author: PER CURIAM. GLICKSTEIN, Judge,

text:
    Dennis Maynard HOOPER, Appellant, v. STATE of Florida, Appellee.
    No. 83-2181.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1984.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura L. Sellers, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We reverse and remand for further proceedings on the authority of Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984). As in Hicks we acknowledge that our decision herein is contrary to the decision in Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA Case 1984).

ANSTEAD, C.J., and LETTS, J., concur.

GLICKSTEIN, J., concurs with reversal only and dissents as to directions on remand, with opinion.

GLICKSTEIN, Judge,

concurs with reversal only and dissents as to directions on remand.

This is an appeal of an order of the trial court revoking Dennis Maynard Hooper’s probation, and of the sentence thereupon imposed. While I would reverse because of the procedure followed by the trial court, on remand my direction would be different.

On June 3, 1982, Hooper pled guilty to grand theft and was adjudged guilty, but the trial court withheld imposition of sentence, instead placing Hooper on four years’ probation, provided he serve 76 days in jail and make restitution as determined by his probation officer. On September 20, 1982, Hooper’s probation officer filed an affidavit of probation violation, consisting of changing his residence and leaving his job without her consent, as well as absconding from supervision.

When Hooper appeared to answer the alleged probation violation, the trial judge asked him whether he admitted or denied the probation officer’s allegations, explaining Hooper could have his probation revoked and be charged with his maximum sentence if the probation officer’s charges were true. The judge then read Hooper the sworn allegations; and Hooper said they were true, admitting he had not reported to his probation officer since leaving her supervision; and that his whereabouts had been unknown until his recent arrest. The judge asked him if he had been pressured by anyone to admit his violation of his probation, and Hooper said he had not. At the close of the hearing, the trial court, having found that 'Hooper had materially violated his probation, and having revoked it, asked if he now desired counsel to be appointed. The public defender was appointed as a result of Hooper’s affirmative answer. By that time, however, the public defender filed a motion to withdraw his client’s admission of guilt and to set a final evidentiary hearing, citing as authority Smith v. State, 427 So.2d 773, 774 (Fla. 2d DCA 1983), wherein the court said, “We do not believe the right to counsel should be contingent upon appellant denying the charges or presenting a substantially complicated case.” On the day of the sentencing hearing, after the court denied the foregoing motion, Hooper explained he had absconded because someone had stolen his car during his incarceration; his life had been threatened several times; there had been attempts to run him over; there was to be no pay, from the job he had taken, for four months; that he could not find another job; and that his probation officer said she could not help him after his life had been threatened. When he called someone in California to solicit a loan he was denied a loan but was offered a job. Accordingly, he moved to California, where he managed a flower shop for about a year and lived completely within the law until arrested for the probation violation.

The trial court sentenced Hooper to three years and nine months in state prison with credit for time served. This appeal is based upon Hooper’s contention that absent a valid waiver, an indigent probationer is entitled to appointed counsel at a probation revocation hearing.

The present case involves two issues; namely, (a) the circumstances in which an indigent probationer'is entitled to appointed counsel at a revocation hearing and (b) what a trial court may require a probationer to admit or deny at that hearing.

Taking the issues in reverse order because of the ease in answering the second and difficulty in deciding the first, the governing principles and dichotomy are recited in State v. Heath, 343 So.2d 13 (Fla.), cert. denied, 434 U.S. 89.3, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977), which held:

We now hold that a probationer, upon a specific request and at periodic intervals, may be required to identify himself and provide all necessary information for his supervision including the place of his residence and his employment. He may also be required to confirm or deny his location at a particular place at a particular time, to explain his noncriminal conduct, and to permit the search of his person and quarters by the supervisor. Failure to do so may itself be grounds for revocation or [sic] probation. His agreement to accept the terms of probation effectively waives his Fifth Amendment privilege with regard to this information. There would be no practical means to properly supervise an individual on probation without a requirement that the probationer respond to directions and requests for information from the probation supervisor. On the other hand, the Fifth Amendment privilege against self-incrimination must be applicable to specific conduct and circumstances concerning a separate criminal offense.

Id. at 16. I see no difference in the inquiry being made in the office of a supervisor or at the probation revocation hearing. See Hall v. State, 421 So.2d 188 (Fla. 2d DCA 1982).

In order to understand the present setting of the primary issue, I believe we must consider the relationship of two decisions by this nation’s highest court, one by this state’s highest court and the governing Florida Statute, as all of them present a clear, logical picture.

Chronologically, the first decision was Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which held that before parole could be revoked, there must be a revocation hearing, saying:

There must also be an opportunity for a hearing, if it is desired by the parolee, prior to the final decision on revocation by the parole authority. This hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation. The revocation hearing must be tendered within a reasonable time after the parolee is taken into custody. A lapse of two months, as respondents suggest occurs in some cases, would not appear to be unreasonable.
We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds. Our task is limited to deciding the minimum requirements of due process. They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.
We do not reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent. [Footnotes omitted.]

Id. at 487-89, 92 S.Ct. at 2603-04, 33 L.Ed.2d at 498-99.

The following year, the Supreme Court decided Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), which answered the question which Morrissey did not consider; namely, whether an indigent probationer or parolee had a due process right to have counsel appointed for him at preliminary and final revocation hearings. The court first eliminated any distinction between probation and parole in the consideration of the foregoing question, saying:

Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one. Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. [Footnote 4 omitted.]

Id. at 782, 93 S.Ct. at 1759-60, 36 L.Ed.2d at 661-62. The court then squarely met the question now facing us, holding:

By the same token, we think that the Court of Appeals erred in accepting respondent’s contention that the State is under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases. While such a rule has the appeal of simplicity, it would impose direct costs and serious collateral disadvantages without regard to the need or the likelihood in a particular case for a constructive contribution by counsel. In most cases, the probationer or parolee has been convicted of committing another crime or has admitted the charges against him. And while in some cases he may have a justifiable excuse for the violation or a convincing reason why revocation is not the appropriate disposition, mitigating evidence of this kind is often not susceptible of proof or is so simple as not to require either investigation or exposition by counsel.
The introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding. If counsel is provided for the probationer or parolee, the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients’ positions and to contest with vigor all adverse evidence and views. The role of the hearing body itself, aptly described in Morrissey as being “predictive and discretionary” as well as factfinding, may become more akin to that of a judge at a trial, and less attuned to the rehabilitative needs of the individual probationer or parolee. In the greater self-consciousness of its quasi-judicial role, the hearing body may be less tolerant of marginal deviant behavior and feel more pressure to reincarcerate rather than to continue nonpunitive rehabilitation. Certainly, the decisionmaking process will be prolonged, and the financial cost to the State — for appointed counsel, counsel for the State, a longer record, and the possibility of judicial review — will not be insubstantial.
In some cases, these modifications in the nature of the revocation hearing must be endured and the costs borne because, as we have indicated above, the probationer’s or parolee’s version of a disputed issue can fairly be represented only by a trained advocate. But due process is not so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed.
In so concluding, we are of course aware that the case-by-case approach to the right to counsel in felony prosecutions adopted in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), was later rejected in favor of a per se rule in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See also Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). We do not, however, draw from Gideon and Argersinger the conclusion that a case-by-ease approach to furnishing counsel is necessarily inadequate to protect constitutional rights asserted in varying types of proceedings: there are critical differences between criminal trials and probation or parole revocation hearings, and both society and the probationer or parolee have stakes in preserving these differences.
In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics. In a revocation hearing, on the other hand, the State is represented, not by a prosecutor, but by a parole officer with the orientation described above; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole. The need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases.
The differences between a criminal trial and a revocation hearing do not dispose altogether of the argument that under a case-by-case approach there may be cases in which a lawyer would be useful but in which none would be appointed because an arguable defense would be uncovered only by a lawyer. Without denying that there is some force in this argument, we think it a sufficient answer that we deal here, not with the right of an accused to counsel in a criminal prosecution, but with the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime.
We thus find no justification for a new inflexible constitutional rule with respect to the requirement of counsel. We think, rather, that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness — the touchstone of due process— will require that the State provide at its expense counsel for indigent probationers or parolees.
It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision. Pre sumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record. [Emphasis added. Footnotes omitted.]

Id. at 787-91, 93 S.Ct. 1762-64, 36 L.Ed.2d 664-67.

When the foregoing decisions were reached, Florida already had in place section 948.06(1), Florida Statutes (1969), which provided and still provides:

Whenever within the period of probation there is reasonable ground to believe that a probationer has violated his probation in a material respect, any parole or probation supervisor may arrest such probationer without warrant wherever found, and forthwith shall return him to the court granting such probation. Any committing magistrate may issue a warrant upon the facts being made known to him by affidavit of one having knowledge of such facts for the arrest of the probationer, returnable forthwith before the court granting such probation. Any parole or probation supervisor, all officers authorized to serve criminal process, and all peace officers of this state shall be authorized to serve and execute said warrant. The court, upon the probationer being brought before it, shall advise him of such charge of violation and if such charge is admitted to be true may forthwith revoke, modify or continue probation and, if revoked shall adjudge the probationer guilty of the offense charged and proven or admitted, unless he shall have previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation. If such violation of probation is not admitted by the probationer, the court may commit him or release him with or without bail to await further hearing, or it may dismiss the charge of probation violation. If such charge is not at said time admitted by the probationer and if it is not dismissed, the court, as soon as may be practicable, shall give the probationer an opportunity to be fully heard on his behalf in person or by counsel. After such hearing, the court may revoke, modify, or continue the probation. If such probation is revoked, the court shall adjudge the probationer guilty of the offense charged and proven or admitted, unless he shall have previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation. [Emphasis added.]

A fair reading of the statute leads to the conclusion that the Legislature of this state, as the spokepersons for the citizens of Florida in the codification of our social value judgments, never intended to provide counsel for all indigent probationers ■ in jeopardy of revocation of their conditional liberty. Its clear purpose was to announce that in Florida there would be no star chamber proceedings with probationers being precluded from having legal assistance. In short, the statute permitted the assistance of counsel; it did not require it.

Then State v. Heath was decided, which quoted at length from Morrissey in the same manner as I have done. It then said in reliance upon Gagnon:

A probationer does not enjoy the same status as an ordinary citizen, but even so a probationer is entitled to some but not all due process rights. In Gagnon v. Scarpelli, supra, the United States Supreme Court held that these include the right to preliminary and final revocation hearings under the same conditions provided in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

adding:

The purpose of a revocation hearing is to determine whether the probationer has given cause to the court to revoke his probation. We recently noted that evidence obtained in violation of the Fourth Amendment may be admissible against the probationer at a revocation hearing even though it must be excluded at a criminal trial.

343 So.2d at 15. The specific inquiry in State v. Heath was the right of the probationer against self-incrimination; however, I believe — in light of the existing Florida statute — that the highest court of this state would not pick and choose from Gagnon what it liked and reject what it did not like. Instead, I would like to think that our state’s highest court would respect our nation’s highest court and the pronouncement by our Legislature were it faced with the first issue in this case and would consider that Floridians had not afforded probationers greater procedural due process than the law of the land required.

I further suggest the Supreme Court of Florida recognized that although Morrissey and Gagnon were framed in administrative trappings involving neutral boards with jurisdiction to revoke probation, the principles recited in those cases applied equally to revocation by a neutral magistrate or judge, for the reason that the concern in both instances is conditional liberty, not absolute liberty. Were it the latter, surely the whole panoply of procedural due process rights in a criminal proceeding would apply, including the right to trial by jury in appropriate instances.

Accordingly, I cannot reconcile .the foregoing with the decision of this court in Hicks v. State, also issued today, and cited by the majority, or with the decision of our companion court in Smith v. State, which expressly rejected the limitations upon procedural due process in Gagnon without any explanation of the authority by which it did so, or any mention of the recognition afforded Morrissey and Gagnon by this state’s highest court in State v. Heath. Without ascribing hubris to this or our companion court, it is my opinion that Hicks and Smith expressly conflict with the holding in Gagnon that indigent probationers do not have a per se right to counsel. I find support for my opinion in Sand-erson v. State, cited by the majority, which applied the limitations in Gagnon and suggested that if every indigent probationer is going to be automatically provided with counsel when a violation is alleged against him — without regard to the nature of the violation or the existence of any disputed issue, that extension of procedural due process must come from the Legislature, which holds the purse strings of the citizenry as their surrogate. Only that body, in my opinion, has the authority to disregard or find inapplicable the cost analysis which undergirds the holding in Gagnon.

As for the facts of this case, I have emphasized language in Gagnon that describes two categories in which a presumption arises that counsel should be appointed. The latter category applies here. It was error for the trial court to proceed without informing Hooper of his right to request counsel. On remand the trial court should be directed to vacate Hooper’s admission of guilt and to set the matter for evidentiary hearing.

It would be my suggestion that when a probationer, unaccompanied by counsel, makes his first appearance in revocation proceedings, the trial court should, after reading to the probationer the alleged probation violations and the charges on which they are based, and after explaining to him the nature and potential consequences of the proceedings, but before taking any plea from the probationer, inform him of his right to request counsel. The trial court should further advise the probationer that if he desires counsel and can demonstrate indigence he will be provided with counsel only under the circumstances described in Gagnon. There is no magic incantation that should be recited, but the sense of the Gagnon guiding factors ought to be conveyed. If the probationer does not waive counsel, and if, though indigent, he is denied appointed counsel, the trial court would be required to state clearly on the record the reasons for the denial.

There is a basic difference between the ■ decision of this court in Hicks and that of our companion court in Smith; namely, that in the former, the opinion recites the reasons for its not following the limitations in Gagnon, whereas the latter simply recites that the court is not going to follow Gagnon. The reasons given in Hicks are three:

1. A per se rule is fairer than Gagnon. My reply to that is a value judgment of mine which is not shared by others; namely, that, so long as the Constitution does not require otherwise, whether or not a rule is fair is a matter for the Florida Legislature, which is the forum for deciding in what quantity taxpayers’ dollars are to be appropriated for which programs — after debate by the people’s surrogates and consideration of the various social judgments advocated in that debate. The Legislature has never said that every indigent probationer who is charged with failure to make monthly reports, or to pay monthly assessed costs or to keep a supervisor informed of his address — all of which can result in violation of probation and imprisonment — is entitled to be advised. Its expression is contained in Section 948.06(1), quoted above. It seems highly inappropriate for this court to take on the responsibility of spending the tax dollars of the citizens who reside in this district when that is the responsibility of the Legislature.

Our duty is to determine the constitutionality of statutes because of our legal training. It is also not unseemly for us to request the Legislature to consider legislative changes because of our perception or our sensitivity. It is one thing to “suggest,” rendering unto Caesar that which is Caesar’s. It is quite another, in my opinion, to wrest rather than to render.

2. Gagnon was decided in the probation violation framework of an administrative proceeding rather than a judicial proceeding; therefore its basis upon the cost to the taxpayers does not bind this court to follow it, Florida having adopted a judicial, not administrative method of determining violations. I find a number of flaws in this argument. First, the Hicks panel has added to the taxpayers’ obligation the potential expense of providing every indigent probationer with counsel. It does so, knowing the existence of cost increase being occasioned by adding to the obligations of public defender staffs, but without any knowledge as to the extent of the cost increases, because (a) a court is not equipped to take testimony as would a legislative committee; and (b) the record in Hicks is obviously void of any cost data. Second, the Supreme Court in Gagnon had before it the applicable statutes in every state and was well aware of the fact that some states used judicial proceedings and other administrative; so the Court’s discourse on administrative agency hearings as a rationale for its holding is eye-wash. Nowhere in the opinion is there a statement that the Court was making a rule that applied only to an administrative framework. Third, the Court expressly recited that a probation revocation proceeding is not a criminal trial, and it laid out basic distinctions between the two. That should be a red flag to this court that the Court intended judicial revocation and administrative revocation to be treated equally. Fourth, the Hicks’ opinion, by fixing onto the distinction between administrative v. judicial conveniently ignores the balance of the opinion, which convenience does not make for fair evaluation of the rule adopted in Gagnon. Fifth, there cannot be 50 separate constitutional rules under the Federal Constitution for revocation proceedings simply because there may be 50 separate ways to revoke probation in the several states. Sixth, the Hicks opinion does not mention that in Florida there is a combination of administrative and judicial personnel involved in probation violations; and that violation is initiated by administrative personnel. Seventh, when does the judicial system submerge under the weight of its self-imposed burden? A debate of this matter in the Legislature would seem logical, where the- “per se” rule could be perceived vis a vis the criminal justice system. Specifically, the elected representatives would decide whether the system should be further clogged with additional proceedings that are not constitutionally required to protect individuals on probation by grace after committing a criminal offense.

3. A per se rule tends to reduce uncertainty and enhance consistency. To me this is a speculative expression in a vacuum, as the Hicks opinion neither explains nor supports the conclusion in a practical manner. It seems more appropriate to suggest the opinion’s holding reduces the likelihood of efficient, speedy determinations and enhances the cost and complication of justice without judicial or statutory authority therefor.

I suggest that the view which I espouse here, namely, that there are not three legislative bodies in Florida — the House of Representatives, the Senate and the Fourth District Court of Appeal — finds support in the parallel case of Baldwin v. Benson, 584 F.2d 953 (10th Cir.1978). The situation facing the court in that post-Gagnon decision was identical to that which would occur if the .Florida Legislature were to amend Section 948.06(1) tomorrow, statutorily authorizing implementation of the “per se” rule. There, after Gagnon, and with complete awareness of both Morrissey and Gagnon, the Congress enacted the United States Parole Commission and Reorganization Act in 1976. The court held that Gag-non was no longer the law because the act expressly provided a “per se” rule for parole violators. We must remember the Supreme Court said there was no distinction between parole and probation. The panel in Hicks was provided with a copy of Baldwin v. Benson but was apparently not impressed with its applicability to this case.

In closing, my research of post-Gagnon decisions in other states leads me to conclude that they travel in a myriad of directions. For the most part they do not vary from Gagnon unless a statute or state judicial rule authorizes it. Alphabetically by state, they are In re Armstrong v. State, 294 Ala. 100, 312 So.2d 620, 622 (1975); Hoffman v. State, 404 P.2d 644 (Alaska 1965); Elkins v. State, 147 Ga.App. 837, 250 S.E.2d 535 (1978); Reeder v. Commonwealth, Ky., 507 S.W.2d 491 (1973); People v. Jackson, 63 Mich.App. 241, 234 N.W.2d 467 (1975); Abel v. Wyrick, 574 S.W.2d 411 (Mo.1978); Fairchild v. Warden, Nevada State Prison, 89 Nev. 524, 516 P.2d 106 (1973); Stapleford v. Perrin, 122 N.H. 1083, 453 A.2d 1304 (1982); Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1973); and In re Wentworth, 17 Wash.App. 644, 564 P.2d 810 (1977).

       Despite the undoubted minor difference between probation and parole, the commentators have agreed that revocation of probation where sentence has been imposed previously is constitutionally indistinguishable from the revocation of parole. See, e.g., Van Dyke, Parole Revocation Hearings in California: The Right to Counsel, 59 Calif.L.Rev. 1215, 1241-1243 (1971); Sklar, Law and Practice in Probation and Parole Revocation Hearings, 55 J.Crim.L.C. & P.S. 175, 198 n. 182 (1964).

      . See the discussion of Morrissey and Gagnon in Morgan v. Wainwright, 676 F.2d 476 (11th Cir.1982), which also contains a scholarly review of those criminal proceedings in which accused is not entitled to a jury.

      . A significant difference pointed out is that in a criminal trial there is a jury of limited legal knowledge and experience to whom the facts and the law must be conveyed.


source: Caselaw Access Project

author: PER CURIAM. GLICKSTEIN, Judge, HURLEY, Judge,

license: Public Domain

text:
    Bernard Franklin WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1673.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Rehearing Denied Aug. 1, 1984.

      Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed on authority of Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984).

DOWNEY, J., concurs.

GLICKSTEIN, J., concurs only in reversal with opinion.

HURLEY, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring only in the reversal.

I concur in the reversal because it was error for the trial court to proceed as it did. However, I disagree with the analysis and “per se” rule adopted in Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984), for all of the reasons recited in my concurring and dissenting opinion in Hooper v. State, 452 So.2d 611 (Fla. 4th DCA 1984), which I need not repeat here.

Whatever the Supreme Court of Florida decides, I hope it will resolve the conflicts between the district courts of appeal at an early date because of two important concerns. First, there is an ongoing lack of uniformity which affects a growing number of probationers as well as trial judges, prosecutors and defense counsel who are caught up in the conflict. Second, the taxpayers’ resources are involved. If the Supreme Court adopts the view of the Second District Court of Appeal in Smith v. State, 427 So.2d 773, 774 (Fla. 2d DCA 1983), and of this court in Hicks, then (a) the cases in the First District Court of Appeal including Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA 1984) and any subsequent thereto will have to be reprocessed; and (b) it would seem appropriate for the Legislature as the people’s surrogate, after specific focus and debate, to consider response to any decision not only in a constitutionally permissible manner but, more important, as the people’s spokespersons making statutory expressions of our citizens’ social value judgments.

HURLEY, Judge,

concurring specially.

In addition to the compelling policy considerations set forth in Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984), it is important to note that in Florida imposition of sentence is withheld when a defendant is placed on probation. See § 948.01(3), Fla. Stat. (1983). Consequently, Florida’s method of processing probation revocations is factually indistinguishable from that described in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and, therefore, I believe that appointment of counsel is constitutionally mandated. See In re Wentworth, 17 Wash.App. 644, 564 P.2d 810 (1977).


author: PER CURIAM.

text:
    Peter COSTA and Clara Costa, Appellants, v. KENT INSURANCE COMPANY, Appellee.
    No. 83-1169.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Rehearing Denied July 16, 1984.

      Horton, Perse & Ginsberg and Arnold Ginsberg; Gilmour, Morgan & Rosenblatt, Miami, for appellants.
    English, McCaughan & O’Bryan and Robert J. Schaffer, Coral Gables, for appel-lee.
    Before HUBBART and JORGENSON, JJ., and J. TILLMAN PEARSON (Ret.), Associate Judge.
   PER CURIAM.

We reverse and remand for a new trial upon a holding that the trial court erred when it instructed the jury that the subject insurance policy would be “voided by the misrepresentation or concealment of a material fact ... even though [the insured] intended no fraud_” (Emphasis added.) Absent intent there can be no fraud. In re Estate of Donner, 364 So.2d 742 (Fla.3d DCA 1978).

Reversed and remanded for a new trial.


text:
    Terrence E. ROSENBERG, Appellant, v. Judith ROSENBERG (Stein), Appellee.
    No. 83-1174.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Rehearing Denied July 31, 1984.
    Terrence E. Rosenberg, in pro. per.
    Atkinson, Golden, Jenne, Diner & Henry and Deborah Marks, Hollywood, for appel-lee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

The marriage of the parties in this matter was dissolved by final judgment of dissolution in June of 1980. The final judgment included a property settlement agreement. The appellant failed to abide by the terms of the property settlement agreement and the final judgment. Motions to enforce compliance were filed and an order dated October 12, 1983 found the appellant in violation of same and directed his compliance. An untimely petition for rehearing was filed to this order on October 25, 1983. Rule 1.530(b) Florida Rules of Civil Procedure.

A subsequent motion to vacate was filed contending that the written order of the 12th did not reflect the true rulings of the trial court. The trial court entered an order denying the motion to vacate and found the appellant in contempt, ordering him incarcerated if he did not comply within a certain time, for failure to make payments required under the property settlement agreement. The trial court also struck and denied the petition for rehearing. We affirm the striking of the untimely petition for rehearing. See Grabarnick v. Florida Homeowners Association of North Broward, Inc. 419 So.2d 1065 (Fla.1982); Feinberg v. Feinberg, 384 So.2d 1304 (Fla. 4th DCA 1980); Rule 1.530(b) Fla.R.Civ.P. We also affirm the denial of the motion to vacate. Schwab & Co., Inc., v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978); Randle Eastern Ambulance Service, Inc. v. Vasta, 345 So.2d 1084 (Fla. 3d DCA 1977). However, we reverse the order holding the appellant in contempt and ordering his incarceration. Where periodic payments are in settlement of property rights pursuant to a property settlement agreement, as in the instant case, the parties stand in the position of debtor and creditor. See Howell v. Howell, 207 So.2d 507 (Fla. 2d DCA 1968); Sedell v. Sedell, 100 So.2d 639 (Fla. 1st DCA 1958). Their rights under such circumstances cannot be enforced by contempt but only by the usual remedies available to a creditor against a debtor, as the courts may not imprison for failure to pay a debt. See Chapman v. Lamm, 388 So.2d 1048 (Fla. 3d DCA 1980), modified on other grounds 413 So.2d 749 (Fla.1982); Carlin v. Carlin, 310 So.2d 403 (Fla. 4th DCA 1975); Corbin v. Etheridge, 296 So.2d 59 (Fla. 1st DCA 1974); Howell v. Howell, supra. This reversal is without prejudice to the trial court entering such other sanctions as may be necessary to aid the appellee in collecting that which the appellant agreed to pay.

Affirmed in part, reversed in part and remanded to the trial court for further proceedings.

      . In this appeal the appellant is seeking to terminate the periodic payments on the basis that they are in fact alimony which terminate upon remarriage. However, the trial court clearly found that they were periodic payments in set-dement of property rights and therefore not terminable by a subsequent marriage of the appellee. See Vance v. Vance, 143 Fla. 513, 197 So. 198 (1940); Compare: Karch v. Karch, 445 So.2d 1077 (Fla. 3d DCA 1984).


text:
    Mary BIRCH, Appellant, v. Raymond BIRCH, Appellee.
    No. 83-2389.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Rehearing Denied July 16, 1984.
    Bernard Berman, Fort Lauderdale, for appellant.
    Joe N. Unger, Miami, Max M. Hagen, North Miami Beach, for appellee.
    Before HUBBART and FERGUSON, JJ., and TILLMAN PEARSON (Ret.), Associate Judge.
   PER CURIAM.

Affirmed upon the authority of Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Ferrero v. Ferrero, 441 So.2d 1152 (Fla.3d DCA 1983).


author: SCHWARTZ, Chief Judge.

text:
    Charles J. PFEIFER and Charles Fitzpatrick, as Personal Representatives of the Estate of Suzanne Harvison, Appellants, v. Marjorie VARNER, Appellee.
    No. 83-2419.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Rehearing Denied July 13, 1984.
    As Amended Sept. 19, 1984.
    Richard H.W. Maloy, Coral Gables, for appellants.
    James A. Baccus, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   SCHWARTZ, Chief Judge.

When she died on June 20, 1979, Suzanne Harvison and the present appellee, Marjorie Varner, owned a home in Dade County jointly with rights of survivorship. In addition, Harvison left Varner a $100,000 specific bequest in her will. In the present proceeding, the representatives of Harvi-son’s estate seek review of each aspect of an order which (1) held that Varner was not liable for a proportionate share of the federal estate tax attributable to Harvison’s interest in the jointly held property which passed to the appellee outside the will; (2) ordered the estate to account for income earned on Varner’s $100,000 bequest from the date of the testator’s death; and (3) set a subsequent hearing to determine whether Varner was entitled to attorney’s fees from the estate. We affirm in part and reverse in part.

1. We first hold that Ms. Varner, as the surviving joint tenant, is liable for the estate tax attributed to the decedent’s interest in the jointly held property. This conclusion, which is to the contrary of the one below, is compelled by the clear and unambiguous terms of Section 733.-817(l)(e), Florida Statutes (1981), which provides:

(1) Any estate, inheritance, or other death tax levied or assessed under the tax laws of this or any other state, political subdivision, or country or under any United States revenue act concerning any property included in the gross estate under the law[] shall be apportioned in the following manner:
(e) The balance of the next amount of the tax, including, but not limited to, any tax imposed concerning gifts in contemplation of death, jointly held properties passing by survivorship, property passing by intestacy, or insurance, shall be equitably apportioned among, and paid by, the recipients and beneficiaries of the properties or interest, in the proportion that the value of the property or interest of each included in the measure of the tax bears to the total value of all the properties and interests included in the measure of the tax, except as otherwise directed by the will.

Accord, cases collected, Annot., Construction and Application of Statutes Apportioning or Prorating Estate Taxes, 71 A.L.R.3d 247, 307 (1976) (“A surviving joint tenant or tenant by the entirety is liable for his or her proportionate share of the estate tax under the typical apportionment statutes which refer to any property required to be included in the gross estate.” [footnotes omitted]); Fenn and Koren, The 1974 Probate Code — A Marriage of Convenience, 27 U.Fla.L.Rev. 1, n. 264 (1974).

The appellee’s several contentions on this point are without merit. Section 733.-805(1) specifically excepts from its operation estate taxes “as otherwise provided in s. 733.817.” Section 733.817(l)(a) states only that the residuary estate shall bear the burden of the estate taxes attributable to all assets which pass under the will and has no application to the non-probatable interest involved here. Finally, the cases relied upon, e.g., In re Estate of Barret, 137 So.2d 587 (Fla. 1st LCA 1962), were decided during a period when neither § 733.817(l)(e) nor a statutory equivalent was in effect and are therefore obviously not controlling. See Peirsol and Fowler, Tax Apportionment, Fla.Bar CLE Basic Estate Planning in Florida § 14.3 (1980).

2. We similarly follow plain statutory language in approving the trial court’s ruling that income on the specific bequest is owed to the devisee from the date of the testator’s death. In this regard, Section 738.05(2)(a), Florida Statutes (1981) states:

(2) Unless the will otherwise provides, income from the assets of a decedent’s estate after the death of the testator and before distribution, including income from property used to discharge liabilities, shall be determined in accordance with the rules applicable to a trustee under this chapter and distributed as follows:
(a) To specific devisees, the income from the property bequeathed or devised to them respectively, including an appropriate portion of interest accrued since the death of the testator, and less taxes and cost of ordinary repairs, other expenses of management and operation of the property, and taxes imposed on income, excluding taxes on capital gains, that accrue during the period of administration. [e.s.]

As we were concerning the first issue, we are unimpressed with the attempts, coming this time from the opposite direction, to avoid the legislative command. While Sections 732.214 and 733.817(4), Florida Statutes (1981) provide for suspending distribution under certain circumstances, neither concerns the present issue, with which § 738.05(2)(a) specifically deals, of how much the devisee must be paid when the distribution finally occurs. And Price v. Florida National Bank of Miami, 419 So.2d 389 (Fla. 3d DCA 1982) involves the quite different issue of interest payable on an elective share, which, unlike a specific bequest, is incapable of precise computation until the order directing payment is entered. Most significantly, its holding that interest runs, as in the case of an ordinary theretofore unliquidated debt, only from that date is avowedly based on the absence of a governing statute on the question. Since that statute does exist in this instance in the person of § 738.05(2)(a), Price is not pertinent here.

3. Finally, there is no basis upon which it may be concluded that Ms. Var-ner’s attorney has rendered services which in any way benefitted the estate, as opposed to his client. Section 733.106(3), Florida Statutes (1981); In re Estate of Griffis, 366 So.2d 80 (Fla. 4th DCA 1978). We therefore reverse that aspect of the order under review permitting future consideration of the issue and direct that the motion for attorney's fees be denied.

Affirmed in part, reversed in part.

       For reasons best known to themselves, the appellants have conceded in this court that the $100,000 bequest is a "specific bequest,” and we have accordingly decided the interest issue on the basis of that concession. But see In re Estate of Parker, 110 So.2d 498 (Fla. 1st DCA 1959), cert. denied, 114 So.2d 3 (Fla.1959); Park Lake Presbyterian Church v. Estate of Henry, 106 So.2d 215 (Fla. 2d DCA 1958); § 738.05(2) (b), Fla.Stat. (1981).
      The opinion is otherwise unaltered.

      . There is no doubt that the value of interest in the jointly held property was included in the gross estate for federal estate tax purposes, and that, accordingly, the estate did in fact pay $13,-931.27 (of the total tax of $86,068.73) in respect to that interest.

      . § 733.805(1)
      (1) If a testator makes provision by his will, or designates the funds or property to be used, for the payment of debts, estate and inheritance taxes, family allowance, exempt property, elective share charges, expenses of administration, and devises, they shall be paid out of the funds or from the property or proceeds as provided by the will so far as sufficient. If no provision is made or any fund designated, or if it is insufficient, the property of the estate shall be used for such purposes, except as otherwise provided in s. 733.817 with respect to estate, inheritance, and other death taxes, and to raise the share of pretermitted spouse and children, in the following order:
      (a) Property not disposed of by the will.
      (b) Property devised to the residuary devi-see or devisees.
      (c) Property not specifically or demonstratively devised.
      (d)Property specifically or demonstratively devised.

      . § 733.817(l)(a)
      (a) If a part of the estate passed under a will as a specific devise or general devise or in any other nonresiduary form, exclusive of property over which the decedent had a power of appointment as defined from time to time under the estate tax laws of the United States, the net amount of the tax attributable to it shall be charged to and paid from the residary estate without requiring contribution from persons receiving the interests, except as otherwise directed by the will. In the event the residuary estate is insufficient to pay the tax attributable to the interests, any balance of the tax shall be equitably apportioned among the recipients of the interests in the proportions that the value of each interest included in the measure of the tax bears to the total of all interests so included, except as otherwise directed by the will.

      . The exceptions to this rule arise when the will provides otherwise, Yoakley v. Raese, 448 So.2d 632 (Fla. 4th DCA 1984), or the residuary estate is insufficient. Since neither applies in this situation, it is agreed that Varner’s $100,000 specific bequest bears no share of the estate tax.

      . "The first apportionment statute in Florida provided that death taxes 'shall be equitably prorated among the persons interested in the estate to whom such property is or may be transferred or to whom any benefit accrues.’ Ch. 25435, §§ 1 — 4, Laws of Fla. (1949). The statute was amended substantially in 1957, the result being that death taxes were a charge against the residue unless the will provided otherwise. An amendment to F.S. 734.041 in 1963 converted the statute back to an equitable apportionment statute. The present statute, 733.817, also an equitable statute, was enacted in 1974. In view of this history, cases decided under the earlier statutes are not always of help in interpreting the present version. See Lindsay, Florida’s Estate Tax Laws—The Need for Compromise, 35 Fla.Bar Journal 164 (March 1961).”

      . § 732.214
      On petition of the personal representative or the surviving .spouse and after notice and hearing, the court shall determine the amount of the elective share and order its payment in cash or in kind within a time certain from the assets of the estate subject to the elective share. No distribution shall be required until 6 months from the date of death, when no federal estate tax return is required to be filed, or until the tax return is timely filed, when required. The order may provide for partial distributions. On petition of any interested party after notice, the court may suspend distribution of the elective share or any part of it until final settlement of the federal estate tax liability of the estate. Assets distributed in kind shall be distributed at fair market value on the date of distribution.

      . § 733.817(4)
      (4) No personal representative or other fiduciary shall be required to transfer any property until the amount of any tax due from the transferee is paid or, if the apportionment of tax has not been determined, until adequate security is furnished for the payment. The fiduciary shall not be required to distribute assets that he reasonably anticipated may be necessary to pay any state or federal taxes.

      . § 733.106(3)
      (3) Any attorney who has rendered services to an estate may apply for an order awarding attorney fees, and after informal notice to the personal representative and all persons bearing the impact of the payment the court shall enter its order on the petition.

      . We consider this ruling, which is plainly non-final and therefore not independently reviewable at this stage, only because it is part of an order which, in the two respects we have treated in this opinion, plainly is.


text:
    Jerry SOOWAL and East Marsh Nursery, Inc., Appellants, v. Jay W. MARDEN and The Glassworks, Inc., Appellees.
    No. 84-368.
    District Court of Appeal of Florida, Third District.
    June 5, 1984.
    Rehearing Denied July 23, 1984.
    Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauderdale, and Kevin J. O’Grady, Plantation, for appellants.
    Leslie J. Lott, Coral Gables, for appel-lees.
    Before HUBBART and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN (Ret.), Associate Judge.

• Jerry Soowal and East Marsh Nursery, Inc., a domestic corporation, appeal a non-final order of the trial court denying their motion to dismiss the complaint for improper venue. For reasons more fully developed herein, we reverse.

The underlying cause of action concerns an alleged breach of a settlement agreement which was entered into by the parties on May 13, 1983 to stop appellants’ alleged violation of appellees’ trademark. The complaint was filed after appellants allegedly used the disputed mark at a trade show in Hallandale, Florida on September 12, 1983. The complaint, filed in Dade County, was brought in three counts: breach of the settlement agreement, fraud and declaratory judgment. The complaint prayed for monetary damages and injunc-tive relief. Appellants filed their motion to dismiss, asserting that the requisites for laying venue in Dade County were not met and that venue was more properly laid in Broward County.

Section 47.011, Florida Statutes (1983), states:

“Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.”

Section 47.051, Florida Statutes (1983), states in relevant part:

“Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located...”

It is uncontroverted that neither defendant resides in Dade County, the corporate defendant does not maintain an office in Dade County, and there is no property litigation in Dade County. To be sure, the location of defendants’ residence and office is in Broward County. Therefore, venue can only be proper in Dade County if the cause of action accrued here.

Since a suit for declaratory relief does not of itself constitute a cause of action for the purpose of activating the venue statute, it is the underlying relief sought which determines venue. The Florida Companies v. BFA Corp., 424 So.2d 48 (Fla. 3d DCA 1982); Windsor v. Migliaccio, 399 So.2d 65 (Fla. 5th DCA 1981). For venue purposes in a contract action, a cause of action accrues where the contract is breached. Orange Blossom Enterprises, Inc. v. Brumlik, 430 So.2d 13 (Fla. 5th DCA 1983); Vital Industries, Inc. v. Burch, 423 So.2d 1023 (Fla. 4th DCA 1982); Windsor v. Migliaccio, supra, 399 So.2d at 66. For venue purposes in a tort action, a cause of action is deemed to accrue where the act creating the right to bring an action occurred. E.J. Sales & Service, Inc. v. Southeast First National Bank of Miami, 415 So.2d 906 (Fla. 3d DCA 1982); Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975).

Appellants assert that the cause of action, if any, accrued in Broward County where the alleged prohibited use of the trademark took place. Appellees argue that the cause of action accrued in Dade County because the defendants’ failure to turn over all printed and other materials bearing the trademark to them in Dade County constituted a breach of the settlement agreement. We believe, however, that the simple failure to send materials to Dade County, without more, is not sufficient to state a cause of action. “A cause of action is some particular legal right of plaintiff against defendant, together with some definite violation thereof which occasions loss or damage.” Luckie v. McCall Manufacturing Co., 153 So.2d 311, 314 (Fla. 1st DCA), cert. denied, 157 So.2d 817 (Fla.1963). Thus, while the failure to send the materials may have been a violation of the settlement agreement, appellees sustained no injury or damage until the prohibited materials were allegedly used. That action occurred in Broward County. Therefore, all the statutory requirements for setting venue were met in Broward County and appellants’ motion should have been granted.

The decision of the trial court is reversed and remanded for further proceedings not inconsistent with this opinion.


author: COBB, Judge.

text:
    Lawson L. LAMAR, Sheriff of Orange County, Florida, Appellant, v. UNIVERSAL SUPPLY COMPANY, INC., Appellee.
    No. 83-1296.
    District Court of Appeal of Florida, Fifth District.
    June 7, 1984.

      Peggy M. Morris, Orlando, for appellant.
    Hal Roen, Orlando, for appellee.
   COBB, Judge.

This appeal raises the issue of the constitutionality of Florida’s Contraband Forfeiture Act as amended effective July 1, 1980. The specific provision at issue herein is section 932.703(1), Florida Statutes (1983), which provides, in pertinent part:

(1) Any ... motor vehicle ... which has been or is being used in violation of any provision of s. 932.702 or in, upon, or by means of which, any violation of said section has taken or is taking place, as well as any contraband article involved in the violation, shall be seized. All rights and interests in and title to contraband articles or contraband property used in violation of s. 932.702 shall immediately vest in the state upon seizure by a law enforcement agency, subject only to perfection of title, rights, and interest in accordance with this act. Neither re-plevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act. (Emphasis added.)

The reference in the last sentence to an action for recovery of property “as provided in this act” is clarified by section 932.-704, Florida Statutes (1983), which provides:

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

The facts underlying this appeal show that the Sheriff of Orange County seized a 1980 Oldsmobile on July 22, 1983, pursuant to the aforesaid Act (section 932.701-704, Florida Statutes). It was claimed that the vehicle owned by Universal Supply Company, Inc., was used in the commission of an aggravated assault by Universal’s vice-president, Lloyd James Lisco. On July 25, the sheriff notified Universal, by courtesy letter, that a forfeiture investigation had been initiated.

On July 29, seven days after seizure, Universal filed a replevin action against the sheriff, seeking return of the motor vehicle. On August 3 the sheriff filed a motion to dismiss the replevin action and the order to show cause which had been served on him. After a hearing on the motion on August 26, the trial court entered an order dated August 29 denying the motion to dismiss and ordering the sheriff to either file a forfeiture proceeding against the vehicle before September 3 or otherwise to return it to Universal on that date.

The argument of the sheriff at the hearing, as set forth in his written motion to dismiss, was based on the provisions of section 932.703, quoted above. The sheriff contended:

This particular section of the latest amendment to the Florida Contraband Forfeiture Act has been specifically cited and mentioned on at least two occasions in the Florida courts. See Golding v. Director of Public Safety, etc., 400 So.2d 990 at 991, and see also 400 So.2d 992 at 997. In both of these particular cases, the Third District Court of Appeals assumed, while not actually deciding, that under our now present statute a Motion to Return Forfeitable Property (or re-plevin) would not lie and that the return of the property can only be accomplished by the claimant successfully terminating a forfeiture action.

The sheriff declined to file the forfeiture proceeding and now appeals the August 29 order for return of the vehicle pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(H), relating to the appeal of non-final orders which determine the right to immediate possession of property.

As one point on appeal, the sheriff argues that the August 29 order is a nullity because the trial court did not comply with the procedural requirement of section 78.-067, Florida Statutes (1983), in regard to issuing an order directing the clerk of the court to issue a writ of replevin. It is contended by appellant that, given the mandatory language of the statute, the plaintiff should have obtained an order from the trial court on September 2 (when the seven days ran out) directing the clerk to issue a writ of replevin.

We agree, as does the appellee, that the procedure ordering the sheriff to return the vehicle on a certain date is not in accordance with the aforesaid statute. We do not agree, however, that the approach taken by the trial court was null and void. The statute does not contemplate a situation where the sheriff, to whom the clerk normally would issue the writ, is the party defendant. Rather than have the sheriff execute a writ of replevin against himself, the trial court utilized a viable — and valid— alternative procedure, which was well within the authority of the trial court. Any writ which the clerk of the court can issue upon direction by the trial judge can be issued directly by the judge himself. Therefore, we consider the substantive, constitutional issue raised by this appeal.

The sheriff cites us to two cases, Golding v. Director of Public Safety Dept., 400 So.2d 990 (Fla. 3d DCA 1981), and Sawyer v. Gable, 400 So.2d 992 (Fla. 3d DCA 1981), as supporting his view that the language from section 932.703(1), Florida Statutes, quoted above, precludes an action in replev-in and that the only recourse available to a claimant of seized property, Universal in the instant case, is to successfully defend a forfeiture action initiated by the state attorney pursuant to section 932.704. We agree with appellant that the statute makes no distinction based on the time of filing a prohibited action. Clearly, it purports to prohibit a replevin action at all times after seizure of the property, not merely after the filing of a forfeiture action. The sheriff contends that the statute, thus read, serves the salutary purpose of preventing a claimant from precipitating litigation in regard to the property prior to an adequate opportunity on the part of the state to fully investigate and prepare for forfeiture. The sheriff cites to this court’s opinion in Sandidge v. State ex rel. City of Oviedo, 424 So.2d 152 (Fla. 5th DCA 1982), which held that a six-month delay between seizure and filing of a forfeiture action was not so unreasonable as to defeat the action.

It is also the position of the sheriff that since section 932.703(1), by its terms, purports to immediately vest title in the state to contraband articles, the claimant is no longer the owner of the property and, therefore, without standing to initiate an action for its return. Lastly, the sheriff argues that contraband articles cannot be justifiably replevied because, by definition, such articles cannot be “wrongfully detained,” as is required by section 78.055, Florida Statutes (1983). Ethiopian Zion Coptic Church v. City of Miami Beach, 376 So.2d 925 (Fla. 3d DCA 1979).

Universal, on the other hand, points to the due process clause of the Fourteenth Amendment of the United States Constitution in support of its argument that the sheriff cannot seize its property and keep it without hearing until such time as the state attorney, at his leisure, decides to file a forfeiture action. The “prompt filing” requirement of section 932.704(1) is insufficient protection, says Universal, particularly in view of the propensity of courts to construe the term on a case-by-case basis which may permit the state as long as six months’ delay. See, e.g., Sandidge and In re Alcoholic Beverages Seized From Saul’s Elks Club v. Cobb, 440 So.2d 65 (Fla. 1st DCA 1983). Universal’s response to the sheriff’s argument in regard to the necessity of time for pretrial investigation is that a state agency must accept responsibility, if it is willing to seize property, to promptly justify that seizure.

As pointed out by Universal, Sandidge is distinguishable from the instant situation. There, we were not confronted with a claimant to property who affirmatively sought a prompt hearing, but with one who waited and raised delay only as a defensive matter to a forfeiture action initiated by the state attorney. The validity vel non of the statutory prohibition against the initiation of replevin or any other proceeding by the claimant was not raised, or considered, in Sandidge, nor, for that matter, in Cobb. The issue in Sandidge and in Cobb was whether or not the six-month delay between seizure and filing, absent any showing of prejudice by the claimant — or demand for hearing — would automatically defeat the forfeiture action because of a failure by the state attorney to “promptly proceed” as required by section 932.704. The issue here is different.

Universal properly distinguishes Ethiopian Zion on the basis that it concerned marijuana plants, which are contraband per se. The mere possession of such an item is violative of state criminal law— hence, replevin will not lie. The Oldsmobile herein at issue is not contraband per se.

We do not agree that the two Third District cases upon which the sheriff relies support his position. Golding arose prior to the 1980 amendment to the Florida Contraband Act. It concerned a seizure, pursuant to warrant, of an attache case containing $201,500.00 in currency and a raincoat. Golding filed a motion with the circuit court, criminal division, seeking return of the property. This motion was denied on the basis that, since there was no pending criminal action arising from the seizure, Golding’s exclusive remedy was an action in replevin. Golding appealed and the appellate court concluded that the magistrate or judge before whom the search warrant was returned had jurisdiction to entertain the motion and to grant the accelerated relief contemplated by section 933.-14, independent of a civil action for replev-in. In fact, the filing of a replevin action by Golding during appeal was held not to render his appeal moot.

In Sawyer v. Gable, 400 So.2d 992 (Fla. 3d DCA 1981), which also predates the current statute, as amended in 1980, an airplane and load of marijuana were seized from Sawyer and he was charged with trafficking. The criminal charge subsequently was dismissed. Sawyer then moved in the dismissed criminal case for the return of his airplane. The trial court ruled that it lacked jurisdiction to entertain such a motion, and Sawyer petitioned the appellate court for a writ of mandamus.

Judge Pearson, writing for the majority in Sawyer, noted that execution of a search warrant in a case where the offense is a felony requires that a return be made to circuit court. Therefore, under section 933.14(1), Florida Statutes (1979), the circuit judge to whom the return was made had statutory authority to order a return of the property taken. Implicit in such authority is the right of the person from whom the property was seized to move for its return. See Harvey v. Drake, 40 So.2d 214 (Fla.1949). Judge Pearson then wrote:

It is not, of course, a prerequisite to a motion for return of property that a criminal prosecution be brought following the seizure of the property. Harvey v. Drake, supra; Golding v. Director, Public Safety Department, Metropolitan Dade County, 400 So.2d 990 (Fla. 3d DCA 1981). However, once a criminal prosecution is instituted, the court in which that prosecution is pending acquires jurisdiction over that property to hear and determine all questions concerning its ownership if the property seized has an evidentiary purpose. Garmire v. Lake, 265 So.2d 2 (Fla.1972). If, on the other hand, the property seized is not held as evidence or no criminal prosecution ensues, then the court to which the warrant and property are returned obtains jurisdiction to order its return. Harvey v. Drake, supra; Golding v. Director, supra.

400 So.2d at 994.

The pendency of the criminal charge, with which the seizure of the property is inextricably related, gives the judge in that case a priority in jurisdiction over other courts of concurrent jurisdiction, irrespective of whether the property is being held as evidence in that case. See Garmire v. Red Lake, 265 So.2d 2 (Fla.1972); Adams v. Burns, 126 Fla. 685, 172 So. 75 (1936). As observed by Judge Pearson, this rule of law is designed to prevent inconsistent and clashing results between divisions of courts (criminal and civil) of concurrent jurisdiction. Therefore, based on considerations of judicial economy and consistency, the Third District held that the court having jurisdiction of the criminal offense in which the search warrant issued should be the one to determine a motion to return the seized property — and that jurisdiction is not divested by dismissal of the criminal charge because of the inherent power of the court in regard to evidentiary items. See Garmire. Once the state initiates forfeiture proceedings, that would be the proper court for a defendant to assert his right to the return of his property. Conversely, the state could assert its forfeiture rights in response to a motion for return of property.

Sawyer, as we previously noted, does not deal with the 1980 amendment to Chapter 943, which purports to prohibit replevin and other actions except one for forfeiture by the state attorney. But we find significant language in Sawyer touching upon the validity of this amendment:

If, in fact, Sawyer is entitled to the return of his property, to deprive him of its prompt return awaiting the State’s unilateral decision to file forfeiture proceedings would be intolerable. It should be obvious that a person who asserts that the State is unlawfully holding his property would be deprived of due process if the law did not afford him a prompt hearing on his assertion.

400 So.2d at 997. This is the situation with which we are now confronted, and we agree with Judge Pearson’s postulation. Universal has asserted its right to a prompt hearing. It has done so in the context of a state forfeiture statute which prohibits all actions concerning the seized property except one by the state attorney, and which has no time limit for the initiation of such an action. This purported prohibition is invalid on due process grounds. Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). It is also violative of the access provision found in Article I, Section 21, Florida Constitution (1968). We hold the following sentence in section 932.703(1), Florida Statutes (1983), to be unconstitutional:

Neither replevin nor any other action to recover any interest in such property shall be maintained in any court, except as provided in this act.

Where property is seized under the Forfeiture Act without a warrant, the correct remedy for the claimant prior to the filing of either a criminal charge arising in connection with the seizure or a forfeiture action pursuant to section 932.704, is an action in replevin. Otherwise, the claimant’s remedy, as in Golding and Sawyer, is a motion for return of the property directed to the appropriate criminal court judge — the issuing magistrate receiving the search warrant return or the judge presiding once a criminal charge is filed, even if that charge is subsequently dismissed.

In Garmire v. Red Lake, 265 So.2d 2 (Fla.1972), the Florida Supreme Court held that a criminal court has inherent authority and jurisdiction to determine the disposition of property confiscated temporarily for evi-dentiary purposes. The opinion states:

We do not believe the civil courts should be permitted, as here attempted, to cross over and intrude in criminal matters pending within the jurisdiction of the criminal courts. It would seriously conflict with and hamper criminal processes if evidence or contraband seized for criminal trials or purposes could be made the subject of recovery proceedings in the civil courts through procedures bypassing the criminal courts.
This does not mean that persons claiming money or other things of value held in custodia legis in a criminal court for evi-dentiary or other purposes should be without remedy. It simply means that the criminal courts have inherent jurisdiction on proper application of claimants for such items and upon due notice to the state and others of interest to determine questions concerning the ownership as well as the appropriate time to release such items held in custodia legis by the criminal courts.

265 So.2d at 4-5.

The remedy for the true owner of such property, according to Garmire, is to apply to the criminal court having initial jurisdiction over the property for its return, with due notice to the state attorney and other interested parties. The problem arises when property is seized without a warrant, is not held for evidence pursuant to a pending or prospective criminal action, and no forfeiture action has been filed by the state attorney. From the record before us, that appears to be the situation in the instant case. The sheriff herein relied solely on the statutory prohibition against replevin in section 932.703(1), Florida Statutes (1983), to support his motion to dismiss. In denying that motion, the trial court, by implication, held such prohibition invalid. We agree with that conclusion for the reasons heretofore expressed.

Based upon the record presented to us in this case, it appears that the vehicle was not seized pursuant to the execution of a search warrant and that no criminal charge relative to that seizure was pending at the time Universal initiated its replevin action. Nor was the vehicle being held by the sheriff for evidentiary purposes relative to an imminent criminal prosecution; rather, it was being held because of the prospect of “possible forfeiture proceedings,” according to the sheriffs motion to dismiss. Under these factual circumstances, we find that the trial judge was correct in denying the motion to dismiss.

As we interpret this record, the show cause hearing of August 26 resulted in a factual determination by the trial judge, pursuant to section 78.067, Florida Statutes (1983), that the plaintiff, with reasonable probability, was entitled to the possession of the vehicle pending final adjudication— but, in effect, was willing to reconsider his denial of the motion to dismiss if the state filed its forfeiture action within a week. Such reconsideration, in light of our opinion herein, would have been error. It did not occur, however, since the sheriff did not take up the trial judge’s offer.

The issue at trial of the replevin action will be whether or not the sheriff is entitled to forfeiture pursuant to Chapter 932, provided that issue is raised as an affirmative defense and counterclaim by the sheriff.

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.

      . Section 78.067(2) states in part:
      If the court determines that the plaintiff is entitled to take possession of the claimed property, it shall issue an order directing the clerk of the court to issue a writ of replevin.

      . In 1979, the relevant provision of the Act was numbered 943.43 and provided:
      Forfeiture of vessel, motor vehicle, or aircraft; exceptions. — Any vessel, motor vehicle, or aircraft which has been or is being used in violation of any provision of s. 943.42 or in, upon, or by means of which, any violation of said section has taken or is taking place shall be seized and may be forfeited. No vessel, motor vehicle, or aircraft used by any person as a common carrier in the transaction of business as a common carrier nor any other vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss. 943.41-943.-44, unless the owner or person legally in charge of such vessel, motor vehicle, or aircraft was at the time of the alleged illegal act a consenting party or privy thereto. No vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss. 943.41-943.44 by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, motor vehicle, or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of this state or any political subdivision thereof, any other state, or the United States.

      . If, in fact, a criminal charge against Lisco resulting from this incident was pending as of July 29, 1983, then the sheriff can have the present action transferred to the criminal court for treatment as an application for return of property pursuant to Florida Rule of Civil Procedure 1.060(a). In effect, this would be a common law plea in abatement known as autre action pendant.

      . Failure by the sheriff to perfect his claimed title, as contemplated by section 932.704(1), Florida Statutes (1983), in the pending replevin action would foreclose any subsequent forfeiture action based on principles of collateral estoppel. See Husky Industries, Inc. v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982).


text:
    Ralph LUGO, as Personal Representative of the Estate of Jane Lugo, deceased, Appellant, v. FLORIDA PATIENT’S COMPENSATION FUND, Appellee.
    No. 83-932.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Horton, Perse & Ginsberg, Miami, Schwartz & Rothschild, Hollywood, for appellant.
    Steel, Hector & Davis and Samuel J. Dubbin, Miami, Perkins & Collins and Samuel Neel, Tallahassee, for appellee.

      Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Fabal v. Florida Keys Memorial Hospital, 452 So.2d 946 (Fla. 3d DCA 1984); Taddiken v. Florida Patient’s Compensation Fund, 449 So.2d 956 (Fla. 3d DCA 1984).

ON MOTION FOR REHEARING

The appellant’s motion for rehearing is denied. However, we hereby certify to the Supreme Court of Florida that the decision in this case involves the following question of great public importance:

Whether a claim against the Florida Patient’s Compensation Fund arises at the time of the alleged medical malpractice, rather than when judgment is entered against the tortfeasor, and is governed by the two year statute of limitations provided by Section 95.11(4)(b), Florida Statutes (1977), so that the Fund must be made or joined as a party defendant within two years after the malpractice action accrues?


author: WIGGINTON, Judge.

text:
    Van O. CARRUTH, Appellant, v. ALLIED PRODUCTS CO. and Crawford & Company, Appellees.
    No. AV-267.
    District Court of Appeal of Florida, First District.
    June 12, 1984.

      Susan R. Whaley, of Macfarlane, Ferguson, Allison & Kelly, Tampa, and H. Guy Smith, Lakeland, for appellant.
    Robert M. Todd, of Mattson, McGrady & Todd, P.A., St. Petersburg, for appellees.
   WIGGINTON, Judge.

Claimant appeals and the employer/carrier cross appeal the deputy commissioner’s order setting the date of claimant’s maximum medical improvement, ordering the E/C to bring current temporary total disability benefits, denying claims for additional temporary, wage loss and rehabilitative benefits, and assessing a 10 percent penalty on the E/C’s prior underpayment of temporary total disability payments. We affirm in part and reverse in part.

Claimant injured his back at work on January 12, 1981. He ultimately came under the care of Dr. DeWeese who diagnosed a herniated disc, and performed a laminectomy and “diskectomy” on claimant’s back on September 24, 1981. Dr. DeWeese released claimant to return to work on January 6, 1982, with the opinion that claimant would be medically able to perform his job as a welder, as long as he not lift anything over seventy-five pounds. He placed no other specific limitations on claimant’s activities.

Dr. DeWeese again saw claimant on April 26, 1982, when he assigned him a permanent impairment rating of 15 percent of the body as a whole based on the AMA Guides. He determined that claimant had reached maximum medical improvement, although noting that claimant’s condition had remained unchanged between January 6 and the April 26 conference. He later testified that he set claimant’s date of MMI at April 26 for two reasons, one being his desire that claimant return to work before he declared MMI, and the other being his feeling that claimant might improve between January 6 and April 26.

On January 15, claimant returned to his original job as an arc welder but found it necessary to take pain pills every day to enable him to work. However, despite his feeling that he had been unable to perform as adequately upon his return as before his accident, his manager later testified that claimant had handled his job very well.

Claimant testified that it had been his intention to continue in his capacity as a welder for the employer until July, 1985, when he had planned to retire. However, on March 1, 1982, claimant was laid off in preparation for the employer’s closing of its St. Petersburg plant. He immediately began searching for work, but without success. His job search records reveal that he made at least 106 job applications along with inquiries made to the Florida State Employment Service. Claimant testified that a frequent refusal of employment was due to the fact that his application indicated he had suffered a back injury. He ultimately found part-time work as a maintenance man in June, 1983, through the employment service. He was not required to fill out an application form for that job.

Claimant received temporary total disability benefits at the rate of $144.97 for the period of time following the industrial accident until January 6, 1982, the date Dr. DeWeese released claimant to return to work. He filed a claim for benefits on March 30, 1983, seeking entitlement to temporary total or temporary partial disability benefits after January 6 through April 26, 1982, the date contended by Dr. DeWeese to be claimant’s date of MMI. In the alternative, anticipating the deputy’s finding that claimant had reached MMI prior to April 26, claimant requested wage loss benefits from and after the date the deputy chose, through June 30, 1983; or, a determination of whether he was permanently and totally disabled. Claimant also requested a determination of his proper average weekly wage and concomitant compensation rate, an award of rehabilitation benefits, penalties, interest, costs and attorney’s fees.

The E/C filed notices to controvert the wage loss claims on March 29 and May 17, 1983, reserving the right to controvert the claims on any other grounds which might appear.

At a prehearing conference, the E/C stipulated to a corrected average weekly wage of $235, with a correspondingly higher compensation rate of $156.67. Remaining at issue, however, was claimant’s contention that to his average weekly wage figure should be added the reasonable value of transportation provided by the employer for the 66-mile round trip between claimant’s home and the St. Petersburg plant. Claimant later testified that the employer had provided this transportation for at least thirteen weeks prior to his industrial accident.

Following the hearing on the claim, the deputy found that claimant reached MMI on January 6, 1982; had resumed active gainful employment on January 15, performing the same functions as he had performed previously with the employer; failed to show a change in his employment status due to his compensable injury; and, therefore, failed to show an entitlement to wage loss benefits for the period of time claimed. The deputy also found that the employer had provided transportation to and from work at the value of $66 per week, arriving at that figure by applying the statutory presumption of twenty cents per mile derived from section 440.13(4), Florida Statutes (Supp.1980). Consequently, claimant’s average weekly wage was increased to $301, with a corresponding compensation rate of $200.67. The deputy assessed penalties against the unpaid portion of claimant’s temporary total disability benefits to which amount the E/C stipulated at the prehearing conference, but excused a penalty against the remaining difference resulting from the inclusion of the $66 per week transportation benefits. Finally, the deputy found the record did not support the claim for rehabilitative benefits.

On appeal, claimant challenges the deputy’s denial of his claim for wage loss benefits. Specifically, he challenges the deputy’s finding of the date of maximum medical improvement; that claimant had performed his duties without difficulty; that claimant’s employment had not been sheltered; and that claimant’s wage loss was due not to his injury but to economic conditions.

The deputy’s determination that claimant had resumed active gainful employment, had performed his job duties well, and had not been confined to sheltered employment, is supported by competent and substantial evidence in the record. We therefore affirm.

We also affirm the point raised by claimant regarding the deputy’s finding of MMI. The deputy justifiably concluded that claimant’s recovery realistically reached its zenith on January 6, 1982, based on Dr. DeWeese’s testimony that claimant’s condition remained essentially unchanged between January 6 and April 26, 1982. Dr. DeWeese’s reason for his not assigning MMI until April 26, was primarily related to his desire that claimant artificially retain his disability until it could be determined that he would be able to receive back his former, or another, job. Also, his statement that he thought claimant might improve during this period, was, we feel, strictly gratuitous.

Consequently, we would distinguish this case from Utley-James, Inc. v. Lady, 448 So.2d 1191 (Fla. 1st DCA 1984), wherein this Court stated it would not “compel” a deputy commissioner to accept physicians’ opinions as to MMI “based on retrospective contemplation.” 448 So.2d at 1193. In Lady, the claimant was released by his initial treating physician to return to work, but was unable to perform his job due to pain. He was thereafter referred by his doctor to a second physician for further examination and treatment. The second physician suggested surgery, but claimant declined and discontinued treatment on April 13, 1983. Although the second physician testified that in retrospect the claimant’s condition had essentially remained unchanged throughout the term of his care, and that he would therefore defer to the first physician’s opinion as to MMI being sometime in December, 1982, the deputy found the date of MMI to be April 13, 1983. We affirmed, holding that despite the failure of his attendance in effecting improvement, the second physician’s care had at all times been administered with the expectation that it would be remedial. Consequently, not until April 13 could it have been concluded realistically that claimant’s condition could not be improved.

However, in the instant case, as we pointed out earlier, the facts indicate that Dr. DeWeese did not harbor any realistic hopes for claimant’s improvement between January 6 and April 26. And, as always, it was within the deputy’s province to determine, from the medical evidence, the date of MMI. Accordingly, the deputy’s determination that claimant’s date of maximum medical improvement was January 6, 1983, is affirmed.

Nevertheless, we must reverse the deputy’s denial of wage loss, as we disagree with his conclusion that the claimed wage loss could be due only to economic conditions, that is, claimant’s being laid off, rather than to the compensable injury. The deputy was under the impression that since claimant had not shown a “temporal” causal connection between the industrial injury and claimant’s initial unemployment, claimant was precluded from demonstrating a compensable wage loss by a subsequent work search. Specifically, relying on Citrus Central v. Parker, 423 So.2d 610 (Fla. 1st DCA 1982), and related cases, the deputy held:

Where, as here, the employee-claimant fails to meet the statutorily described burden of proof of establishing a temporal relationship between the compensable injury and the wage loss claimed, the questions with reference to the adequacy or inadequacy of the employee’s work search subsequent to the attainment of maximum medical improvement are rendered moot in the absence of a situation wherein the employee is returned to work and afforded “sheltered” employment.

However, the deputy did not have the benefit of our recent decision in Williams Roofing, Inc. v. Moore, 447 So.2d 968 (Fla. 1st DCA 1984) in which, out of our concern for a possible misunderstanding of our intent in decisions such as Parker, we held:

Whether a claimant has shown a causal relationship between the injury and a change in employment status is a factual question to be determined by the deputy commissioner from competent substantial evidence. The presence or absence of any particular fact, such as a layoff due to economic conditions, should not be legally determinative of the deputy commissioner’s finding. Rather, the deputy commissioner must look to the totality of the circumstances to determine whether a claimant has shown a causal relationship between the injury and the wage loss.

447 So.2d at 972 (emphasis added).

Consequently, we remand the cause to the deputy commissioner for consideration of claimant’s work search evidence, in order to determine whether, by that evidence, claimant has demonstrated a causal connection between his period of unemployment and his industrial injury. To that end, the deputy and the parties should be cognizant of our very recent opinion in City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), setting forth claimant’s burden of proof to demonstrate a causal relationship between his injury and subsequent wage loss, in light of the 1983 amendment to section 440.15(3)(b)2, Florida Statutes.

On cross appeal, the employer/carrier challenge the deputy’s assessment of a penalty and his calculation and inclusion of the value of transportation in claimant’s average weekly wage. We affirm as to both points.

The penalty relates solely to the E/C’s underpayment of temporary total disability benefits previously paid to claimant. Although the E/C did file notices to controvert, the notices relate only to the claimed wage loss benefits. As the E/C did not pay all of the TTD benefits due within fourteen days of when they became due, the deputy properly assessed a penalty under section 440.20(7), Florida Statutes.

Regarding the employer-provided transportation, claimant testified that the employer had provided such transportation for at least thirteen weeks prior to the injury, and the E/C did not show otherwise. Although claimant also testified that on a few unspecified occasions he had driven his own automobile to work in order that he could leave early, we hold that such a departure from the employer-provided benefit was insignificant.

Finally, in establishing the value of the employer-provided transportation, the deputy did not err in applying the presumption found in section 440.13(4), Florida Statutes (Supp.1980) (now section 440.13(5), Florida Statutes (1983)). In Layne Atlantic Company v. Scott, 415 So.2d 837 (Fla. 1st DCA 1982), we accorded a deputy commissioner “wide fact-finding latitude” in determining the value of employer-provided benefits, and directed the deputy to ascertain the value “if reasonably possible.” The deputy’s valuation in the instant case was reasonable; and we point out that the E/C did not at the hearing refute claimant’s suggestion of twenty cents per mile, which amount was in accordance with the statute.

Accordingly, this cause is AFFIRMED in part, REVERSED in part and REMANDED for further proceedings consistent with this opinion.

MILLS and SHIVERS, JJ., concur.