text:
    Susan H. WESCOTT, Appellant, v. Ralph M. WESCOTT, Appellee.
    No. 82-2871.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.
    Rehearing Denied Feb. 3, 1984.

      H. Michael Evans, Clearwater, for appellant.
    Wayne 0. Smith, of Wallace, Smith, Finck & Beach, P.A., St. Petersburg, for appellee.
   LEHAN, Judge.

Appellant appeals from an order dismissing with prejudice her action against her former husband to set aside a final judgment of dissolution of marriage. She also appeals an order dissolving a lis pendens which she filed to assert rights to real property which she had conveyed to her former husband pursuant to the final judgment of dissolution. We affirm the orders.

The Wescotts’ marriage was dissolved by final judgment on January 27, 1981. On July 9, 1982, Mrs. Wescott filed this independent action seeking relief from the final judgment of dissolution, alleging that Mr. Wescott had committed perjury by giving false testimony at the final dissolution hearing and by falsely concealing income and assets.

Mrs. Wescott claims that the trial court had authority to set aside the final judgment under Florida Rule of Civil Procedure 1.540(b), which allows relief from judgments under certain types of circumstances. Rule 1.540(b) provides two avenues of relief from judgment — either by motion brought within one year of the final judgment or by an independent action for which no time period is specified. Of these two avenues, the only one available to Mrs. Wescott was an independent action, not a motion, because more than one year had expired since the final judgment of dissolution had been entered. Thus, we turn our attention to that portion of rule 1.540(b) which concerns independent actions.

The last sentence of rule 1.540(b) states, “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court.” A number of Florida cases have interpreted that sentence to mean that a court could relieve a party from a judgment, or set aside a judgment, only for fraud upon the court. See citations in Brown v. Brown, 432 So.2d 704, 711-14 (Fla. 3d DCA 1983). However, we agree with Judge Pearson’s analysis in Brown where he concluded that the last sentence of rule 1.540(b) must be read in the disjunctive and refers to both the general power of a court to entertain an independent action to relieve a party from a judgment and the power of a court to set aside a judgment for fraud upon the court. As Judge Pearson points out, this portion of the rule is merely a savings clause, preserving to the courts their former powers to relieve a party from a judgment or to set aside a judgment. Brown, 432 So.2d at 712 n. 4. Thus, we must address what those powers of a court are.

Turning first to the power of a court to set aside a judgment for fraud upon the court, this category of fraud is at least “rather nebulous.” 7 J. Moore and J. Lucas, Moore’s Federal Practice, ¶ 60.33 (2d ed. 1979). Moore’s states that fraud upon the court is only that species of fraud which does, or attempts to, defile the court itself or is perpetrated by officers of the court so that the judicial machinery cannot perform in its usual, impartial manner. Id. Some examples of behavior which have been termed fraud upon the court are bribery, attempted influence of the court, corruption of the jury, and dishonesty of an attorney in dealing with the court. Id. at 1160.33, pp. 512-513 and cases cited therein. In any event, fraud upon the court generally does not include fraud between the parties. Id. at 1160.33, p. 515 n. 58.

In the instant case, Mrs. Wescott alleged that Mr. Wescott’s activities in the original dissolution action had amounted to a fraud upon the court. However, the trial court disagreed and found no fraud upon the' court. We agree with that determination, taking into account the foregoing description in Moore’s of fraud upon the court. However, our conclusion that, as a result, Mrs. Wescott was not entitled to maintain this independent action requires an analysis of whether, as set out in the last sentence of rule 1.540(b), the trial court could entertain an independent action to relieve her from the judgment on grounds other than fraud upon the court.

Fraud is one of the well-accepted grounds for bringing an independent action for relief from a judgment. Fraud between the parties (referring to fraud other than fraud upon the court) is either extrinsic or intrinsic fraud. Extrinsic fraud includes a party being “prevented by trick, artifice or other fraudulent conduct from fairly presenting his claim or defenses or introducing relevant and material evidence.” Moore’s, II 60.37(1), p. 613. On the other hand, perjury, as was alleged by Mrs. Wescott, is considered to be intrinsic fraud. Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1943); Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.2d 514 (1946).

While extrinsic fraud will support an independent action to set aside a judgment, intrinsic fraud will not. “[I]t is a universal rule that in cases of attack on judgments via chancery suits to set them aside because of fraud it is necessary that the fraud be extrinsic as distinguished from intrinsic_” Fair, 27 So.2d at 515. Similarly, the United States Supreme Court has stated, “It has frequently been said that where the ground for a bill of review is fraud, review will not be granted unless the fraud was extrinsic_ The distinction between extrinsic and intrinsic fraud is not technical but substantial_ The classic example of intrinsic as contrasted with extrinsic fraud is the commission of perjury by a witness. An allegation that a witness perjured himself is insufficient because the materiality of the testimony, and opportunity to attack it, was open at trial.” Hazel-Atlas Glass Co., 322 U.S. at 261 n. 18, 64 S.Ct. at 1009 n. 18, 88 L.Ed. at 1264 n. 18.

Thus, allegations that intrinsic fraud, such as perjury, occurred in a lawsuit are insufficient grounds for bringing an independent lawsuit, as here, to set aside the judgment in the first lawsuit. The trial court was correct in dismissing appellant’s complaint.

The situation in this case is different from that in Brown v. Brown, supra. Brown, as is the case before us, was an independent action to set aside a final judgment of dissolution. But the court in Brown determined that the fraud alleged was extrinsic fraud, thus allowing the bringing of the independent action. The fraud in Brown allegedly occurred when the husband fraudulently induced his wife to enter into a property settlement agreement which was thereafter judicially approved. The court noted that “fraud, deceit, artifice, or trickery employed in procuring a complaining party’s consent to a voluntary judgment or decree entered pursuant to a fraudulently procured agreement is regarded as extrinsic fraud....” Brown, 432 So.2d at 714, citing Columbus Hotel Corp. v. Hotel Management Co., 116 Fla. 464, 156 So. 893, 897 (1934). On the other hand, in the case now before us, the fraud allegedly occurred in the testimony at the final hearing and in a failure to make full disclosure of assets to the court. Accordingly, the record indicates that, unlike the Brown situation, the property distribution in this case was not made pursuant to an agreement between the parties but resulted from the evidence and testimony before the court.

As pointed out in Brown, the matter of when a final judgment is vulnerable to subsequent attack on the grounds of fraud, or on other grounds, involves two conflicting policies — “that litigation must come to an end ... and that justice should be accorded in a particular case.” 432 So.2d at 707. We readily concede that the distinction between extrinsic and intrinsic fraud is often obscure and that consistency in prior case law, as outlined in Brown, has often been difficult to perceive. However, the policy to be followed in cases applying the principle that a showing of extrinsic fraud is necessary in independent suits to set aside a judgment on the basis of fraud is spelled out in Fair: “[I]f this restriction were not placed on suits of this kind litigation would become interminable, so the rule is invoked even though injustice may result in individual circumstances.” 27 So.2d at 515. A party who alleges intrinsic fraud as grounds in an independent action to set aside a judgment is deemed to be estopped from asserting in a separate suit what he could have (at least theoretically) asserted in the proceedings in the prior suit where the fraud occurred. See Truitt v. Truitt, 383 So.2d 276, 278 (Fla. 5th DCA 1980); Hazel-Atlas, supra.

We find no merit in appellant’s remaining contentions.

AFFIRMED.

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

      . In contrast, allegations of either intrinsic or extrinsic fraud may be sufficient grounds for a motion to set aside a judgment if the motion is made in the same lawsuit within one year after entry of the judgment, pursuant to rule 1.540(b). See Fair v. Tampa Electric Co., supra, and McCormick v. McCormick, 181 So.2d 220 (Fla. 2d DCA 1965), each an example of a motion to set aside or vacate a judgment in the same action within one year following the judgment.

      . The holding of this court in Erhardt v. Er-hardt, 362 So.2d 70 (Fla. 2d DCA 1978), which involved intrinsic fraud, is consistent with our present holding. However, dicta in Erhardt that there is only one basis for relief under the final sentence of rule 1.540(b), to wit, fraud upon the court, is not consistent with our present reasoning, see Brown, 432 So.2d at 713-14, and is not followed.


source: Caselaw Access Project

author: BOARDMAN, Judge.

license: Public Domain

text:
    Johnathan STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 83-403.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.
    Rehearing Denied Feb. 3, 1984.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant Johnathan Stephens urges us to reverse his judgment and sentence for the “nonexistent” offense of temporary unauthorized use of a motor vehicle and to remand to the trial court for his discharge. We reverse appellant’s conviction but conclude that he is not entitled to discharge.

Appellant was charged by information with grand theft of a motor vehicle under section 812.014(2)(b), Florida Statutes (1981). During appellant’s ensuing jury trial, defense counsel requested an instruction on temporary unauthorized use, or “joyriding,” under section 812.041, as a lesser included offense of the crime charged. The trial court gave the requested instruction, and the jury found appellant guilty of the alleged “lesser included offense.”

As appellant asserts, and correctly, our supreme court recognized in State v. Dunmann, 427 So.2d 166 (Fla.1983), that the enactment of the omnibus theft statute repealed the temporary unauthorized use statute by implication. Dunmann, 427 So.2d at 168. Under our supreme court’s holding in Achin v. State, 436 So.2d 30 (Fla.1982), a defendant cannot be convicted of a nonexistent crime, notwithstanding his participation in inducing the erroneous conviction. See also State v. Sykes, 434 So.2d 325 (Fla.1983).

Under the holding of Achin, a defendant convicted of a technically nonexistent crime may be retried when all of the elements of the “crime” for which he was convicted are equal to the elements of the main offense. Achin, 436 So.2d at 32. Accord, Jordan v. State, 438 So.2d 825 (Fla.1983); Sykes. In essence, conviction, as here, of a nonexistent “lesser included” offense which shares identical elements with the main offense does not result in an acquittal — the conviction has merely been misnomered.

Dunmann’s holding that the “joyriding” statute has been subsumed within the omnibus theft statute necessarily means that the offenses of theft and temporary unauthorized use of a motor vehicle possess identical elements. Conversely, any lack of identity would leave the “joyriding” statute with a valid, independent field of operation, which the Dunmann court found lacking.

On the basis of the foregoing authorities, we REVERSE appellant’s judgment and sentence and REMAND for a new trial.

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

      . While we refer to temporary unauthorized use of a motor vehicle as a "nonexistent” offense, we recognize that facts which formerly would have supported a conviction under section 812.-041 would now support an adjudication under the omnibus theft statute.

      . Chapter 77-342, effective date October 1, 1977.


author: THOMPSON, Judge.

text:
    Fred D. GREENE, as Superintendent of Schools of Hamilton County, Appellant, v. SCHOOL BOARD OF HAMILTON COUNTY, Florida, Appellee.
    Nos. AT-108, AT-109.
    District Court of Appeal of Florida, First District.
    Jan. 17, 1984.
    John D. Carlson of Woods & Carlson, Tallahassee, for appellant.
    Paul Hendrick, Jasper, and Ronald C. LaFaee of Roberts, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellee.
   THOMPSON, Judge.

Fred D. Greene, Superintendent of Schools of Hamilton County, appeals from final agency action of the School Board of Hamilton County (Board) employing Coe, an administrative employee of the school district, for a two-year period instead of the one-year period recommended by Greene. He contends that the Board exceeded its authority and was without power to grant Coe a two-year contract in the face of Greene’s recommendation that Coe be given a one-year contract, and that the Board should simply have accepted or rejected Greene’s recommendation as to Coe’s reemployment. We agree and reverse.

In 1980 Coe was awarded a three-year contract to serve as the Hamilton County School District’s Administrative Assistant for Programs and Personnel. It is argued that the awarding of this three-year contract was illegal since Coe is neither a principal nor a supervisor and thus was not eligible for a three-year contract under § 231.36(l)(b), Fla.Stat. (Supp.1982), or, alternatively, that the three-year contract was illegal because Coe’s position is non-instructional and Rule 4.02, Rules of the School Board of Hamilton County, provides that non-instructional personnel must be reappointed annually. However, we need not decide these questions because we conclude that a school board may not amend a superintendent’s recommendation as to the duration of a contract proposed to be awarded to a nominee for a position with a school district, but can only accept or reject the superintendent’s recommendation and nomination as tendered.

By statute, the school board is the policy-making body for the school district, while the superintendent is the chief executive officer of the school board and the chief administrator within the school district. §§ 230.03, .22, .23, .31, .32, .33, Fla. Stat.(1981); § 230.321, Fla.Stat. (Supp. 1982). Under these statutes, it has been repeatedly held that with regard to employment of school district personnel, it is the superintendent’s duty to select and nominate personnel, while it is the school board’s duty to appoint and contract with employees nominated by the superintendent, unless upon a finding of good cause, the board chooses to reject such nominations. See, e.g., State ex rel. Lawson v. Cherry, 47 So.2d 768 (Fla.1950); Von Stephens v. School Board of Sarasota County, 338 So.2d 890 (Fla. 2d DCA 1976), and cases cited therein.

In this case, the Board asserts that it has fulfilled its statutory duties, in that it did in fact accept the superintendent’s nomination of Coe, and simply rejected the superintendent’s recommendation that Coe receive only a one-year contract. The Board further argues that while it is obliged to show good cause for rejecting a nomination, it need not show good cause for rejecting a recommendation. We cannot accept the proposition that a nomination may be distinguished from a recommendation, at least where the recommendation concerns the duration of employment. We perceive that the allocation of responsibilities with respect to school district personnel matters outlined above, i.e., selection by the superintendent and appointment by the Board, was intended not only to remove political considerations from the process of selecting those persons responsible for the education of children, but also -to insure that the superintendent will have sufficient control and authority over the employees of the school district to permit him to carry out the responsibilities of managing the system. An executive or administrator who cannot control his employees cannot function. An essential element of control of employees is the ability to replace them or transfer them within the system when necessary. We can envision any number of reasons why a school superintendent might wish to employ or reemploy a given individual in a particular position, yet might not wish to be bound, for a lengthy period of time, to retain the individual in the particular position for which he was hired, or at all. Furthermore, we, like the court in Von Stephens, see little basis for distinguishing the terms “recommendations’’ and “nominations” because of the imprecise manner in which these terms are used in the school code. Von Stephens, 338 So.2d 890, 893 n. 3. For these reasons, and because we can find no authority expressly permitting school boards to amend the recommendations of the superintendent, we find that the Board’s action was ultra vires, and must be reversed.

We also agree with Superintendent Greene’s contention that the Board should have appointed legal counsel to represent him in his dispute with the Board. In the case of Shuler v. School Board of Liberty County, 366 So.2d 1184, 1185 (Fla. 1st DCA 1978), cert. dismissed, 368 So.2d 1373 (Fla.1979), this court held:

We are of the view that when a viable legal issue develops between a superintendent and a school board, as to the respective powers and responsibilities of each, of such magnitude as to reasonably require competent legal advice, each is entitled to independent representation by competent legal counsel at public expense. ...

The Board argues that Shuler should not control, since the Board, unlike the School Board of Liberty County, has no express policy providing that it should retain legal counsel to represent the superintendent when he needs legal services. We disagree. The public interest requirfes that disputes such as the one at issue here be fully developed and aired, and properly resolved in accordance with law. Resolution of the issue presented in this case necessarily requires interpretation of rather complex provisions of The Florida School Code, and proper development and presentation of the issue clearly required the services of competent legal counsel. Accordingly, the Board’s action in refusing to employ counsel to represent appellant is reversed, and the Board is instructed to pay to appellant’s attorney a reasonable fee for services rendered in this appeal as well as for such services, if any, rendered before the Board on behalf of appellant in connection with the issues raised herein.

Reversed and remanded for proceedings consistent with this opinion.

MILLS and WIGGINTON, JJ., concur.


author: JOANOS, Judge.

text:
    DEPARTMENT OF PROFESSIONAL REGULATION, Appellant, v. Honorable William E. WILLIAMS, Hearing Officer with the Division of Administration Hearings, and Dell V. Spiva, Appellees.
    No. AT-177.
    District Court of Appeal of Florida, First District.
    Jan. 17, 1984.
    Salvatore A. Carpino, Dept, of Professional Regulation, Tallahassee, and Jim Smith, Atty. Gen., and Susan Tully, Asst. Atty. Gen., Tallahassee, for appellant.
    Robert D. Newell, Jr. of Oertel & Hoffman, Tallahassee, and Richard G. Rumrell of Smathers & Rumrell, Jacksonville, for appellees.
   ON MOTION FOR REHEARING

JOANOS, Judge.

The motion for rehearing filed by the Department of Professional Regulation (DPR) is granted and the previously issued opinion is withdrawn.

Dell V. Spiva petitioned DPR to have three state pilots at the Port of Miami declared unqualified for their positions. Spiva alleged that the three state pilots failed to meet the three-years experience requirement of Section 310.071(l)(b), Florida Statutes (1981), and that he had the required experience, therefore, he was entitled to be appointed a state pilot. Spiva and the three had taken the qualifying examination together, with the three scoring higher than Spiva. Their higher scores entitled the three to be appointed as state pilots if all of the other required qualifications were equal. After a hearing was set to determine Spiva’s entitlement to be appointed as a state pilot, DPR moved to dismiss or abate the proceeding for failure to join the three appointed pilots as indispensable parties. The hearing officer denied DPR’s motion. By way of special appearance, the three appointed pilots objected to further proceedings, citing their non-party status and the fact that they had not been joined or noticed. After DPR petitioned for review, the hearing officer ordered that the three state pilots be noticed and given leave to intervene.

Rule 28-5.205, made applicable to this proceeding by Rule 21SS-2.01, Florida Administrative Code, provides as follows: “Motions in opposition to a petition, which may be filed by any party, include motions to dismiss, to strike, and for more definite statement, and shall be filed within twenty (20) days of service of the petition. Any ruling by a presiding officer on a motion in opposition to a petition shall be incorporated in a recommended order, and can be finally disposed of only by the Agency head.”

In accordance with this rule, we hold that the hearing officer’s order, denying DPR’s motion to dismiss, which has not been addressed by an agency, is not reviewablé by this court. See Department of Professional Regulation v. LeBaron, 443 So.2d 225 (Fla. 1st DCA 1983).

Accordingly, our previously issued opinion is withdrawn. DPR’s petition for review is dismissed.

WIGGINTON and ZEHMER, JJ., concur.


author: BOOTH, Judge.

text:
    R. Frederick BOEDY, Petitioner, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Respondent.
    No. AR-471.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1984.
    See also 428 So.2d 758, 433 So.2d 544 (Fla.App.).

      Philip J. Padovano, Tallahassee, for petitioner.
    Charles F. Tunnicliff, Sr. Atty., Dept, of Professional Regulation, Tallahassee, for respondent.
   BOOTH, Judge.

This cause is before us on petition for writ of certiorari to review an order of the hearing officer denying Dr. Boedy’s motion for a protective order, entered in response to the Department’s order directing him to submit to a series of psychiatric examinations. In his petition, Dr. Boedy asserts that Sections 458.331(l)(s) and 458.-339, Florida Statutes (1981), which require involuntary medical examinations in disciplinary proceedings under the Medical Practices Act are unconstitutional as a violation of the privilege against compelled self-incrimination.

We find petitioner’s contentions to be without merit, and affirm the order below. The compelling State interest in the protection of the public is the basis for regulating the medical profession, and that interest, in regard to the regulation of the legal profession, has been well stated by the recent decision of the Florida Supreme Court in Florida Board of Bar Examiners Re: Applicant, 443 So.2d 71 (1983) wherein the court upheld the right of the Board of Bar Examiners to require release of medical records and information concerning applicant’s treatment for any form of insanity, emotional disturbance, nervous or mental disorder.

The pivotal question to be decided is whether the Fifth Amendment privilege against compelled self-incrimination is applicable in the circumstances of this case. In State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla.1973), the Florida Supreme Court held that “the right to remain silent applies not only to the traditional criminal cases, but also to proceedings ‘penal’ in nature, in that they tend to degrade the individual’s professional standing, professional reputation or livelihood.” In Lester v. Department of Professional and Occupational Regulations, State Board of Medical Examiners, 348 So.2d 923, 925 (Fla. 1st DCA 1977), this court noted that the Medical Practice Act “is, in effect, a penal statute since it imposes sanctions and penalties in the nature of denial of license, suspension from practice, revocation of license to practice, private or public reprimand, or probation, upon those found guilty of violating its proscriptions.” These two cases are distinguishable from the case at issue on their facts, since they both deal with violations of the respective statutes amounting to misconduct, for which sanctions were sought.

In the instant case, the Department of Professional Regulation seeks to curtail, at least temporarily, Dr. Boedy’s right to practice medicine, on the ground that he is suffering from a mental or emotional illness which renders him “unable to practice medicine with reasonable skill and safety” under the provisions of Section 458.-331(l)(s), Florida Statutes (1981). This subsection provides that the affected physician “shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients.” Disciplinary action under this subsection is not premised on misconduct by the physician, as in Vining and Lester, but instead upon his inability, due to some mental or physical condition, to practice medicine with reasonable skill and safety to patients.

In Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976), the United States Supreme Court held that unless the government seeks testimony that would subject its maker to criminal liability, the constitutional right against self-incrimination does not arise, so that an individual may properly be compelled to give testimony in a noncriminal investigation of himself. Similarly, the United States Supreme Court in United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980), held that the privilege against self-incrimination is not implicated in a proceeding for the assessment of a “civil penalty” referred to in the seven considerations listed in Kennedy v. Mendosa-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963), as the basis for determining whether the sanctions imposed by Congress transformed the intended civil remedy into a criminal penalty. Applying each of the Mendosa-Martinez considerations to the facts of the case at issue, we find that the proceedings to determine if Dr. Boedy is mentally competent to practice medicine with reasonable skill and safety to his patients, though they may result in temporary suspension of his license to practice medicine, cannot be considered “penal” in character for purposes of the Fifth Amendment privilege against compelled self-incrimination. We therefore find Sections 458.331(l)(s) and 458.339, Florida Statutes (1981), to be constitutional, but certify the following question to the Florida Supreme Court as a question of great public importance:

WHETHER THE FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION APPLIES TO DISCIPLINARY PROCEEDINGS INITIATED UNDER SECTION 458.-881(l)(s), FLORIDA STATUTES, TO DETERMINE WHETHER A PHYSICIAN IS UNABLE TO PRACTICE MEDICINE WITH REASONABLE SKILL AND SAFETY TO PATIENTS AS A RESULT OF A MENTAL OR PHYSICAL CONDITION.

The denial of petitioner’s motion for protective order, entered in response to the Department’s order directing him to submit to a series of psychiatric examinations, is hereby affirmed and the petition for review denied.

MILLLS and SHIVERS, JJ„ concur.

      . Dr. Boedy's motion for a protective order, directed to the hearing officer, while perhaps technically incorrect, see Section 120.58, Florida Statutes, does not obviate the fact that in this case, review is sought from agency action, the Department's order directing Dr. Boedy to submit to a series of psychiatric examinations. Although neither party has raised any procedural issue, we note that Dr. Boedy could have sought review directly from the Department’s order. We therefore treat this as a petition from agency action. Cf. Department of Professional Regulation v. LeBaron, 443 So.2d 225 (Fla. 1st DCA 1983) (which dismissed a petition for review of an order of the hearing officer dismissing the administrative complaint, on the ground that this court does not have jurisdiction to review non-final orders of hearing officers, which are not considered "agency action.”) In the case at issue, unlike LeBaron, the agency has acted in issuing the order for the psychiatric exam, and it is this action by the agency which is being challenged by Dr. Boedy.

      . By order dated June 29, 1983, this court sought to invoke the jurisdiction of the Supreme Court to review the hearing officer's order, pursuant to Rules 9.030(a)(2)(B) and 9.125, Florida Rules of Appellate Procedure, certifying that the order requires immediate resolution by the Supreme Court because the issue pending in this court is of great public importance and will have a great effect on the proper administration of justice throughout the state.
      By order of July 11, 1983, 436 So.2d 97, the Supreme Court ruled: "We are without jurisdiction to accept review since section 3(b)(5) [of Article V, Florida Constitution] expressly restricts review under this procedure to orders or judgments of trial courts.”

      . We note that the issue in the Bar Examiners case was the applicant’s right to privacy, and not his Fifth Amendment right against self-incrimination.

      . In State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla.1973), a licensed real estate broker was charged with violations of the Real Estate License Law, including failure to maintain trust funds in an escrow account, breach of trust and dishonest dealing in a business transaction, and concealment and misrepresentation in a business transaction.

        Lester v. Department of Professional and Occupational Regulations, State Board of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA 1977), involved alleged acceptance by a physician of "kick-backs" from a hospital, based upon the hospital’s charges for patients referred to the hospital by the physician.

      .Section 458.331(2), Florida Statutes, provides for the following types of disciplinary action, where appropriate:
      (a) Refusal to certify to the department an applicant for licensure.
      (b) Revocation or suspension of a license.
      (c) Restriction of practice.
      (d) Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
      (e) Issuance of a reprimand.
      (f) Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

      . Kennedy v. Mendosa-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963):
      Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scien-ter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.... [footnotes omitted]

      . Petitioner has withdrawn the remaining issue on appeal, whether the Department's order violated his Fourteenth Amendment due process rights.


author: PER CURIAM.

text:
    CITY OF DELRAY BEACH, Appellant, v. DEPARTMENT OF TRANSPORTATION and Palm Beach County, Appellees.
    No. AS-41.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1984.

      Richard W. Carlson, Jr., Asst. City Atty., Delray Beach, for appellant.
    H. Reynolds Sampson, Tallahassee, for appellee Dept, of Transp.
    Rickey L. Farrell, Asst. County Atty., West Palm Beach, for appellee Palm Beach County.
   PER CURIAM.

This cause is before us upon the motion of the City of Delray Beach (City) to vacate an order of the Department of Transportation (Department) denying the motion of Palm Beach County (County) to vacate automatic stay of an order entered March 21, 1983, but conditioning the stay upon the City’s posting of a bond in the amount of 1120,00o.

The Department’s order of March 21, 1983 adopted the hearing officer’s findings of fact and conclusions of law pertaining to the reclassification of a specified portion of Northeast Eighth Street as a collector road on the City’s street system, thus transferring jurisdiction of and responsibility for said road to the City from the County.

In its motion to vacate filed before this court, the City contends that the Department’s requirement that the City post a bond is contrary to the rule enunciated in City of Lauderdale Lakes v. Corn, 415 So.2d 1270 (Fla.1982). We disagree. In Com, the Supreme Court held that the trial judge could not order the City to post supersedeas bond for potential damages for delay to a land developer during the pendency of an appeal taken by the City from a final judgment requiring it to permit the construction of a development project and declaring invalid a municipal zoning ordinance. Construing Rule 9.310(b)(2), Florida Rules of Appellate Procedure, the Supreme Court ruled that courts had authority to require governmental entities to post supersedeas bonds in suits where the judgment appealed involved operational-level governmental functions but not, as a rule, planning-level governmental functions. Insofar as the judgment involved herein concerned no “decision” of the City which could be characterized as either an operational or planning-level governmental function, we find that there exists no basis warranting application of the Corn rule and conclude that the Department’s decision requiring the posting of a supersedeas bond was an appropriate exercise of its discretion.

Accordingly, the City’s motion to vacate is denied.

MILLS, BOOTH and SHIVERS, JJ., concur.

      . This figure represents the estimated annual amount of costs to be incurred by the County, who is responsible for the maintenance and operation of the subject road during the penden-cy of the appeal.

      . The basis of our decision renders it unnecessary to address the County’s contention that the City waived its right to attack the imposition of a bond pending appeal because the City itself had opposed vacation of automatic stay below with the suggestion that it be required to post bond.


author: LARRY G. SMITH, Judge.

text:
    Gordon Bailey ZANER, Appellant, v. STATE of Florida, Appellee.
    No. AO-263.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1984.

      Henry M. Coxe, III, and Daniel A. Smith, Coxe, Schemer and Smith, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for ap-pellee.
   LARRY G. SMITH, Judge.

Appellant was informed against for possession of cocaine, possession of diazepam, possession of controlled substance paraphernalia, and possession of less than twenty grams of cannabis. Following denial of his motion to suppress the evidence, he pled nolo contendere to possession of cocaine and diazepam, reserving his right to appeal the denial of his motion. He challenges the search warrant pursuant to which the evidence against him was seized on three grounds: That the affidavit was insufficient to establish probable cause; that the warrant was “stale” at the time it was executed; and that the warrant did not authorize a search of appellant’s person outside of the premises named in the warrant. We affirm.

The affidavit in support of the warrant described a “controlled buy” conducted by the affiant at appellant’s residence. The affiant, a police officer with six years of experience in drug related cases, searched a confidential informant to be sure he had no drugs in his possession, furnished him with money, observed him enter and leave appellant’s residence, then met him at a predetermined location where the informant turned over a quantity of what proved to be cocaine. The affidavit also recites the informant’s description of the sale, and his observation of additional quantities of cocaine within the residence.

The affidavit does not reflect that the confidential informant was searched after he returned from the residence. Appellant contends that the officer’s failure to search the confidential informant upon his return from the residence precludes a finding of probable cause. Appellant concedes that under the case law, supervision of a successful controlled buy demonstrates sufficient personal knowledge on the part of an officer to justify the issuance of a search warrant. However, he argues that in the absence of a police search of the informant following the “buy,” the issuing magistrate is confronted with no more than a hearsay declaration that the informant bought the controlled substance. He maintains that while this, standing alone, might be sufficient in the case of a Schedule I drug which has no currently approved medical usage (since mere possession would be a crime), it is not sufficient in the case of a Schedule II drug, such as cocaine, which has current, albeit limited, medical uses. Because the affidavit upon which the search warrant was issued is based on hearsay information which fails to satisfy the “two-pronged test” of Aguilar-Spinelli, appellant argues, the evidence seized pursuant to that warrant should have been suppressed.

Acceptance of appellant’s argument would require this court to apply the “two-pronged test” with the kind of rigid exactitude condemned in Illinois v. Gates. There, the Court said:

[T]he “two-pronged test” directs analysis into two largely independent channels— the informant’s “veracity” or “reliability” and his “basis of knowledge.” There aré persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability, [citations omitted]

The affidavit at bar clearly reflects the “basis of knowledge” of the informant. The affiant observed the informant entering and leaving the residence and was told by the informant that he had seen cocaine, and purchased some, while in the residence. It is clear that if the informant can be believed his information was based upon first hand knowledge.

While the challenged affidavit contains no recital of facts relating directly to the informant’s “creditability” or “reliability” , we think under the totality of the circumstances set forth in the affidavit, there are sufficient indicia of the informant’s reliability.

It has been suggested that to the extent an informant is somehow responsible to the affiant the informant’s asserted personal observation may be of some value to a magistrate in assessing the informant’s credibility. Bold indeed the informant who while pretending to participate with police in a “controlled buy” steals the police “buy” money, steals cocaine from the target of the investigation, and lies to police about making the purchase and about the presence of additional drugs. In assessing the improbabilities of such conduct the old adage, “actions speak louder than words,” is brought to mind. When dealing with probable cause we deal with probabilities.

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and a constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlaw-yers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

As for appellant’s “staleness” argument, the warrant was issued fourteen days after the controlled buy, well within the thirty-day period approved in House v. State, supra, footnote 1, and State v. Cole, 395 So.2d 628 (Fla. 1st DCA 1981). Although there was a nine-day delay in execution of the search warrant, the proffered testimony of Deputy Sheriff Williams that it was not his practice to serve warrants when no one was at home, and that he stayed at the apartment complex about twenty minutes each day waiting for appellant’s return satisfactorily negates appellant’s contention that there was unreasonable delay in the execution of the warrant. The execution of the warrant, we note, was accomplished well within the thirty-day period.

Appellant’s contention that he was improperly searched outside his apartment is without merit. When appellant was accosted by the officer a few feet from the steps which led to his apartment he was carrying a brown nylon bag and a shaving kit which the officer took from him. The officer had been informed by his confidential informant that appellant customarily carried a gun. This information proved to be correct: The brown bag contained a loaded gun, as well as a marijuana pipe and cocaine. The warrant expressly authorized the search of the premises, the yard and curtilage, any vehicles parked thereon, and “any person on said premises reasonably believed to be engaged in or connected with said illegal activity .... ” Appellant was clearly within the curtilage at the time of his detention and search by the officer. Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974). Further, as appellant forthrightly concedes, officers lawfully present for the purpose of executing a search warrant are justified in stopping and detaining persons on the premises (or the curtilage thereof) and requiring them to accompany the officers into the place to be searched. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Taking possession of the brown bag and the shaving kit were reasonable actions in view of the officer’s concern for his own safety. Moreover, the search of the contents of these containers in appellant’s possession, was authorized, in that the directive of the warrant for the search of “any person” reasonably believed to be engaged in or connected with illegal activity on the premises is broad enough to encompass those items carried on or about the person.

We conclude that a commonsense view of the authority conferred by the warrant justified the search of the containers carried by appellant. Cf. Michigan v. Long, — U.S. -, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), extending the scope of a “Terry type protective search for weapons to the passenger compartment of an automobile if the officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and may gain immediate control of a weapon.

AFFIRMED.

WENTWORTH and JOANOS, JJ., concur.

      . E.g., State v. Gieseke, 328 So.2d 16 (Fla.1976); House v. State, 323 So.2d 659 (Fla. 1st DCA 1975).

      . See sections 893.03(l)(b)ll, 893.03(2), 893.-03(2)(a)4.

      . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

      . — U.S. at -, 103 S.Ct. at 2329, 76 L.Ed.2d at 545.

      . Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723.

      . Compare, State v. Baxter, 356 So.2d 1250 (Fla. 1st DCA 1978). In Baxter there was "no allegation that the controlled substances were illegally obtained, illegally retained nor that the quantity turned over to the officer by the informant was either sold or delivered by appellee or any occupant of said residence to said informant." 356 So.2d at 1251.

      . U.S. v. Harris, 403 U.S. 573, 576, 91 S.Ct. 2075, 2078, 29 L.Ed.2d 723, 739 (1971) (Justice Harlan, dissenting).

      . Gates, supra n. 5, — U.S. at -, 103 S.Ct. at 2328-29, 76 L.Ed.2d at 544.

      . U.S. v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 689 (1965).

      . In this connection we observe that “on or about the person” within the statute making it an offense to carry a concealed firearm (Section 790.01, Florida Statutes (1981)) means "physically on the person or readily accessible to him.” Ensor v. State, 403 So.2d 349, 354 (Fla.1981); and in State v. Murray, 382 So.2d 1372 (Fla. 4th DCA 1980), the court reiterated its previous holding that the statute can be violated by one who carries a firearm in a closed briefcase.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    WOLBERT, SAXON & MIDDLETON, and Travelers Insurance Company, Appellants, v. Betty N. WARREN, Appellee.
    No. AQ-444.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1984.
    Rehearing Denied Feb. 15, 1984.

      E. Robert Williams and James H. McCarty, Jr., of Boyd, Jenerette, Staas, Joos, Williams & Felton, Jacksonville, for appellants.
    Anthony J. Salzman of Bessent, Moddy & Salzman, Starke, for appellee.
   THOMPSON, Judge.

In this appeal from a compensation order awarding payment of past medical bills, the employer/carrier (E/C) contend that the deputy commissioner (deputy) erred in finding that a compensable accident occurred. We agree that no accident occurred, and reverse.

The claimant is a legal secretary, office manager, and bookkeeper who suffers from chronic asthma. During the more than four years she worked with the employer law firm, she enjoyed a position of considerable responsibility and had an excellent working relationship as personal secretary to Mr. Wolbert, a partner in the firm. Although claimant has been an asthma sufferer since 1968, her illness was nondisabling and had always been well controlled with prophylactic medications prior to the events which led to the filing of her instant claim. In fact, until claimant was stricken by the asthma attack at issue here, she had never had an acute asthma attack and had never missed a single day’s work because of her chronic asthmatic condition.

On the evening of Friday, November 27, 1981, the claimant undertook to balance and reconcile the employer’s trust account ledger, which was a part of her regular duties. In the course of balancing the trust account, she discovered certain discrepancies and irregularities which led her to believe that Wolbert might have improperly withdrawn approximately $16,000 from the account funds. The claimant testified that over the week-end she experienced increasing difficulties with her asthma, and was required to repeatedly take medication. Upon arriving at work on Monday, November 30, 1981, the claimant approached Wolbert about the trust account problem. Wolbert indicated that he had to leave immediately for a hearing and told her he would discuss the matter with her when he returned. However, Wolbert did not return to the office that day even though his absence caused him to miss several scheduled appointments with clients. Because of Wolbert’s refusal to explain the irregularities in the trust account, and because he appeared to be avoiding her, the claimant concluded that Wolbert was indeed responsible for the missing money, and that serious trouble lay ahead for Wolbert, his partners, and the employees of the firm. That night and during the early morning hours of December 1, 1981, claimant’s asthma worsened to the point that her medications were not controlling it and she was having difficulty breathing. At approximately 8:00 a.m. on the morning of December 1, while on her way to see her doctor, the claimant again stopped at her office in order to attempt to speak with Wolbert about the trust account, but he again refused to talk to her and left the office. Claimant then proceeded to the doctor’s office. The doctor’s ministrations failed to relieve her asthma attack, and she had to be hospitalized. Because of the severity of the asthma attack, claimant was required to remain in the hospital for five days, and for a period of several months thereafter required treatment and medication in excess of the treatment and medication regimen which had successfully controlled her asthma during the 13 years prior to the discovery of her employer’s defalcations.

The claimant testified that she experienced tremendous emotional shock and strain upon discovery of the irregularities in the trust account, and that the emotional trauma of the discovery was exacerbated by the necessity of confronting Wolbert about the matter and by Wolbert’s refusal to provide a satisfactory explanation as to why the money had been withdrawn from the trust account. She further testified that her worry concerning the future of Wolbert, whom she liked and respected, as well as her worry about the future of the firm and her fellow employees, had caused the unprecedented attack. However, claimant admitted that she had not been physically injured on the job, and our review of the record discloses absolutely no evidence that even the slightest physical trauma or impact occurred. Neither was there evidence that the discovery had caused or required claimant to engage in any unusual physical activity or exertion, or that claimant was exposed at any time to any sort of dust, fumes, or other airborne agents in the work place which might have brought on the attack.

In the order appealed, the deputy found that the emotional strain associated with the discovery of the trust account irregularities had caused an aggravation of claimant’s pre-existing, nondisabling chronic asthmatic condition, and that the attack was compensable since it had been precipitated by a compensable accident. We are unable to agree with the deputy’s implicit and unexplained conclusion that a compen-sable accident occurred.

The E/C argued below, and continue to maintain here, that an aggravation of an underlying pre-existing asthmatic condition should be considered analogous to an aggravation of a pre-existing cardiovascular condition, and should be ruled non-compen-sable when caused by mental or emotional stress alone, unaccompanied by any unusual physical strain or exertion. In discussing prior cases in which claims for compensation arising out of alleged work related aggravations of pre-existing cardiovascular conditions were held compensable, our Supreme Court has twice held:

These decisions have involved either physical strain or exertion alone or physical strain or exertion in concert with emotional strain, but in no case have we held emotional strain alone to be sufficient. Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant’s employment.

City of Miami v. Rosenberg, 396 So.2d 163, 166 (Fla.1981) (quoting Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340, 1342 (Fla.1978)). For purposes of determining the compensability of an injury under our Workers’ Compensation law, we are entirely unable to distinguish an internal failure of the pulmonary system caused solely by emotional stress from similarly caused internal failures of the cardiovascular system. Although in Rosenberg the court affirmed the finding of the Judge of Industrial Claims that there was “no evidence that the heart attack was caused by a specifically identifiable event,” and although there was evidence in this case that a specific event precipitated claimant’s asthma attack, in Mosca and in the numerous cases reviewed by the court in Mosca, the court consistently referred to the necessity of showing a “specifically identifiable effort ” on the part of the claimant. Notwithstanding the reference in Rosenberg to a specifically identifiable event, we feel that the above-quoted passage from Rosenberg and Mosca makes it clear that there must be an accident in the usual sense of the word, or at the very least, some showing of a specifically identifiable physical strain, effort, exposure or event. Even if we were inclined to find that the reference in Rosenberg to an “event” represented a change in our Supreme Court’s approach to the problem of exacerbations of pre-existing conditions by work related activities, the elusiveness of the concept of emotional strain, with the concommitant impossibility of consistently and correctly determining causa-' tion, would remain. In any event, the only medical evidence as to causation was a brief notation, appearing in the doctor’s report, that “[h]er asthma attack could have been brought on due to her working under stress.” (emphasis added). This speculative statement is clearly insufficient to establish causation. Kashin v. Food Fair, 97 So.2d 609 (Fla.1957); Newman Heating & Boiler Repair, Inc. v. Newman, 418 So.2d 1008 (Fla. 1st DCA 1982), pet. for rev. den, 429 So.2d 7 (Fla.1983). Because it is conceded that claimant’s asthma attack was not precipitated by any physical condition to which she was exposed in the work place, and because it is conceded that no unusual physical effort or event occurred, we find that the compensation order herein appealed must be reversed.

NIMMONS, J., concurs.

ERVIN, C.J., dissents with opinion.

ERVIN, Chief Judge,

dissenting.

I respectfully dissent. The deputy, after hearing and considering the testimony of claimant and her witnesses, concluded that the emotional strain experienced by claimant over a five-day period, during which she first discovered, and then attempted to confront her employer with a $16,000.00 shortage in the law firm trust account, amounted to an “accident" which aggravated claimant’s pre-existing, but previously non-disabling asthmatic condition. In ruling that claimant’s acute asthmatic attack was compensable, the deputy considered and rejected the e/c’s contention that rules, formulated to meet specific and unique evi-dentiary problems peculiar to cases involving internal failures of the cardiovascular system, should be extended to apply also to an aggravation of the claimant’s asthmatic illness. In my view the deputy’s resolution of this case was a judgment call on his part and, in the absence of a showing of a lack of competent substantial evidence to support his findings, the order should be affirmed.

I am particularly concerned by the majority’s holding, extending standards which have been routinely applied to cases involving internal failures to a case such as this, entailing nothing more than an aggravation of á pre-existing disease, heretofore chronic but low-grade, minor and non-disabling. The cases of Rosenberg and Mosca, which the majority finds controlling, are part of a long line of decisions that have grappled with the question of compensability in situations where a claimant suffers a heart attack, or a similar failure of the cardiovascular system, while carrying out his routine tasks at work. Thus, if the evidence fails to disclose an identifiable accident, the authorities require proof demonstrating the existence of both legal and medical causation as a predicate to an award of compensation, for the obvious reason that the internal failure may be attributable to the natural progress of the disease which could precipitate a collapse during working hours, as well as non-working hours. McCall v. Dick Burns, Inc., 408 So.2d 787, 790 (Fla. 1st DCA 1982).

The test for legal causation is set out as follows in the seminal decision of Victor Wine and Liquor, Inc. v. Beasley, 141 So.2d 581, 588-589 (Fla.1962):

When disabling heart attacks are involved and where such heart conditions are precipitated by work-connected exertion affecting a pre-existing non-disabling heart disease, said injuries are compensable only if the employee was at the time subject to unusual strain or over-exertion not routine to the type of work he was accustomed to performing.

(emphasis supplied) Once a claimant has met the burden of establishing legal causation, he must then present evidence going to the test of medical causation, by showing “a causal relationship between the strain or over-exertion and the heart attack within reasonable medical probability.” McCall, 408 So.2d at 791-792. As the majority correctly observes, the effect of Mos-ca is to extend the Victor Wine test to all types of internal failures of the cardiovascular system. I am unable to agree, however, with the majority’s conclusion that the burden of proof applicable to those circumstances in which an employee “collapses solely due to an internal physical malfunction,” Southern Bell Telephone & Telegraph Co. v. McCook, 355 So.2d 1166, 1169 (Fla.1977) (emphasis supplied), should be expanded to the facts of this case. In the absence of the unique evidentiary problems posed by internal failure cases where no identifiable accident has occurred, I find such an extension to be totally unwarranted.

Despite the majority’s characterization of claimant’s injury as an “internal failure of the pulmonary system,” in my judgment it is clear that claimant’s acute asthmatic attack was, as the deputy found, merely the result of an “aggravation of a non-disabling, underlying, pre-existing, chronic condition.” In such cases the rule universally applied is as follows:

Preexisting disease or infirmity of the employee does not disqualify a claim under the “arising out of employment” requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought.

1 A. Larson, The Law of Workmen’s Compensation § 12.20 (1982) [hereinafter: Larson] (emphasis supplied). Unlike internal failure cases, aggravation cases rarely involve questions of legal causation: “[I]n practice most of the problems in this area are medical rather than legal.” Larson, supra. In such cases the deputy is simply called upon to determine whether medical causation exists to support an award of compensation:

Whether the employment aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact, not law, and a finding of fact on this point by the commission based on any medical testimony, or, in the commoner afflictions where the commissioners themselves have acquired sufficient medical expertise, based on the commission’s expert knowledge even without medical testimony, will not be disturbed on appeal.

Larson, supra (emphasis supplied).

The facts in the case at bar clearly support the deputy’s finding that the “emotional strain (based on Dr. Hernandez’s statement of April 19, 1982, and the doctrine of most logical cause) triggered an acute asthma attack_” Dr. Hernandez’s report, which was admitted, without objection by the e/c, stated that the “attack could have been brought on due to her working under stress.” (emphasis supplied) The competency of this statement has not been assailed on appeal. The point raised by the e/c involves simply the legal question of “[wjhether an asthma attack caused solely by emotional anxiety or stress is a com-pensable accident or injury under the Workers’ Compensation Act.” (emphasis supplied) Appellant’s point, as phrased, thus assumes, for the purpose of its argument, the competency and sufficiency of evidence supporting the deputy’s finding relating the asthma attack to the industrial, emotional strain.

The majority’s requirement that a claimant, whose pre-existing asthmatic condition is aggravated or accelerated by an industrial “accident”, satisfy the enhanced burden of proof applicable to internal failure cases represents in my judgment a disregard of general rules of interpretation pertinent to workers’ compensation cases which counsel a liberal construction in favor of the worker, see Hardaway Construction Company v. Brooks, 416 So.2d 837 (Fla. 1st DCA 1982), and is contrary to the weight of out-of-state authority involving asthma cases that has long characterized the condition simply as an aggravation of a prior disease, and not an internal failure. Although there are no Florida cases that have specifically addressed the question now before us, similar cases having to do with pulmonary diseases have never applied the enhanced burden applicable to internal failure cases. See, e.g., Czepial v. Krohne Roofing Company, 93 So.2d 84 (Fla.1957) (aggravation or acceleration of a pre-exist-ing plumonary tuberculosis condition by exposure to tar fumes and dust amounted to an “accident” for Chapter 440 purposes); Hilton v. Guerdon Industries, Inc., 382 So.2d 134 (Fla. 1st DCA 1980) (aggravation of claimant’s emphysema by exposure to dust at work was compensable). In view of the above authorities, I find no justification to impose standards uniquely applicable to internal failure to a case such as this simply because the aggravation was caused by severe emotional strain, rather than by physical injury.

Even assuming, for the sake of argument, that such a standard should be visited upon the claimant, the deputy’s finding that the events of November 27-December 1, precipitating the acute asthma attack, constituted an “accident,” eliminates any requisite that the claimant satisfy the Victor Wine test of legal causation. This test recognizes that a heart attack may be com-pensable if the claimant is subjected to “overexertion uncommon to the type of work that he was accustomed to,” or if the heart attack resulted from “an accident which arose ‘out of and in the course of employment’ ” 141 So.2d at 584 (emphasis supplied). Two years later the court refined the “accident” exception to Victor Wine in Scott v. Kerr, 156 So.2d 847 (Fla.1963), holding compensable a heart attack suffered by a butcher immediately after he had attempted to catch a falling 65-pound box of chicken. Because an identifiable, work-related accident was shown, i.e., the attempted catch, the court found it irrelevant to the question of compensability to decide whether the butcher’s activities that day were unusual.

Since then both the Florida Supreme Court and this court have held that when a heart attack or other internal failure results from an identifiable accident, the claimant need not satisfy the legal causation prong of the Victor Wine test. See Tingle v. Board of County Commissioners, 174 So.2d 1 (Fla.1965); Reynolds v. Whitney Tank Lines, 279 So.2d 293 (Fla.1973); Wallen v. Salon of Music, Inc., 418 So.2d 421 (Fla. 1st DCA 1982); Lone Star of Florida v. Rodriguez, 416 So.2d 859 (Fla. 1st DCA 1982); Great Dane Trailers v. Flis, 435 So.2d 931 (Fla. 1st DCA 1983). Particularly compelling, I think, is the recent ease of Popiel v. Broward County School Board, 432 So.2d 1374 (Fla. 1st DCA 1983), in which Popiel and a fellow school board employee were enroute to a school board facility when they became lost and stopped to ask directions. A thief approached the car, and, while reaching through the window, snatched a gold chain from around Popiel’s neck. Although she suffered no physical trauma from the incident, Popiel collapsed and died of a heart attack a few hours later. In reversing the deputy’s denial of death benefits to Popiel’s surviving spouse, this court commented;

[Ujnder Florida workers’ compensation law there are two lines of cases dealing with the compensability of heart attacks. It is true that Victor Wine and its progeny hold that heart attacks are compensa-ble only if suffered while the employee was engaged in some unusual strain or over-exertion not routine to the employment. Richard E. Mosca & Co. v. Mosca, 362 So.2d 1340 (Fla.1978); Silvera v. Miami Wholesale Grocery, Inc., 400 So.2d 439 (Fla.1981). Another line of cases, however, finds compensability where an employee is injured in an identifiable accident which either immediately or subsequently results in a heart attack. Reynolds v. Whitney Tank Lines, 279 So.2d 293 (Fla.1973); Whallen v. Salon of Music, 418 So.2d 421 (Fla. 1st DCA 1982); Lone Star of Florida v. Rodriguez, 416 So.2d 859 (Fla. 1st DCA 1982).

Id. at 1375 (emphasis supplied). Finding that Popiel had in fact suffered an identifiable accident and that the medical evidence established a causal connection between the accident and her subsequent heart attack, we concluded that compensation should have been awarded.

If the majority is then correct in exacting burden of proof standards customarily applicable to internal failure cases, those cases convincingly demonstrate that the legal causation requirement is obviated if a claimant can establish the occurrence of an “accident” which, for purposes of Chapter 440, is defined as “... an unexpected or unusual event or result, happening suddenly.” § 440.02(18), Fla.Stat. (1981) (emphasis supplied). Consistent with the “most favorable remedy” doctrine, stating that “ ‘where the [Workers’ Compensation] Act is susceptible of disparate interpretations, the court will adopt the construction which is most favorable to the employee’ ”, Kerce v. Coca-Cola Company-Foods Division, 389 So.2d 1177, 1178 (Fla.1980), the courts of this state have consistently given a broad and liberal interpretation to the term “accident”. Accordingly, to satisfy the requisite of an accident, a claimant need only “make a showing of some event or circumstances connected with his work to which his injury can be directly attributed.” Gray v. Employers Mut. Liability Ins. Co., 64 So.2d 650, 651 (Fla.1952) (emphasis supplied). It is enough if there was an unexpected “result, even though there was no unexpected cause, such as a slip, fall or misstep, in order to constitute an “accident” within the meaning of the Workmen’s Compensation Law....” Id. The rule that no actual slip, fall, or blow is required applies even in cases involving internal failures of the cardiovascular system. See Victor Wine, 141 So.2d at 588 (expressly approving Gray). Similarly, the “fundamentally accidental nature of the injury is not altered by the fact that, instead of a single occurrence, it is the cumulative effect” of a series of occurrences or exposures. Czepial, 93 So.2d at 86 (emphasis supplied). In considering the case law interpreting the term “accident”, and the liberal construction we are bound to apply, there should be no reason to doubt that the occurrences of November 27-December 1 were correctly described by the deputy as “unexpected and unusual” events in claimant’s employment, resulting in an acute asthma attack that was, given claimant’s prior medical history, both unexpected and unusual. The fact that those events occurred over a five-day period does not, according to Czepial, detract from the fact that such events happened “suddenly”.

I would therefore uphold the deputy’s refusal to extend internal failure standards to cases involving aggravations of pre-ex-isting conditions. Alternatively, even if such standards are proper, the deputy’s finding that an identifiable accident had occurred was sufficient to eliminate any requirement that claimant show her asthma attack was precipitated by a specifically identifiable, physical strain or effort.

      . See Jenkins v. Ogletree Farm Supply, 291 So.2d 560 (Miss.1974) (pre-existing condition of asthma and emphysema aggravated by inhalation of dust at work which constituted a compensable accident without the necessity of showing physical injury or overexertion); Breitfeld v. Cosmo Optics, Inc. 54 A.D.2d 816, 387 N.Y.S.2d 923 (App.Div.1976) (exposure to silica dust aggravated asthma); Bichowsky v. Hickey Freeman Co., 11 A.D.2d 877, 203 N.Y.S.2d 486 (App.Div.1960) (asthmatic condition aggravated by prolonged working with wool); Wannemacher v. Wannemacher Baker, Inc., 9 A.D.2d 835, 192 N.Y.S.2d 696 (App.Div.1959) (asthma and emphysema aggravated by exposure to flour); Mayr v. Price, 9 A.D.2d 801, 192 N.Y.S.2d 752 (App.Div.1959) (bronchial asthma aggravated by exposure to flour). Cf. Steverson v. E.I. DuPont De Nemours Company, 208 Tenn. 243, 345 S.W.2d 671 (1961) (compensation denied where claimant failed to show chlorine gas aggravated asthmatic condition).


author: SHIVERS, Judge. MILLS, Judge,

text:
    Carlin W. LANGLEY, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. AR-82.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1984.
    Carlin W. Langley, pro se.
    Norman A. Blessing, Tallahassee, for ap-pellee.
   SHIVERS, Judge.

Langley appeals the order of the Unemployment Appeals Commission denying him unemployment compensation benefits. At issue is whether Langley’s actions amount to misconduct so as to disqualify him from receiving such benefits.

Langley was pastry chef at Amelia Island Plantation. He left that employment and began a job as pastry chef at the Ramada Inn in Casper, Wyoming. After working there for two months, he was fired on or about August- 10, 1982. Langley then filed his interstate claim for unemployment benefits.

The claims adjudicator for the Bureau of Unemployment Compensation, after consideration of Langley’s claim and Ramada Inn’s protest of same, concluded Langley was eligible for benefits, finding that he was discharged from Ramada Inn, not for misconduct, but for failure to meet the quality standards of his job.

Ramada Inn appealed. At the request of Florida authorities, a Wyoming appeals examiner held a hearing where Langley as well as representatives of the Ramada Inn were present.

The Florida appeals referee, who did not attend the hearing, made findings of fact and conclusions of law based on a tape recording of the hearing which the Wyoming examiner sent to Florida. The appeals referee determined that Langley was discharged for misconduct and disqualified from drawing unemployment compensation benefits. The Unemployment Appeals Commission, with one of the three members dissenting, found the referee’s decision in accord with the essential requirements of law and affirmed it.

Although we are in as good a position as the appeals referee to evaluate the credibility of the witnesses since the appeals referee did not attend the hearing, we see no need to substitute our judgment for that of the appeals referee on his Findings of Fact. The appeals referee’s Findings of Fact show that Langley is entitled to unemployment benefits and that the initial claims adjudicator was correct.

The appeals referee’s Findings of Fact, in their entirety, are as follows:

FINDINGS OF FACT: The claimant is a pastry chef. He moved to Casper, Wyoming, to work as a pastry chef for a large hotel/restaurant complex. He was brought there to upgrade the pastry and desserts. It was desired that danish and other pastries not be frozen. The manager and executive chef desired fresh „baked products. They wanted to avoid as many premixes as possible and make the majority of products from the beginning (from scratch). The claimant is well educated as a pastry chef and is quality orientated but does not appear to work as fast as desired. He desired more help and the employer did not feel that he could provide additional personnel for his operation. As such he began freezing more products. He would bake a large amount and freeze some for later periods. The hotel felt that he was failing to meet their quality standards. Irritation between the manager and the claimant grew and the final problem came up relative to some samples that the general manager desired. There was to be a large banquet and the general manager was concerned over the entire program. He desired a number of dessert samples to be submitted to him for his selection. The day before the selection, the claimant’s father-in-law became ill and was placed in the hospital. This threw the claimant behind in all of his work and he decided that only three samples were necessary which were below the amount which had been desired by the general manager. He later submitted two more samples from the pastry cart of that evening. He also felt that since the banquet was not immediate that the desires of the general manager for these samples was not so pressing and that it could hold off until a later time. The manager felt that this was not what he wanted and that the claimant was not performing to his expectations. He was advised in this by the executive chef who was a witness to the hearing.

The decision of the appeals referee denying Langley unemployment benefits based on these findings of fact departs from the essential requirements of law and the Commission erred in affirming it.

Misconduct is defined by Section 443.-036(24), Florida Statutes (Supp.1982):

(24) MISCONDUCT. — “Misconduct” includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

In determining whether misconduct has occurred which would disqualify a claimant from receiving unemployment compensation benefits, the statute should be liberally construed in favor of the claimant:

Discharge “for misconduct connected with his work” will disqualify a claimant, but in determining whether such a disqualification has occurred, the statute should be liberally construed in favor of the claimant for whose benefit it exists.

Spaulding v. Florida Industrial Commission, 154 So.2d 334, 339 (Fla. 3d DCA 1963). The Unemployment Compensation Law is remedial in nature and thus must be liberally construed to effect its beneficent purposes such that its disqualification provisions must be narrowly construed. St. Joe Paper Co. v. Gautreaux, 180 So.2d 668 (Fla. 1st DCA 1965).

Langley had good cause for not fully complying with the manager’s request for dessert samples in that his father-in-law had just suffered a heart attack. The appeals referee found this noncompliance showed an intentional and substantial disregard for the employer’s interests. The findings of fact do not reach this level or support this conclusion. Langley did work some on Monday and Tuesday following the heart attack. He also prepared some dessert samples. A family emergency can excuse not coming to work at all. See Tucker v. Florida Dept. of Commerce, 366 So.2d 845 (Fla. 1st DCA 1979) and Williams v. Florida Industrial Commission, 135 So.2d 435 (Fla. 3d DCA 1961).

Langley’s actions were not misconduct within the intended meaning of Section 443.036(24), Florida Statutes, as to bar him from receiving unemployment benefits.

REVERSED and REMANDED.

ZEHMER, J., concurs.

MILLS, J., dissents with opinion.

MILLS, Judge,

dissenting:

I dissent. I would affirm.

The record shows that Langley repeatedly failed to perform his job duties satisfactorily. There is competent substantial evidence in the record to support the referee’s finding that Langley was discharged for “misconduct” within the meaning of Section 443.036(24)(b), Florida Statutes (1981).


author: SHIVERS, Judge.

text:
    Kelly Scott WAGERS, Appellant, v. Janet S. WAGERS, Appellee.
    No. AS-67.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1984.
    Rehearing Denied Feb. 16, 1984.

      James P. Judkins and Michael A. Jones, of Davis, Judkins & Simpson, Tallahassee, for appellant.
    Keith J. Kinderman, Tallahassee, for ap-pellee.
   SHIVERS, Judge.

The sole issue in this dissolution action is whether the lower court erred in awarding the wife permanent periodic alimony. We affirm.

Appellant, Kelly Scott Wagers, and ap-pellee, Janet S. Wagers, were married in 1974. During coverture, both parties worked and had established a standard of living based on combined net incomes of approximately $2,400 'per month. At the time of the final judgment, the husband and wife were 37 and 36 years of age respectively. The parties are employed by the State of Florida. The husband, a college graduate, is currently paid at a rate slightly above the minimum pay rate in his job classification. In contrast, the wife, a high school graduate, has advanced to the financial limit of her job classification. While the wife’s salary has steadily increased in past years, there is evidence that, as a result of inaptitude, she will be unable to proceed beyond her present job classification. Thus, it appears her present income will not be subject to future increases.

The husband receives a net monthly income of $1,512.32, while the wife’s net income is $882.61 per month. During a nine month period when the parties were separated, the husband maintained a separate residence, and in addition, paid the wife’s expenses of approximately $500 per month.

The parties’ 18-year-old daughter resides with the wife and was scheduled to begin attending Tallahassee Community College in the fall of 1983. The husband is not required to make any child support payments.

In its Final Judgment, the trial court denied the husband’s prayer for partition of the marital home. The court awarded the wife a $3,000 special equity in the marital home and exclusive possession therein for four years as rehabilitative alimony. During her occupancy, the wife is responsible for the mortgage payments, with credit upon sale. The house has monthly payments of $313 (including taxes and insurance) and a swimming pool payment of $80.77. The court also awarded the wife $400 per month as permanent periodic alimony. The husband appeals only that portion of the Final Judgment awarding the wife permanent periodic alimony.

Appellant contends that the wife failed to prove her need for permanent periodic alimony and that the amount awarded was excessive. According to her financial affidavit, while the wife’,s net monthly income is $882.61, her monthly expenditures total $1,506.14, leaving a deficit of $623.53. The wife figured her need of $623.53 by calculating this difference between net income and actual expenditures.

The husband cites Young v. Young, 431 So.2d 234 (Fla. 1st DCA 1983) in arguing that the size of the monthly mortgage and utility payments are too large and unreasonable. In Young, we reversed an award of permanent alimony where it appeared the award was based uniquely on the cost of maintaining a former marital home and was unrelated to the wife’s general housing needs. The forfeiture provision in Young, stating that permanent alimony would cease should the wife move out of the house, was the basis for this holding. The judgment herein contains no such forfeiture clause nor does it appear that the award of permanent alimony was based solely on the unique cost of maintaining the marital home without regard to the wife’s general housing needs. The trial court was within its discretion in including the mortgage and utility expenses of the appellee wife as reasonably within the standards established by the marriage.

The husband challenges the monthly expenses of the wife relating to VISA and two other loans. The wife has listed as an expense a $75 monthly payment to VISA and monthly payments totalling $99.50 on the other two loans. He contends that since he has now paid the VISA account and the other two loans will be repaid within the year, these are not proper expenses. Even if these expenses, total-ling $174.50, were excluded from the $623.53, there would remain basis for a $400 per month alimony award.

The husband further contends that the wife has the capacity to make her own way through life unassisted by her former husband. He maintains that the wife is fully able to be self-supporting. It appears, though, that the wife’s annual salary of $14,298 is insufficient to keep pace with her expenses. It also appears from the record that she has reached the maximum level of pay in her job classification and, due to inaptitude, will be unable to receive promotions. The trial court considered this factor and it does not appear to be unreasonable.

The husband’s alimony payment effectively reduces appellant’s net income to $1,112.32 pér month, while elevating the wife’s net income to $1,282.61 per month. A trial court need not equalize the financial positions of the parties, but it must ensure that neither spouse passes from misfortune to prosperity or from prosperity to misfortune. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Apparently, appellant does not contest his ability to pay, but focuses his argument on the wife’s need. The trial court has determined that the wife is in need. As Justice Overton wrote in Canakaris, permanent periodic alimony is used to provide for a former spouse’s needs as they have been established by the marriage:

Permanent periodic alimony is used to provide the needs and necessities of life to a former spouse as they have been established by the marriage of the par-ties_ The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estate.

Id. at 1201. (emphasis supplied).

Here there is no evidence of any enhanced income potential on the part of wife, nor is there any indication of her capacity for sufficient rehabilitation that would enable her to maintain her standard of living established during the marriage (Cf Evans v. Evans, 443 So.2d 233 (Fla. 1st DCA 1983) (where this potential existed).

Appellant’s reliance on Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976), is inappropriate. In Cann, we reversed an award of permanent alimony and remanded for determination of proper rehabilitative alimony, where it appeared the wife had a bachelor’s degree, was employed prior to her marriage, had taken postgraduate college courses since her marriage, and had both the capacity and the desire to become self-supporting. In Cann the wife’s apparently good potential to become self-supporting was as yet undetermined. We concluded in Cann that

as the period of rehabilitative alimony draws to a close, the wife may, upon a showing of diligent effort toward rehabilitation which through no fault of her own has been unsuccessful, petition the trial court for an extension of rehabilitative alimony or an award of permanent alimony.

While the apparently bright potential of Mrs. Cann was not yet fulfilled and established, the abilities and earning capacity of Mrs. Wagérs have been identified.

The wife has adequately established her need for permanent periodic alimony. The husband has not shown the trial court abused its discretion.

AFFIRMED.

MILLS, J., concurs.

ZEHMER, J., dissents without written opinion.


author: NIMMONS, Judge.

text:
    Steve MILLER, Appellant, v. STATE of Florida, Appellee.
    No. AU-56.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1984.

      Michael Allen, Public Defender and Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and John Tiede-mann, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Miller appeals the trial court’s order revoking his probation. We affirm in part and reverse in part.

He was charged with the following violations: (1) failure to file written monthly reports for the months of February and March, 1983; (2) theft on February 10, 1983, by “unlawfully [depriving] Safety Cab Company ... of $15 for services rendered”; and (3) defrauding an innkeeper on April 4, 1983, by “unlawfully [depriving] Jerry's Restaurant ... of $5.83 in food and services.” The evidence presented at the revocation hearing was sufficient to support the trial court’s finding that Miller was guilty of the first violation regarding the written monthly reports. However, the appellant’s claims of error regarding the second and third violations are well founded.

The prosecutor’s basic problem was in presenting witnesses neither of whom had any direct knowledge of the alleged thefts. No one from either the taxi cab company or the restaurant testified. Instead, the State called probation officer Everette and police officer Etheridge.

The State, over defense hearsay objections, introduced into evidence, through the probation officer, the following: (1) a photocopy of a notice to appear pertaining to the alleged cab fare offense which notice contained a written summary of the offense signed by Officer Etheridge; and (2) a photocopy of an arrest report pertaining to the alleged restaurant offense which report included a written summary of the offense signed by an Officer Fields.

The State also was allowed to elicit from probation officer Everette two conflicting oral statements made by Miller to Everette regarding the restaurant offense. According to Everette, Miller first told him that after consuming his meal and proceeding to pay for it, Miller discovered that either he had lost his ten dollar bill or it had been stolen. Everette testified that Miller later told him that he went to the restaurant with a friend, that they ate, that after-wards Miller had enough money to pay for his own meal but not that of his friend, and that it was the friend’s bill which he was accused of not paying. Defense counsel objected to the statements on the grounds of a discovery violation in that a week before the trial the prosecutor had filed a written response to a defense demand for discovery stating that Miller had given no statements. The objections were overruled, and Everette was allowed to testify to such statements.

Officer Etheridge’s testimony concerned only the cab fare incident. He testified, over counsel’s hearsay objections, that the cab driver told Etheridge that Miller did not pay for the cab ride.

Etheridge also testified that Miller made the statement to him that Miller did not have the money at home to pay the cab fare. Defense counsel objected to this testimony on the grounds that the prosecutor had failed to disclose such statements in his response to the defense demand for discovery and had affirmatively represented to the defense that there were no statements of Miller. The court overruled the objections and denied defense counsel’s request for hearing, under Richardson v. State, 246 So.2d 771 (Fla.1971), to inquire into the circumstances surrounding the discovery violation and the resulting prejudice, if any, to the defense.

It appears to be well settled now in Florida that hearsay is admissible in probation revocation proceedings. Cuciak v. State, 410 So.2d 916, 918 (Fla.1982); Purvis v. State, 420 So.2d 389 (Fla. 5th DCA 1982); Couch v. State, 341 So.2d 285 (Fla. 2nd DCA 1977). It is equally clear, however, that a probation violation charge cannot be sustained by hearsay alone. Turner v. State, 293 So.2d 771 (Fla. 1st DCA 1974); Clemons v. State, 388 So.2d 639 (Fla. 2nd DCA 1980); Combs v. State, 351 So.2d 1103 (Fla. 4th DCA 1977).

With respect to the two criminal charges for which the State sought revocation of Miller’s probation, the only evidence offered by the State, aside from the statements made by Miller, was hearsay. We then must determine whether the trial court properly allowed, over objection, evidence of Miller’s statements concerning his failure to pay the cab driver and of his two conflicting statements concerning the circumstances surrounding the restaurant bill.

In responding to the defense objections concerning the State’s alleged discovery violations, the prosecutor represented to the trial court that there is no right to discovery in a probation revocation hearing. To the contrary, the Florida Supreme Court has held:

Fair play and justice require that a defendant in a probation revocation hearing be entitled to reasonable discovery pursuant to rule 3.220.

Cuciak v. State, supra, at 918. The court’s opinion in Cuciak does suggest that the full panoply of discovery under the Florida Rules of Criminal Procedure is not necessarily available in probation revocation proceedings. As the court stated:

The trial court has the inherent power to decide what is reasonable discovery in a probation revocation proceeding. The state may apply to the judge for a modification of the probationer’s demand for discovery if it becomes too burdensome. At the very least a probationer is entitled to the name and identification of his accusers and other basic information that is reasonably necessary to the preparation of his defense.

[Id at 918] Since the State did not challenge in any respect the defendant’s entitlement to rely upon the discovery provisions of Fla.R.Cr.P. 3.220(a) and, in fact, as previously noted, furnished the defense with written responses affirmatively representing that there were no Rule 3.220(a)(l)(iii) statements of the defendant, the State was foreclosed from asserting at hearing that such discovery rules were inapplicable to the proceedings.

The Court in Cuciak also held that the trial court is required to conduct a Richardson hearing in a probation revocation proceeding in order to make inquiry regarding possible prejudice to the defendant when the discovery rules are violated. No such inquiry was made notwithstanding counsel’s request therefor. Cuciak did modify the Richardson rule in revocation hearings by holding that failure to conduct a Richardson inquiry does not require reversal when the appellate court finds to its satisfaction that the error was harmless. Under Cuciak, the burden rests upon the state to prove the error was harmless. We have no difficulty in concluding that the State has failed to demonstrate to this Court that the failure to conduct a Richardson inquiry was harmless given the fact that, other than the statements which were the subject of the discovery violation, the only evidence presented by the State concerning the two criminal violations was hearsay.

The State argues that its discovery violation should be regarded as harmless because the State’s response to the discovery demand disclosed the names of the various witnesses, and in support theroef, the state cites Cuciak in which the Court ultimately held that Cuciak was not prejudiced by the alleged discovery violation. The State’s argument is unavailing. Although it is not clear from the opinion in Cuciak as to what facts or evidence the demand for discovery sought from the State, apparently the demand sought the names of witnesses. Significantly, the Supreme Court pointed out that the State never responded at all to the demand for discovery. As revealed in the Fourth District’s opinion, Cuciak v. State, 394 So.2d 500 (Fla. 4th DCA 1981), Cuciak’s attorney apparently took no action prior to commencement of the hearing to seek enforcement of his discovery rights but, instead, opted to wait until the hearing to object and did so as each witness was called. The Supreme Court also pointed to the fact that the defense had available to it the names of the four witnesses, all of whom appeared either on the probation violation affidavit or the accident report. The discovery violation in the case at bar, which involves: (1) the erroneous representation by the state in its response to defense counsel’s demand; and (2) no showing that the defense had any independent knowledge of the existence of the evidence sought, contrasts sharply with the alleged violation in Cuciak.

For the above reasons, we vacate and set aside the judgment and sentence as well as the revocation order. With respect to the appellant’s failure to file the two written monthly reports, a violation which we have found is supported by the evidence, we recognize that the trial court would have been justified in revoking the appellant’s probation on that ground alone. Page v. State, 363 So.2d 621 (Fla. 1st DCA 1978); Chappell v. State, 429 So.2d 84 (Fla. 5th DCA 1983); Aaron v. State, 400 So.2d 1033 (Fla. 3rd DCA 1981). However, we, of course, do not know whether the trial court would have revoked the appellant’s probation based solely upon the failure to file the two monthly reports, particularly in view of the relatively less culpable nature of that violation in comparison with the other two charges which involve criminal offenses. On remand, the trial court shall determine whether, in the court’s discretion, probation should be revoked. If so, the court shall enter a new order of revocation and a new judgment and sentence. Cf. Clemons v. State, supra, and Page v. State, supra.

Recognizing that the State, in the event that the trial court does .not see fit to. revoke Miller’s probation based upon the sole ground of failure to file monthly reports, may wish to proceed anew against him for violation of probation based upon the same two grounds which we have found were supported only by hearsay, we note that our reversal does not bar a second revocation proceeding based upon another affidavit alleging the same violations. Turner v. State, supra; Purvis v. State, supra; Clayton v. State, 422 So.2d 83 (Fla. 2nd DCA 1982); Couch v. State, supra; Tuff v. State, 338 So.2d 1335 (Fla. 2nd DCA 1976); Clemons v. State, supra.

For clarification, we further note that, should there be a second revocation hearing, our reversal on the discovery violation grounds is not to be construed to preclude introduction at the second hearing of the evidence which was the subject of such discovery violations.

AFFIRMED in part and REVERSED in part and REMANDED for proceedings consistent with this opinion.

SMITH and WIGGINTON, JJ„ concur.

      . Inasmuch as the Florida Supreme Court has now recognized entitlement of a probationer to “reasonable discovery pursuant to rule 3.220,” we would echo the Supreme Court’s observation in Cuciak that consideration should be given to the formulation of appropriate amendments to the rules of criminal procedure delineating distinctions between discovery rights in criminal trials and the discovery rights which will be afforded in probation proceedings. Probation hearings should not be turned into non-jury criminal trials.


author: MILLS, Judge.

text:
    David Martin BOGGESS, Appellant, v. STATE of Florida, Appellee.
    No. AR-146.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1984.
    Michael Allen, Public Defender, Steven L. Bolotin, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

We have reviewed the record in this case which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

WIGGINTON, J., and McCORD, Guyte P., Jr., (Ret.), Associate Judge, concur.


text:
    DAVE’S OYSTER BAR and Florida Farm Bureau Insurance, Appellants, v. Carol Louise DICKS, Appellee.
    No. AS-440.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1984.
    Rehearing Denied Feb. 10, 1984.

      E. Robert Williams and James H. McCarty, Jr., of Boyd, Jenerette, Staas, Joos, Williams & Felton, P.A., Jacksonville, for appellants.
    Michael C. Bergen, Lake City, for appel-lee.
   MILLS, Judge.

This is a workers’ compensation case in which the employer and carrier (E/C) appeal an order awarding wage-loss benefits to Dicks for September 1982 through January 1983. We affirm the award for the month of September but reverse as to the other months.

Dicks suffered a compensable injury to her back on 8 October 1979. Compensation and medical treatment were provided until maximum medical improvement was reached on 16 March 1981. After that date, wage-loss benefits were voluntarily provided by the E/C until September 1982, at which time further wage-loss benefits were controverted.

At the hearing on Dicks’ claim for further wage-loss benefits, the evidence showed that she made numerous attempts to secure employment during the month of September 1982. However, Dicks’ only effort to secure employment after September consisted of telephoning the Florida State Employment Service approximately three times per week. After hearing the evidence, the deputy commissioner awarded wage-loss benefits for September 1982 through January 1983.

There is competent substantial evidence in the record to support the award of wage-loss benefits for the month of September. However, Dicks’ job search was inadequate for the subsequent months. Paul Lawhon Plumbing Company v. Cave, 427 So.2d 1093 (Fla. 1st DCA 1983). Accordingly, the award of benefits for the months following September 1982 is reversed.

Affirmed in part, reversed in part.

WENTWORTH, J., and McCORD, GUYTE P., Jr. (Ret.), Associate Judge, concur.


text:
    Ronald E. DANIELS, a/k/a Ron Daniels, Appellant, v. STATE of Florida, Appellee.
    No. AS-455.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1984.

      Michael Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Daniels appeals from an order of the trial court revoking his probation. He contends there was no evidence that he violated the probation condition prohibiting him from possessing, carrying, or owning firearms without prior consent of his probation officer. We disagree.

The greater weight of the evidence showed Daniels possessed, carried, or owned firearms in violation of his probation. There was enough evidence presented at the hearing to satisfy the conscience of the court that probation was violated. Evans v. State, 427 So.2d 1082 (Fla. 1st DCA 1983).

AFFIRMED.

WENTWORTH, J., and McCORD, Guyte P., Jr., (Ret.), Associate Judge, concur.