave were sufficiently free from error as not to require reversal. While he instructed that appellant was accused of retail theft, he explained that the punishment “for the crime of theft is greater depending upon the value of the property,” and proceeded to instruct on grand theft and petit theft. He then instructed that “value of merchandise means the sale price of the merchandise at the time it was stolen.” We believe that is correct. Instead of creating a separate crime of “retail theft” of merchandise by enacting section 812.015, we believe the legislature simply provided a set standard by which the market value of property stolen from a retail establishment is determined. In all such cases, a jury’s search for “market value” need proceed no further than determining the sale price of the items stolen at the time of the theft.

The issue is not before us here, but we conclude that a charge could be made under section 812.015 in regard to the taking or carrying away of merchandise, altering or removing a label or price tag, transferring merchandise from one container to another, removal of a shopping cart, or theft of farm produce where the element of value is not alleged, or if alleged, not proved. In that instance, the offense would be a misdemeanor of the second degree pursuant to section 812.014(2)(c).

We, therefore, affirm appellant’s conviction and sentence. We remand, however, to have the judgment of March 29, 1983, reflect that the crime for which appellant was convicted was grand theft as provided in section 812.014.

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

      . Ch. 77-342, § 16, Laws of Fla.

      . Ch. 77-342, § 4, Laws of Fla.

      . Ch. 78-348, § 3, Laws of Fla.

      . Ch. 78-348, § 2, Laws of Fla.


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Kimberly PATLON, Appellee.
    No. 83-1021.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellant.
    Richard L. Clark of Clark & Clark, St. Petersburg, for appellee.
   GRIMES, Judge.

The state appeals the dismissal of an information charging appellee with grand theft. Since our analysis depends upon the specific wording of appellee’s motion to dismiss and the state’s demurrer, these pleadings will be set forth in their entirety.

MOTION TO DISMISS (CM)

Comes now the Defendant, KIMBERLY PATLON, and files herewith her sworn Motion to Dismiss pursuant to FRCrP 3.190(C)(4) and alleges that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the Defendant, and says as follows:
1. On or about the 24th and 25th day of June, 1982, the Defendant was employed by YAKLE LUMBER as a cashier.
2. On the 24th of June, 1982, the Defendant was given custody of a cash register drawer containing $75.00 in cash.
3. At the end of the business day, on the 24th of June, 1982, the Defendant placed this cash drawer in the safe of YAKLE LUMBER; said safe being unlocked at this time, no one counted the funds in the cash register drawer which included receipts from 3:00 to 5:00 P.M. on that date.
4. On the 25th of June, 1982, when the Defendant arrived at work she removed the cash drawer from the safe at approximately 7:30 A.M. The amount of funds in the cash drawer at this time were not counted and the safe was unlocked at this time.
5. At approximately 8:15 A.M., Defendant was called into Mr. Yakle’s office and at that time placed the cash drawer back into the unlocked safe. At this time no one counted the funds in the cash drawer and the safe was again unlocked.
6. At approximately 8:30 A.M., the Defendant was placed back on duty at the cash register. At this time she removed the cash draw [sic] from the safe that was still unlocked; at this time the funds were uncounted.
7. Defendant left work for the day on the 25th of June, 1982 at approximately 10 o’clock A.M. Defendant placed the cash drawer in the unlocked safe at this time; no one other than the Defendant counted the funds in the drawer at that time. The safe again was unlocked at this time. To the best of the Defendant’s knowledge and belief, all receipts were in the cash register drawer at this time.
8. The cash drawer remained in the safe for approximately one-half hour before being checked by any other person. During this time the safe was unlocked.
9. At least seven (7) employees are allowed access to this safe.
10. At least one other employee LINDA YANCE obtained access to this safe during this period of time.
WHEREFORE, Defendant feels that the above stated facts are not in dispute and do not establish a prima facie case of guilt against the Defendant, and the Defendant prays this Honorable Court will dismiss the above styled charges against her.

DEMURRER

THE STATE OF FLORIDA, by the undersigned pursuant to CRPR 3.190(d), demurs to the Motion to Dismiss filed by the Defendant herein, and says that the facts and other matters alleged as grounds in support of the said Motion, and each and every count or part thereof, are irrelevant, immaterial or not sufficient in law to constitute lawful grounds for dismissal of this cause. In particular, the State answers the allegations in the Motion to Dismiss as follows:
1. Allegation number 1 is admitted.
2. The undersigned has no knowledge as to Allegations number 2, 3, 4, 5, 6, 7, 8, and 10.
3. Allegation number 9 is denied. Additional facts the State would show
are that:
The contents of the register drawer were counted by employees of the business approximately 30 minutes after the Defendant left the business. A comparison of the register tape which the Defendant ran and the register drawer’s contents revealed a $414.00 shortage.
At approximately 8:15 a.m., the Defendant was given a one-week notice of termination approximately two hours before the discovery of the missing funds. She left work shortly thereafter, at approximately 10:00 a.m.
Prior to the discovery of the shortage, the Defendant was the only person to have custody of the cash register drawer from 7:30 a.m. to 10:00 a.m.
Prior to the Defendant’s departure from the business at 10:00 a.m., a business transaction occurred resulting in $200-300 cash being received in $50.00 and $100.00 bills. When the $414.00 shortage was discovered, there was only one $50.00 bill and no $100.00 bills in the Defendant’s register drawer.
The only persons allowed in the safe are David Duck, a 12-year employee; James Yakle, the store owner; Robert Cary, the hardware manager who independently verified the $414.00 shortage; and Ralph Hunsinger, the company’s business manager. All will testify they did not take the money.
Pursuant to the company’s business practice, no one counts money in a cashier’s drawer other than the cashier responsible for the drawer prior to 3:00 p.m.
Defendant was expected to appear for work the Monday following this incident and did not do so or call in. The Defendant had not been confronted with the theft nor did she have any reason to believe she was a suspect. She telephoned David Duck and asked him what money was missing before anybody told her money was missing.

Factual matters alleged in a motion to dismiss are admitted unless specifically denied by the state. Fla.R.Crim.P. 3.190(d). Pleading lack of knowledge does not constitute a denial because sworn denials made by a state attorney need not be based upon personal knowledge. State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975). Since the state only denied the ninth allegation, the question before us is whether appellee’s remaining allegations were such as to require dismissal of the charges against her.

Most of the appellee’s allegations relate to facts which, even if admitted, would not necessarily exonerate her. The strongest showing of her lack of guilt is provided in paragraph 7 where she states that to the best of her knowledge and belief all receipts were in the cash register drawer when she left work on June 25, 1982. Significantly, appellee never categorically denied taking any money from her employer, and the term “receipts” could be viewed as ambiguous. Yet, this might have sufficed were it not for the additional facts furnished by the state.

A proceeding on a motion to dismiss is not intended to take the place of a trial where there are facts presented by either side upon which a jury could find guilt. Even where the facts are undisputed, they may be subject to differing interpretations. In view of the allegations that appellee had custody of the cash drawer on June 25, that all other employees with access denied taking the money, and that appellee implicated herself on the telephone, the state made a case upon circumstantial evidence. Accordingly, the motion to dismiss should have been denied. See State v. Stewart, 404 So.2d 185 (Fla. 5th DCA 1981), in which the court reversed the dismissal of an information charging second degree murder even though the state admitted the defendant’s allegation that the victim’s death was accidental.

REVERSED and REMANDED.

BOARDMAN, A.C.J., and LEHAN, J., concur.


text:
    In re ONE 1979 FORD VAN, VIN E14BHAK9227 CITY OF ST. PETERSBURG, a municipal corporation, for the Use and Benefit of the ST. PETERSBURG POLICE DEPARTMENT, ex rel. STATE of Florida, Appellant, v. Rocky DROSIS, William Westcott, and Gerald Thomas, Appellees.
    No. 83-1573.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1983.
    M.S. Davis, City Atty., and Larry D. Brown, Asst. City Atty., St. Petersburg, for appellant.
    Robert W. Pope, St. Petersburg, for ap-pellee Gerald Thomas.
   PER CURIAM.

Appellant seeks to appeal a nonfinal order granting appellees’ motion to strike appellant’s amended petition for rule to show cause and for final order of forfeiture. We sua sponte dismiss the appeal. See Guth v. Howard, 362 So.2d 725 (Fla. 2d DCA 1978).

We have considered appellant’s contention that the appeal comes within the provision of Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) and find it to be without merit.

Appeal dismissed.

OTT, C.J., and BOARDMAN and LE-HAN, JJ., concur.


text:
    JACKSONVILLE SHIPYARDS, INC., Appellant, v. OSWEGO PETROLEUM CARRIERS, INC., a corporation, and Marine Transport Lines, Inc., a corporation, Appellees.
    No. AN-200.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1983.
    Rehearing Denied Feb. 1, 1984.

      John E. Houser, Jacksonville, for appellant.
    James P. Moseley, and Aimer W. Beale, II, Jacksonville, for appellees.
   WENTWORTH, Judge.

Appellant seeks review, and appellees seek review by cross-appeal, of a partial summary judgment and an order entered after trial whereby each party’s claim was denied and it was decreed that each party “take nothing” from the other. We find that the court erred in denying appellant’s claim for attorney’s fees and costs, and we otherwise affirm the order appealed.

Chien-Yun Chu was a seaman aboard a vessel which was owned and operated by appellee and which was repaired by appellant. Chu brought an action against both appellant and appellee after he sustained injury upon falling from a lifeboat which appellant had serviced; appellant and ap-pellee both cross-claimed against the other for indemnity/contribution. Appellee eventually settled with Chu, obtaining a release of liability effective as to both appellee and appellant.

Although Chu was no longer a party to the action, appellant’s and appellee’s cross-claims remained outstanding. The court entered summary judgment in favor of appellant upon appellee’s claim for indemnity, and the cause otherwise proceeded to trial. The jury returned a verdict finding that appellee was 60% negligent, and appellant 40% negligent, and the court directed verdict in appellant’s favor on the issue of whether an exculpatory and indemnity clause in the contract between the parties precluded recovery by appellee. The court then entered an order finding that each party should “take nothing” from the other.

The contract between the parties consists of numerous documents prepared by appellant, some of which contain language in red type providing that:

... liability for defective workmanship or material shall be limited strictly to ... repair or replacement, and ... we shall have no liability of any kind to any party for damages directly or indirectly caused by defective workmanship or material. For personal injury, death, or damage to the vessel or any other property, not caused by defective workmanship or material, we shall be liable only for damages affirmatively shown to have been caused by our sole negligence. In no event shall we be liable for any consequential damages whatsoever.... The Customer agrees to indemnify and hold us harmless with respect to the above conditions.

Commonly known as a “Red Letter” clause, similar provisions have been held to be valid and enforceable as a matter of federal maritime law. See e.g., Alcoa Steamship Co. v. Charles Ferran and Co., 383 F.2d 46 (5th Cir.1967). In the present case the clause is clear and unambiguous, and expressly provides for indemnification. As Perkins State Bank v. Connolly, 632 F.2d 1306 (5th CCA 1980), indicates in discussing Florida law, attorney’s fees and costs are generally an incident of indemnity. The inclusion of attorney’s fees for indemnity may be assumed to be the parties’ intent unless the agreement explicitly provides otherwise. See E. C. Ernst Inc. v. Manhattan Construction Co. of Texas, 551 F.2d 1026 rehearing denied in part, granted in part, 559 F.2d 268 (5th CCA 1977), cert. denied, Provident Hospital v. Manhattan Construction, 434 U.S. 1067, 98 S.Ct. 1246, 55 L.Ed.2d 769 (1978). In the present case the express indemnity provision of the “Red Letter” clause is a sufficient predicate for an award of attorney’s fees and costs, and the contract does not otherwise negate the application of the indemnity provision to attorney’s fees and costs. Appellant was therefore entitled to such an award, and the court erred in ruling to the contrary.

The order appealed is hereby amended so as to award appellant attorney’s fees and costs, and as amended the order is affirmed.

BOOTH and THOMPSON, JJ„ concur.

      . The parties agree that this maritime claim is governed by federal maritime law; however, to the extent that it does not conflict, state law may supplement the federal law in this area. See Powell v. Offshore Navigation Inc., 644 F.2d 1063 (5th CCA 1981), fn. 5.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    Jose MUNIZ, Appellant, v. GLADES COUNTY SUGAR GROWERS and Employers Insurance of Wausau, Appellees.
    No. AO-257.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1983.
    See also Fla.App., 405 So.2d 801.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for appellant/cross-appellee.
    Patrick J. Malone of Brennan, McAliley, Hayskar, McAliley & Jefferson, West Palm Beach, for appellees/cross-appellants.
   THOMPSON, Judge.

Claimant appeals an order entered pursuant to his petition for modification. Claimant contends the deputy commissioner (deputy) erred in finding no change in his psychiatric condition and in finding he was bound by the August 14, 1980 order, which found claimant had no psychiatric impairment. The employer/carrier (E/C) filed a cross-appeal and contend that the deputy erred in finding that claimant’s neck complaints and disability were causally related to his compensable accident and in awarding medical treatment for the neck injury. We affirm the points raised on appeal and reverse those raised on cross-appeal.

In the initial August 14, 1980 order the deputy expressly found that the claimant had not sustained a psychiatric impairment as a result of his September 3, 1975 industrial accident. This order was' affirmed on appeal. See Muniz v. Glades County Sugar Growers, 405 So.2d 801 (Fla. 1st DCA 1981). In the order currently on appeal, which was entered approximately two years after the initial order, the deputy expressly found that there was no significant change in the claimant’s psychiatric condition since the June 26,1980 hearing and that the claimant had not suffered any change in condition due to any worsening of his physical or psychiatric problems. There is competent substantial evidence to support the deputy’s finding of no change in the claimant’s psychiatric condition that would warrant modification and the denial of modification based on a change in psychiatric condition or mistake of fact is affirmed.

In his order on the petition for modification the deputy found that the deputy who issued the initial August 14, 1980 order did consider that the neck injury was suffered by the claimant in this accident in awarding permanent disability benefits. In the order on appeal the deputy specifically found a causal connection between the claimant’s compensable accident and the “neck injury that he appears to have suffered.” We reverse these findings. There is no evidence to support the deputy’s finding that the neck injury was considered at the June 1980 hearing. Even if it was considered there is no evidence that there has been a change in condition that would warrant a modification concerning the neck injury because there is no evidence of the extent, if any, of a neck injury at the time of the initial hearing. There is also no evidence of any causal connection between claimant’s compensable accident and his alleged neck injury. The only record testimony regarding the relationship between the neck injury and the compensable accident was that of Dr. Brandon, an orthopedic surgeon, who said:

Well, frankly, I paid very little attention to his neck because he has not complained of it except sporadically, and his other reigning complaint has right along been his low back and lower extremity, pain problem. He has complaints from time to time apparently on his neck. Based on the date you suggest or you give, I suppose one has to presume a causal relationship between the neck and the injury.

The language used by Dr. Brandon to describe the relationship between the neck injury and the compensable accident is even more vague, speculative, and nebulous than the unacceptable language used by the doctors in Kashin v. Food Fair, 97 So.2d 609 (Fla.1957), and Newman Heating & Boiler Repair, Inc. v. Newman, 418 So.2d 1008 (Fla. 1st DCA 1982), pet. for rev. den., 429 So.2d 7 (Fla.1983). In Kashin, the doctor was of the opinion that the claimant “was suffering from a cardiac condition which was, in his opinion, probably brought on by the loss of blood and shock at the time of the original injury.” Id. at 611. In Newman, in response to a question of whether the claimant’s back pain was related to his knee problem, the claimant’s treating physician testified “I believe it could be.” Id. at 1009. When asked whether the claimant’s knee injury would have any effect on the claimant’s back the doctor responded “I think it certainly could, yes.” Id. at 1010. Kashin held that such a nebulous and speculative conclusion as to the causal relationship between the accident and the ultimate cardiac condition did not constitute competent substantial evidence that the industrial accident caused the cardiac condition. Newman held that the language used by the doctor concerning the relationship was more nebulous and speculative than the language in Kashin.

The language used by Dr. Brandon in this case is even more vague, nebulous, and speculative than the language used in either Kashin or Newman. Even if Dr. Brandon’s testimony as to causal relationship had been definite and positive it was based on hypothetical facts not in the record. The hypothetical posed to the doctor assumed that the claimant felt neck pain from his 1975 industrial accident and was treated for neck pain thereafter. These facts are not supported by the evidence. Therefore, even if Dr. Brandon’s testimony was sufficient to establish a causal relationship between the accident and the neck injury, his testimony would not be competent substantial evidence because it was based on erroneous assumptions and facts not supported by the evidence. See Dade Property Management, Inc. v. Lazo, 418 So.2d 393 (Fla. 1st DCA 1982), and D’Avila, Inc. v. Mesa, 381 So.2d 1172 (Fla. 1st DCA), pet. for rev. den., 389 So.2d 1113 (Fla. 1980). Accordingly, the finding that the neck complaints were causally connected to the industrial accident and the requirement that the E/C provide the claimant with treatment for the neck injury is reversed.

In all remaining respects the order, including the award of 52.5 additional weeks of permanent partial disability of the body as a whole, is affirmed.

Reversed in part and affirmed in part.

NIMMONS, J., concurs.

ERVIN, C.J., concurs in part and dissents in part.

ERVIN, Chief Judge,

concurring in part and dissenting in part.

I concur in the majority’s affirmance of the issue raised on appeal but respectfully disagree with its decision to reverse the deputy’s finding of a causal relationship between the industrial accident and claimant’s neck injury.

As the majority’s opinion observes, the record reveals no evidence that the original order was based on consideration of any testimony concerning a neck injury. I do not assume, however, it necessarily follows that “there is no evidence that there has been a change in condition that would warrant a modification concerning the neck injury because there is no evidence of the extent, if any, of a neck injury at the time of the initial hearing.” Ante at 352. To the contrary, this court has previously recognized that “[t]he change of condition provision applies to those cases in which, at the time of the initial order, claimant failed to show the true extent of the injury either because it was not known or had not manifested itself in sufficient degree to be subject to proof.” General Electric Company v. Osborne, 394 So.2d 1089, 1090 (Fla. 1st DCA 1981) (e.s.).

Claimant sustained an injury to his lower back on September 3, 1975, for which he was awarded compensation by an order entered on August 14, 1980, without reference to any neck injury. The evidence presented in support of his petition to modify, to enable him to receive additional benefits, included the testimony of an orthopedic surgeon, Dr. Brandon, who began treating claimant for his back injury on November 11, 1980, and who testified that in December of 1981, claimant then developed a new complaint of neck pain. As the majority has stated, Dr. Brandon opined that the neck injury was causally related to the industrial accident. This opinion was based upon his history, examination and findings. As a consequence of these considerations, Dr. Brandon placed a 30% permanent impairment rating, based upon the AMA Guides, on claimant’s injuries, including those to both his neck and back. The claimant has presented objective, uncontro-verted medical testimony that his condition had worsened since the original order due to the later manifestation of neck pain, and in my view has satisfied his burden of demonstrating a change in condition. See, e.g., Adey v. Frank Dawson Motor Sales, 440 So.2d 44 (Fla. 1st DCA 1983). Accordingly, I believe that the deputy’s finding of the existence of a causal relationship between the industrial accident and the neck injury is supported by competent, substantial evidence and I would affirm that determination.


text:
    NATIONAL DISTILLERS and Aetna Casualty & Surety Co., Appellants, v. Richard GUTHRIE, Appellee.
    No. AS-341.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1983.
    Rehearing Denied Jan. 24, 1984.

      F. Bradley Hassell, of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellants.
    Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   WENTWORTH, Judge.

The employer and carrier (e/c) appeal an order entered April 1, 1983, awarding the currently employed claimant wage loss benefits for two months in which ⅛⅞ received zero or reduced wages subsequent to a month in which his income greatly exceeded his compensation rate. We conclude that the causal relation issue is controlled by Regency Inn v. Johnson, 422 So.2d 870, 879 (Fla. 1st DCA 1982), and find no authority for the e/c’s alternate theory, discussed more fully below.

Claimant was employed as a regional supervisor, earning an average weekly wage of $636.25, when he suffered a compensa-ble accident in November 1979. After recovery claimant reactivated his real estate license and worked as a realtor. The e/c paid total wage loss benefits from the date of maximum medical improvement through October 1982. In November 1982, claimant earned a commission of $6,250.00 and did not file a wage loss claim for that month. In December claimant had no income, and in January 1983 he earned $1500. The e/c controverted the claims for wage loss benefits for December and January, and appeal the order awarding those benefits.

The e/c defended the claim in part on the ground that the claimant’s reduction in wages for December and January was not caused by his accident but was the result of the “nature of the real estate business.” However, it is clear that claimant suffered a change in employment status due to his industrial injury. He no longer holds the regular income job that he had with employer, and the e/c have never contended that claimant’s attempt to work was not in good faith or that he should have sought other employment commensurate with his abilities. Instead, claimant’s good faith attempt to earn a living is clear and uncontested. Therefore, under Regency Inn, supra, claimant’s prima facie entitlement to properly computed wage loss benefits was established.

The e/c also argued that claimant’s earnings for November and January should have been added and the sum averaged over the three month period in question. Application of the proposed formula in this case would have resulted in no entitlement to wage loss benefits for November through January. Appellants contend that computation of wage loss on a strictly month by month basis, without consideration of a claimant’s actual earnings over a period of time, may result in an inaccurate picture of a claimant’s “earning capacity.”

If we assume, as discussed infra, that no issue was properly presented below as to the accuracy of claimant’s attribution of earnings to the month in which received, appellants’ argument has infirmities. While earning capacity was the critical issue in pre-1979 proceedings for the purpose of determining entitlement to permanent benefits greater than those provided for permanent impairment alone, the current statutes require computation of actual com-pensable wage loss each month, absent which a permanently partially disabled claimant will receive no benefits for that month regardless of the extent of physical impairment. Since the explicit terms of the statute require entitlement to be determined monthly, any proposals for alternative methods of computation to cover situations involving erratic income are more properly to be addressed to the legislature.

We do not, however, urge any necessity for reconsideration of the wage loss formula on that ground, since a careful reading of § 440.15(3)(b) shows that the comparison to be made is between an employee’s pre-injury average monthly wage and the salary and other remuneration the employee is “able to earn ” after reaching maximum medical improvement “as compared on a monthly basis.” Thus, the relevant question is what was earned during any month for which benefits are claimed, and that amount would not necessarily be the same as income received during that month.

In the present case, however, there is no evidence that the claimant earned his commissions over any time other than the months in which they were paid. Claimant was therefore properly awarded wage loss for the months in which he showed inability to earn remuneration equal to that to which the statutory formula entitled him.

Affirmed.

NIMMONS and ZEHMER, JJ., concur.

      . Appellants have not raised, and we do not address, any issue regarding the 1983 amend,ment to § 440.15(3)(b)2, enacted after the final hearing below.

      . We note that the e/c voluntarily paid wage loss benefits for the month of February 1983 based on their theory that by that time there was no longer any "carry-over" from the combination of the November and January earnings.


author: ERVIN, Chief Judge.

text:
    Eugene J. PARKER and Betty M. Parker, his wife, Appellants, v. The DINSMORE COMPANY, a corporation, Appellee.
    No. AS-421.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1983.
    Robert J. Winicki of Mahoney, Hadlow & Adams, Jacksonville, for appellants.

      J.F. Leonard, Jacksonville, and J.W. Harrell of Harrell & Perrine, Jacksonville, for appellee.
   ERVIN, Chief Judge.

Appellants, Eugene J. Parker and his wife, Betty M. Parker, appeal from a summary final judgment of foreclosure, contending that issues of material fact remain in dispute which should have precluded summary disposition of this case. We agree and reverse.

The record discloses that the Parkers, facing foreclosure of a Farmers Federal Credit Union (FFCU) mortgage on their homestead property in 1977, agreed to sell the property to Weiss, a real estate broker. The sales agreement provided that Weiss would assume the FFCU mortgage. When FFCU refused to agree to such an assumption, Weiss attempted to secure alternative financing. The Parkers, still facing imminent foreclosure, sought the services of attorney J.W. Harrell. Harrell, a major shareholder and officer in the Dinsmore Company, arranged for the Parkers to mortgage their property to Dinsmore in an attempt to stave off the FFCU foreclosure. Having thus obtained other financing, the Parkers were no longer interested in selling, when Weiss, himself having secured financing, insisted that they perform under the sales agreement. Weiss then sought specific performance of that agreement and prevailed at both the trial and appellate levels. See Parker v. Weiss, 404 So.2d 820 (Fla. 1st DCA 1981).

Throughout that litigation, which finally terminated when the Florida Supreme Court declined to review the case on February 24, 1982, Harrell had at all times represented the Parkers in their efforts to keep their home. Only four months later, and before Weiss was able to close on the property, Harrell, then representing Dinsmore, filed a complaint for foreclosure of the mortgage held by Dinsmore on the Par-kers’ property. The Parkers answered, affirmatively defending, admitting that they had ceased making payments on the Dins-more mortgage in May of 1979, but had done so on the advice of Harrell who, then acting as their attorney, allegedly had told them during the pendency of the appeal from the judgment entered in favor of Weiss that if Weiss prevailed on appeal he would have an absolute right to the property. They represented that they were ready and able to cure the default as soon as it was established that Weiss, who they alleged had breached the sales agreement by not closing, had no interest in the property. Finally, they asserted that Dinsmore, due to the actions of its agent, Harrell, had waived its right to accelerate the mortgage and should therefore be estopped from doing so.

Dinsmore subsequently moved for summary judgment of foreclosure, offering affidavits executed by Harrell and by the secretary of Dinsmore which set out the amounts owing on the mortgage. In opposition to the motion for summary judgment, Parker presented an affidavit in which he expanded on the allegations raised in his affirmative defense, stating that Harrell, who had represented him and his wife from December 13, 1977 through April 10, 1982, had failed to disclose to the Parkers his personal and financial interests in Dinsmore, and that as Harrell had also represented Dinsmore’s legal interests, a conflict of interest resulted from these dual representations. Additionally, Parker asserted that Harrell had advised them to enter into the mortgage with Dinsmore, knowing that they had already agreed to sell to Weiss; that Harrell was acting as an agent for Dinsmore, and that Dinsmore should therefore be estopped from foreclosing the mortgage, or be found to have waived its right.to do so. Dinsmore offered no affidavits to counter the allegations made by Parker and, after an unreported hearing, the trial court granted Dinsmore’s motion for summary judgment of foreclosure. The Parkers’ property was ordered sold, and, despite the pendency of a timely motion for rehearing filed by the Parkers’ alleging newly discovered evidence relating to Harrell’s corporate and financial relationship with Dinsmore, the property was sold to Dinsmore on February 28, 1983. As the record does not disclose that all genuine issues of material fact have been resolved, we agree that the summary judgment must be reversed.

It has long been recognized that “[u]pon motion for summary judgment it is the movant’s burden to demonstrate, by admissible evidence, the nonexistence of any genuine issue of material fact.” Arlen Realty, Inc. v. Penn Mutual Life Insurance Company, 386 So.2d 886 (Fla. 1st DCA 1980) (e.s.). When, as here, the non-moving party has raised affirmative defenses, it is incumbent upon the moving party to “either disprove [those] affirmative defenses or establish their legal insufficiency.” Proprietors Insurance Company v. Siegel, 410 So.2d 993, 995 (Fla. 3d DCA 1982). And, more to the point, when, in a foreclosure action, the defendant raises the defense of estoppel and factual disputes remain as to the sufficiency of that defense, summary judgment is inappropriate. See Kerber v. Chadan, Inc., 364 So.2d 1264 (Fla. 4th DCA 1978). Because the granting of a summary judgment “is necessarily in derogation of the constitutionally protected right to trial,” Holl v. Talcott, 191 So.2d 40, 48 (Fla.1966), “[g]reat caution should be exercised in any summary judgment proceedings not to deny a litigant ample opportunity to demonstrate that he is entitled to the benefit of a trial.” Stephens v. Dichtenmueller, 216 So.2d 448, 450 (Fla.1968). This court has therefore consistently stated that

summary judgment “should not be granted unless the facts are so crystallized that nothing remains but questions of law...”, Green Valley School, Inc. v. Cowles Florida Broadcasting, Inc., 327 So.2d 810, 817 (Fla. 1st DCA 1976), and if there is “the slightest doubt upon any issue of material fact[,] then ... summary judgment may not be entered.” Con-nell v. Sledge, 306 So.2d 194, 196 (Fla. 1st DCA 1975) (e.s.).

Harris v. Lewis State Bank, 436 So.2d 338, 340 (Fla. 1st DCA 1983) (footnote omitted).

Summary judgment is particularly unsuitable in those cases where “the facts and circumstances indicate a possibility of an estoppel or a waiver.” 22 Fla.Jur.2d Estoppel and Waiver § 9 (1980) (e.s.); Marina v. Magurno, 100 So.2d 369, 373 (Fla. 1958). In order to prevail on a theory of waiver, the Parkers will need to present evidence showing action on the part of Dinsmore, or its agent, which misled them into acting in a way they would not have acted had they known Dinsmore would require strict performance under the terms of the mortgage. See Flagler Center Building Loan Corp. v. Chemical Realty Corp., 363 So.2d 344, 347 (Fla. 3d DCA 1978). Whether they can meet their burden is not for us to decide at this time. The summary judgment procedure, however, must not be used as a substitute for trial: Burkett v. Parker, 410 So.2d 947, 948 (Fla. 1st DCA 1982). “The function of the court in passing on a motion for summary judgment is simply to determine whether a genuine issue exists and whether such issue is material; it does not determine the issue.... A party should not be deprived of his full day in court by summary proceedings if the record indicates that he has a bona fide potential cause of action or defense.” Monroe v. Appelton, 419 So.2d 356, 357 (Fla. 2d DCA 1982) (e.s. in original).

In the case at bar the Parkers have unquestionably raised genuine issues of material fact which suggest, at the very least, a potential defense. If they can satisfactorily establish, as they have alleged, that Harrell was in fact acting as an agent for Dinsmore in securing a mortgage on their property, and in later advising them to postpone payment on that mortgage until the litigation with Weiss was resolved, then the Parkers may yet' prevail on their theories that Dinsmore has waived its right to foreclose, or that, for equitable reasons, it should be estopped from doing so. Genuine and material issues of fact having thus been raised by the Parkers, the burden was upon Dinsmore to come forward with proof of the nonexistence of such issues, or to disprove or demonstrate the legal insufficiency of the defenses of estoppel and waiver. As the record in this case fails to disclose any such demonstration, we conclude that Dinsmore has failed to satisfy the heavy burden placed upon it as the party seeking summary judgment.

REVERSED and REMANDED for further proceedings consistent with this opinion.

«TOANOS, J., and MINER, CHARLES E., Jr., Associate Judge, concur.

      . It does not appear from the record that this fact was known to the Parkers until after Weiss had brought his suit to specifically enforce the contractual agreement, as discussed infra.


author: JOANOS, Judge.

text:
    James Richard PEAK and Ewell Anthony Peak, Appellants, v. STATE of Florida, Appellee.
    Nos. AT-97, AT-98.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1983.
    Rehearing Denied Jan. 25, 1984.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen. and John W. Tiede-mann, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

James Richard Peak and Ewell Anthony Peak were found guilty of manufacturing marijuana in violation of Section 893.-13(l)(a), Florida Statutes. They, contend the trial court erred in refusing to give a requested jury instruction on the lesser included offense of attempted manufacturing of marijuana. We agree that under the circumstances of this case, appellants were entitled to the requested instruction, therefore we reverse and remand for a new trial.

The evidence presented indicated that based on information that marijuana was being grown in a particular location, the local sheriff’s office set up a surveillance point at the site. Sheriff’s deputies observed appellants approach and look at the marijuana plants. They observed James Peak cut marijuana plants and hand them to Ewell Anthony Peak. After Ewell Anthony Peak had seven or eight of the plants on his shoulder, the arrests occurred. The house closest to the marijuana patch belonged to James Peak, but one of the deputies testified he did not know who planted or cultivated the plants.

“Manufacture” is defined in Section 893.-02(ll)(a) as:

[T]he production, preparation, progagation, compounding, cultivating, growing, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container ....

We agree with appellants’ position that attempted manufacture is not the same as the completed crime of manufacture as the crime is defined in the statute, thus it is a separate offense. Compare State v. Sykes, 434 So.2d 325 (Fla.1983). Attempt is listed as a lesser included offense to manufacturing in the schedule of lesser included offenses in the Florida Standard Jury Instructions in Criminal Cases. We also agree that there was evidence to support an instruction on attempted manufacture since the events described could be viewed as a crime short of the completed act of manufacturing, therefore the attempt instruction should have been given, see Fla.R.Crim.P. 3.510 (as amended Oct. 1, 1981) and discussion of that rule in In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla. 1981).

REVERSED and REMANDED for a new trial.

ERVIN, C.J., and MINER, CHARLES E., Jr., Associate Judge, concur.


text:
    Steven DRURY, et al., Petitioners, v. The Honorable Major B. HARDING, Circuit Court Judge, Division B, Fourth Judicial Circuit, Duval County, Florida, Respondent.
    No. AV-161.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1983.

      Louis 0. Frost, Jr., Public Defender, John E. Mathews, III, Asst. Public Defender, Jacksonville, for petitioners.
    Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for respondent.
   PER CURIAM.

The defendants in this prosecution for driving while under the influence of alcohol (DUI), Section 316.193, Florida Statutes (Supp.1982), seek review, by certiorari, of a decision of the Circuit Court reversing the County Court’s order excluding chemical test results for blood alcohol content from introduction into evidence at trial. We review and approve the Circuit Court’s decision, and certify a question to the Supreme Court of Florida.

Effective July 1, 1982, the DUI law was revised and amended. One revision made by the legislature was to delegate the responsibility for adopting rules and regulations governing the administration of chemical tests to one administrative agency, Department of Health and Rehabilitative Services (HRS), heretofore delegated to two agencies, HRS and Department of Highway Safety and Motor Vehicles (DHSMV). On December 16, 1982, HRS adopted emergency rules containing those rules and regulations already adopted by HRS and those rules formerly under the purview of DHSMV prior to July 1, 1982. Between July 1, 1982, and December 16, 1982, the petitioners were arrested and charged with driving while under the influence of alcohol. At the time of their arrest, the petitioners submitted to chemical tests for blood alcohol content pursuant to Section 316.1932, Florida Statutes (Supp. 1982). The county court granted the motions to suppress the test results on grounds that there were no rules lawfully in force, at the time the defendants were arrested, governing the testing procedures as required by Section 316.1932. The cases were consolidated for appeal in the Circuit Court. The Circuit Court reversed on the grounds that the subsequently enacted rules are procedural in nature and can be applied retrospectively. We issued a show cause order.

Upon consideration of the petition, the response, and petitioners’ reply, we conclude that the Circuit Court ruled correctly. The rules and regulations adopted by HRS on December 16, 1982, are procedural and therefore they may be applied retrospectively to the petitioners in this case. Even without the rules governing the administration of chemical tests for blood alcohol content, the police had the authority to give the tests to the defendants. There is no constitutional impediment to a blood alcohol analysis with or without consent where probable cause has been established. State v. Bender, 382 So.2d 697 (Fla.1980), citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). The rules were designed to permit the introduction of test results into evidence without the requirement of expert testimony to lay a predicate for the test’s reliability. State v. Bender, supra. Because the purpose of the rules is to ensure that only reliable evidence is placed before a jury, the law in effect at the time of the trial is the law that governs the admissibility of the evidence. This court finds the rules to be procedural in nature and we approve the decision of the Circuit Court, thereby allowing the test results to be introduced at trial, subject, of course, to a proper predicate for admissibility showing that the rules were complied with.

Pursuant to Rule 9.125, Florida Rules of Appellate Procedure, this court certifies the following question for resolution by the Supreme Court because the issue pending in this court has a great effect on the proper administration of justice throughout the state:

WHETHER THE RULES ADOPTED DECEMBER 16, 1982, BY THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES GOVERNING THE ADMINISTRATION OF CHEMICAL TESTS FOR BLOOD ALCOHOL CONTENT UNDER SECTION 316.1932, FLORIDA STATUTES, CAN BE APPLIED TO TESTS ADMINISTERED BEFORE THEIR ADOPTION, THEREBY ALLOWING THE TEST RESULTS INTO EVIDENCE AT A TRIAL SUBSEQUENT TO THE RULES’ ADOPTION.

In view of our finding of no departure from the essential requirements of law, the order to show cause is discharged.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.

      .The Circuit Court order sought to be reviewed was entered in the consolidated cases of State of Florida v. Steven Drury, Case No. 83-11-AP; State of Florida v. Milford D. Guthrie, Case No. 83-12-AP; State of Florida v. Danny Paul Johnson, Case No. 83-13-AP; State of Florida v. Sandra P. Lemunyon, Case No. 83-14-AP; State of Florida v. John D. Thompson, Case No. 83 — 15— AP; and State of Florida v. Ripley C. Davis, Case No. 83-16-AP.

      . Section 316.1932(1)(f)1, Florida Statutes (Supp.1982).

      . HRS, Section 322.262(3), Florida Statutes (1981); DHSMV, Section 322.261(2)(a), Florida Statutes (1981).

      . On March 8, 1983, HRS adopted formal rules after a public hearing.


author: DAUKSCH, Judge. COBB, Judge,

text:
    Michael Finley TINDALL, Appellant, v. STATE of Florida, Appellee.
    No. 82-877.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.
    See also, Fla.App., 415 So.2d 1390.
    Michael Finley Tindall, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a sentence in a second degree murder case. We have reviewed and affirmed the conviction. See, Tindall v. State, 415 So.2d 1390 (Fla. 5th DCA 1982).

The question now on appeal is whether a defendant can be sentenced to the three year mandatory minimum under Section 775.087(2), Florida Statutes (1981) without the specific finding by a jury that the defendant had a firearm in his possession when he committed the crime.

The facts are that the appellant murdered Sherill Crawford Johns with a rifle. He was charged with first degree murder and convicted of second degree murder. There is absolutely no question that the victim died as a result of Tindall having shot her with a firearm. The jury was not advised that the defendant was facing a three year mandatory minimum sentence and the jury was not given an interrogatory verdict to enable it to find specifically that a firearm was used.

We have considered Overfelt v. State, 434 So.2d 945 (Fla. 4th DCA 1983) and we disagree with it. Thus, we certify that we are in conflict with its holding. Overfelt holds:

that before a trial court may enhance a defendant’s sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question on a special verdict form so indicating. We reject the State’s argument of waiver to the effect that the defendant had the burden of securing such findings from the jury.

434 So.2d at 948.

It is our opinion, and we hold, that where a defendant is charged with a crime which requires the possession of a firearm to commit the crime, or where the allegations and the proof lead to the inescapable conclusion that the defendant possessed a firearm during the commission of the crime, then the jury need only find the defendant guilty of the crime, or of an included lesser offense which also has the requisite allegations and proof to substantiate it, and the jury need not render a specific verdict finding such firearm possession in order for the three year minimum mandatory sentence under Section 775.087(2) to be imposed. If there is not such an inescapable conclusion, then a special verdict is required.

The sentence is affirmed.

AFFIRMED.

SHARP, J., concurs.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

I dissent on the ground that only a jury, in the absence of waiver of a jury trial, can try the factual issues in a criminal case. The issue is not the weight of the evidence; it is defendant’s right to a trial by jury. See Overfelt v. State, 434 So.2d 945 (Fla. 4th DCA 1983) and Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982). The burden was on the state, not the defense, to obtain the interrogatory verdict referred to in the majority opinion. It failed to do so. I would reverse the imposition of the three-year mandatory sentence.

      . No request or objection in that regard was made. See, Torrence v. State, 440 F.2d 392 (Fla. 5th DCA, 1983).


author: ORFINGER, Chief Judge.

text:
    Ernest P. MURPHY, Sheriff of Osceola County, Florida, Appellant, v. Paul Lawrence BOEHM, Sr., Appellee.
    No. 82-954.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

Osceola County Sheriff Ernest P. Murphy appeals an order granting habeas corpus relief to appellee Paul Lawrence Boehm and discharging him from the further custody of appellant.

In July, 1980, Boehm was arrested in Martin County, Florida, as a fugitive from justice from the State of Ohio. The complaint in support of his arrest, as required by Fla.Stat. § 941.14, stated that Martin County had" received credible information from the State of Ohio that Paul Lawrence Boehm had allegedly committed the crimes of escape and felony theft under the laws of that state and had escaped confinement and fled Ohio.

Finding probable cause, the trial court ordered Boehm held for 30 days for extradition purposes. Subsequently, a second order continued the appellee’s incarceration for another sixty days. At the expiration of the sixty-day period, Boehm was released on his own recognizance by order of the lower court because the “State of Ohio failed to initiate extradition proceedings within 90 days."

On April 13,1982, Boehm was arrested in Osceola County pursuant to a warrant for his arrest from Clermont County, Ohio. A complaint in support of the arrest was filed April 14, asserting that Boehm stands charged in Ohio with the crime of escape. This’ is apparently the same charge for which he had previously been picked up in Martin County. A commitment warrant was issued ordering Boehm held pending receipt of a governor’s warrant for extradition, and that time was again extended for an additional sixty days.

Before the extended period expired, Boehm filed his petition for habeas corpus, alleging that he was being illegally detained in that his earlier arrest in Martin County and his subsequent release operated as a bar to any further attempt by the demanding state to extradite him on the same facts. At the hearing on the petition and the sheriffs return, the State presented the warrant of the Governor of the State of Florida commanding Boehm’s arrest and his delivery to a duly appointed representative of the State of Ohio. § 941.07, Fla.Stat. (1981). The trial court agreed that defendant was being illegally detained, holding that Ohio’s failure to “get [its] house in order” during the original 90-day confinement in Martin County did not permit a second arrest on the same facts. Defendant was discharged and the State appeals. We reverse.

Extradition is essentially a federal matter governed by the United States Constitution and federal laws enacted thereunder. State ex rel. Stringer v. Quigg, 91 Fla. 197, 107 So. 409 (1926); State v. Cox, 306 So.2d 156 (Fla. 2d DCA 1974); U.S. CONST, art. IV § 2; 18 U.S.C. § 3182 (1948). In aid of this federal mandate, many states, including Florida, have adopted the Uniform Interstate Extradition Act. See Fla.Stat. §§ 941.01-941.42 (1981). The relevant provisions of Florida’s version of the act provide that a person may be lawfully arrested without a warrant “upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year.” When such a person is arrested he must be taken before a judge with “all practicable speed” and a complaint must be made against him under oath setting forth the ground for the arrest. Fla.Stat. § 941.14 (1981). Sub judice, both times appellee was arrested he was arrested based upon reasonable information from Ohio that he stood charged with escape and felony theft in Ohio. Based upon this information complaints were filed against him. He was released in Martin County because the governor’s warrant was not forthcoming. He filed no petition for habeas corpus, nor was there any adjudication of disputed issues.

Boehm incorrectly relies on Stack v. State ex rel. Kaye, 333 So.2d 509 (Fla. 4th DCA 1976), as support for the order of discharge, but the facts in Stack make that case inapposite. In Stack, the issue was whether res judicata applies to a second habeas corpus proceeding arising out of a second attempt to extradite the appellee. Norman Kaye had been arrested in Florida in January 1975 pursuant to a demand for extradition initiated by the state of Maine. He filed a petition for writ of habeas corpus attacking all the supporting documents attached to the executive warrant of rendition of the governor of Florida. He also contended he was not present in the demanding state in the time set forth in the indictment and that he was not a fugitive from justice. Upon a finding that the petitioner was not in the state of Maine on the date alleged in the indictment and that supporting documents insufficiently alleged a crime, the court ordered appellee discharged. Kaye was again arrested on April 18, 1975, on the same charge, pursuant to a second demand from the governor of Maine to the governor of Florida and once again appellee filed a petition for a writ of habeas corpus asserting that the matter was res judicata because all the issues raised in the second extradition proceeding had been adjudicated adversely to the state in the first proceeding. The trial court agreed and discharged Kaye.

On appeal, the Fourth District Court of Appeal held that res judicata did apply to extradition proceedings, and quoting Anno., 33 A.L.R.3d 1443, 1444, set forth the pertinent rules thusly:

Generally, whether a discharge on habe-as corpus of one held for extradition bars a subsequent extradition proceeding depends on whether the court in the second proceeding is asked to pass upon the same matters or on matters different from those considered by the court in the earlier proceeding. Thus, a discharge in an earlier proceeding will bar a later one within the same jurisdiction based on identical issues and evidence. On the other hand, a discharge because of insufficient process or lack of evidence does not bar a subsequent extradition proceeding and is not res judicata in a subsequent habeas corpus proceeding where the process is corrected or additional evidence is presented.

333 So.2d at 510.

Sub judice, there was no “adjudication” upon which Boehm was earlier released in Martin County. Rather, he was released from custody because the time within which he could be held pending receipt of the governor’s warrant had expired. See §§ 941.15 and 941.17, Florida Statutes (1981). Without an earlier adjudication of law and facts, there would be nothing for the doctrine of res judicata to operate on. As far back as Kurtz v. State, 22 Fla. 36 (1886), the Supreme Court of Florida rejected the contention that res ju-dicata barred a later extradition proceeding where two earlier habeas corpus discharges had resulted from insufficiency of process. Later decisions make it clear that discharge upon habeas corpus operates as a bar and estoppel only to the particular proceeding or process under review and is res judicata only upon the same question presented under the same set of facts. State ex rel. Cacciatore v. Drumbright, 116 Fla. 496, 156 So. 721 (1934); Lee v. Tucker, 42 So.2d 49 (Fla.1949).

Because a duly executed governor’s warrant for the arrest and extradition of Boehm was presented at the hearing, together with supporting documents and testimony, and no issues were presented by the habeas corpus petition which had previously been adjudicated by any court, Boehm’s discharge for res judicata reasons was erroneous. The judgment discharging Boehm is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

COWART, J., and WATSON, Associate Judge, concur.


text:
    Billy WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1145.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Carpenter, 417 So.2d 986 (Fla.1982).

ORFINGER, C.J., and DAUKSCH and COWART, JJ., concur.