text:
    METROPOLITAN DADE COUNTY, Appellant, v. Anne ST. CLAIRE and Douglas St. Claire, her husband, Appellees.
    No. 83-386.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Rehearing Denied March 12, 1984.

      Robert A. Ginsburg, County Atty. and Roy Wood, Asst. County Atty., for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Brumer, Cohen, Logan & Kan-dell, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Metropolitan Dade County appeals from an adverse judgment entered upon a jury verdict finding the County liable, through the negligence of one of its police officers, for damages to the plaintiff Anne St. Claire. Finding merit in the County’s contentions that the trial court erred in instructing the jury on res ipsa loquitur and that such error was harmful, we reverse the judgment under review and remand the cause for a new trial.

On October 7, 1980, at around 1:20 a.m., three Dade County Police Officers went to a hotel to make an arrest. In her capacity as the night clerk and assistant manager of the hotel, St. Claire let the officers into the lobby, a room approximately fifteen feet long and fifteen feet wide. When the officers entered, they saw a large German Shepherd dog. When the dog started growling and got on its hind legs, the officers started to back out of the lobby. The dog .lunged at Mundy, grabbing Mundy’s kneecap in his teeth. According to Officers Mundy and Fisher, the dog’s action propelled Mundy into the jalousie windows and precipitated Mundy’s attempt to beat the dog off him. According to St. Claire, Mundy fell into the glass jalousies and started to beat the dog off before he was attacked. Under either version of the facts, the dog continued to grip Mundy’s knee in his teeth. By St. Claire’s account, the dog’s teeth were in Mundy’s knee about ten seconds when Mundy drew his gun and shot; by the officers’ account, approximately thirty seconds had elapsed from the time of the attack to the shooting. St. Claire testified that she was standing two feet in front of Mundy and that as she reached for the dog, Mundy shot the dog, the bullet passing through St. Claire’s arm. Mundy and Fisher stated that St. Claire was standing two or three feet to Mundy’s right, and Mundy turned away from St. Claire and shot at the dog. St. Claire sued Mundy and Dade County, later dismissing Mundy as a defendant.

At the conclusion of the trial, the court, over the County’s objection, instructed the jury:

“The Court instructs you that if you find from the evidence that the plaintiff was shot in the arm and injured by a gun in the hands of Detective Mundy, at the time said gun discharged or fired, that said gun was under the exclusive control and management of Detective Mundy, and that the firing of said gun shot into the arm of the plaintiff was such an occurrence as in the ordinary course of events would not happen if due care had been exercised by Detective Mundy, then these facts alone would afford you sufficient evidence to find for the plaintiff, in the absence of any sufficient explanation on the part of Detective Mundy, tending to show that the injury was not due to his want of care.
“In other words, the burden would fall on the defendant to explain the act of the shooting of the plaintiff in the arm with said gun. If the defendant failed to explain said act to your satisfaction or, rather, by the greater weight of the evidence, then you would have sufficient evidence to find for the plaintiff.”

The Florida Supreme Court recently revisited the doctrine of res ipsa loquitur in Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla.1978). The teaching of Goodyear is that the inference of negligence which res ipsa loquitur provides is proper only “when direct evidence of negligence is unavailable to the plaintiff due to the unusual circumstances of the injuring incident.” 358 So.2d at 1341'. As the court stated:

“Res ipsa loquitur — ‘the thing speaks for itself’ — is a doctrine of extremely limited applicability. It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially, the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.”
358 So.2d at 1341-42 (footnotes omitted).

Even more recently, the same court emphasized that:

“Given the restrictive nature of the doctrine, a court should never lightly provide this inference of negligence. Rather it is incumbent on the plaintiff to present his or her case in a manner which demonstrates and satisfies each of the doctrine’s requisite elements and only after the plaintiff carries this burden of proof may a court supply the inference.”
City of New Smyrna Beach Utilities Commission v. McWhorter, 418 So.2d 261, 262 (Fla.1982).

Applying these tests for entitlement to a res ipsa loquitur instruction to the present case, we think it clear that the instruction should not have been given below. First, there is not the slightest evidence to establish that injuring another by shooting a gun is such an occurrence as in the ordinary course of events would not happen in the absence of due care being exercised by the person who discharged the weapon. But even if, arguendo, it could be said that accidental shootings do not occur in the absence of negligence on the part of the shooter, it is abundantly clear that the facts surrounding the incident in this case were both discoverable and provable and that direct evidence of Mundy’s negligence as the cause of the injury was available to — indeed, shown by — the plaintiff. See Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (plaintiff not entitled to res ipsa loquitur instruction where direct proof of negligence and cause of injury discoverable and provable at trial); Frash v. Sarres, 60 So.2d 924 (Fla.1952) (same); Ploetz v. Big Discount Panel Center, Inc., 402 So.2d 64 (Fla. 4th DCA 1981) (same); Benigno v. Cypress Community Hospital, Inc., 386 So.2d 1303 (Fla. 4th DCA 1980) (same). Therefore, at least one requisite element of the doctrine of res ipsa loquitur was not satisfied, and accordingly, the plaintiff was not entitled to the benefit of the instruction.

St. Claire contends, however, that there is nothing in the opinion in Goodyear to preclude reliance on res ipsa loquitur even if there exists proof of specific acts of negligence. Although we agree with this contention, our agreement is little comfort to St. Claire.

In South Florida Hospital Corp. v. McCrea, 118 So.2d 25 (Fla.1960), upon which St. Claire relies, the plaintiff, in the recovery room after surgery, sustained fractures of both arms. In her subsequent action against the hospital and its agents, the plaintiff alleged that she was injured as a result of the hospital’s negligence in permitting her to fall while under anesthesia, that is, while under the defendants’ total control. The defendants contended that the plaintiff’s injuries were probably self-inflicted by the plaintiff’s involuntary convulsions. Under these circumstances, where the exact cause of the plaintiff’s injuries was speculative and evidence to establish it unavailable, the Florida Supreme Court, adopting the majority rule that a plaintiff may, in certain cases, resort to both evidence of specific negligence as well as the inferences of res ipsa loquitur, held that an instruction on res ipsa loqui-tur was proper. The court characterized this majority rule as follows:

“[T]he introduction of evidence of specific negligence which does not clearly establish the precise cause of the injury, will not preclude reliance on the otherwise-applicable res ipsa doctrine. The view is taken that, except in the clearest cases, both the specific evidence and the appropriate inferences from the happening Of the accident should be permitted to go to the jury, which, if it rejects the specific proof, may still find against the defendant on the basis of inference.” South Florida Hospital Corp. v. McCrea, 118 So.2d at 29 (emphasis supplied).

However, as McCrea itself acknowledged in finding no conflict with Frash v. Sarres, 60 So.2d 924, “there is no need or room for the operation of any inference or presumption under the res ipsa loquitur doctrine .where the evidence in the case reveals all of the facts and circumstances surrounding the occurrence in the suit and clearly establishes the precise cause of plaintiffs injury.” South Florida Hospital Corp. v. McCrea, 118 So.2d at 30. Thus, where there is no direct evidence to establish the precise cause of the injury, although there is some direct evidence of negligence, the rule of McCrea survives and continues to permit a res ipsa loquitur instruction. But, as in the present case and as in Frash, Ploetz and Benigno, where the evidence adduced by the plaintiff clearly establishes the circumstances surrounding the occurrence and the precise cause of the injury to the plaintiff, the rule of McCrea is not controlling.

Finally, St. Claire tells us that even if the giving of the res ipsa loquitur instruction was error, the error was harmless. But the evidence as to Mundy’s negligence vel non was in dispute, and the effect of the res ipsa loquitur instruction was to shift the burden of proof to Dade County to prove that Mundy was not negligent. See Orme v. Burr, 157 Fla. 378, 25 So.2d 870 (1946). The giving of an instruction which erroneously shifted the burden of proof cannot be considered harmless error on this record. See Howells v. Currie, 97 Fla. 648, 122 So. 2 (1929). Cf. Hollingsworth v. Norris, 77 Fla. 498, 81 So. 782 (1919) (no error if jury instruction correctly states burden of proof, even if jury instruction was unnecessary).

Because this case must be remanded for a new trial, we deem it appropriate to address one further error urged by the County so as to avoid its reoccur-rence on retrial. The County proffered evidence consisting of (1) the testimony of an expert in hotel and motel security concerning the special responsibility befalling the custodian of an attack-trained dog which is kept in an area such as a motel or hotel inhabited by people whose behavior is unpredictable, and (2) Dade County ordinances which essentially make it unlawful for the party responsible for controlling a dog to fail to exercise proper care and control. This evidence was excluded on the sole ground that the evidence was not relevant to any issue in the case. Since the trial court, in respect to the proffered testimony of the expert, commented that the testimony was relevant to Officer Mundy’s case against the hotel owner, but not to St. Claire’s suit against the County, and since St. Claire’s comparative negligence was so obviously a relevant issue in this case, we can only surmise that the trial court may have believed that St. Claire’s negligence in failing to control the dog could not have proximately caused the injuries she sustained. While it is true that a defendant’s negligence or a plaintiff’s contributory negligence is irrelevant unless such negligence could have proximately caused the injury, see Hoffman v. Jones, 280 So.2d 431 (Fla.1973) (liability exists only when negligent act was a legal, proximate cause' of result); Tynan v. Seaboard Coastline Railroad Co., 254 So.2d 209 (Fla.1971) (same, contributory negligence); Nelson v. Ziegler, 89 So.2d 780 (Fla.1956) (same); Bessett v. Hackett, 66 So.2d 694 (Fla.1953) (same); Atlantic Coastline R. Co. v. Weir, 63 Fla. 69, 58 So. 641 (1912) (same); see also Restatement (Second) of Torts §§ 465, 468 (1965); W. Prosser, Law of Torts § 65 (4th ed. 1977), whether St. Claire’s negligence in allowing the dog to run loose without proper supervision proximately caused her injuries is a question of fact for the jury to decide, Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983). Therefore, the proffered evidence should have been admitted.

Reversed and remanded for a new trial.

      . St. Claire argues that the foregoing instruction is not a res ipsa loquitur instruction at all in that, unlike Standard Jury Instruction 4.6, which permits the jury to "infer” the defendant's negligence, there is no reference to an inference in the instruction given. While it is true that the phrase used, “sufficient evidence,” describes the legal test to be employed by the court in determining whether a jury question is presented and is thus inappropriate in a jury instruction, the instruction given — "these facts alone would afford you sufficient evidence to find for the plaintiff" — is, in our view, the functional equivalent of “you may infer that the defendant was negligent.” Indeed, the language "these facts alone would afford you sufficient evidence to find for the plaintiff” was formerly a part of the res ipsa loquitur instruction. See, e.g., Skinner v. Ochiltree, 148 Fla. 705, 5 So.2d 605 (1941).

        . Skinner v. Ochiltree, 148 Fla. 705, 5 So.2d 605, relied on by the trial court to justify the giving of the res ipsa loquitur instruction, although holding that the instruction should have been given despite the availability of direct evidence of negligence on the defendant's part (a holding that, in our view, was overruled sub silentio in Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d at 1343 n. 12) docs not hold that as a matter of law all plaintiffs injured by the discharge of a firearm arc entitled to a res ipsa loquitur instruction.

      . Sections 5-3 and 5-6 of the Dade County Code, which provide:
      "§ 5-3. Dade County Code.
      "(1) Responsible party shall be defined to include any person, persons, firms, corporations or associations owning, harboring, keeping or controlling a dog or dogs within the county. Wherever the words 'owner’ or ‘person’ are used in this article, these words shall mean responsible party.”
      "§ 5-6. Dade County Code.
      “(c) Public nuisance. It shall be unlawful for any responsible party to fail to exercise proper care and control of his dog or dogs to prevent them from becoming a public nuisance. Molesting passersby, unprovoked biting causing physical damage, chasing vehicles, attacking other domestic animals, trespassing upon school grounds, or trespassing upon private property in such manner as to damage property, shall be deemed a public nuisance."

      . There does not appear to be any dispute about the expert’s qualifications or that the area of his testimony was one which was not properly the subject of expert testimony. As to the applicability of the ordinance to St. Claire, the trial court conceded that the jury could find from the evidence that she was the dog’s keeper at least on the evening in question. Of course, if the ordinance applied to St. Claire, a violation of it was prima facie evidence of her negligence. See deJesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla.1973).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ricardo DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1666.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Rehearing Denied March 12, 1984.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

The order revoking probation, which is under review by this appeal, is affirmed with one modification, to wit: the finding in the revocation order that the appellant failed to report to his probation officer is stricken as it does not conform to the trial court’s oral pronouncement at the conclusion of the probation hearing. In all other respects, however, the order revoking probation is affirmed as the appellant’s motion to suppress was properly denied by the trial court. Council v. State, 442 So.2d 1072 (Fla. 3d DCA 1983).

Affirmed as modified.


author: LARRY G. SMITH, Judge.

text:
    George H. DeCARION and James E. Roberts, Appellants, v. DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    Nos. AO-268 & AS-125.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1984.

      William J. Roberts of Roberts, Egan & Routa, Tallahassee, for appellants.
    Charles G. Stephens, Asst. Gen. Counsel, Dept, of Environmental Regulation, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

George H. DeCarion and James E. Roberts appeal an order entered by the Department of Environmental Regulation (DER) denying their application for a permit to dredge a flow-through canal as a part of a proposed housing development on Key Largo, Florida. They urge the following grounds for reversal: First, that DER is “locked in” to the reasons given in its letter of intent to deny the permit application, Florida Administrative Code Rule 17-4.-28(3), and may not put forth further reasons for denial between the issuance of that letter and the conclusion of a requested Section 120.57(1) proceeding; that their burden of proof is to meet only the test that the project would not be contrary to the public interest and not the more stringent test that the public interest would be served by the project; and, that the findings of the hearing officer, and hence DER, were not supported by competent substantial evidence. Our consideration of the briefs of the parties as well as our examination of the record leads us to conclude that reversible error has not been demonstrated. Accordingly, we affirm.

The gist of appellants’ first issue is that DER unfairly placed in issue the question of whether their proposed canal could be expected to violate Class III water quality standards for dissolved oxygen and biological integrity. In its intent to deny letter, DER had apprised the appellants that their proposed dredging was reasonably expected to violate the Outstanding Florida Water (OFW) rule, Florida Administrative Code Rule 17-4.242, relating to biological oxygen demand (BOD), dissolved oxygen, oil and greases, lead, copper, turbidity, and biological integrity. This rule prohibits any degradation of water quality below ambient conditions for projects located within outstanding Florida waters, and prevents any significant degradation of such waters by projects located outside the outstanding Florida water, in this case the John Pennekamp Coral Reef State Park. These standards are far more stringent from a water quality standpoint than are the standards ordinarily applicable to Class III waters. See Fla.Admin.Code Rule 17-3.121.

Approximately ten days before the hearing on the merits, however, appellants’ attorneys were advised for the first time that DER contended the proposed project would also cause violations of Class III surface water standards for dissolved oxygen and biological integrity. Appellants subsequently filed a motion in limine and objected at the hearing to evidence regarding these newly anticipated water quality violations. Nevertheless, they did not move for a continuance, as suggested by the hearing officer.

We find appellants’ argument in this regard unpersuasive for'two reasons. First, appellants had been advised more than three months prior to the final hearing that the more stringent water quality standards of Florida Administrative Code Rule 17-4.242 must be met, so the claim of surprise or prejudice by DER’s assertion that the even more lenient standards applicable to Class III waters for those same parameters, i.e., dissolved oxygen and biological integrity, would be violated is not convincing. Appellants have not identified how prejudice, if any, was caused by DER’s amended position. See Hopwood v. Department of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981).

Second, as to appellants’ claim that DER is locked in to the reasons given in its letter of intent to deny, we need only cite McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), in which Judge Robert Smith succinctly stated: “Section 120.57 proceedings are intended to formulate formal agency action, not to review action taken earlier and preliminarily.” 346 So.2d at 584.

We likewise find little merit in appellants’ contention that an application for a permit to dredge land in Florida, see Section 253.123, Florida Statutes (1979), should not be held to the more rigorous standard of demonstrating that the proposed project is in the public interest. See Shablowski v. State, Department of Environmental Regulation, 370 So.2d 50 (Fla. 1st DCA 1979); Yonge v. Askew, 293 So.2d 395 (Fla. 1st DCA 1974). Finally, the record contains ample substantial competent evidence to support the hearing officer’s findings and DER’s denial of the permit.

AFFIRMED.

WENTWORTH and JOANOS, JJ., concur.


text:
    VENICE HOSPITAL and All Risk Corporation of Florida, Appellants, v. Christine NELSON, Appellee.
    No. AS-373.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1984.
    Rehearing Denied March 13, 1984.

      Keith A. Mann, of Dickinson, O Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellants.
    Alex Lancaster, Sarasota, for appellee.
   PER CURIAM.

In this workers’ compensation case the employer/carrier seeks review of an order of the deputy commissioner which does not dispose of all matured issues in the case. Although the order awards temporary total disability benefits, it explicitly reserves jurisdiction to determine the average weekly wage. The issue of average weekly wage was ripe for determination. Thus, the order does not resolve all matured issues in controversy and is therefore an interlocutory order not reviewable by appeal. Southern Wine & Spirits, Inc. v. Hernandez, 442 So.2d 1061 (Fla. 1st DCA 1983); Sheffield Steel Products v. Tripp, 433 So.2d 46 (Fla. 1st DCA 1983); Davis v. Hunt, 432 So.2d 650 (Fla. 1st DCA 1983); La Croix Construction Co. v. Bush, 431 So.2d 712 (Fla. 1st DCA 1983); Town of Palm Beach v. Watts, 426 So.2d 1312 (Fla. 1st DCA 1982); Crown Hotel v. Friedman, 420 So.2d 418 (Fla. 1st DCA 1982); Mills Electrical Contractors v. Marthens, 417 So.2d 700 (Fla. 1st DCA 1982), rev. denied, 429 So.2d 6 (Fla. 1983); State Department of Health and Rehabilitative Services v. Waters, 416 So.2d 903 (Fla. 1st DCA 1982); General Electric Co. v. Hawkins, 413 So.2d 836 (Fla. 1st DCA 1982); Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982).

Accordingly, this appeal is dismissed sua sponte. Such dismissal shall not preclude subsequent review upon appeal from a final order.

SHIVERS, JOANOS and THOMPSON, JJ., concur.


author: BASKIN, Judge.

text:
    Edward P. SWAN, as Personal Representative of the Estate of Mary Layman Gibson, deceased, Appellant, v. FLORIDA NATIONAL BANK OF MIAMI, as Personal Representative of the Estate of Richmond T. Gibson, deceased, et al., Appellees.
    No. 83-119.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Rehearing Denied March 12, 1984.

      Jeanne Heyward, Richard Touby, Miami, for appellant.
    Hendricks & Hendricks and Ben E. Hendricks, Coral Gables, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ. •
   BASKIN, Judge.

Colonel Gibson and Mrs. Gibson executed mutual wills. Colonel Gibson’s will provided that should he be predeceased by his wife, his estate, including real property in Coral Gables, would become part of a trust established in his wife’s will. Mrs. Gibson predeceased the Colonel. Although Mrs. Gibson’s original will contained a testamentary trust, she subsequently executed five wills which omitted the testamentary trust. After the Colonel’s death, the trial court entered the order appealed, holding that the Colonel’s estate should be distributed according to the laws of intestacy. This appeal ensued.

The personal representative argues that an inter vivos trust created by Mrs. Gibson should be the recipient of the Colonel’s estate. We disagree and approve the trial court’s order which states:

THIS CAUSE coming on to be heard upon the Amended Petition for Construction of a Will and Trust Agreement filed by EDWARD P. SWAN, as Personal Representative of the estate of MARY LAYMAN GIBSON, deceased, and the Response filed by the FLORIDA NATIONAL BANK AT MIAMI, as Personal Representative of the estate of RICHMOND T. GIBSON, deceased, and the Court having heard testimony of the Petitioner and his witnesses, and having heard argument of counsel finds as follows:
1. RICHMOND T. GIBSON died a resident of Dade County, Florida, on February 10, 1978 leaving a Last Will and Testament dated April 10, 1965. Paragraph Fifth of the Last Will and Testament of RICHMOND T. GIBSON states as follows:
FIFTH: In the event that my wife, MARY LAYMAN GIBSON, shall predecease me, all of the rest, residue and remainder of my estate I give, devise and bequeath to the FLORIDA NATIONAL BANK & TRUST COMPANY AT MIAMI, to be incorporated within and become a part of the corpus of that certain testamentary trust established under the Will of my wife, MARY LAYMAN GIBSON, of which said financial institution is trustee.
2. MARY LAYMAN GIBSON predeceased RICHMOND T. GIBSON dying on February 15, 1977 leaving a Last Will and Testament dated September 24, 1971. The Last Will and Testament of MARY LAYMAN GIBSON did not establish a testamentary trust and no evidence has been presented before this Court that it was the intention of RICHMOND T. GIBSON that the residuary of his estate should be distributed other than to the testamentary trust of MARY LAYMAN GIBSON and there being no testamentary trust in existence, the residuary lapses and the assets contained therein should be distributed to the heirs of RICHMOND T. GIBSON as determined by the laws of intestacy of the State of Florida, and the Court being fully advised in the premises, it is thereupon
ORDERED AND ADJUDGED that:
1. That the residuary estate of RICHMOND T. GIBSON, given, devised and bequeathed to FLORIDA NATIONAL BANK & TRUST COMPANY AT MIAMI to be incorporated within and become a part of the corpus of that certain testamentary trust established under the will of MARY LAYMAN GIBSON shall lapse as there was no testamentary trust established under the will of MARY LAYMAN GIBSON.

The trial court correctly ruled that the trust disposition lapsed. Section 732.-512(1), Florida Statutes (1981) states:

Incorporation by reference
(1) A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Section 732.513, Florida Statutes (1981) states:

Devises to trustee
(1) A valid devise may be made to the trustee of a trust that is evidenced by a written instrument in existence at the time of making the will, or by a written instrument subscribed concurrently with making of the will, if the written instrument is identified in the will.

It is quite clear that Mrs. Gibson’s inter vivos trust did not exist when Colonel Gibson executed his will and could not have been incorporated by reference.

Section 732.603(2) Florida Statutes (1981) provides:

Antilapse; deceased devisee; class gifts
Unless a contrary intention appears in the will:
(2) If a devisee who is not a grandparent, or a descendant of a grandparent, of the testator:
(a) Is dead at the time of the execution of the will,
(b) Fails to survive the testator, or
(c) Is required by the will to be treated as if he predeceased the testator,
then the testamentary disposition to the devisee shall lapse unless an intention to substitute another in his place appears in the will.

For these reasons, we hold that the testamentary trust disposition lapsed.

Affirmed.


text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Willie P. EDWARD, Appellee.
    No. 83-621.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Rehearing Denied March 12, 1984.
    High, Stack, Lazenby, Palahach & Laca-sa and Philip J. Cole, Coral Gables, for appellant.
    Gene Flinn, Kenneth E. Cohen, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Aetna Insurance Company v. Settembrino, 369 So.2d 954 (Fla. 3d DCA 1978).


text:
    Donald R. BOWER and Valerie Bower, his wife, Appellants, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, d/b/a Dade County Department of Public Safety, Appellee.
    No. 83-1542.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Rehearing Denied March 12, 1984.
    Nancy Little Hoffman and Cathy Jackson Burris, James W. Knight, Jr., Fort Lauderdale, Sullivan, Bailey, Gleason & Wich, Pompano Beach, for appellants.
    Robert A. Ginsburg, Dade County Atty., and Roy Wood, Asst. County Atty., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611, 638 (1978); Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir.1983); Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1330-32 (11th Cir.1982), (Hoffman, J., concurring specially); Hays v. Jefferson County, 668 F.2d 869, 873-74 (6th Cir.), reh’g denied, 673 F.2d 152, cert. denied, — U.S.-, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982); Kuhn v. National Association of Letter Carriers, Branch 5, 528 F.2d 767, 770 n. 4 (8th Cir.1976); Kuehner v. Green, 436 So.2d 78 (Fla.1983); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Wong v. City of Miami, 237 So.2d 132 (Fla.1970).


text:
    William H. SMITH d/b/a Anthony’s Tree Service, Appellant, v. James N. SCHOONMAKER, Asplundh Tree Expert Company, and Florida Power and Light, Appellees.
    No. 83-1767.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Rehearing Denied March 12, 1984.
    Sidney L. Syna, Miami, for appellant.
    Goodwin, Ryskamp, Welcher & Carrier and Fulvia A. Morris; Goldstein & Tanen and Jeffrey Tanen, Michael D. Millhorn, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Maguire v. American Family Life Assurance Company of Columbus, Georgia, 442 So.2d 321 (Fla. 3d DCA 1983).


text:
    Elsa GLENN, d/b/a Glenn Rent-A-Car, Appellant, v. 1050 CORPORATION, d/b/a Glenn Rent-A-Car, Appellee.
    Nos. 83-1787, 83-1788.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Rehearing Denied March 12, 1984.

      Jeanne Heyward, Andrew W. Horn, Miami, John Shiley, Coral Gables, for appellant.
    Daniels & Hicks and Patrice A. Talisman, Miami, Friedman & Lipcon, Coral Gables, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Elsa Glenn challenges the trial court’s grant of a preliminary injunction prohibiting Southern Bell Telephone & Telegraph Company from transferring the telephone number of the Glenn Rent-A-Car agency, operated by 1050 Corporation, to the Glenn Rent-A-Car agency, operated by Elsa Glenn. We affirm.

Elsa Glenn contends that 1050 Corporation lacked standing to interfere with her right to use her telephone number at her new business location. She maintains that because she originally obtained the number in her name and not in the name of Glenn Rent-A-Car, the number is hers even though the ear rental agency now operated by 1050 Corporation has been using the number for several years.

In an appeal of a temporary injunction, the burden is on appellant to demonstrate an abuse of discretion by the trial court. City of Tarpon Springs v. Chrysostomides, 108 Fla. 500, 146 So. 845 (1933). The purpose of a preliminary injunction is to maintain the status quo until final determination on the merits. Tamiami Trail Tours v. Greyhound Lines, 212 So.2d 365 (Fla. 4th DCA 1968). The posting of bond is designed to compensate the defendant if the court should decide that the preliminary injunction was improper.

Because the trial court still must decide whether 1050 Corporation possesses a property interest in the telephone number, we decline to decide the issue at this time.

We find that appellant has failed to demonstrate an abuse of discretion on the part of the trial court. The trial court’s determination that appellee satisfied the conditions necessary for the entry of a preliminary injunction, see Cramp v. Board of Public Instruction of Orange County, 118 So.2d 541 (Fla.1960), is supported by competent substantial evidence. Accordingly, the order denying motion for rehearing and motion to dissolve injunction is affirmed.

Affirmed.

       The amount of bond set by the court is not at issue.


text:
    Alfred W. RICCO, Appellant, v. STATE of Florida, Appellee.
    No. 82-2571.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984..
    Rehearing Denied March 14, 1984.
    Dorothy M. Walker of Walker & Vetrick, Belle Glade, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant’s conviction and sentence for manslaughter are affirmed on the authority of Dolan v. State, 85 So.2d 139 (Fla.1956). In reaching this decision, we have also concluded that the state’s use of the defendant’s grand jury testimony did not constitute fundamental error. Consequently, the various errors assigned to this point cannot be asserted on appeal due to the defendant’s failure to object properly at trial. See Castor v. State, 365 So.2d 701 (Fla.1978).

ANSTEAD, C.J., and HURLEY and WALDEN, JJ., concur.


author: NIMMONS, Judge.

text:
    Granderson DAVIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AQ-236.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1984.
    Rehearing Denied March 13, 1984.

      Michael Allen, Public Defender, and Gwendolyn Spivey, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Davis appeals from his convictions of first degree grand theft and of making a false statement in an application for a motor vehicle certificate of title. We affirm as to the grand theft conviction and reverse as to the false statement conviction.

Both charges stem from the defendant’s alleged scheme in connection with his attempt to purchase a 1982 Mercedes automobile from the victim, Kinnebrew Motors, in Tallahassee. We treat in our opinion two issues raised by appellant.

With respect to the grand theft count, the state charged the defendant with first degree grand theft, a second degree felony, alleging that the motor vehicle had a value of $20,000 or more. The appellant contends that it was error to deny his motion to dismiss the charge of grand theft in the first degree. The appellant says that theft of a motor vehicle is a third degree felony under the theft statute and that the state is not at liberty to charge first degree grand theft where the property is a motor vehicle even though the vehicle has a value of $20,000 or more. We do not believe that the legislature intended such a construction of the provisions of the theft statute. A more reasonable construction, and one we adopt, is that the enumeration of certain kinds of property in section (2)(b) of the theft statute is a recognition that stealing certain kinds of property should be treated at least as third degree felonies regardless of the value of such property but that first degree grand theft may be charged where that property has a value of $20,000 or more. The fact that such a construction imbues the prosecuting authority with the discretion to decide whether to charge theft of a $20,000 motor vehicle as a third degree felony under subsection 2(b) or as a first degree felony under subsection 2(a) is unavailing to the defendant. See Soverino v. State, 356 So.2d 269 (Fla.1978); State v. Copher, 395 So.2d 635 (Fla. 2nd DCA 1981); Cf. State v. Young, 371 So.2d 1029 (Fla.1979).

We have examined the remaining points urged by appellant as to the grand theft count and find them to be without merit.

The second count charged the defendant with a violation of Section 319.-33(l)(e), Florida Statutes (1981), which provides in pertinent part:

(1) It is unlawful:
(e) To use a false or fictitious name, give a false or fictitious address, or make any false statement in any application 07-affidavit required under the provisions of this law or in a bill of sale or sworn statement of ownership or otherwise commit a fraud in any application. (Emphasis added.)

The gist of the charges in the second count was that the defendant made a false statement in an application for a certificate of title to the Mercedes. On the day the defendant was attempting to negotiate the purchase of the Mercedes at Kinnebrew Motors, the defendant, after having written and tendered to Kinnebrew what later turned out to be a bad check in the sum of $23,129.25, was asked to sign several papers including an application for title on a Department of Highway Safety and Motor Vehicles form. The form, which was typed out by Kinnebrew personnel, included a printed statement to the effect that the applicant is the lawful owner of the described vehicle. This was the alleged false statement. The defendant affixed his signature in the space provided on the application form. However, the form was not sworn to before a notary public or anyone else authorized to administer oaths, and the jurat was therefore never completed. This was, in itself, fatal to the state’s charge because the signed form had not yet become an application within the meaning of Chapter 319. Section 319.33(l)(e), as noted above, requires that the false statement allegedly made by the defendant must have been made in an “application or affidavit required under the provisions of” Chapter 319. Section 319.23, Florida Statutes (1981), provides:

(1) Application for a certificate of title shall be made upon a form to be prescribed by the Department of Highway Safety and Motor Vehicles, shall be sworn to before a notary public or other officer empowered to administer oaths, shall be filed with said department, and shall be accompanied by the fee prescribed in this law ....

Assuming, without deciding, that one could violate the provisions of Section 319.-33(l)(e) without submission of the offensive application to the Department, the fact is that the document signed by the defendant had not yet become a matured application of the kind contemplated by Sections 319.-33(l)(e) and 319.23(1).

We AFFIKM as to the grand theft count. As to the second count, we REVERSE the judgment and sentence and REMAND to the trial court for the entry of a judgment of acquittal.

SMITH and WIGGINTON, JJ., concur.

      . Although the defendant never succeeded in actually obtaining the automobile, the theory of the state’s theft count was that the defendant endeavored to obtain the property, an allowable theory of theft under the theft statute, Section 812.014, Florida Statutes (1981). Appellant does not take issue with this principle.

      . Section 812.014, Florida Statutes (1981), provides in pertinent part:
      (2)(a) If the property stolen is of the value of $20,000 or more, the offender shall be guilty of grand theft in the first degree, punishable as provided in ss. 775.082, 775.083, and 775.-084.
      (b) It is grand theft of the second degree and a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084, if the property stolen is:
      1. Valued at |100 or more, but less than $20,000.
      2. A will, codicil, or other testamentary instrument.
      3. A firearm.
      4. A motor vehicle.
      5. Any member of the genus Bos (cattle) or the genus Equus (horse), or any hybrid of the specified genera.
      6. Any fire extinguisher.
      7. Any amount of citrus fruit consisting of 2,000 of more individual pieces of fruit.
      8. Taken from a designated construction site identified by the posting of a sign as provided for in s. 810.09(2)(d).

      . The defendant's scheme was detected before the forms were completed at the automobile dealership and so the application was never submitted to the Department.


author: SHIVERS, Judge.

text:
    HUNTLEY JIFFY STORES and R.G.A.F. Underwriters, Appellants/Cross Appellees, v. Jeanne E. ALLEN, Appellee/Cross Appellant.
    No. AS-266.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1984.
    Rehearing Denied March 15, 1984.
    Jack A. Langdon, of Jones & Langdon, P.A., Gainesville, for appellants/cross ap-pellees.
    Luke G. Galant, of Dawson, Galant, Su-lik, Ellis & Wiesenfeld, Jacksonville, for appellee/cross appellant.
   SHIVERS, Judge.

In this workers’ compensation case, the deputy commissioner found that claimant’s psychiatric condition was the result of her industrial accident and awarded temporary total disability benefits from May 30, 1982, to October 28, 1982, and continuing. The deputy commissioner also found that claimant’s hospitalization from June 23, 1982, to July 2, 1982, and the care of Dr. Kuwik prior to October 28, 1982, were unauthorized and that the employer/carrier is not responsible for the resulting bills.

The record contains no competent substantial evidence to support an award of temporary total disability benefits subsequent to August 15, 1982. There is no medical evidence showing that claimant was temporarily and totally disabled subsequent to that date, and there is no evidence of a good faith work search on the part of the claimant. See Fair-Way Restaurant v. Fair, 425 So.2d 115 (Fla. 1st DCA 1982); Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981); Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). That portion of the order sub judice awarding temporary total disability benefits subsequent to August 15, 1982, is, therefore, reversed. In all other respects, the order is supported by competent substantial evidence and is affirmed.

JOANOS and THOMPSON, JJ., concur.


author: WIGGINTON, Judge.

text:
    Phillip M. DAVIS, Appellant, v. INSURANCE COMMISSIONER AND TREASURER, Appellee.
    No. AT-107.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1984.

      Jawdet I. Rubaii, Clearwater, for appellant.
    Curtis A. Billingsley, Tallahassee, for ap-pellee.
   WIGGINTON, Judge.

Davis appeals from the order of the Department of Insurance that adopts the recommendation of the hearing examiner approving the Division of State Fire Marshal’s denial of a certificate of compliance to appellant for municipal employment as a firefighter. We affirm, finding that the Department’s order and those upon which it is based are amply supported by substantial competent evidence and comport with the essential requirements of law.

Davis poses a constitutional challenge to the continued validity of rule 4A-37.37, Florida Administrative Code, and its adoption by reference of the National Fire Protection Association Pamphlet 1001, which establishes the minimum acceptable medical standards of visual acuity for certifying professional firefighters. He argues that the NFPA 1001 standards are outdated by the passage of some six to ten years since their enactment and as applied, are arbitrary, capricious and contravene article I, section 2, the “basic rights” section, of the Florida Constitution.

From our review of the record, we find that Davis has not made a sufficient showing that the validly promulgated rules have suddenly become arbitrary and therefore unconstitutional, despite his vague references to available technologically advanced state of the art firefighting apparatuses. On the contrary, the record supports our conclusion that the standards involved “are directly related to the health and safety of the firemen and the public and hence are a proper exercise of the police power of the state_” McCrea v. Cunningham, 202 Neb. 638, 277 N.W.2d 52, 58 (1979).

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


text:
    FLORIDA CONVALESCENT CENTERS, INC., Petitioner, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.
    No. AX-18.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1984.

      Thomas M. Beason of Moyle, Jones & Flanigan, Tallahassee, for petitioner.
    Harden King, Dept, of Health & Rehabilitative Services, Tallahassee, for respondent.
   PER CURIAM.

This petition for writ of prohibition seeks to prevent issuance by HRS of a certificate of need to a third party pending resolution of petitioner’s request for hearing.

On April 15, 1983, petitioner, a corporation which operates nursing homes, submitted an application for a certificate of need (CON) to respondent for the purpose of constructing a 120-bed nursing home in Dade County. Its application was “batched” with other similar applications, including one from Catholic Community Services, Inc. (CCSI), and all were denied because of a lack of need for additional nursing home beds in Dade County. Pursuant to R. 10-5.10(8) and 10-5.12, both petitioner and CCSI requested formal proceedings on their applications under § 120.-57(1). Petitioner’s request was transmitted to the Department of Administrative Hearings on August 30, 1983 and CCSI’s on September 2, 1983. Each was assigned a separate case number, 83-2813 for CCSI and 83-2770 for petitioner. Pursuant to R. 28-5.02, petitioner sought to intervene in the formal proceeding requested by CCSI and requested consolidation with that proceeding, by motion filed on December 19, 1983. The Department of Administrative Hearings responded to the motion on January 3, 1984, informing petitioner that it was impossible to grant it because CCSI had voluntarily dismissed its case on December 14, 1983. CCSI had entered into a stipulation with respondent on December 9, 1983, which provided that if CCSI would drop its request for a § 120.57(1) hearing, HRS would grant its request for a CON to build a 180-bed nursing home in Dade County, such CON to be issued within 30 days of the date of the stipulation.

On January 6, 1984, before the expiration of the 30-day period (January 8, 1984), petitioner filed a request for hearing under § 120.57(1) requesting that the CON not be granted to CCSI until there had been a comprehensive review of all of the Dade County applications, as required by respondent’s rules. Pursuant to § 120.57(l)(b)(l), requests for hearings shall be granted or denied within 15 days of receipt, therefore respondent had until approximately January 23, 1984, to grant or deny petitioner’s request (January 21, 1984 is the 15th day but is a Saturday). In its petition for writ of prohibition, petitioner alleges that “respondent [HRS] has informed [it] that ... it intends to proceed to enter a final order granting the CON to CCSI,” apparently without the § 120.57 hearing. Petitioner seeks an order prohibiting HRS from issuing the CON to CCSI until such hearing is held.

The petition for writ of prohibition is denied. The facts alleged do not show respondent to be without jurisdiction to act with respect to the certificate of need covered by the stipulation in - question. We note, however, that petitioner’s January 6, 1984 request for proceedings under § 120.-57(1) to review respondent’s entry into the stipulation may render voidable any action taken pursuant thereto prior to respondent’s resolution of petitioner’s request.

In Capeletti Brothers v. Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), the agency’s use of informal letters and telegrams in an attempt to suspend Capeletti’s certificate of qualification was called “free-form action.” The opinion recognized that the “vast majority of an agency’s free-form decisions become conclusive because they are not challenged in § 120.57(1) ... proceedings,” but that “absent waiver [of § 120.57 benefits by an adversely affected party], ... an agency’s free-form action [is] only preliminary irrespective of its tenor.” Id. at 348 (emphasis supplied). The agency was found to be “powerless” to suspend the certificate “until proceedings [were] had satisfying § 120.57.” Id. at 349. We conclude that the referenced language does not mean that the agency would be without jurisdiction in the context before us, but was intended, instead, to emphasize that any such action would be subject to attack for failure to comply with statutory requirements.

We find the stipulation entered into by respondent to be the equivalent of the free-form action involved in Capeletti, and conclude that petitioner has not waived the benefits of § 120.57 but has properly requested them. The stipulation entered into by respondent is therefore preliminary, Capeletti, supra at 348, and any action taken pursuant to that stipulation prior to the resolution of petitioner’s request for § 120.57(1) review would be similarly subject to attack. Should respondent deny petitioner’s request, petitioner may of course seek review in this court, as would also be true for a final order issuing from the § 120.57(1) proceeding, if held.

The petition is denied.

MILLS and WENTWORTH, JJ., and McCORD, Jr. (Ret.), Associate Judge, concur.


author: ZEHMER, Judge.

text:
    Daisy PADGETT, Appellant, v. Charles A. PETTIS, et ux., Appellees.
    No. AS-197.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1984.
    Rehearing Denied March 15, 1984.

      Daisy Padgett, pro se, for appellant.
    Russell A. Cole, Jr., Bonifay, for appel-lees.
   ZEHMER, Judge.

In this child custody dispute between grandparents, the circuit court, citing jurisdiction under chapter 61, Florida Statutes, awarded custody of the two grandsons to Charles and Mary Pettis, the paternal grandparents. Daisy Padgett, the maternal grandmother, raises two issues on this appeal. The first is whether the circuit court had jurisdiction to entertain the Pet-tis’s complaint for custody and grant the requested relief. The second issue is whether the evidence was sufficient to support the court’s award of custody to the Pettises. We affirm.

Janice and Phillip Pettis were parents of the two boys involved. Janice shot and killed her husband, Phillip, during a domestic argument. As a result, she was convicted of second degree murder in July 1981 and sentenced to twenty years imprisonment, including a three-year mandatory sentence for use of a firearm. Her conviction and sentence was ultimately affirmed by this court. Pettis v. State, 415 So.2d 1367 (Fla. 1st DCA 1982). While free on bond and awaiting disposition of her appeal, Janice remarried and bore a child fathered by her new husband. Before going to prison to serve her sentence, Janice arranged for her mother, appellant Pad-gett, to take physical custody of all three children and to care for them while Janice remained in prison.

After the death of their son, and before Janice left for prison, the Pettises successfully petitioned the circuit court for visitation rights regarding their two grandsons pursuant to section 68.08, Florida Statutes (1981). After Janice left for prison, the Pettises amended their petition to seek physical custody of the boys. The amended petition asserted jurisdiction under chapter 61, Florida Statutes, and also under chapter 39 by alleging that the “children are now dependent.” After the amended petition was filed, the court ordered the Division of Health and Rehabilitative Services (HRS) to conduct studies of the maternal grandmother’s home and the Pettis home. A study was made and reported to the court recommending that the boys be placed in the Pettis home.

After holding an evidentiary hearing and considering the HRS report, the circuit court awarded custody of the boys to the Pettis family. Appellant Padgett resisted compliance with the order and secreted the boys for several days. A week later, the court ordered the Holmes County sheriff to locate the children, take them into custody, and deliver them to the Pettises. As a result, the boys are now residing with them.

Concerning the jurisdictional issue, we agree with the circuit court that jurisdiction was not properly invoked by the Pettises under chapter 39, Florida Statutes (1981). Although a circuit court has jurisdiction to award custody to grandparents in chapter 61 proceedings, Scott v. Singleton, 378 So.2d 885 (Fla. 1st DCA 1979); Sanders v. Sanders, 376 So.2d 880 (Fla. 1st DCA 1979); Burgess v. Burgess, 347 So.2d 1078 (Fla. 1st DCA 1977), and grandparents have standing to seek a declaration of dependency under chapter 39, In the Interest of W.D. Peterson, 364 So.2d 98 (Fla. 4th DCA 1978); In the Interest of W.H., 356 So.2d 34 (Fla. 1st DCA 1978); In re the Interest of R.J.C., 300 So.2d 54 (Fla. 1st DCA 1974); Van Meter v. Murphy, 287 So.2d 740 (Fla. 1st DCA 1973), the state must be made a party to any chapter 39 dependency petition that is contested. § 39.404(3), Fla.Stat. (1981). The state was not made a party in the instant case. Before grandparents may be awarded custody under chapter 39, it is essential that the children involved be adjudicated “dependent” under the provisions of that chapter. That was not done in this case.

The circuit court expressly ruled it had jurisdiction under the provisions of chapter 61, Florida Statutes, but in the process held that so much of sections 61.-13(2)(b) and 61.1306, Florida Statutes (1981), providing that a grandparent shall not have standing as a contestant, are unconstitutional as applied in this case. We vacate the circuit court’s ruling on this constitutional issue because those sections are not applicable to bar the paternal grandparents’ claim for custody in this case. The purpose of sections 61.1302, et seq., Florida Statutes (1981), the “Uniform Child Custody Jurisdiction Act,” is not to invest the circuit court with plenary power to resolve custody disputes, but to prevent interstate competition and conflicts regarding such disputes. Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980); Trujillo v. Trujillo, 378 So.2d 812 (Fla. 3d DCA 1979); Mort v. Mort, 365 So.2d 194 (Fla. 4th DCA 1978). That uniform act presupposes an existing basis for the award of custody. § 61.1308(1), Fla.Stat. (1981). The circuit court’s jurisdiction was not necessarily predicated on the provisions of chapter 61, Florida Statutes (1981), because a circuit court has inherent and continuing jurisdiction to entertain matters pertaining to child custody and to enter any orders appropriate to a child’s welfare. State, Dept. of Health & Rehabilitative Services v. Hollis, 439 So.2d 947, 949 (Fla. 1st DCA 1983); Phillips v. Nationwide Mutual Ins. Co., 347 So.2d 465, 466 (Fla. 2d DCA 1977); Cooper v. Cooper, 194 So.2d 278, 281 (Fla. 2d DCA 1967); Brown v. Ripley, 119 So.2d 712, 717 (Fla. 1st DCA 1960); Golstein v. Golstein, 442 So.2d 330 (Fla. 4th DCA 1983) [8 FLW 2835], See, Cone v. Cone, 62 So.2d 907 (Fla.1953).

Regarding appellant’s second point on the sufficiency of the evidence, appellant has failed to provide a transcript of the evidentiary hearing leading to the circuit court’s custody order. A copy of the HRS report, however, is included in the record on appeal. The trial court’s order comes to us clothed with a presumption of correctness. The record before us, especially in view of the recommendation in the HRS report, fails to establish any insufficiency in the evidence to support the circuit court’s implicit finding that it is in the best interest of the children that custody be awarded to the paternal grandparents. The burden is on the appellant to demonstrate that the appealed order is erroneous on the record in the court below, but she has failed to do so. See, Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

AFFIRMED.

MILLS and SHIVERS, JJ., concur.


author: THOMPSON, Judge.

text:
    U.S. HOME CORPORATION, Northwestern National Insurance Company, Appellants, v. Winfred A. MacDONALD, Appellee.
    No. AT-9.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1984.
    Rehearing Denied March 13, 1984.
    Robert M. Todd of Mattson, McGrady & Todd, St. Petersburg, for appellants.
    Stephen L. Rosen of Morris & Rosen, Tampa, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order in which the deputy commissioner (deputy) found that the E/C failed to satisfy the elements of the misrepresentation defense as set forth in Martin Company v. Carpenter, 132 So.2d 400 (Fla.1961) and awarded benefits for a low back injury. The E/C argue the deputy erroneously concluded that claimant had not misrepresented his prior physical condition when completing his application for the employer herein. We agree with the E/C and reverse.

One of the questions asked of claimant on the application for employment was “Have you ever received compensation for injuries?” Claimant checked the “no” box in responding to this question. However, in the 1940’s, prior to filling out the application in question, claimant injured his foot while he was in the United States Navy. At the time claimant filled out the employment application in question, he was receiving a thirty percent disability from the Navy for this injury. Additionally, in 1956, also prior to filling out the instant application, claimant sustained a back injury while a police officer in Reading, Massachusetts. Although claimant said no workers’ compensation was involved, he agreed that this 1956 injury was treated as an on-the-job injury and that the town of Reading paid his full salary during the time he was unable to work as a result of the injury and paid for his medical expenses. Claimant subsequently chose to take disability retirement from the Reading Police Department which amounted to $550 per month at the time of the hearing. He was receiving this disability retirement at the time he filled out the employment application herein. Furthermore, sometime in the early 1960’s, also prior to the time claimant filled out the instant employment application, claimant was involved in an automobile accident which he felt had aggravated his back. As a result of this accident he filed a law suit which was ultimately settled for $1,500. When questioned about his interpretation of the word “compensation” used in this application question, claimant indicated he thought it meant workers’ compensation and that he did not think of disability as compensation.

Another of the questions asked of claimant on the application for employment was “Do you have any physical handicaps which would prevent you from performing specific kinds of work?” This question was immediately followed by: “If yes, describe the defect(s) and explain the work limitations.” Claimant answered “No” to the question and accordingly did not respond to the explanation portion of the inquiry. The claimant testified that he chose disability retirement because of his physical defects and limitations which prevented him from handling drunks, which was a duty of one of the jobs offered him at the police department, and carrying stretchers.

There is no competent substantial evidence to support the deputy’s finding. The claimant had previously suffered a foot injury, had previously suffered a back injury, which eventually required a laminecto-my, and had been in an automobile accident which he agreed had aggravated his back. At the time claimant filled out the application in question, he had received money as a result of these injuries and was still receiving moneys as a result of the first two. In addition, by his own testimony, he was unable to perform a job with the police department which required him to wrestle drunks or carry stretchers. Public Gas Company v. Smith, 386 So.2d 258 (Fla. 1st DCA 1980), cited in the order in support of the deputy’s conclusion that claimant’s interpretation was logical, believable, and reasonable, does not support such a conclusion. In Public Gas Company this court concluded that although the claimant possibly knew of a previous abnormal back x-ray, the claimant’s negative answer to “list any physical defects” did not necessarily amount to a false application for employment, as the claimant could have reasonably interpreted the inquiry to refer to “defects” existing and symptomatic at the time of the injury. However, the employment application in the instant case specifically established the relevant time frame for the compensation inquired about as “ever.” Additionally, even if the question could have been interpreted as referring to compensation being received at the time claimant filled out the application, claimant should have responded affirmatively as he was admittedly receiving disability payments from the Navy and disability retirement from the Reading Police Department at that time.

As indicated in Higgins v. Trigil Repair, Inc., 436 So.2d 222, 223 (Fla. 1st DCA 1983), the Carpenter defense requires a “medical relationship between the claimant’s present injury and his misrepresented physical condition at the time of employment resulting from an undisclosed prior injury.” See also Cycenas v. Sarasota Coca Cola Bottling Co., 440 So.2d 39 (Fla. 1st DCA 1983). Dr. Smolensky’s testimony concerning claimant’s present injury and the back surgery that was necessitated by the 1956 back injury indicates the existence of such a causal relationship in this case. Since the remaining elements of the Carpenter defense exist, the order is REVERSED.

SHIVERS and JOANOS, JJ„ concur.


text:
    ALYCE D. McPHERSON SCHOOL and Division of Risk Management, Appellants, v. Margaret ADKINS, Appellee.
    No. AT-156.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1984.
    Rehearing Denied March 9, 1984.
    John P. Brooks of Jones & Langdon, Gainesville, for appellants.
    Daniel L. Hightower of Green, Simmons, Green, Hightower & Gray, Ocala, for appel-lee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal from a workers’ compensation order awarding, inter alia, temporary total disability (TTD) benefits, past and future medical, and attorney’s fees. The E/C contend the medical treatment and the compensation benefits awarded were not a result of and were not causally related to claimant’s industrial accident. We agree and reverse.

Claimant, a cook at the McPherson School, was initially injured September 15, 1982, when she attempted to keep a cart load of canned goods from tipping over. She immediately felt a sharp abdominal pain and fell to the floor. Upon being assisted to the bathroom, she discovered she was experiencing vaginal bleeding. The employer sent her to an emergency medical clinic where she was diagnosed as having abdominal muscle strain. Claimant was given pain medication and a muscle relaxant and sent home with instructions not to work until September 17, 1982. She did not improve and returned to the clinic on September 17 complaining of continued pain and bleeding. Tests to determine the cause of claimant’s problems were performed, including a pregnancy test which was positive. Claimant was then told she needed a D & C and was advised to consult her own gynecologist. Because her gynecologist was out of town that day, claimant sought treatment at Shands Teaching Hospital in Gainesville (Shands). Claimant gave the physicians at Shands a history of abnormal menses, and of sharp abdominal pain, bleeding and occasional syncope for the previous two days. A pregnancy test at Shands was negative. The claimant’s history and symptoms led the Shands doctors to believe she might be suffering from the effects of an ectopic pregnancy, and they admitted her for a D & C and an exploratory mini-laparotomy. After these procedures, the Shands doctors concluded that the claimant had a normal menstrual endometrium and was not suffering from an ectopic pregnancy. She was discharged on September 18, 1982, with instructions to remain off work for three weeks to give her small surgical incision time to heal.

The two Shands doctors who testified both stated that the claimant was admitted to the hospital for the purpose of ruling out an ectopic pregnancy and both were of the opinion that all of claimant’s problems at the time of admission, with the possible exception of her abdominal pain were unrelated to the accident. The gynecologist who treated claimant in April 1983 for continuing abdominal pain and abnormally heavy menses stated in his report that it was “very unlikely” that the accident could have caused claimant’s abnormal vaginal bleeding. The records of the gynecologist who had been treating the claimant prior to the accident show that on September 3, 1982, just twelve days before the accident, she came to the emergency room complaining of “urinary tract symptoms.” No doctor testified that either the abnormal menses or the necessity for hospitalization of the claimant was a result of the accident.

The E/C did authorize the initial medical treatment at the emergency treatment center, but subsequently controverted the claim and have paid no compensation benefits thereafter.

The deputy commissioner made no finding that the disability or medical treatment of the claimant was causally related to the industrial accident and there is no competent substantial evidence of any causal relationship. On the contrary, all of the medical evidence affirmatively shows that there was no causal relationship between the industrial accident and the claimant’s disability and need for medical treatment. As a result of the finding of no causal relationship between the industrial accident and claimant’s disability, the award of TTD benefits, past and future medical care, •costs, mileage, and attorney’s fees is reversed.

REVERSED and REMANDED with instructions to enter an order denying the claim.

SHIVERS and JOANOS, JJ„ concur.


text:
    DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellant, v. Lucy ALBANESE, et al., Appellees.
    No. AR-108.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1984.

      Augustus D. Aikens, Jr.,. Dept, of Admin., Tallahassee, for appellant.
    M. Terry McNab, Tallahassee, for appel-lees.
   ZEHMER, Judge.

The Department of Administration (Department), Division of Retirement (Division), appeals a final order determining that the Department’s rule 22B-2.02(4)(c)3 constitutes an arbitrary and invalid exercise of delegated legislative authority. We affirm.

Appellees are thirty-three school food service workers employed by the state in “regularly established positions.” As such, they are compulsory members of the Florida Retirement System, established by chapter 121, Florida Statutes. Rule 22B-2.02(4)(c)3, Florida Administrative Code, provides:

Service performed on and after July 1, 1979: A month of service credit shall be awarded for each month for which the member is paid a salary payment of at least $250. If a member is paid less than $250 during a month of employment, his service credit for that month shall be a fraction of a month of credit, such fraction to be determined by dividing his actual salary payment by $250. If a member earns $250 in a month, but is paid less than that amount because he participates in a deferred salary plan, he shall be entitled to receive a full month of service credit for each such month, provided the Division is notified and verification of deferred salary payments is submitted.

Appellees filed a petition pursuant to section 120.56, Florida Statutes, challenging the validity of the rule. Appellees contend that the rule constitutes an invalid exercise of delegated legislative authority because it arbitrarily creates a class of part-time members in the Florida Retirement System, which is not authorized by the statute, and thereby excludes such workers from receiving full monthly service credit to which they are entitled under the statute for those months during which they earn less than $250.

The Department contends that the purpose of the rule is to eliminate the possibility of abuse of the retirement system by covered employees receiving only nominal pay and to provide an efficient accounting and payroll system through which the Division can ascertain who is employed, by what agency he or she is employed, the amount of contribution due from such employee, and the employing agency. Accordingly, the Department argues, the rule is not arbitrary because the $250 minimum accomplishes these purposes by 'rewarding regularly employed career public service employees and preventing part-time employees who receive nominal pay from receiving a full month’s retirement service credit for less than a full month’s work. The Department does not explain how the $250 figure was arrived at for the avowed purpose of the rule, nor has it shown any actuarial or other basis for using that amount.

The hearing officer found that the appel-lees have a clear and substantial interest in the validity of the rule because it adversely affects their ability to earn monthly service credits for retirement and the ultimate amount of their retirement benefits; that the rule operates to reduce appellees’ creditable service solely because their salaries are low, despite the fact that the Florida Retirement System act does not authorize differentiation of calculated creditable service based on salary level; that the rule operates to reduce benefits for persons who already will receive the lowest level of retirement benefits because of their low salaries; and that the rule, for these reasons, is not reasonably related to the intended purpose asserted by the Department but, rather, is arbitrary and invalid.

We have no quarrel with the Department’s laudatory purpose to avoid abuse of the retirement system by persons in positions of limited employment at nominal wages. But we agree with the hearing officer and appellees that in using a minimum salary amount, the Department has chosen an arbitrary and invalid means of accomplishing its objectives.

The Department, through the Division, is authorized by section 121.031, Florida Statutes, to “make such rules as are necessary for the effective and efficient administration of this system.” The Department, however, possesses only such authority as is specifically delegated to it by statute and cannot promulgate rules that go beyond that grant of authority or are contrary to the intent of the legislature. See, Department of Citrus v. Office of the Controller, 416 So.2d 820 (Fla. 2d DCA 1982). One challenging the validity of an agency rule must show that (1) the agency adopting the rule has exceeded its authority; (2) that the requirements of the rule are not appropriate to the ends specified in the legislative act; and (3) the requirements ■ contained in the rule are not reasonably related to the purpose of the enabling legislation but are arbitrary or capricious. Agrico Chemical Co. v. State, 365 So.2d 759 (Fla. 1st DCA 1978).

Originally, rule 22B-2.02(4)(c)l provided that member employees would receive full monthly service credit for each month the member received payment for employment, and it specified no minimum amount of salary. Effective July 1, 1974, the Division adopted rule 22B-2.02(4)(c)2, which established a $100 minimum monthly salary as a prerequisite for full monthly retirement service credit. This minimum amount apparently did not affect any members of the system. Effective July 1, 1979, the minimum amount was increased to $250 by adoption of rule 22B-2.02(4)(c)3. This time the increase adversely affected some 3,000 of the approximately 14,000 Florida school food service workers. Under the new rule, the affected workers receive only a fraction of a month’s retirement credit even though they fulfill all the requirements of their employment in “regularly established positions,” solely because they are paid less than $250 per month.

We cite these changes to rule 22B-2.02(4)(c) only to place this case in historical perspective. We recognize that an administrative agency is not necessarily bound by its initial construction of a statute evidenced by the adoption of a rule and that an agency may validly adopt subsequent rule changes that give effect to a differing construction of the organic statute so long as this subsequent construction is consistent with a reasonably permissible construction of that statute. Such flexibility is necessary to permit changes in agency policy permissible under a view of the statute broadly conceived in light of subsequent experience. Accordingly, our affirmance in this case is not dependent upon any supposed legal principle that would forever bind an agency to its initial construction by adoption of a rule.

Our analysis of chapter 121 has convinced us that eligible employees qualifying as compulsory members of the system are entitled to a full month’s service credit for each month during which they are employed in a regularly established position without a break in continuous service, regardless of the amount of money they earn each month.

Section 121.021(11), Florida Statutes (1981), defines an eligible “employee” as “any person receiving salary payments for work performed in a regularly established position.” Section 216.011(l)(o) provides that state employees fill one of two positions, a “regularly established position” or an “other personal services” position; that “other personal services” means “services rendered by a person who is not a regular or full-time employee filling an established position”; that those filling an established position shall be paid from salaries appropriations; and that “those persons paid from salaries appropriations shall be state officers or employees and shall be eligible for membership in a state retirement system and those paid from other-personal-services appropriations shall not be eligible for such membership.” Accordingly, the Department has provided in rule 22B-6.01(40) that “regularly established position” means a position authorized and established pursuant to law and compensated from salary appropriations pursuant to section 216.-011(l)(o), Florida Statutes (1981). That rule also recognizes a regularly established position in terms of time worked by providing “it is also an employment position which will be in existence for a period of four or more consecutive months.”

Section 121.021(17), Florida Statutes (1981), defines an eligible employee’s “creditable service” as “the sum of his past service, prior service, military service, workmen’s compensation credit, and future service allowed within the provisions of this chapter.” “Past service” is defined in section 121.021(18) as “the number of years and complete months and any fractional part of a month during which [the member] was in active employ of an employer prior to his date of participation” (emphasis added). The word “service” in “prior service” means “employment service which, at the time it is claimed as prior service, satisfies the requirements for a regularly established position, as defined by rules of the Florida Retirement System.” § 121.-021(19)(b). “Future service” is “service subsequent to date of the member’s participation and may include authorized leaves of absence.” § 121.021(21). “Continuous service,” defined in section 121.021(38), means “creditable service as a member, beginning with the first day of employment ... and continuing for as long as the member remains in an employer-employee relationship .... An absence of one calendar month or more from an employer’s payroll shall be considered a break in continuous service.” Thus, an employee’s failure to work a full month does not cause a loss of coverage so long as he is not absent from work for more than a month.

Chapter 121 does not define “employee,” “member,” “creditable service,” or “regularly established position” in terms of part-time employment at reduced wages, but only in terms of regular employment in covered positions for more than a minimum period without a break in continuous service. Recognizing this, the Department’s rule 22B-2.02(4), which delineates policy, and rule 22B-6.01(5), which defines “creditable service,” both discuss the service of teachers and school employees in terms of contract or school-term year of employment of less than twelve months duration, rather than in terms of the amount earned by an employee during a particular monthly or yearly period. Rule 22B-6.01(3), echoing section 121.021(38), defines a break in “continuous services” for purposes of the Florida Retirement System as meaning that “[a]n absence of one calendar month or more from the employer’s payroll shall be considered a break in continuous service for members of the Florida Retirement System.”

The Department’s selection of a $250 amount has not been shown to bear any rational relationship, actuarial or otherwise, to any statutory provisions or intent concerning membership and participation in the retirement system. Because the Florida Retirement System Act requires compulsory membership and provides for creditable service on the basis of the specific position filed and the time period worked, rather than on the basis of the monetary amount earned in a particular pay period, the use of a $250 minimum amount is arbitrary and beyond the range of permissible interpretations of the statute.

In summary, we hold that the Department has exceeded its authority in adopting the $250 minimum monthly salary requirements in rule 22B~2.02(4)(e)3; the requirements of that rule are not appropriate to accomplish the ends specified in the Florida Retirement System act; and the minimum pay amounts incorporated by the rule are arbitrary and not reasonably related to the purpose of the act. See, Agrico Chemical Co. v. State, supra.

AFFIRMED.

SHIVERS and MILLS, JJ., concur.

      . § 121.021(11), Fla.Stat. (1981).

      . § 121.021(12), Fla.Stat. (1981); § 121.051, Fla. Stat. (1981).


text:
    Eloy GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1410.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Rehearing Denied March 12, 1984.
    Carlton & Carlton, Lakeland, and Thomas Wills, Miami, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., and Lawrence Price, Certified Legal Intern, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

It is unnecessary to address appellant’s main point on appeal which challenges the ruling that his confession was voluntarily and freely given. Even were we to hold the confession inadmissible, the remaining competent evidence was more than ample to “satisfy the conscience of the court” that the conditions of probation had been substantively violated. See Randolph v. State, 292 So.2d 374 (Fla. 3d DCA), cert. denied, 300 So.2d 901 (Fla.1974); McNeely v. State, 186 So.2d 520 (Fla. 2d DCA 1966).

Affirmed.


author: WALDEN, Judge.

text:
    STATE of Florida, Appellant, v. Willie Addison GUYTON, Appellee.
    No. 83-679.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellee.
   WALDEN, Judge.

Willie Addison Guyton was charged with criminal offenses. The trial court granted Guyton’s motion for discharge on the basis of a speedy trial violation. The State appeals. We affirm.

Some of the State’s plaints deal with Guyton's motions made after speedy trial time had expired. These actions do not affect Guyton’s entitlement to discharge. Henshaw v. State, 390 So.2d 793 (Fla. 3d DCA 1980); Hammock v. State, 330 So.2d 522 (Fla. 1st DCA 1976), cert. den., 341 So.2d 1085 (Fla.1976); White v. State, 338 So.2d 256 (Fla. 4th DCA 1976).

The critical issue is whether a defense motion for appointment of an expert under Rule 3.216(a), Florida Rules of Criminal Procedure, tolls speedy trial time or is evidence of the accused’s unavailability for trial. We answer in the negative.

At the outset, the distinction between mental examinations of a criminal defendant under Section 925.10(a), Florida Statutes (1979), now embodied in Rule 3.210, Fla.R.Crim.P., and a Rule 3.216(a), Fla.R. Crim.P. examination must be pointed out.

By its basic provisions, Rule 3.210, Fla.R. Crim.P. contemplates holding a criminal action in abeyance where a criminal defendant is mentally incompetent to stand trial. A motion under this rule immediately places mental competence in issue and reasonable grounds for believing mental incompetence is present are required to be stated in the motion (Rule 3.210(b)(1) and (2), Fla.R.Crim.P.). A determinative evaluation is pre-requisite to commencing trial. Thus, a defendant’s unavailability for trial pending the outcome of evaluation is clearly present.

In contrast, Rule 3.216(a), Fla.R.Crim.P., provides for one expert to examine a criminal defendant as to possible incompetence to stand trial or insanity at the time of the offense, for the sole purpose of assisting an attorney in defense preparation. The forward movement and impetus of the case is not, per se, halted. The expert reports only to a defendant’s attorney and these matters fall within the lawyer-client privilege.

Sanity does not become an issue unless notice of intent to rely on that defense is given within fifteen (15) days of arraignment or “not guilty” plea (Rule 3.216(c) Fla.R.Crim.P.). Competence only becomes an issue, under this rule, if notice of the perceived incompetence is given simultaneously with the filing of the Rule 3.216(a), Fla.R.Crim.P. motion. It is only at this point (as contrasted with Rule 3.210, Fla.R.Crim.P.) that proceedings would necessarily become delayed under the provisions of Rule 3.216(d) and (e), Fla.R. Crim.P., and that is contingent upon notice of the defenses being given. Thus, it does not, by virtue of its basic provisions, always require a tolling of speedy trial time.

In the instant cause, the motion filed was pursuant to Rule 3.216(a), Fla.R.Crim.P. There is nothing in the record to suggest that its filing resulted in any procedural delays during the 180 day period in which defendant could have been speedily tried. Defense counsel never filed a Rule 3.216(c), Fla.R.Crim.P., notice of his intent to rely either on a defense of insanity or upon a position that defendant was incompetent to stand trial.

Thus, these matters were not placed in issue, and the mechanisms of Rule 3.216(d) and (e), Fla.R.Crim.P., which might arguably have tolled speedy trial, were not triggered. Further, during the applicable 180 day “speedy trial” period, the defense never sought a continuance and was never unavailable for trial.

The State relies upon Harley v. State, 412 So.2d 954 (Fla. 4th DCA 1982); Zirkle v. State, 410 So.2d 948 (Fla..3d DCA 1982); and Isley v. State, 354 So.2d 457 (Fla. 1st DCA 1978). However, these cases are not applicable as they presented delays in proceedings of a type clearly distinct from the facts of this case.

AFFIRMED.

ANSTEAD, C.J., and BERANEK, J., concur.

      . At the court’s discretion, upon a showing of good cause for failure to simultaneously notice, a ten (10) day extension for compliance may be granted. In such a case, defendant becomes classified as "unavailable for trial” Rule 3.216(f), Fla.R.Crim.P.


text:
    STATE of Florida, Appellant, v. Wayne BALLEW, Appellee.
    No. 83-1161.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Rehearing Denied March 14, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Barry G. Roderman of Barry G. Roder-man, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The state appeals from an order dismissing an information which charged Wayne Ballew with carrying a concealed firearm contrary to Section 790.01(2), Florida Statutes (1981). Appellee filed a sworn motion to dismiss alleging that the arresting officer saw the gun in plain view. The state filed a traverse specifically denying the allegation that the gun was in plain view and further alleging that the arresting officer saw the handle of a gun protruding under a T-shirt which covered appellee’s right hand.

The supreme court in Ensor v. State, 403 So.2d 349 (Fla.1981), addressed the question of what constitutes a concealed weapon as defined in Section 790.001(2), Florida Statutes (1977). The court characterized the district court opinions as conflicting and irreconcilable. The court stated at 355:

The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each ease.
... It should be emphasized that the permissible and legal observations of a police officer in making an arrest and the observation of an average person making normal contact with an individual are clearly not the same. We hold that appellant’s prosecution for possession of a concealed firearm was permissible and that the firearm was wrongfully suppressed. The jury should determine whether this weapon was concealed under these facts.

Applying the test set forth in Ensor v. State to the facts of this case we conclude that the state’s traverse contained sufficient allegations to require the trial court to deny appellee’s motion to dismiss. See State v. Oberholtzer, 411 So.2d 376 (Fla. 4th DCA 1982), pet. for rev. den., 419 So.2d 1199 (Fla.1982).

Therefore, we reverse the trial court’s order granting appellee’s motion to dismiss and remand this cause with directions to reinstate the information and for trial on the merits.

REVERSED AND REMANDED with directions.

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Joseph Daniel WALL, Appellee.
    No. 83-1159.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1984.

      Jim Smith, Atty. Gen., Tallahassee, Charles Corees, Jr., Asst. Atty. Gen., and Michael A. Palecki, Sp. Asst. Atty. Gen., Tampa, for appellant.
    Michael H. Farver of Law Offices of Alan R. Williams, St. Petersburg, for appel-lee.
    Bill Gunter, State Fire Marshal, Tallahassee, as amicus curiae.
   HOBSON, Acting Chief Judge.

■The state appeals an order granting Joseph Daniel Wall’s amended motion to dismiss an amended information accusing him of second degree arson in violation of section 806.01(2), Florida Statutes (1981). We reverse and remand.

The state filed an amended information charging Wall with arson in the second degree, claiming that he “willfully and unlawfully by fire or explosion did damage or cause to be damaged a structure, to-wit: A motor vehicle, located at 4th Street and 45th Avenue North, St. Petersburg, Pinel-las County, Florida.” Wall submitted an amended motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), incorporating by reference an affidavit of his which contained the following assertions:

(1) That he [Wall] is the owner of the property destroyed herein, to wit: a 1965 Ford automobile.
(2) That no damage was done to any other individual, or to the property of any other individual.
(3) That he did not intend to inflict any damage to any other individual, or the property of any other individual.
(4) That the act complained of in the Information filed herein was not performed for an unlawful purpose.

The state then presented a sworn traverse under Rule 3.190(d), stating in pertinent part therein that “[t]he State specifically denies Paragraphs 2 and 4” of Wall’s affidavit and, as to Paragraph 3, Wall had “admitted his wrongful motives and intent to law enforcement [authorities].”

The second degree arson statute, section 806.01(2), reads in relevant part:

Any person who willfully and unlawfully, by fire or explosion, damages or causes to be damaged any structure, whether the property of himself or another, under any circumstances not referred to in subsection (l), is guilty of arson in the second degree, which constitutes a felony of the second degree ....

Subsection (3) of section 806.01 provides that, as used in chapter 806, the definition of “structure” includes “any vehicle.”

A hearing was held on Wall’s amended motion to dismiss, at which Wall cited the case of State v. Mayle, 406 So.2d 108 (Fla. 5th DCA 1981), as being “virtually completely on point.” The state, however, contended that Mayle was distinguishable. The trial court apparently sided with Wall’s position, rendering a summary order granting his amended motion to dismiss.

We agree with the state that Mayle is inapplicable under the facts at bar. In Mayle, our sister court affirmed a Rule 3.190(c)(4) dismissal of an information charging the defendant with second degree arson because the undisputed facts did not establish a prima facie case against the defendant. The uncontradicted facts revealed that the defendant merely burned his own van without injuring any person or damaging any other property, without intending to inflict any such injury or damage, and without posing any danger of inflicting any such injury or damage. In other words, although the defendant “willfully” damaged his van by the fire, he did not do so “unlawfully.”

Although the word “unlawfully” in section 806.01 has yet to be clearly defined, we believe that where one willfully, by fire or explosion, damages or causes to be damaged a structure which is his own property, the word “unlawfully” in subsection (2) of section 806.01 means, at the very least, that an injury result to any person or damage ensue to any other property, or that there be an intent that such injury or damage occur, or that a danger of such injury or damage be present. See Mayle, 406 So.2d at 109.

In the instant case, the state’s traverse expressly denied Wall’s claims in paragraphs 2 through 4 of his affidavit that he did not act unlawfully in setting fire to his car. Thus, unlike the situation in Mayle, material factual disputes exist.

Given the state’s traverse, the case at bar is also distinguishable from the analogous case of State v. Hoag, 419 So.2d 416 (Fla. 3d DCA 1982). There, our sister court affirmed a Rule 3.190(c)(4) dismissal of a count of an information charging the defendant with unlawful discharge of a destructive device in violation of section 790.161(3), Florida Statutes (1979), because the state had stipulated to the following innocuous facts:

The destroyed property, a junk vehicle, was driven to an isolated portion of the Everglades more than a mile away from any structure. All oil and gasoline was removed. A group of young spectators was warned to leave the immediate area because the car was going to be “blown.” The explosion, witnessed by several people, resulted in no damage to other property.

419 So.2d at 417, n. 4.

Wall submits that even though the case sub judice may be distinguishable from Mayle and Hoag, the state’s traverse did not warrant a denial of his amended motion to dismiss. He is of the view that the traverse did not deny “with specificity” the materia] facts contained in his affidavit. Rule 3.190(d), of course, mandates that a motion to dismiss under Rule 3.190(c)(4) shall be denied only if the state files a traverse which “with specificity denies under oath the material fact or facts alleged in the motion to dismiss.” Contrary to Wall’s belief, Rule 3.190(d) does not require that a state’s sworn traverse present by testimony or evidence specific facts which negate the material factual assertion(s) in a Rule 3.190(c)(4) motion to dismiss. See, e.g., State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979); Ellis v. State, 346 So.2d 1044, 1046 (Fla. 1st DCA), cert. den. 352 So.2d 175 (Fla.1977); State v. News-Press Publishing Co., 338 So.2d 1313, 1318 (Fla. 2d DCA 1976). The sworn traverse need only specifically apprise the trial court of the material factual allegation(s) in the motion to dismiss which the state is denying. See, e.g., State v. Wright, 386 So.2d 583 (Fla. 4th DCA 1980); Huggins; Ellis, 346 So.2d at 1046; News-Press Publishing Co., 338 So.2d at 1318.

Here, the state’s traverse satisfied the requirements of Rule 3.190(d) because it specifically denied under oath the material facts alleged in paragraphs 2 through 4 of the affidavit which Wall incorporated into his amended motion to dismiss. See Wright. Thus, Rule 3.190(d) required an automatic denial of Wall’s Rule 3.190(c)(4) amended motion to dismiss. See, e.g., State v. J.T.S., 373 So.2d 418 (Fla. 2d DCA 1979).

Accordingly, we reverse the order granting Wall’s amended motion to dismiss and remand for proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

DANAHY and SCHOONOVER, JJ., concur.

      . Effective June 1, 1979, the state legislature substituted the word "unlawfully” in section 806.01 for the word "maliciously." See Ch. 79-108, § 1, Laws of Fla. The legislature did so because of the difficulty of proving malice in arson cases. See Fla.Stat. § 806.01: Florida Arson Law — The Evolution of the 1979 Amendments, Lawrence W. Smith, 8 Fla.St.U.L.Rev. 81, 88-89 (1980). Cf. Love v. State, 107 Fla. 376, 144 So. 843 (1932); Gould v. State, 312 So.2d 225 (Fla. 1st DCA 1975).

      . Subsection (1) of section 806.01, Florida Statutes (1981), states:
      (1) Any person who willfully and unlawfully, by fire or explosion, damages or causes to be damaged:
      (a) Any dwelling, whether occupied or not, or its contents:
      (b) Any structure, or contents thereof, where persons are normally present, such as: Jails, prisons, or detention centers; hospitals, nursing homes, or other health care facilities; department stores, office buildings, business establishments, churches, or educational institutions during normal hours of occupancy; or other similar structures; or
      (c) Any other structure that he knew or had reasonable grounds to believe was occupied by a human being,
      is guilty of arson in the first degree, which constitutes a felony of the first degree ....

      . Of course, as the state has noted, it was irrelevant whether the state specifically denied Wall’s allegation in paragraph 1 of the affidavit that he is the owner of the damaged vehicle, given the language of section 806.01(2).