author: WIGGINTON, Judge. NIMMONS, Judge, PER CURIAM. PER CURIAM:

text:
    Cornelius WILSON, Appellant, v. STATE of Florida, Appellee.
    No. AT-293.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1984.
    On Rehearing March 19, 1984.
    Rehearing Denied May 10, 1984.
    Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Appellant pled guilty to an amended two-count information charging sexual battery with a firearm and kidnapping with a firearm. He was sentenced to two consecutive thirty-year sentences with consecutive three-year mandatory minimum sentences. The court retained jurisdiction under section 947.16(3), Florida Statutes (Supp.1982) for the first one-half of each sentence for review of a parole commission release order. On appeal, appellant raises three points, contending (I) the trial court failed to state sufficient reasons for retention of jurisdiction; (II) the trial court erred in retaining jurisdiction over appellant for one-half of each of the consecutive sentences imposed instead of the total of those sentences; and (III) the trial court erred in imposing cumulative three-year mandatory minimum sentences for multiple offenses arising out of the same criminal episode. We reverse on all three points and remand for resentencing in accordance with this opinion.

As to point I, the trial court articulated the following reason for its retaining jurisdiction for the first one-half of each of appellant’s sentences:

The express reason for that being that the present status of the Parole Commission and its policies and philosophies relative to release from incarceration does not meet with the approval of the trial judiciary of this state, particularly to this Court, and, therefore, this Court feels that a judicial officer, and a judicial officer elected by the people alone, should make the determination as to when you are eligible for parole.

By no stretch of the imagination does that articulated reason satisfy the requirements of specificity and particularity set forth in section 947.16(3)(a), Florida Statutes (Supp. 1982). See Saname v. State, 427 So.2d 1083 (Fla. 1st DCA 1983); and Abbott v. State, 421 So.2d 24 (Fla. 1st DCA 1982). Because the statement is statutorily deficient, on remand the trial court is instructed either to relinquish retention of jurisdiction or to enter an order setting forth the particular facts and circumstances of the crime, or the particular characteristics and propensities of the appellant, which justify a retention of jurisdiction. Abbott.

Regarding point II, we hold the trial court erred in retaining jurisdiction to review any parole commission release order for one-half of each of the consecutive thirty-year sentences. As recognized by our sister courts in the second and third districts in Adams v. State, 435 So.2d 953 (Fla.2d DCA 1983) and Goree v. State, 411 So.2d 1352 (Fla.3d DCA 1982), the trial court has the authority under section 947.-16(3) to retain jurisdiction over one-half of the total consecutive sentences imposed, but not over the first one-half of each of the consecutive sentences imposed.

The state relies on the supreme court’s decision in Harmon v. State, 438 So.2d 369 (Fla.1983), decided subsequent to Adams and Goree. In Harmon, however, the issue was not precisely that which is raised under this point, but rather whether the imposition of six consecutive 100-year terms, with the trial court’s retaining jurisdiction for one-third of each sentence violates the constitutional prohibition against indefinite terms of imprisonment contained in article I, section 17, Florida Constitution, and whether the retention of jurisdiction for a period of 200 years imposes a greater penalty than if the court had imposed consecutive life sentences. Language in Harmon suggests the supreme court would condone the trial court’s action challenged here; and we note that whether the trial court reserves jurisdiction for one-third or one-half of each consecutive sentence, or for one-third or one-half of the total consecutive sentences, the result is numerically equal. Nevertheless, we are compelled to reverse by the plain meaning of section 947.16(3) which authorizes a trial court judge to reserve jurisdiction for one-half “of the total consecutive sentences imposed.” [Emphasis added.] Therefore, on remand the court is directed to reconsider the period of retention in accordance with section 947.16(3).

Finally, as to point III, the trial court erred in imposing two consecutive mandatory minimum sentences. See Palmer v. State, 438 So.2d 1 (Fla.1983); and Sams v. State, 441 So.2d 180 (Fla. 1st DCA 1983). Accordingly, on remand the trial court is directed to correct the sentences so that the two mandatory minimum sentences will be served concurrently.

LARRY G. SMITH, J., concurs.

NIMMONS, J., concurs with written opinion.

NIMMONS, Judge,

specially concurring.

I concur in the court’s opinion. I wish, however, to clarify my reason for considering on appeal the defendant’s claim pertaining to the procedural error in the trial court’s alleged failure to comply with Section 947.16(3)(a), Florida Statutes (Supp. 1982), in retaining jurisdiction. Although we have held that we will not consider such procedural sentencing errors on appeal without the objection having first been raised in the trial court, we note that the defendant in this case did make such objection. Cf. Walker v. State (Fla. 1st DCA 1983) [8 FLW 2896, 12/23/83].

I am not as convinced as my colleagues that the statute contemplates review by appellate courts of the sufficiency of the reasons stated by the trial court for retention. See Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1981) (Cowart, J., specially concurring); but see Owen v. State, 441 So.2d 1111 (Fla. 3rd DCA 1983); compare Mobley v. State, 409 So.2d 1031, 1038 (Fla. 1982) (failure of trial court to make any findings justifying retention vacated and cause remanded so that findings may be made). In view of this court’s previous decisions in retention appeals, e.g., Abbott v. State, 421 So.2d 24 (Fla. 1st DCA 1982), and Saname v. State, 427 So.2d 1083 (Fla. 1st DCA 1983), I concur in the court’s decision to reverse on this ground. However, I favor certifying to the Supreme Court the following question as one of great public importance:

Do the appellate courts of this State have jurisdiction to review the sufficiency of the reasons stated by trial courts for retention of jurisdiction under Section 947.16(3)(a)?

ON REHEARING

PER CURIAM.

We are not persuaded to grant rehearing on the ground ■ asserted by the state, that ground being that the sufficiency of the trial court’s reasons for retention of jurisdiction under Section 947.16(3)(a) are not subject to appellate review. We also deny the state’s motion to certify the question.

However, we grant rehearing on the issue of the validity of the trial court’s imposition of the two consecutive three-year mandatory minimum sentences even though the state has not sought rehearing on that ground. This issue was raised by appellant as his third point on appeal and was briefly treated in the last paragraph of our opinion. The only reference in the state’s brief to that point was its concession that the issue was governed by the Supreme Court’s holding in Palmer v. State, 438 So.2d 1 (Fla.1983), but, said the state, reliance upon that holding would be premature because the state’s motion for rehearing in Palmer was still pending. However, Palmer became final when the Supreme Court denied rehearing on October 19, 1983. Even though the state has, in effect, conceded this point, in reviewing the record of this case along with the Palmer opinion, we are persuaded that the rationale expressed by the majority in Palmer was not intended to preclude consecutive mandatory minimum sentences in situations such as we have in the case at bar.

Wilson pled guilty to kidnapping and sexual battery. He used a firearm in the commission of both offenses. In order to determine whether Palmer precludes consecutive mandatory minimum sentences in this case, we must look to the facts involved in the crimes. Although the facts are not addressed in the parties’ briefs herein, we are able to refer to the transcript of proceedings at the time of the entry of the appellant’s guilty pleas at which proceedings the prosecuting attorney recited the facts in order to establish factual bases for the guilty pleas:

Your Honor, on November 19, 1982, at approximately 1:00 o’clock in the morning the victim alleged in the Information in this case was returning to her apartment in the City of Fort Walton Beach. As she got out of her car and was attempting to enter her apartment, she was confronted by an individual later identified as the defendant, Cornelius Wilson, at gun point and he directed her to get into his car, which she did. From there, they drove a short distance behind an area of Coral Drive in Fort Walton Beach, Florida. At that time, also with a gun in his possession and with very little conversation, he completed the technical act of sexual battery and with penetration of the vagina. At that time, the defendant left. The victim, after waiting just a couple of minutes, ran down the street and was able to flag down a passing motorist, who called the Police Department, and they responded.

Shortly thereafter, Wilson was arrested and gave a confession to the investigating officers.

In contrast, the defendant in Palmer walked into a funeral parlor with a firearm during a wake, ordered the mourners to throw their money and valuables on the floor and threatened to kill them unless they complied. They did, and he took the loot and fled. On his convictions of thirteen counts of armed robbery, the trial court imposed consecutive sentences and also imposed consecutive three-year mandatory minimum terms by reason of the use of a firearm pursuant to Section 775.087(2). Although finding no error in the requirement that the basic sentences were to be served consecutively, the Supreme Court reversed the consecutive three-year mandatory minimum sentences. However, the court stated:

By this holding, we do not prohibit the imposition of multiple concurrent [emphasis in original] three-year minimum mandatory sentences upon conviction of separate offenses included under subsection 775.087(2), nor do we prohibit consecutive mandatory minimum sentences for offenses arising from separate incidents occurring at separate times and places, (emphasis added)

438 So.2d at 4.

At least for a while, Palmer will, undoubtedly, spawn mueh activity in the appellate courts over the question of whether given offenses arise from separate incidents occurring at separate times and places. See Cochenet v. State, 445 So.2d 398 (Fla. 5th DCA 1984); Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984). However, we have no difficulty in determining that the offenses involved in the case at bar qualify for consecutive treatment under Palmer. We do not believe that we should expand the holding in Palmer to proscribe consecutive mandatory minimum sentences where the defendant kidnaps the victim in front of her residence and then transports the victim to another place where he rapes her.

Accordingly, we withdraw the last paragraph of our opinion as to Point III and affirm the trial court’s imposition of the consecutive three-year mandatory minimum sentences.

LARRY G. SMITH, WIGGINTON and NIMMONS, JJ., concur.

ON APPELLANT’S MOTION FOR REHEARING

PER CURIAM:

Appellant’s motion for rehearing is denied. However, we certify, pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v), that the court’s decision passes upon a question of great public importance, namely:

Whether the crimes for which the defendant was sentenced to consecutive three-year mandatory minimum terms pursuant to Section 775.087(2), Florida Statutes, were “offenses [which arose] from separate incidents occurring at separate times and places” within the meaning of the rule announced in Palmer v. State, 438 So.2d 1 (Fla.1983)?

We have certified a similar question in Ames v. State, 449 So.2d 826 (Fla. 1st DCA 1984).

LARRY G. SMITH, WIGGINTON and NIMMONS, JJ., concur.

      . Harmon, Adams and Goree were decided under the 1981 version of section 947.16(3) which authorizes the trial court judge to reserve jurisdiction for one-third of the total consecutive sentences. Section 947.16(3) was amended in 1982 by chapter 82-171, Laws of Florida, to allow retention of jurisdiction for one-half of the sentences imposed.

      . Under the heading "Statement of the Case and Facts," the appellant’s brief states only the following with respect to the facts regarding the offenses:
      "The factual basis for the plea reflected that on November 19, 1982, appellant, armed with a weapon, kidnapped the victim and then sexually battered her.”
      The appellee's brief neither contains any statement of case or facts nor mentions the appellant’s statement of case or facts.


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM.

license: Public Domain

text:
    Jeffrey Marshall AMES, Appellant, v. STATE of Florida, Appellee.
    No. AU-379.
    District Court of Appeal of Florida, First District.
    March 21, 1984.
    Rehearing Denied May 11, 1984.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant. ■
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The defendant was convicted of armed burglary, armed robbery and sexual battery. He used a firearm in perpetrating each offense. His sole point on appeal pertains to the trial court’s imposition consecutively of the three-year mandatory minimum sentences required under Section 775.087(2), Florida Statutes (1981). The Count II robbery sentence was imposed concurrently with the Count I burglary sentence and the Count III sexual battery sentence was imposed consecutively to the sentences on Counts I and II. The defendant’s complaint is not directed to the consecutive imposition of the basic sentences but only to the consecutive imposition of the three-year mandatory minimum terms. We find that we must reverse under the Supreme Court’s recent holding in Palmer v. State, 438 So.2d 1 (Fla.1983).

Under Palmer, it is improper to impose consecutively the three-year mandatory minimum sentences unless the “offenses [arose] from separate incidents occurring at separate times and places.” 438 So.2d at 4. In Palmer, the defendant walked into a funeral parlor with a firearm during a wake, ordered the mourners to throw their money and valuables on the floor and threatened to kill them unless they complied. They did, and he took the loot and fled. On his convictions of thirteen counts of armed robbery, the trial court imposed consecutive sentences and also imposed consecutive three-year mandatory minimum terms by reason of the use of a firearm pursuant to Section 775.087(2). Although finding no error in the requirement that the basic sentences were to be served consecutively, the Supreme Court reversed the consecutive three-year mandatory minimum sentences.

In the case sub judice, the victim answered a knock at the back door to her one-story Gainesville home. As she unlocked the door, the defendant pushed his way inside the laundry room, knocking her to the floor. He threatened to kill her if she did not quit screaming. He then pulled her off the floor, pushed her into the kitchen and demanded money. In response, she took her purse from the kitchen table, removed $44 from it and handed the same to him. He then started leading the victim through the house searching for more money. She told him that she had no more money but offered to give him her jewelry instead. When they went into her bedroom, she removed some jewelry from a dresser. Instead of taking the jewelry, he made her remove her clothing and raped her. He then left.

Recently, we had occasion to consider a Palmer objection to consecutive mandatory minimum sentences in Wilson v. State, 449 So.2d 822 (Fla. 1st DCA 1984) (on rehearing). There, the defendant abducted the victim in front of her apartment, transported her a short distance in his automobile and then committed sexual battery upon her. Wilson was convicted of kidnapping and sexual battery. On rehearing, we approved the trial court’s imposition of consecutive three-year mandatory minimum sentences on the basis that the two offenses arose from separate incidents occurring at separate times and places and, thus, qualified under the exception recognized in Palmer. We are unable to reach a similar result in the case at bar for it cannot reasonably be said that the robbery and sexual battery committed upon the victim at her home “arose from separate incidents occurring at separate times and places” as contemplated by Palmer. It was, therefore, error to impose, consecutively, the three-year mandatory minimum sentences.

Accordingly, the trial court, on remand, is directed to correct the mandatory minimum sentences such that they are ordered to be served concurrently.

SMITH, WIGGINTON and NIMMONS, JJ., concur.

ON REHEARING

PER CURIAM.

Appellee’s motion for rehearing is denied. However, we certify, pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v), that the court’s decision passes upon a question of great public importance, namely:

Whether the crimes for which the defendant was sentenced to consecutive three-year mandatory minimum terms pursuant to Section 775.087(2), Florida Statutes, were “offenses [which arose] from separate incidents occurring at separate times and places” within the meaning of the rule announced in Palmer v. State, 438 So.2d 1 (Fla.1983)?

We have certified a similar question in Wilson v. State, 449 So.2d 822 (Fla. 1st DCA 1984).

SMITH, WIGGINTON and NIMMONS, JJ., concur.

      . No issue has been raised as to whether the defendant may properly raise this alleged sentencing error on direct appeal from the sentence as opposed to a Rule 3.850 motion. Compare Cochenet v. State, 445 So.2d 398 (Fla. 5th DCA 1984); Walker v. State, 442 So.2d 977 (Fla. 1st DCA 1983). Since the state has not interposed any objection to our consideration of the issue and since the question of the imposition of consecutive sentences was at least discussed at the sentencing hearing, we will dispose of the question on the merits.


author: PER CURIAM.

text:
    METROPOLITAN DADE COUNTY and Westinghouse Electric Corporation, Appellants, v. Bruce D. GASSIN, Jr., a minor, By and Through his parents, Bruce D. GASSIN, Sr. and Lee Gassin, and Bruce D. Gassin Sr. and Lee Gassin, individually, Appellees.
    Nos. 83-405, 83-469 and 83-657.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984,
    Rehearing Denied March 19, 1984.
    Richard R. McCormack, Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Miami, for appellants.
    Hershoff & Levy and Jay M. Levy, Miami, for appellees.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The judgment and orders under review in these consolidated appeals are affirmed with one exception. Our examination of the record reveals that Metropolitan Dade County’s liability to the plaintiffs could have been predicated only on its ownership of the escalator in question, there being no proof of any fault on the part of the County which played any role in causing the plaintiffs’ injuries. Under these circumstances, the trial court erred in failing to direct a verdict in the County’s favor, and to enter judgment thereon, on the County’s third-party claim for indemnity against Westinghouse Electric Corporation, an independent contractor hired to discharge the County’s duty to maintain the escalator in a reasonably safe condition. See Westinghouse Electric Corporation v. J. C. Penney Company, 166 So.2d 211 (Fla. 1st DCA 1964). See also Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Mortgage Guarantee Insurance Corporation v. Stewart, 427 So.2d 776 (Fla. 3d DCA 1983); Hart Properties, Inc. v. Eastern Elevator Service Corp., 357 So.2d 257 (Fla. 3d DCA 1978).

Affirmed in part; reversed in part and remanded with directions to enter judgment for Metropolitan Dade County on its indemnity claim against Westinghouse Electric Corporation.


author: McCORD, GUYTE P., Jr. (Retired), Associate Judge. WENTWORTH, Judge,

text:
    Richard WEAVER, Appellant, v. GOLD KIST, INC., Self-Insured, Appellee.
    No. AU-102.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.
    Eugene W. Harris of Smith, Cassidy, Platt & Harris, Lakeland, for appellant.
    Jack A. Langdon, of Jones & Langdon, Gainesville, for appellee.
   McCORD, GUYTE P., Jr. (Retired), Associate Judge.

In this worker’s compensation action, the claimant contends that the deputy commissioner erred in disregarding without reason the uncontroverted opinion of a physician, selected by the employer/carrier (E/C), that claimant needed psychiatric evaluation, and then denying claimant’s claim therefor. We agree, and remand to the deputy commissioner for clarification of the basis of his order denying the claim for psychiatric evaluation.

Claimant incurred a compensable injury to his neck and back in December, 1980. From the date of the injury until October, 1982, the E/C referred claimant to numerous orthopedic physicians because of continuing pain in the area of the injury. In October, 1982 claimant consulted Dr. Russell Sklenicka of the Watson Orthopedic Clinic, who examined claimant and subsequently submitted a report which stated that, although no objective physical findings explained claimant’s pain, claimant “need[ed] supportive care ... done on a neuro-psychiatric basis.” This opinion was the foundation of claimant’s subsequent claim against the E/C for a psychiatric evaluation. No additional evidence supporting the claim was adduced by claimant at the hearing thereon, nor did the E/C there attempt to refute the opinion of Dr. Sklenicka. The deputy denied the claim, stating in his order: “I disregard the report of Dr. Sklenicka and find that the claimant is not entitled to further medical attention of a psychiatric nature.”

This court said in Castro v. Florida Juice Division, 400 So.2d 1280 (Fla. 1st DCA 1981), that

[although a deputy commissioner’s order does not have to state expressly that the testimony of a particular witness is not credible, see John Caves Land Development Co. v. Suggs, 352 So.2d 44 (Fla. 1977), the deputy should offer a sufficient reason for rejecting expert medical testimony, especially if such testimony is unrefuted.

Id. at 1282. We find that the deputy rejected the medical opinion relied on by claimant without providing a sufficient reason for that rejection.

We therefore remand to the deputy with instructions to order a psychiatric evaluation of claimant or enter an order clarifying the basis of his order denying psychiatric evaluation.

MILLS, J., concurs.

WENTWORTH, J., concurs specially with opinion.

WENTWORTH, Judge,

concurring specially.

Although I agree with the remand for more particular findings to facilitate our review of the denial of psychiatric evaluation, I find no parallel with the Castro decision and do not think it supports reversal of a deputy’s explicit rejection of a medical opinion absent articulation of a sufficient reason therefor. Instead, I think we should in most contexts read an explicit rejection as a determination of lack of credibility with the usual attendant presumptions on appeal. Remand in this case, however, is in order because the condition of the order and the record here makes any appellate review burdensome.

      . The order contains no factual findings other than an orthopedic MMI without permanency, but the record reflects many circumstances potentially impacting the medical opinion in question, including lack of currency at the time of hearing as well as lengthy testimony from claimant, but also including unexplained testimony of a carrier witness that, “It is my understanding that if a person has reached maximum medical improvement from an orthopedic or neurological standpoint that there is no grounds for psychological impairment."

      . There the order contained no reference to the three medical experts in question (who might therefore have been overlooked), and the court reviewed the record to determine that no evidence supported rejection.


author: SHIVERS, Judge.

text:
    Stanley McCANDLESS, Appellant, v. M.M. PARRISH CONSTRUCTION and Corporate Group Service, Inc., Appellees.
    No. AR-319.
    District Court of Appeal of Florida, First District.
    April 16, 1984.
    Rehearing Denied May 17, 1984.

      James Moran of Law Offices of Barton, Cox & Davis, Gainesville, for appellant.
    Jack A. Langdon of Jones & Langdon, P.A., Gainesville, for appellees.
   SHIVERS, Judge.

In this workers’ compensation case, McCandless appeals the order of the deputy commissioner which denies his claim for additional benefits. Appellant contends that the deputy commissioner erred in determining that appellant’s psychiatric condition was not causally related to his industrial accident, in determining that appellant reached maximum medical improvement (MMI) on May 20, 1980, and in determining that appellant was not entitled to temporary disability benefits. Appellant also alleges error in the deputy commissioner’s finding that appellant’s request for examination and treatment by Sister Kenny Institute was in the nature of a petition for modification and that there were no changes in circumstances since -the entry of a prior order to justify a modification. We find merit in these contentions and, therefore, reverse and remand.

Claimant was born in 1941 and has a seventh grade education. He has worked in construction all his life, beginning as a common laborer and advancing to rough carpenter by taking part in an apprentice program at night. On January 5, 1979, claimant suffered a compensable industrial injury to his lower back. Claimant eventually came under the care of Dr. Freeman, a neurosurgeon, who performed surgery to correct a free fragment disc rupture. Claimant began to improve after surgery, but this improvement reached a plateau short of the expectations of Dr. Freeman and claimant. Claimant continued to have low back pain and pain in his right leg. Dr. Freeman placed restrictions on claimant consisting of not lifting more than 50 pounds and not bending or lifting repetitively. Even so, Dr. Freeman testified that claimant might have symptomatic pain conducting any activity and that the only way for claimant to avoid pain would be to stay in bed continuously. Dr. Freeman testified that claimant reached MMI from his surgery on May 20, 1980.

Claimant attempted to return to work as a rough carpenter in February 1980, and worked until October 1980, when he was laid off because he could no longer do the job. Because of claimant’s continued pain, a number of measures were taken by Dr. Freeman. In June 1980, claimant was prescribed a TENS unit. In September of 1980, a back pain clinic was prescribed and claimant was placed in a rehabilitation program. In October 1980, an epidural block was attempted, which helped only temporarily. In January 1981, claimant was placed in a pantaloon spica cast. It was felt that if the cast improved claimant’s condition, then fusion surgery might be indicated. The spica cast produced improvement in claimant’s leg pain and some improvement in the back pain. The pain returned, however, following removal of the cast. At this point, claimant and Dr. Freeman began discussing the options of a surgical fusion and a surgical severing of claimant’s leg nerve. Prior to any surgery, Dr. Freeman recommended that claimant be sent to the Sister Kenny Institute (Sister Kenny) in Minneapolis which specializes in failed back surgery cases. The carrier, however, disapproved the trip to Sister Kenny and proposed that claimant go to Cathedral Rehabilitation Center (Cathedral) in Jacksonville. A hearing was held on this matter and the deputy commissioner entered an order which stated, “that the employer/carrier has been at all times ready and willing to provide adequate medical care in the state of Florida and is not required to furnish out-of-state medical care and attention, unless it is shown that local treatment is not available. There has been no such showing.” This order was entered on October 20, 1981, and was not appealed.

Claimant went to Cathedral in November 1981, but was advised that there was nothing further which Cathedral could do for his low back and leg pain. Cathedral referred claimant back to Dr. Freeman. Dr. Freeman felt that the Cathedral evaluation did not accomplish the results he desired, and he again recommended that claimant be seen at Sister Kenny.

Claimant testified that because Cathedral could do nothing for him, he became depressed. Claimant suffered from severe depression, began drinking heavily, and began experiencing marital problems. Claimant requested psychiatric care from the employer/carrier who refused. However, claimant was referred by a vocational rehabilitation counselor to Dr. Stiefel, a psychiatrist, who began treating him in October 1982. Dr. Stiefel diagnosed neurotic depression, and he testified that the depression was caused by claimant’s frustration, continued pain, inability to work and be productive, and sexual problems which were secondary to his back pain. Dr. Stie-fel opined that all of claimant’s psychiatric problems were a result of his accident, subsequently surgery, and the continued pain. Dr. Stiefel further stated that claimant had not yet reached MMI from a psychiatric standpoint, that claimant was psychologically temporarily totally disabled, and that he had been so for several months.

Rehabilitation counselor Skelly testified that she began seeing claimant in February 1981. At first claimant was very coopera: tive, but by June 1982 claimant was depressed, drinking, and not fully cooperative. She testified that claimant went through a period of depression when he and his wife were having problems, and that it was hard to work with claimant on vocational rehabilitation while he had these problems.

The employer/carrier had paid claimant TTD benefits through August 23, 1982, at which time benefits were terminated by the employer/carrier due to claimant’s alleged uncooperativeness with the rehabilitation counselor. Claim was made for psychiatric care, TTD benefits, and treatment at Sister Kenny. At the hearing, the employer/carrier contended that claimant’s psychiatric problems were not a result of the accident. Subsequent to the hearing, the deputy commissioner entered the order sub judice which finds that there was a lack of showing that the psychiatric condition was a result of the accident rather than a result of other personal domestic problems. The order also finds that claimant reached MMI on May 20, 1980, and that there had been no substantial change in circumstances since the entry of the October 1981 order to justify a modification of that order to allow for examination and treatment at Sister Kenny Institute.

Turning to appellant’s first point, we find a lack of competent substantial evidence in this record to support the deputy commissioner’s finding regarding the causal relationship of claimant’s psychiatric problems and the industrial accident. Claimant testified that he began feeling depressed because he was told by Cathedral thqt there was nothing which could be done for him. This testimony was essentially corroborated by the testimony of claimant’s wife. Although claimant testified to marital problems and that his wife had left him for two weeks in August 1982, there is no evidence that the marital difficulties or domestic situation of claimant caused his psychological problems. Rather, based on the sequence of events and the testimony of Mrs. MeCandless, it would appear that claimant’s depression and heavy drinking were a causative factor in the marital problems. The testimony of rehabilitation counselor Skelly also tends to corroborate the testimony of claimant and his wife. Ms. Skelly stated that when claimant got back from Cathedral he was very depressed because there was nothing Cathedral could do for him. She stated that it was impossible to rehabilitate claimant vocationally because of his psychological problems. Although Ms. Skelly focused primarily on claimant’s marital problems in discussing his psychological condition, she offered no testimony on the causation of the psychological or marital problems.

The only medical evidence offered concerning claimant’s psychiatric problems was that of Dr. Stiefel. Dr. Stiefel testified unequivocally that claimant’s psychiatric problems were a result of his accident, subsequent surgery, and resulting continued pain.

The deputy commissioner, as trier of fact, may judge the credibility of witnesses appearing before him and reject their testimony in whole or in part. Brown v. Race & Race, 413 So.2d 91 (Fla. 1st DCA 1982). It is also true that, under certain circumstances, a deputy commissioner can rely upon lay testimony even if it directly conflicts with medical testimony. Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959). In the instant case, however, there is no conflict between the medical testimony and the lay testimony, and there is no indication in the order or the record that the deputy commissioner doubted the credibility of any of the witnesses. Further, it is an abuse of discretion for the deputy to reject uncontroverted medical testimony without a reasonable explanation. Polk Nursery Co., Inc. v. Riley, 433 So.2d 1233 (Fla. 1st DCA 1983); see Weaver v. Gold Kist, Inc., 449 So.2d 829 (Fla. 1st DCA 1984); Castro v. Florida Juice Division, 400 So.2d 1280 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 465 (Fla. 1982); USA-1 Building Services v. Bowen, 380 So.2d 481 (Fla. 1st DCA 1980). Where the testimony and evidence are uncontra-dicted, a finding contrary to the manifest weight of such testimony and evidence is not supported by competent substantial evidence. Standard Oil Co. v. Gay, 118 So.2d 212 (Fla.1960); see Willingham v. Boynton Service Corp., 383 So.2d 710 (Fla. 1st DCA), rev. denied, 392 So.2d 1372 (Fla. 1980).

In the instant case, the deputy commissioner’s finding of no causal relationship between the industrial accident and psychiatric condition is not supported by competent substantial evidence in light of the uncontradicted medical and lay testimony to the contrary. That being so, the deputy commissioner also erred in his determination of MMI, since the medical evidence was also uncontradicted that claimant had not yet reached MMI from a psychiatric standpoint. Because of this, upon remand the deputy commissioner should reconsider claimant’s eligibility for temporary benefits.

The deputy commissioner also erred in finding no basis for modification of the prior order which denied claimant’s request for evaluation and treatment by Sister Kenny Institute. The failure of Cathedral Clinic to produce the desired results and claimant’s subsequent psychological problems clearly represent a change in condition sufficient to allow modification of the prior order pursuant to section 440.28, Florida Statutes. Subsequent to Cathedral’s failure to benefit claimant, Dr. Freeman testified that Sister Kenny Institute was a very specialized institution and that Cathedral Clinic was not a suitable substitute for Sister Kenny. Dr. Stiefel also testified that, from a psychiatric standpoint, evaluation and treatment by Sister Kenny would benefit claimant. Under these circumstances, to apply the doctrine of res judica-ta to the October 1981 order of the deputy commissioner would work an injustice. Cf. Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982). Upon remand, the deputy commissioner should consider de novo the evidence presented by claimant of the need for evaluation and treatment at Sister Kenny Institute.

Based on the foregoing, the order sub judice is reversed and the cause remanded for reconsideration in light of this opinion.

JOANOS, J., concurs and THOMPSON, J., dissents with opinion.

THOMPSON, Judge, dissents.

I dissent. There is competent substantial evidence to support the order of the deputy commissioner (deputy) denying the claim for additional benefits and I would affirm.

If the deputy had reached a contrary conclusion, and found that claimant was entitled to benefits, I would affirm such a decision without any hesitation. Although there obviously is competent substantial evidence to support a conclusion that the claimant is entitled to benefits, that is not the issue before this court. As we have been required to point out before, the issue before this court is whether there is any competent substantial evidence to support the deputy’s decision that the claimant is not entitled to any additional benefits, Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983), and there is more than ample competent substantial evidence to support the deputy’s finding in this regard.

Although the only medical testimony is that the claimant’s psychiatric condition was a result of the accident, since this accident occurred before August 1, 1979, the deputy had the right to ignore this expert medical testimony and to give greater weight to lay testimony and to his own observations and evaluations. The Supreme Court made this very clear in Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959), Andrews v. Strecker Body Builders, 92 So.2d 521 (Fla.1957), and Star Fruit Co. v. Canady, 32 So.2d 2 (Fla.1947). In Magic City, 116 So.2d at 243, the court said:

This Court has held on many occasions that the opinions of medical experts are not in and of themselves con-plusive in matters of this kind, and in some cases the deputy commissioner may disregard the opinion of the expert and give greater weight to the lay testimony of demonstrative evidence presented to him. Larson has gone so far as to indicate that it is necessary to “dispel the misconception that valid awards can stand only if accompanied by a definite medical diagnosis.” Moreover, Larson further states “if the circumstances themselves are persuasive enough, a conclusion supported by no medical testimony may stand in defiance of medical testimony to the contrary.” In arriving at this rule, two underlying reasons may be discerned: the first is that lay testimony, including that of the claimant himself, is of probative value in establishing such simple matters as the existence and location of pain, the sequence of events leading to the compen-sable condition, and the actual ability or inability of the claimant to perform his work. Secondly, industrial commissions generally become expert in analyzing certain uncomplicated kinds of medical facts, particularly those bearing on industrial causation, disability, malingering and the like, (emphasis added) (footnotes omitted)

The deputy recited in his order that he based his finding upon the testimony of the claimant, the testimony of rehabilitation specialist Skelly, and the deposition of Dr. Stiefel. The testimony of the claimant and the claimant’s wife reflects that in the summer of 1982 claimant had been drinking heavily and had marital problems to the degree that the parties separated temporarily. Ms. Skelly, the rehabilitation counselor who first saw claimant in February 1981, said that claimant was initially cooperative but that by June 1982, approximately three and one-half years after his compensable accident, he had become depressed, was drinking, and was not cooperative. According to Ms. Skelly, claimant even went to a job interview with red eyes and smelling of alcohol. Dr. Stiefel testified that the claimant gave him a history that he started feeling depressed and started drinking excessively three months prior to his initial visit to Dr. Stiefel on October 11, 1982. Both the testimony of Dr. Stiefel and Ms. Skelly confirm that claimant’s depression or psychiatric problems did not develop until approximately three and one-half years after claimant’s industrial accident, when he began drinking heavily and having marital problems. Ms. Skelly also further testified that in her opinion, the psychological problems were primarily his marital problems and later his drinking problem. Dr. Stiefel also testified that the claimant’s drinking was a part of his psychiatric problem. The deputy was fully within his rights, based on the case law applicable at the time of this accident, to conclude that claimant’s psychiatric condition was a result of personal domestic problems rather than the accident. This conclusion is supported by competent substantial evidence and should be affirmed.

While admitting that under Magic City a deputy can rely on lay testimony, even if it directly conflicts with the medical testimony, the majority contends there is no conflict between the medical testimony and the lay testimony in the instant case. I cannot agree. Ms. Skelly attributed claimant’s psychological problems primarily to his marital problems and to his drinking. The other factual testimony, which the deputy is entitled to evaluate, also showed there was a three and one-half year lapse between his accident and the development of his psychiatric problems. The claimant’s own admissions of marital and drinking problems and the deputy’s opportunity to observe and evaluate the credibility of all witnesses clearly bring this case within the Magic City rule.

Weaver v. Gold Kist, Inc., 449 So.2d 829 (Fla. 1st DCA 1984), Polk Nursery Co., Inc. v. Riley, 433 So.2d 1233 (Fla. 1st DCA 1983), cited by the majority in support of the proposition that it is an abuse of discretion for a deputy to reject uncontroverted medical testimony without a reasonable explanation, all involve accidents which occurred after August 1, 1979. I would agree with the majority as to the applicability of these cases if the accident herein had occurred after August 1, 1979.

The majority also effectively reverses a prior October 20, 1981 order of the deputy, which order was not appealed. It follows from the testimony of Ms. Skelly and the history given by claimant that the October 20, 1981 order was entered approximately eight months prior to the development of any psychiatric problems. There was no question of any psychiatric disability at the time the claimant was found to have reached maximum medical improvement. The claimant seeks for the second time treatment at the Sister Kenny Institute, which the deputy denied in October of 1981. Claimant should not be entitled to relitigate this question except by petition for modification. The deputy treated the claim as a petition for modification on this question and specifically found that there had been no substantial change in the circumstances since the entry of the first order to justify a modification and that the request for examination and treatment at Sister Kenny Institute should be denied. The majority contends that the claimant’s subsequent psychological problems represent a change in condition sufficient to allow modification of the prior order. Although the psychological conditions did develop after the date of the initial order, that is not a change in condition that would affect whether the claimant should go to Sister Kenny Institute, a very specialized institute dealing in back problems and not in psychiatric problems. If it were an institute specializing in psychiatric problems, I could agree that claimant’s subsequent psychological problems were a sufficient change to allow modification of the prior order, but under the circumstances and facts of this case, there has been no change in claimant’s back condition reflected in the record and the deputy’s denial of the modification is supported by competent substantial evidence.

I would AFFIRM the order on appeal.

      . In his dissent, Judge Thompson implies that the rule of Magic City Bottle and Supply Company v. Robinson was altered by the 1979 Amendments to the Workers’ Compensation Law which took effect August 1, 1979. We note that the rule of Magic City was originally altered by the 1978 Amendments, which apply to all claims arising out of injuries which occur on or after July 1, 1978. Chapter 78-300, Laws of Florida. The date of accident in the instant case is January 5, 1979. This statutory modification, however, has not completely overruled Magic City. Baird-Ray Datsun v. Butler, 400 So.2d 1038 (Fla. 1st DCA 1981) (Ervin, J., concurring in part and dissenting in part).
      The issue in the instant case is the causal relationship vel non between claimant’s psychiatric problems and his industrial accident. A finding of causal relationship must be based on reasonable medical probability which may be established by medical or lay testimony. Orange County Board of County Commissioners v. Brenemen,-233 So.2d 377 (Fla. 1970). However, lay testimony is not sufficient to establish a causal relationship between the accident and conditions which are not readily observable or discoverable without medical examination. Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981); Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980). Lay testimony is of probative value to establish the necessary causal relationship where conditions and symptoms are within the actual knowledge and sensory experience of the claimant. R.P. Hewitt & Associates of Florida, Inc. v. McKimie, 416 So.2d 1230 (Fla. 1st DCA 1982).


author: FERGUSON, Judge.

text:
    HOTELERAMA ASSOCIATES, LTD., Appellant, v. Frank BYSTROM, B.W. Williams and Randy Miller, Appellees.
    No. 83-2102.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied May 30, 1984.

      Lapidus & Stettin and Robert P. Frankel, Miami, for appellant.
    Robert A. Ginsburg, County Atty. and Daniel A. Weiss, Asst. County Atty., for appellees.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

This is another episode in the annual dispute between the Property Appraiser of Dade County and the Fountainebleau-Hil-ton Hotel Complex. Hotelerama Associates, Ltd., owner of the Fountainebleau-Hil-ton, within the period provided by statute, filed its complaint contesting the validity of a 1982 assessment on its property. By separate motion Hotelerama also sought to temporarily enjoin the tax collector from declaring it as delinquent in tax payments, from advertising tax certificates, from publishing it as a delinquent taxpayer, and from selling tax certificates upon the property for taxes in an amount in excess of taxes already paid for the tax year 1982.

In 1982, appellant’s property was assessed at approximately $51,000,000, a sum which appellant claims is “outrageously” in excess of the property’s just or fair market value. The Dade County Property Appraisal Adjustment Board, after hearing an appeal, declined to lower the assessment. Hotelerama paid to the tax collector an amount which it claims is a good faith estimate of what is actually owed. The amount paid is based on an assessed value of approximately $32,000,000. It then instituted this lawsuit seeking a determination that the assessment is constitutionally “void, unjust and unfair.”

The tax appraiser and tax collector filed an answer which denied the material allegations of the complaint. It specifically denied that the payment of taxes made by Hotelerama represented a good faith estimate of the proper assessment. As affirmative defenses, the taxing authorities alleged that (1) the complaint fails to state a cause of action for a void assessment, and (2) the complaint fails to state a cause of action for injunctive relief.

The matter came on for hearing on motion for temporary injunction. After a hearing the court entered an order denying the motion, stating:

The Court finds and concludes that the Plaintiff/taxpayer has failed to meet its burden of pleading and showing either:

1. That the taxes which are the subject matter of this action appear to be contrary to the law or equity; or

2. That it is entitled to an injunction pursuant to Fla.R.Civ.P., 1.610.

We reverse.

The sufficiency of the motion setting forth grounds for injunctive relief was not, as it should have been, an issue at the hearing. The trial court instead based its decision on a review of the merits, ruling in effect that the complaint failed to state a cause of action. Whether the taxes which are the subject matter of the action are contrary to law or equity goes to the very merits of the action, and could not have been resolved on a motion for temporary injunction unless (1) the hearing had been specially set for the purpose of disposing of the case on the merits, and (2) the parties had been given a full opportunity to present their cases on the merits. University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); City of Miami Springs v. Steffen, 423 So.2d 930 (Fla. 3d DCA 1982); Ladner v. Plaza Del Prado Condominium Association, Inc., 423 So.2d 927 (Fla. 3d DCA 1982), rev. denied, 434 So.2d 887 (Fla.1983). In this case no evidence or legal argument was presented on the challenge to the tax as excessive or unconstitutional.

The purpose of a temporary injunction is to preserve the status quo until a final hearing when full relief may be granted. Ladner, 423 So.2d at 929; Tamiami Trail Tours, Inc. v. Greyhound Lines, Inc., 212 So.2d 365, 366 (Fla. 4th DCA 1968). On a motion for temporary injunction, the narrow question before the court is whether the movant has made a showing, reasonably free from doubt, that a temporary injunction is necessary to prevent great and irreparable harm. Sackett v. City of Coral Gables, 246 So.2d 162, 164 (Fla. 3d DCA 1971).

No specific facts were found by the trial court and it cannot be ascertained from the record whether the injunction was denied for reasons other than the premature decision on the merits of the case. On remand, in deciding whether appellant is entitled to injunctive relief, the court is to consider:

(1) whether irreparable harm will follow unless the status quo is maintained;

(2) whether an adequate remedy at law exists;

(3) whether there is a clear legal right to the requested relief; and

(4) whether an injunction will be adverse to the public interest.

See Wilson v. Sandstrom, 317 So.2d 732, 736 (Fla.1975), cert. denied, Alder v. Sandstrom, 423 U.S. 1053, 96 S.Ct. 782, 46 L.Ed.2d 642 (1976); State, Department of Health and Rehabilitative Services v. Artis, 345 So.2d 1109, 1111 (Fla. 4th DCA 1977).

Reversed and remanded for further proceedings.

      . That the amount paid is not a good faith estimate of what is actually owed does not preclude granting injunctive relief, but is the basis for stiff statutory penalties. See § 194.192, Fla. Stat. (1983).


author: NIMMONS, Judge.

text:
    SCHOOL BOARD OF PINELLAS COUNTY, Appellant, v. Thomas A. RATEAU, Appellee.
    No. AU-6.
    District Court of Appeal of Florida, First District.
    March 8, 1984.
    Usher L. Brown, Associate Gen. Counsel, Orlando, for appellant.
    Robert M. Todd of Mattson, McGrady & Todd, St. Petersburg, for appellee.
   NIMMONS, Judge.

The School Board of Pinellas County (Board) seeks Section 120.68 review of a final order of the Florida Commission on Human Relations finding that the Board committed an unlawful employment practice based upon physical handicap under the “Human Rights Act of 1977” (Section 23.161 et seq., Florida Statutes, 1981), ordering the Board to cease and desist from discriminating against Rateau in violation of the Act and ordering the Board to pay Rateau the wages he would have received but for the discrimination. The Commission adopted en toto the DOAH (Division of Administrative Hearings) hearing officer’s recommended order. We reverse.

The alleged discrimination centered around the Board’s withdrawal of an offer of a temporary teaching contract due to Rateau’s back condition. On November 6, 1981, all principals in the Pinellas County school system were advised by Seymour Brown, Director of Secondary Placement and Substitute Teachers, that Rateau was eligible to substitute as a teacher in business education and mathematics for grades seven through twelve. The principal at Dunedin High School selected Rateau to fill a vacancy for a teaching position as a business education teacher for a period of 32 duty days beginning November 30, 1981, and ending January 25, 1982. The offer was conditional upon an acceptable medical certification. Rateau took the Board’s medical form to a physician who examined him and completed the form. Although Dr. Guiterrez summarized Rateau’s condition as “physically healthy,” he included the notation “no heavy lifting” under the category “Restriction, if any.”

The medical form was forwarded to the Board’s physician, Dr. Baird, who then examined Rateau. Rateau told Dr. Baird that he previously had back surgery, that he has a current medical problem with his back and that he has resultant physical limitations. Rateau explained to Dr. Baird that while employed by the U.S. Postal Service an industrial accident exacerbated a pre-existing condition which was determined to be a tumor growing in his spinal column. Surgery subsequently removed that part of the tumor that had grown out of the bottom of his spine. He was terminated by the Postal Service as he was no longer able to perform the heavy lifting required by the job. Dr. Baird further learned from his interview with Rateau that he may need further surgery depending upon recurrence of growth in the tumor.

Dr. Baird contacted Patricia Diskey, Employment Coordinator for the Pinellas County school system, and asked her to advise him of the job’s physical requirements. After being apprised of the duties of the job, Dr. Baird informed Seymour Brown that Rateau did not meet the physical requirements for employment as a business education teacher. Dr. Baird was of the opinion that there was a substantial likelihood that Rateau would aggravate his pre-existing condition. He testified that the frequent bending, stooping and lifting entailed in the job would present a substantial risk of Rateau’s further seriously injuring his back.

Patricia Diskey testified that the duties of a high school business education teacher included the ability to do frequent and heavy lifting of typewriters, computer components, and other office equipment. She stated that the job entailed having to bend down in order to have a clear view of the data processing screens used by the students, having to stand for long periods of time, moving books from classroom to classroom, and transporting equipment on occasion to the school’s service center and returning with replacement equipment.

Barbara McGraw, a business education resource teacher for the Pinellas County school system and assistant supervisor of the Business Education Department, testified on behalf of the Board regarding the duties of a business education teacher. The duties she described were consistent with those already mentioned. She also explained the not infrequent problem of equipment failure at work stations in the classroom in which case it would be necessary for the teacher to replace the equipment with spare equipment stored in another area of the classroom. In these situations, it was not practical to rely upon custodial help since a written request for such help was necessary, and it would usually take 24 to 48 hours before custodial help was available.

The testimony summarized above was either unrefuted or expressly adopted in the “findings of fact” portion of the hearing officer’s recommended order. Nevertheless, the hearing officer concluded:

I find the reasons for disqualifying Petitioner from the position for which he was otherwise qualified to be pretextual and devised for the primary, if not sole, purpose of keeping Petitioner off of the instructional staff in the Pinellas County school system.

The hearing officer was apparently led to the above conclusion by his findings: that no evidence was presented that the Board had ever required a business education teacher to demonstrate the kind of physical ability necessary to perform the duties described by the Board’s witnesses; that Ra-teau “was not requested to demonstrate his capability or inability to lift equipment used in the classroom”; and that Dr. Baird “never includes a muscle-tone test in the examinations he conducts for teacher applicants.”

The hearing officer applied the approach approved by the Supreme Court in the determination of whether there has been a violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C.S. §§ 2000e et seq.) proscribing discrimination because of “race, color, religion, sex, or national origin.” See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Essentially, the hearing officer reasoned that Rateau established a prima facie case of unlawful discrimination by his showing that he had a physical handicap (a bad back), that he otherwise met the qualifications for the position and that he was rejected for the position. Applying the principles of Burdine, the hearing officer stated that the burden then shifted to the Board “to articulate a legitimate nondiscriminatory reason” for Rateau’s rejection. Of course, in a Title VII case, the employer would be expected to set forth reasons other than the protected status (race, color, religion, sex, or national origin) for the rejection of the employee or, in this case, employee applicant. However, in a case such as this, all the employer could do was to respond by affirming that the bad back itself was the very reason why Rateau was not hired. In a Title VII case, the employee, under Burdine and McDonnell Douglas, would then be expected to prove that the reasons (other than the protected status) articulated by the employer for rejecting the employee were pretextual. And that is where, in attempting to apply the Title VII approach to this case, one comes full circle, i.e. if the reason given by the employer for rejecting the employee was pretextual, then the real reason is presumed to be the employee’s protected status, in this instance the employee’s bad back. It becomes apparent, therefore, that although the Title VII approach is helpful when the alleged discrimination, as in Title VII cases, is race, color, religion, sex or national origin, it is of little help — indeed serves to confuse — when the alleged protected status (bad back) is, and can legitimately be, the articulated reason for rejection.

Although not stating it as clearly as he could have, what the hearing officer apparently meant to say was simply that the physical requirements of the job were not as stated by the school officials and that Rateau could have, therefore, performed the job without substantial risk. If there was competent substantial evidence to support that factual finding, then, of course, we are obliged to affirm the order.

Section 23.167(l)(a), Florida Statutes (1981), provides, in pertinent part:

(1) It is an unlawful employment practice for an employer:

(a) to discharge or fail or refuse to hire any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s ... handicap_

Section 23.167(8) provides:

(8) Notwithstanding any other provision of this section, it is not an unlawful employment practice under this part for an employer, employment agency, labor organization, or joint labor-management committee to:
(a) Take or fail to take any action on the basis of ... handicap ... in those certain instances in which ... absence of a particular handicap ... is a bona fide occupational qualification reasonably necessary for the performance of the particular employment....

In a case such as this, the principal issue is whether the would-be employee, who admittedly has a bad back, will be able to perform the duties of the job without substantial risk of further injury to his back. Accordingly, most of the evidence presented at the hearing dealt with the condition of Rateau’s back and the physical activities expected of a business education teacher in the Pinellas County school system. The medical testimony was quite clear that Ra-teau’s back condition was such that he would be at substantial risk of further injuring his back if he were employed in the subject position assuming that the physical requirements of the job were as represented by the school officials. And, as previously noted, the evidence presented by the Board regarding the job’s physical activities was virtually uncontradicted. There simply was not competent substantial evidence to support a finding that the subject job did not involve the kinds of physical activities described by every witness who testified concerning the job. Indeed, even Rateau did not seem to take serious issue with the Board’s testimony as to what the job entailed physically. The thrust of his own testimony seemed to be that he had previously performed similar kinds of activities for a ten-week period as a substitute teacher in another school district in Colorado, which involved the lifting of business machines and “quite a bit of bending,” with no adverse effects.

The hearing officer also observed in his recommended order that Rateau “was not requested to demonstrate his capability or inability to lift equipment used in the classroom.” That observation leaves us nonplussed where the evidence before the hearing officer clearly showed that Ra-teau’s condition would be at substantial risk were he to engage in such activity. If the hearing officer means to say that the Board was required to allow Rateau a “trial run” at the job, we disagree.

The hearing officer’s apparent conclusion that the physical requirements of the job were contrived by the school officials in order to deny Rateau the job is sheer speculation. Certainly, it is not supported by competent substantial evidence. The Commission’s final order adopting en toto the hearing officer’s recommended order is, therefore, Reversed, and this cause is Remanded to the Commission, pursuant to Section 120.68(10), Florida Statutes, for the entry of an order dismissing appellant’s petition.

SMITH and WIGGINTON, JJ„ concur.

      . An explanatory note concerning procedure and applicable statutory and rule provisions may be of some benefit here. Neither the parties nor the Commission sought to implement or rely upon, either in the proceedings below or on appeal, the provisions of Section 413.08(3), Florida Statutes (1981), which one writer has recently characterized thusly:
      “The constitutional [Art. I, § 2, Florida Constitution] protection afforded physically handicapped workers in Florida is implemented, for public sector employees, by F.S. § 413.-08(3) (1981).”
      Gibson, Florida's Antidiscrimination Statutes: Time for Reassessment, Vol. 58 Fla.Bar J. 101 (February, 1984). Section 413.08(3) refers to "deaf, blind, visually handicapped, and otherwise physically disabled" persons, (e.s.) That section appears in Part I ("Blind Services Program”) of Chapter 413 (“Vocational Rehabilitation”) of the Florida Statutes (1981). Section 413.08(3) is obviously not limited to the blind, but the phrase "otherwise physically disabled” as used in that section is not defined. The closest definitions found in Part I of Chapter 413 are of the phrases "other severely handicapped” and "severely handicapped individuals" as defined in Section 413.033(2). However, that definitions section is expressly limited to the words and phrases used in Sections 413.032 through 413.037 and therefore has no bearing upon the meaning of "otherwise physically disabled” appearing in Section 413.08(3). We would also note that, unlike the provisions of Section 23.161 et seq., Florida Statutes (1981) (the provisions relied upon by the parties herein), Chapter 413 contains no procedural apparatus for the handling administratively of any complaints or grievances for violations of Section 413.08(3).
      In any event, we are not called upon to determine whether Section 413.08(3) would have any application to Rateau’s circumstances or condition inasmuch as he instituted proceedings strictly under the provisions of Section 23.161 et seq. by filing with the Florida Commission on Human Relations a complaint pursuant to Fla. Admin.Code Rule 22T-9.01 claiming to be aggrieved by a Section 23.167 unlawful employment practice. After an affirmative finding of reasonable cause to believe that an unemployment practice had occurred, and after failure to conciliate pursuant to Fla.Admin.Code Rule 22T-9.05, Rateau filed his Petition for Relief From Unlawful Employment Practice which was referred for hearing to the Division of Administrative Hearings Pursuant to Fla.Admin. Code Rule 22T-9.08.

      . No question has been raised, either in the proceedings below or on appeal, as to whether the term "handicap” as used in Section 23.167 was intended to encompass persons with back injuries or conditions.

      . The job requirements, therefore, were apparently the "pretext” about which the hearing officer was referring.

      . Compare Zorick v. Tynes, 372 So.2d 133 (Fla. 1st DCA 1979). There, a blind person sought relief pursuant to Section 413.08(3), Florida Statutes (1977), by reason of the Clay County School Board’s refusal to employ him. This Court upheld the circuit court's order requiring "trial employment” to determine whether he was able to perform the job satisfactorily. Essential to the court’s affirmance was the particular language of Section 413.08(3):
      "[N]o employer shall refuse employment to the ... blind ... unless it is shown that the particular disability prevents the satisfactory performance of the work involved.” (e.s.)
      We observed in Zorick:

      "‘Unless it is shown’ is the heart of Section 413.08(3). The Legislature might have omitted ‘unless it is shown’ from the bill and still have produced a conventionally understandable law. No employer shall refuse employment to the blind unless blindness prevents satisfactory performance of the work involved. Such a law would presumably be understood as permitting the plausibly rational but untested opinions of public employers, having discretion, to prevail in effortless litigation against opinions of the untested blind. But the Legislature did not omit 'unless it is shown,’ and we ungrudgingly give those words their natural effect.”

      . We have considered and reject the Board’s other point on appeal regarding the alleged failure of the Commission’s final order to address the Board’s exceptions to the hearing officer’s recommended order.


author: GLICKSTEIN, Judge. GLICKSTEIN, Judge,

text:
    Mary DUFF, as legal guardian and next friend of, and on Behalf of William John KLINKO, Jr., a minor, Appellant, v. FLORIDA POWER AND LIGHT COMPANY, a Florida corporation, Appellee.
    No. 83-1006.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.
    Rehearing Denied May 30, 1984.

      Mark Perlman, Fort Lauderdale, for appellant.
    Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a summary final judgment in favor of Florida Power and Light Company in a negligence action. We reverse and remand.

William John Klinko, Jr., a minor, was injured when a CB antenna that he was installing on the roof of his residence one summer morning came into contact with an electrical power line that ran along an easement adjacent to the residence. The line in question was over 29 feet high at the east Florida Power and Light pole located at the corner of the lot, over 21 feet high at the point of contact and over 27 feet high at the west pole. A land surveyor measured the power line’s location to be 3.65 horizontal feet to the south of the roof overhang of the residence. He further measured the elevation of the roof overhang at the point of contact to be over 8 feet and the highest point of the roof to be over 11 feet.

The utility contends that it was incumbent upon the injured party, in order to escape summary judgment, to contradict the affidavit of its engineer who opined that the electrical facilities involved here were in accordance with Florida Power and Light Standards, Florida law, and good engineering practices, as well as being in excess of those required by the National Electrical Safety Code. While the code is certainly relevant in the evidentiary sense, compliance therewith is not conclusive of the absence of negligence. See Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979). On the other hand, maintenance of uninsulated electrical wires within the power company’s easement near residential property is not of itself negligent. Instead, the propriety of the wires depends upon their location in the particular setting, which includes the typical activities occurring there. Id. at 838. The standard, as articulated in Rice, regarding the correctness of summary judgment, is whether it would be reasonable to impose upon the power company a continuing duty to foresee and protect against the kind of injury involved. Id. In Rice, the company had no notice that the activity, flying model airplanes, was occurring in an open field with clearly visible power lines. Contrastingly, in the instant appeal, it cannot be said as a matter of law that the activity, installation of an antenna, was unforseeable. See Simon v. Tampa Electric Co., 202 So.2d 209, 214 (Fla. 2d DCA 1967). Florida Power and Light therefore had a duty to take reasonable precautions with regard to such occupations.

This puts the instant appeal in line with Fries v. Florida Power & Light Co., 402 So.2d 1229 (Fla. 5th DCA 1981), where the affidavit alleged that the power lines were clearly visible, in compliance with accepted engineering procedures, and in conformity with applicable electrical codes. The Fries court held, nevertheless, that such allegations could not establish lack of negligence. Distinguishing Rice on the issue of foreseeability, the court found factual issues remained as to foreseeability, reasonableness of care, and negligence of the injured party. Summary judgment was therefore reversed. Such questions remain to be resolved here as well.

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

OPINION ON REHEARING

GLICKSTEIN, Judge,

Appellee correctly points out a house: keeping error. Accordingly, we correct the first sentence of the second paragraph of the opinion herein by deleting “on the roof of his residence” and substituting therefor “on the ground next to his residence.”

We have considered the remainder of Appellee’s motion and find it unpersuasive. Accordingly, the motion is denied, save and except as to the above correction.

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


author: BARKDULL, Judge. SCHWARTZ, Chief Judge JORGENSON, Judge,

text:
    Lester ENRIQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1554.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Rehearing Denied May 31, 1984.

      Bierman, Sonnett, Beiley, Shohat & Sale and Benedict P. Kuehne, Edward R. Shohat, Miami, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   BARKDULL, Judge.

The appellant, a 15 year old truant, after an argument with his father, took a rifle and a handgun belonging to his father and departed for Key West with a friend. The automobile caught on fire on the Florida Turnpike Extension. A passing motorist put out the fire but the automobile was disabled. At this point the appellant removed the handgun from the passenger compartment of the vehicle and put it in the trunk with the rifle. Shortly thereafter a state highway patrol trooper arrived on the scene to give assistance and called for a wrecker. While waiting for the wrecker the trooper conducted an investigation of the matter ascertaining the appellant was driving with a restricted license. The wrecker arrived and the driver waited while the trooper finished his investigation. While he was waiting, the appellant told his friend that he was going to hold the gun on the tow truck driver’s head until they got to Key West. Shortly thereafter the appellant retrieved the handgun from the trunk of his car and without any provocation or warning, shot and killed the trooper and the driver of the wrecker. He and his friend then took the wrecker and fled the scene. They were apprehended shortly thereafter by law enforcement officers in response to a BOLO. When apprehended, the appellant, upon alighting from the wrecker, told the officers that his friend didn’t do anything. They were apprehended at 8:53 P.M. The appellant was picked up by a trooper who took him to a public safety department substation. Upon arrival at the substation the trooper gave the appellant his Miranda warning at which time the appellant responded he might need a lawyer but to please not call his father. The trooper turned the appellant over to a Detective McHugh at the substation. There was no showing that when he did so that he conveyed to Detective McHugh the appellant’s request for counsel. Detective McHugh told the appellant his father had been notified and he transported the appellant to the Public Safety Department headquarters in Miami. Enroute the appellant wanted to talk about the incident but was told to wait until he had talked to his father. The appellant’s father arrived at the main station about 12:50 A.M. where he met Detective McHugh and was allowed to talk to the appellant. Thereupon, both the appellant and his father were painstakingly explained the appellant’s rights under Miranda and they both waived those rights in writing. Detective McHugh then conducted an interview of the appellant. The appellant gave an oral statement about 6:30 A.M. This statement was transcribed, reviewed and corrected by him and executed about 8:30 A.M. Immediately after signing the statement the appellant and his father were introduced to a doctor by Detective McHugh. The doctor informed both, that he had been asked by the state attorney to examine the appellant to see if he had any mental problems. They were informed that neither had to talk to him. Both the appellant and his father gave permission for the interview which followed. After being interviewed by the doctor, the appellant was transported to Youth Hall. Complaining of injuries received at the time of his arrest, he was taken to the hospital by a Youth Hall counselor. While at the hospital the appellant told an unknown inmate that he had killed a trooper. This statement was overheard by the Youth Hall counselor.

The appellant was subsequently indicted as an adult. Prior to trial he moved to suppress his oral and written statements alleging the statements were not voluntarily given. At no time during the hearing on the motion did the appellant allege that the statements were taken in violation of his right to counsel under Miranda. In fact, the request for counsel did not even come to light until redirect examination of the appellant at trial on his defense in chief. The trial court denied the motion to suppress as to the aforementioned spontaneous remarks and the statements to Detective McHugh and Doctor Mutter. He granted the motion to suppress as to the statements made to the initial transporting trooper. The cause was tried by a jury which convicted the appellant of second degree murder of the trooper, first degree felony murder of the wrecker driver, and robbery. He was sentenced to life imprisonment on each count, to run consecutively-

On appeal he urges 6 points as error and grounds for reversal. They are as follows:

I. The trial court was obligated to exclude the defendant’s custodial statements where they were not freely and voluntarily obtained with full knowledge of his constitutional rights. II. The examination of the defendant by the state psychiatrist violated the defendant’s constitutional rights to counsel and to remain silent. III. The evidence was insufficient to prove that the defendant had committed first degree murder. IV. The trial court erred in instructing the jury concerning an essential element of the crimes charged. V. The defendant was improperly convicted and sentenced for the alleged robbery where such offense was the only basis for the murder conviction. VI. The interests of justice require a remand to the lower tribunal due to the absence of a transcript of the post-verdict hearing.

We shall discuss the points in order. As to point one, the appellant alleges there was an unreasonable delay in taking the defendant into juvenile custody; the statements and confession were involuntary and not freely made; and his constitutional right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) was denied him. The first and second contentions were presented to the trial court and decided adversely to the defendant. The record contains substantial competent evidence to sustain those findings. See Harris v. State, 438 So.2d 787 (Fla.1983). We also find the claim of denial of his right to counsel to be without merit for any or all of the following reasons. First, a review of the record on appeal reveals that this issue was never asserted in the trial court at either the hearing on the motion to suppress or at trial and was never ruled upon by the trial court; therefore, we are not at liberty to review the question at this time. See Morgan v. State, 177 So.2d 60 (Fla. 3d DCA 1965); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Second, even if we were to review the question, the record on appeal shows on its face that the defendant effectively waived his right to counsel and the confession would have been admissible under the holdings in Waterhouse v. State, 429 So.2d 301 (Fla. 1983) and Cannady v. State, 427 So.2d 723 (Fla.1983). Finally, even if the statements would have been otherwise inadmissible, the record reflects that the confession of the defendant was admitted in the state’s case on rebuttal for impeachment purposes and as such would have been admissible under the holdings in Nowlin v. State, 346 So.2d 1020 (Fla.1977) and Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

The defendant’s second point going to admissibility of testimony by the state’s psychiatrist is also without merit. It is the defendant’s position that the psychiatrist examined him without informing him of his Miranda rights and without an attorney being present and therefore his testimony is inadmissible. However, the defendant chooses to overlook the fact that prior to initiation of interrogation, his rights had been fully explained to him by Detective McHugh and he effectively and knowingly waived his rights under Miranda v. Arizona, supra and Edwards v. Arizona, supra. See Waterhouse v. State, supra; Cannady v. State, supra. Thereafter, the interrogation session commenced and continued without break up to and including examination by the state’s psychiatrist, to which the defendant consented. Miranda v. Arizona, supra, merely requires that the defendant be apprised of his rights and that there must be a valid waiver of those rights before an interrogation can take place. Nowhere is .there a requirement that after effective waiver, each individual questioning the defendant during a single continuing session of interrogation must, prior to asking any questions, read-vise the defendant of his Miranda rights. We will not impose such a restriction on the questioning of a suspect. To do so overlooks the fact that suspects are many times questioned by more than one person in a single session and the suspect has the right to stop such an examination at any time should he object to being questioned by someone other than the person who originated the questioning and informed him of his rights under Miranda v. Arizona, supra. Therefore, we find the testimony of the psychiatrist was properly admitted into evidence.

The defendant’s third point challenges the sufficiency of the evidence to support the felony murder conviction in that the taking of the tow truck occurred after the shooting of its operator. The record on appeal shows that the defendant had, in fact, formulated the intent to take the tow truck in order to continue to his destination, prior to any shooting taking place. The defendant's friend, who was accompanying him on the trip, testified that when he asked the defendant how he was going to pay for the tow of his disabled vehicle, the defendant said, he was going to hold the gun on the tow truck driver’s head until we got to Key West”. This statement clearly evidences an intent to take the tow truck made prior to the shooting. See Gqfford v. State, 387 So.2d 333 (Fla. 1980).

The fourth point alleging error in failing to instruct the jury concerning an essential element of the underlying felony, more specifically that the intent to permanently deprive a victim of his property is necessary to prove the crime of robbery, is equally without merit. No objection was made to the jury charge. Under the facts of this case, wherein the defendant admitted taking the truck, failure to charge on intent would not constitute fundamental error so flagrant as to require reversal. Such error would at most constitute harmless error. See Stewart v. State, 420 So.2d 862 (Fla.1982); Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981).

The fifth point relating to error in the convicting and sentencing on the underlying felony, to wit: robbery, is well taken. On the authority of Bell v. State, 437 So.2d 1057 (Fla.1983) and Boivin v. State, 436 So.2d 1074 (Fla. 3d DCA 1983), we vacate the conviction and sentence for robbery. But see, Hawkins v. State, 436 So.2d 44 (Fla.1983).

The defendant’s final point requests this court remand the cause to the trial court due to the absence of a transcript of a post trial hearing. It is his intention to attempt to reconstruct the record concerning the post verdict hearing in hopes of finding some error to substantiate a reversal of this cause. This we decline to do. Florida Rule of Appellate Procedure 9.200(b)(3) sets forth the procedure for reconstructing a transcript. That procedure was not utilized herein and there has been no showing that the transcript could not have been reconstructed in that manner. The language of the verdict filed herein is not so ambiguous as to render its meaning doubtful. The trial court conclusion as to the verdict’s meaning has not been shown to be erroneous herein and it will be affirmed. See Knowles v. State, 86 Fla. 270, 97 So. 716 (1923).

The record in this case demonstrates that all the law enforcement personnel involved did everything they could to protect the rights of the appellant (who had killed a fellow officer and a stranger without provocation and in cold blood). The evidence of guilt was overwhelming. He received a fair trial and save and except for the sentence on the felony, which formed the basis for the felony murder conviction, he has no complaint on this record.

We hereby vacate the conviction and sentence for robbery and otherwise affirm the judgment except that we modify the judgments to make the minimum mandatory sentences run concurrently, Palmer v. State, 438 So.2d 1 (Fla.1983), rather than consecutively.

Affirmed as modified.

SCHWARTZ, Chief Judge

(dissenting).

Although I wish that I could conclude otherwise, I believe that Enriquez is entitled to a new trial on the grounds that (a) his confession was erroneously admitted because it was given after he had requested but had not been furnished a lawyer; Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); and (b) the state-hired psychiatrist was improperly permitted to testify contrary to the plainly controlling authority of Estelle v. Smith, 457 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). Both the confession and Dr. Mutter’s testimony were admitted as substantive evidence on rebuttal, see State v. Burwick, 442 So.2d 944 (Fla.1983) rather than impeachment as perhaps authorized under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) and Nowlin v. State, 346 So.2d 1020 (Fla.1977). Finally, I am unable to agree with the court either that Enriquez effectively waived the rights involved or that these contentions were not properly preserved for review.

I concur with the court’s disposition of the remaining points presented.

JORGENSON, Judge,

specially concurring.

I write, principally, to point out that, in his dissent, Chief Judge Schwartz’s citation to Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), is inapposite to the conclusion he reaches when considered in relation to the record before us.

In Edwards the Court wrote,

[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights [footnote omitted]. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police,

id. at 485-86, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386 (emphasis added). Or, as stated in Wyrick, “once a suspect invokes his right to counsel, he may not be subjected to further interrogation until counsel is provided unless the suspect himself initiates dialogue with the authorities,” id. at 45, 103 S.Ct. at 395, 74 L.Ed.2d at 217 (emphasis added).

The trial transcription of the direct examination of Officer McHugh by the prosecution includes the following:

Q. En route from [the substation] to [Public Safety Department Headquarters], did Lester Enriquez say anything to you about his desire, if any, to talk to you?
A. Yes, he did.
Q. What did he tell you?
A. On several occasions he told me that he wanted to tell me what happened. However, I advised him at that time not to say anything until we arrived at my office and his parents were present.

The record further reveals that this issue was not raised during the cross-examination of Officer McHugh. If Enriquez ever exercised his right to counsel, he subsequently waived it after initiating dialogue with the authorities.

Additionally, although Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), indeed requires that a suspect be informed of his Miranda rights before examination by a state-appointed psychiatrist, in Estelle the suppression of the examination occurred because the examination was an isolated event in the prosecutorial proceedings, and therefore necessitated that the suspect be informed of his Miranda rights. As Judge Barkdull makes clear in the majority opinion, Enriquez was examined by the state-appointed psychiatrist subsequent to having been informed of, and having waived, his Miranda rights earlier in the interrogation, which was a continuous, unbroken process involving both Officer McHugh and Dr. Mutter. There was, therefore, no need to reinform Enri-quez of his Miranda rights.

      . Edwards v. Arizona, supra, has been held not to be retroactive in the case of Solem v. Stumes, — U.S. -, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984). The instant offense occurred in 1978.


author: RYDER, Judge.

text:
    Lorenzo TEAGUE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1398.
    District Court of Appeal of Florida, Second District.
    March 21, 1984.
    Rehearing Denied May 10, 1984.

      Jerry Hill, Public Defender, Bartow and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

In Teague, we have before us almost a carbon copy of State v. Cruz, 426 So.2d 1308 (Fla. 2d DCA 1983) and Goldstein v. State, 435 So.2d 352 (Fla. 2d DCA 1983). The scenario is the same: a police officer-decoy pretending to be a wino or some other downtrodden, ill person was on the streets of Tampa with money protruding from his pocket. Teague removed the money and was immediately arrested by detectives posted nearby. He was charged with grand theft in the second degree in violation of section 812.014(2)(b), Florida Statutes (1981).

After the trial judge denied his motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), Teague entered a nolo contendere but reserved the right to appeal the denial of his motion to dismiss. The court below accepted the plea, withheld adjudication of guilt, and placed Teague on probation for a period of three years.

Upon review of the record, we find no reversible error and affirm the trial court’s order relating to the motion to dismiss and probation, see Goldstein and Cruz; contra, State v. Casper, 417 So.2d 263 (Fla. 1st DCA 1982), but have concern in regard to other orders entered herein by the court below.

Upon responding to the charging document, Teague was found by the trial judge to be insolvent and the public defender was appointed counsel.

Subsequent to the nolo plea and the placing of Teague on probation, the trial court orally assessed court costs against Teague in the amount of $100.00. However, in a written probation order, the trial judge ordered, inter alia, Teague to pay the public defender’s fee and “make $100.00 court costs.” In a final judgment assessing attorney’s fees and costs, Teague was ordered to pay $250.00 for attorney’s fees and $50.00 costs.

Attorney’s fees and costs can properly be recovered from an insolvent defendant. Anderson v. State, 415 So.2d 49 (Fla. 2d DCA 1982). The record before us is silent as to whether notice and a hearing required by section 27.56(7), Florida Statutes (1981), were afforded Teague. Accordingly, the assessments were not appropriate and are hereby stricken. Jenkins v. State, 444 So.2d 947 (Fla.1984). Gaylord v. State, 413 So.2d 72 (Fla. 2d DCA 1982). Our decision is without prejudice to the state to tax these costs in accordance with the procedure outlined in Jenkins.

In all other respects, the judgment and sentence are AFFIRMED.

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