author: McDONALD, Justice.

text:
    Steven DRURY, et al., Petitioners, v. The Honorable Major B. HARDING, Circuit Court Judge, Division B, Fourth Judicial Circuit, Duval County, Florida, Respondent.
    No. 64727.
    Supreme Court of Florida.
    Dec. 20, 1984.

      Louis 0. Frost, Jr., Public Defender, and John E. Mathews, III, and James T. Miller, Asst. Public Defenders, Fourth Judicial Circuit, Jacksonville, for petitioners.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for respondent.
   McDONALD, Justice.

In Drury v. Harding, 443 So.2d 360, 362 (Fla. 1st DCA 1983), the district court certified the following question:

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

We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. The courts below addressed the issues of whether the 1982 amendments to subsection 316.1932(l)(f)l, Florida Statutes (Supp. 1982), contained in chapter 82-155, Laws of Florida, required the Department of Health and Rehabilitative Services (HRS) to promulgate new rules governing the chemical tests used to determine blood alcohol content, and if so, whether the rules adopted by HRS in December 1982 could be applied retrospectively to arrests made pri- or to their adoption. Because we hold that the 1982 amendments to subsection 316.-1932(l)(f)l did not require that HRS immediately adopt new rules, we find it unnecessary to answer the district court’s question of whether the rules later adopted by HRS could be applied retrospectively.

Effective July 1, 1982 the legislature substantially revised the laws regarding driving under the influence of alcohol and implied consent to tests for impairment. Among numerous other revisions, subsection 322.261(2)(a), Florida Statutes (1981), was renumbered as subsection 316.-1932(l)(f)l and amended in the following manner:

The tests test determining the weight of alcohol in the defendant’s blood shall be administered at the direction of the arresting officer substantially in accordance with rules and regulations which shall have been adopted by the Department ofjHealtíi_and_Rehabilitatiye_Servie: es. Such rules and regulations shall be adopted after public hearing, and shall specify precisely the test or tests which are approved by said Department of Health and Rehabilitative Services for reliability of result and facility of administration and shall provide an approved method of administration which shall be followed in all such tests given under this section.

(Language added is underscored, and language deleted is struck through.) Formerly, the “department” referred to in this subsection had been defined as the Department of Highway Safety and Motor Vehicles (DHSMV). § 322.01, Fla.Stat. (1981). The responsibility for adopting rules governing the administration of chemical tests had been shared by DHSMV with HRS through the authority granted to HRS under subsection 322.262(3), Florida Statutes (1981). Thus, it is apparent that the 1982 amendments to section 316.1932 were intended to eliminate DHSMV’s authority to adopt rules governing the chemical tests and rest that responsibility solely on HRS.

Between July 1, 1982 and December 16, 1982 HRS promulgated no new rules. On December 16, 1982 HRS adopted an emergency rule, effective on that date, which contained the same rules and regulations which had been in effect prior to July 1, 1982. On March 8, 1983 HRS formally adopted the same rules after a public hearing.

The state charged these six petitioners with driving under the influence of alcohol (DUI) in violation of section 316.193 during the period between July 1, 1982 and December 16, 1982. At the time of their arrests they submitted to chemical tests for blood alcohol content. The state alleged that they registered over .10 percent by weight of alcohol in their blood, thus triggering the statutory presumption of impairment. They filed motions in limine to exclude the chemical test results from evidence on the ground that at the time of their tests no valid rules and regulations for the administration of the chemical tests were in effect as required by section 316.-1982. In March 1983 the Duval County Court granted the motions in limine on the grounds that the 1982 amendments of section 316.1982 required that HRS issue new rules, and, therefore, no rules were in effect at the time of the petitioners’ arrests.

Judge Harding of the Circuit Court of the Fourth Judicial Circuit consolidated the cases on an interlocutory appeal. Judge Harding reversed the county court and held that, while HRS was required to promulgate new rules, the rules subsequently adopted by HRS could be applied retrospectively to the tests administered to the petitioners because they are procedural rules governing the admissibility of test results at the time of trial. The First District Court of Appeal upheld Judge Harding’s decision after consideration of the pleadings submitted in response to that court’s order to show cause.

We approve the district court’s affirmance of the circuit court’s reversal of the county court, but we base our decision on basic principles of statutory interpretation rather than the retrospective application of HRS rules adopted subsequent to the petitioners’ arrests. Both the county and circuit court erroneously concluded that the 1982 amendments to subsection 316.-1932(l)(f)l required HRS to promulgate new rules.

At the time that chapter 82-155 took effect on July 1, 1982 the Florida Administrative Code contained existing HRS rules regarding blood alcohol testing. Fla.Admin.Code Rule 10D-42 et. seq. These rules contained detailed and comprehensive instructions for the operation and maintenance of chemical test instruments and were sufficient by themselves to provide for the production of reliable evidence of alcohol content while protecting the health and safety of the public. Although HRS’s rules had been supplemented by general rules of DHSMY, the rules of DHSMV deferentially stated that the “instruments must be operated in accordance with the procedures of the Department of Health and Rehabilitative Services.” Fla.Admin. Code Rule 15B-3.04(1). It is apparent that one of the reasons the legislature amended section 316.1932 was to consolidate rule-making authority in one agency and thereby eliminate a bureaucratic duplication of effort.

Petitioners contend that the effect of the legislature’s affirmation of HRS’s rulemak-ing authority was to require that HRS adopt new rules. In support of this contention petitioners focus on the language of subsection 316.1932(l)(f)l which states that “such rules shall have been adopted” by HRS. Petitioners urge that the use of the term “shall” should be interpreted to have required that HRS adopt new rules at a date future to the date of the enactment of the act by the legislature. Petitioners argue this interpretation is necessitated by the rule that a criminal statute must be strictly construed. Earnest v. State, 351 So.2d 957 (Fla.1977).

While it is true that a criminal statute must be strictly construed, all principles of statutory construction and common sense defeat the interpretation of the statute urged by the petitioners. The word “shall” is normally used in a statute to connote a mandatory requirement rather than a future tense. In the Interest of S.R. v. State, 346 So.2d 1018 (Fla.1977); Holloway v. State, 342 So.2d 966 (Fla.1977); City of Orlando v. County of Orange, 276 So.2d 41 (Fla.1973); Neal v. Bryant, 149 So.2d 529 (Fla.1962); Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978); Florida Tallow Corp. v. Bryan, 237 So.2d 308 (Fla. 4th DCA 1970); United Bonding Insurance Co. v. Tuggle, 216 So.2d 80 (Fla. 2d DCA 1968). Despite that the overwhelming majority of decisions hold to the contrary, petitioners contend that “shall” connotes a future tense thereby requiring that new rules be promulgated by HRS. If the petitioners’ interpretation is adopted, this Court would be obligated to find that the legislature intended to create a hiatus during which no HRS rules would be in effect. This is so because HRS’s authority to hold a public hearing to adopt new rules would have been effective July 1, 1982 and its obligation to adopt new rules would have been imposed on that same day. Obviously, HRS could not be expected to complete a full public hearing and draft and adopt a set of regulations in one day. It is an axiom of statutory construction that an interpretation of a statute which leads to an unreasonable or ridiculous conclusion or a result obviously not designed by the legislature will not be adopted. City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla.1950); Allied Fidelity Insurance Co. v. State, 415 So.2d 109 (Fla. 3d DCA 1982); Palm Springs General Hospital, Inc. v. State Farm Mutual Automobile Insurance Co., 218 So.2d 793 (Fla. 3d DCA 1969). Rather than attribute to the statute a result obviously not intended by the legislature, we find that “shall” should be given its normal mandatory connotation.

We find that the effect of the phrase “shall have been adopted” was to require that HRS' maintain a set of rules governing the administration of chemical tests to determine blood alcohol content. Such a set of rules existed on the effective date of the act and continued in effect during the period of petitioners’ arrests. The agency’s subsequent re-adoption of these rules on March 8, 1983 did not destroy or interrupt their operation. It is a well-settled rule under Florida law that when a statute is repealed and then substantially re-enacted by the legislature its operation is deemed to be continuous and uninterrupted. McKibben v. Mallory, 293 So.2d 48 (Fla.1974). Likewise, when an agency substantially re-adopts the provisions of its prior regulations the application of those provisions to actions which arose before their re-adoption is not destroyed or interrupted.

We therefore quash that portion of the district court opinion relating to the retrospective application of HRS rules adopted pursuant to subsection 316.1932(l)(f)l, Florida Statutes (Supp.1982), but we approve that portion of the district court opinion which affirmed the circuit court’s reversal of the county court’s order and the remand for further proceedings. The test results may be introduced at trial subject to the proper predicate for admissibility showing compliance with the rules.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, EHRLICH and SHAW, JJ., concur.

       That subsection stated:
      Chemical analyses of the person’s blood or breath, in order to be considered valid under the provisions of this section, must have been performed according to methods approved by the Department of Health and Rehabilitative Services and by an individual possessing a valid permit issued by the department for this purpose. The Department of Health and Rehabilitative Services is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the Department of Health and Rehabilitative Services.


source: Caselaw Access Project

author: ADKINS, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Carolyn WALKER, Appellee.
    No. 64916.
    Supreme Court of Florida.
    Dec. 20, 1984.
    Jim Smith, Atty. Gen. and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender and Robert J. Lancaster, Asst. Public Defender, Sixth Judicial Circuit, Clearwater, for ap-pellee.
   ADKINS, Judge.

Affirmed.

We adopt the opinion of Judge Grimes in State v. Walker, 444 So.2d 1137 (Fla. 2d DCA 1984).

BOYD, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.

ALDERMAN, J., dissents.


author: ALDERMAN, Justice.

text:
    Mack RUFFIN, Jr., Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation, and Richard Dugger, Superintendent, Florida State Prison at Starke, Florida, Respondents.
    No. 65117.
    Supreme Court of Florida.
    Dec. 20, 1984.
    Asa D. Sokolow, Edward S. Kornreich, Richard L. Claman, Regina Harrison, Susan L. Arinaga and Naomi G. Litvin, New York City, and Joyce Davis, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondents.
   ALDERMAN, Justice.

Mack Ruffin has filed a petition for writ of habeas corpus alleging that he was denied effective assistance of appellate counsel. We deny this petition.

Ruffin was convicted and sentenced to death for the first-degree murder of Karol Hurst who was twenty-one years old and seven months pregnant at the time she was murdered. Ruffin and his accomplice abducted her from a Pantry Pride parking lot, drove her to a secluded wooded area, sexually abused her, pistol whipped her on her neck, head, shoulder, and body, robbed her, and then shot her in the back of the head while she was lying face down on the ground.

On appeal of his convictions for first-degree murder and sexual battery and of his sentence of death, we affirmed his convictions and death sentence. We found to be without merit his arguments that the trial court erred in refusing to grant a mistrial because of prosecutorial comments made during closing argument and because the court failed to poll the jury relative to whether they had seen a particular newspaper headline; that the trial court erred in allowing evidence of other crimes; that the trial court erred in finding as an aggravating factor that the murder occurred during the course of a kidnapping and robbery because he was not on notice that these offenses would be considered and because he was not tried for these offenses; that the trial court erroneously considered his conviction for murder of Deputy Coburn as an aggravating factor; that the trial court erred in failing to consider and weigh the mitigating circumstance of no prior significant criminal activity; that the trial court erred in not considering and weighing as a mitigating factor that Ruffin’s participation was minor and that he acted under Hall’s domination; that the trial court erred in not finding Ruffin’s dull normal intelligence to be a mitigating factor; that his sentence amounts to cruel and unusual punishment; and that the trial court erroneously limited the jury to consideration of statutorily enumerated mitigating circumstances. Ruffin v. State, 397 So.2d 277 (Fla.1981). The Supreme Court of the United States denied certiorari. Ruffin v. Florida, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981).

In June 1982, he filed a motion under Florida Rule of Criminal Procedure 3.850 to vacate his judgment and death sentence. He alleged that the trial court erred in considering his first-degree murder conviction of Deputy Coburn as an aggravating factor; that Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), precluded a death sentence in his case; that he was denied a fair trial by prosecuto-rial comments made during closing argument; that the mitigating and aggravating circumstances were not fairly and properly presented to the jury; that introduction of evidence of Deputy Coburn’s murder prejudiced Ruffin; that he was denied his sixth and fourteenth amendment rights by the jury’s alleged consideration of a newspaper headline; that he was denied due process by being indicted by a grand jury and convicted by a petit jury which had an under-representation of blacks and women; that his allegedly involuntary confession was erroneously allowed- into evidence; that Florida’s death penalty process is unconstitutional; that he was denied due process because the jury in the guilt phase was the same jury rendering the advisory recommendation as to sentence; and that he received ineffective assistance of trial counsel.

In September 1982, before the trial court had ruled, the Governor of Florida signed a warrant for Ruffin’s execution. Then, after hearing, the trial court denied Ruffin’s motions and explicitly detailed its reasons for denial. We affirmed the denial of his motions, and we denied Ruffin’s motion for stay of execution. Ruffin v. State, 420 So.2d 591 (Fla.1982).

He then filed a petition for writ of habe-as corpus with the federal district court. Because he raised a claim of ineffective assistance of appellate counsel, the federal court abated the proceedings until we could rule on his petition for writ of habeas corpus raising the issue of ineffective assistance of appellate counsel.

Ruffin now contends that he was denied effective assistance of counsel in his direct appeal to this Court because his appellate counsel failed to raise several issues which he alleges are substantial. He contends that each omission fell measurably below the standard of competent counsel.

He states that his appellate counsel failed to argue that the prosecutor, in his closing argument, misstated the law as to aiding and abetting, commented on Ruf-fin’s appearance and lifestyle, vouched for his case, gave unsworn testimony, and precluded a fair determination of Ruffin’s guilt, and that his appellate counsel failed to develop the serious problems relative to the aggravating and mitigating factors. As to this latter contention, he argues that the charge to the jury with regard to the weighing of aggravating and mitigating factors was defective. He further contends that despite his trial counsel’s failure to present evidence of certain mitigating factors, his appellate counsel should have argued the existence of these other factors on appeal; that his appellate counsel failed to argue that the trial court, in finding the murder heinous, atrocious, or cruel, imposed upon Ruffin the responsibility of Hall’s actions; and that his appellate counsel should have argued that the definitions of various aggravating and mitigating factors were vague and indefinite. He contends that his appellate counsel was ineffective for failing to argue that the juries that indicted and convicted him were not selected from a fair cross section of the community, for failing to challenge the prosecutor's use of peremptory challenges, for failing to argue that the death penalty process was unconstitutional in Florida, and for failing to challenge the introduction of his confession to the crime of rape.

The majority of the omissions alleged by Ruffin relate to matters which appellate counsel was procedurally precluded from raising on appeal. Appellate counsel cannot be considered incompetent or ineffective for failing to raise issues which he was procedurally barred from raising because they were not properly presented at trial. Jacobs v. Wainwright, 450 So.2d 200 (Fla.1984); Jackson v. State, Jackson v. Wainwright, 452 So.2d 533 (Fla.1984). Moreover, none of the alleged omissions constitute fundamental error which could be raised on direct appeal without their having been raised in the trial court. Others relate to points which appellate counsel did raise on appeal and which were considered by this Court.

That appellate counsel could have but did not challenge the voluntariness of Ruffin’s confession does not constitute a deficiency falling below prevailing professional norms. Smith v. State; Smith v. Wainwright, 457 So.2d 1380 (Fla.1984). We have consistently held that competent counsel need not raise every conceivable claim. If there is no chance of convincingly arguing a particular issue, then appellate counsel’s failure to raise that issue is not a substantive and serious deficiency. Engle v. Issac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Jacobs v. Wainwright; McCrae v. Wainwright, 439 So.2d 868 (Fla.1983); Francois v. State, 423 So.2d 357 (Fla.1982). In Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 3313-14, 77 L.Ed.2d 987 (1983), the Supreme Court of the United States recently said:

There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts — often to as little as 15 minutes— and when page limits on briefs are widely imposed. See, e.g., Fed.Rules App. Proc. 28(g); McKinney’s 1982 New York Rules of Court §§ 670.17(g)(2), 670.22. Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments — those that, in the words of the great advocate John W. Davis, “go for the jugular,” Davis, The Argument of an Appeal, 26 A.B.A.J. 895, 897 (1940)—in a verbal mound made up of strong and weak contentions. See generally, e.g., Godbold, Twenty Pages and Twenty Minutes — Effective Advocacy on Appeal, 30 S.W.L.J. 801 (1976).
... For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every “colorable” claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders. Nothing in the Constitution or our interpretation of that document requires such a standard. (Footnotes omitted.)

Here, in light of the record, Ruffin’s appellate counsel could not have effectively and convincingly argued the issue of voluntariness of his confession.

Further, appellate counsel’s failure to raise certain arguments relating to the constitutionality of Florida’s death penalty statute does not constitute a deficiency below that of competent counsel where we have previously repeatedly rejected these claims. Moreover, we note that in his appeal of his rule 3.850 motion, Ruffin raised similar challenges to the constitutionality of Florida’s death penalty statute, which challenges we rejected. Ruffin v. State, 420 So.2d 591 (Fla.1982). Ruffin has failed to demonstrate that his appellate counsel’s performance fell short of prevailing professional norms or was substantially deficient under the circumstances. Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Knight v. State, 394 So.2d 997 (Fla.1981).

Accordingly, we hold that petitioner is not entitled to relief and deny his petition for writ of habeas corpus.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: JOANOS, Judge. JOANOS, Judge.

text:
    UNION BOILER/FP&L MARTIN WRAP-UP and Claims Management Services, Inc., Appellants, v. Aubrey WALKER, Appellee. Stephen WEINSTEIN, Appellant, v. METRIX WAREHOUSE, INC. and Kemper Group, Appellees.
    Nos. AV-150, AV-336.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    Rehearing Denied Dec. 18, 1984.
    Walter E. Beisler of Beisler & Beisler, West Palm Beach, for Union Boiler/FP&L Martin Wrap-Up, appellants.

      Israel Abrams of Abrams, Suskin & Ber-glund, North Miami Beach, for Stephen Weinstein, appellant.
    David A. Danielson of Brennan, McAli-ley, Hayskar, McAliley & Jefferson, P.A., West Palm Beach, for Metrix Warehouse and Kemper Ins., appellees.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal, Susskind, Bloom & DeCastro, P.A., Miami, for Aubrey Walker, appellee.
   JOANOS, Judge.

In these consolidated workers' compensation appeals the determinative issue is whether Section 440.20(13)(d), Florida Statutes (1983) [effective July 1, 1983], is a procedural enactment which would be applicable irrespective of the date of injury. We find that it is not. Our conclusion is required by Sullivan v. Mayo, 121 So.2d 424 (Fla.1960).

The 1983 Legislature amended Section 440.20(13)(d) to limit advance payments opposed by the employer and carrier to $7,500.00 or 26 weeks of benefits in any 48-month period, whichever is greater, from the date of the last advance payment. Prior to the 1983 amendment there was no such limitation. Additionally, in 1983, the discount rate for determining the present value of future benefits was raised to 8-percent from the previous rate of 4-per-cent. Section 440.20(12)(c), Florida Statutes (1983).

A legislative enactment which affects substantive rights may not be applied retroactively to alter those rights. Sullivan, supra. The law in effect at the time of the injury controls. Kissimmee Construction Co. v. Riley, 450 So.2d 313 (Fla. 1st DCA 1984).

In Sullivan the substantive right of the employer and carrier to make lump-sum payments in exchange for a complete release from liability for future compensation payments could not be altered retrospectively by a statutory amendment allowing lump-sum payments of an estimated part of the future compensation benefits, leaving the employer and carrier with residual liability. Likewise, a claimant’s substantive right to seek lump-sum payment to release the employer and carrier from liability cannot be abridged by retrospective application of an enactment limiting the amount of lump-sum advance payments. The 1983 amendment to Section 440.20(13)(d) effectively precludes “wash-out” lump-sum advance payments in excess of the statutory limits since only when the parties stipulate to such an advance, subject to division and deputy commissioner approval, would an advance above the statutory limitation be allowed. The concurrent change in the discount rate affects the amount of money recovered on a lump-sum payment. Both statutory changes work to substantially reduce a claimant’s award and cannot be retroactively applied. Cone Brothers Contracting and Whiting National Services v. Gordon, 453 So.2d 420, (Fla. 1st DCA 1984) [9 FLW 1350].

In the first of these consolidated appeals, Walker was awarded a lump-sum advance of $182,088.36 based upon the present value of his future benefits and his life expectancy. As determined above, the deputy commissioner properly considered the law in effect on the date of Walker’s accident, September 9, 1981. We find that there is competent substantial evidence to support the award.

The employer and carrier argue that Walker is using the 4-percent discount rate to beat the actuarial tables to get a better return, while the low discount rate and the high rate of return which could be received on the funds show prejudice to the employer and carrier. The fact that the statutory discount rate is less than investment market interest rates is not a sufficient basis upon which to deny a lump sum advance payment. Sanford v. Alachua County School Board, 425 So.2d 112 (Fla. 1st DCA 1982).

In the second appeal, Weinstein was denied a requested lump sum advance of all future wage-loss benefits to enable him to be rehabilitated by learning to be a “foreign parts mechanic.” The deputy commissioner found the 1983 amendment to be a procedural enactment, allowing retrospective application to Weinstein’s accident which occurred on August 20, 1980 and denying payment in excess of the statutory limits. Our determination that the 1983 amendment to Section 440.20(13)(d) affects substantive rights and, therefore, cannot be retrospectively applied to accidents occurring prior to its effective date, requires that the deputy commissioner’s order be reversed and that the cause be remanded for consideration under the law in effect at the time of Weinstein’s accident.

Accordingly, the deputy commissioner’s order awarding lump-sum payment to Walker (our case no. AY-150) is affirmed. The deputy commissioner’s order denying lump-sum payment to Weinstein (our case no. AV-336) is reversed and remanded for determination consistent with this opinion.

SMITH and ZEHMER, JJ., concur.

ON MOTION FOR REHEARING OR FOR CLARIFICATION

JOANOS, Judge.

We note the apparent confusion created by the disposition of consolidated cases involving dissimilar factual situations with the application of similar legal considerations by the deputy commissioner in each case. For this reason, in response to Ap-pellees’ motion for clarification, we clarify our previously issued opinion in these causes.

Our reliance upon the newly imposed statutory cap on lump-sum advance payments and the concurrent change in discount rate applicable to lump-sum payments for all future benefits should not be interpreted to require both statutory changes before substantive rights are affected. Each, within itself, substantially affects a claimant’s award.

Our purpose in these consolidated appeals was to address the retroactive application of section 440.20(13)(d), Florida Statutes (1983). We have found that the statutory cap may not be retroactively applied to accidents occurring before its effective date.

We find no conflict with our decision in Travelers Insurance Company v. Taylor, 444 So.2d 39 (Fla. 1st DCA 1983), as we have made no determination that the discount rate would be applied to partial advance payments.

Accordingly, we adhere to our previously issued opinion as clarified, and deny appel-lees’ motion for rehearing.

SMITH and ZEHMER, JJ., concur.


author: JOANOS, Judge.

text:
    David MASSILLON, Appellant, v. DEPARTMENT OF TRANSPORTATION, and Crawford and Company, Division of Risk Management, Appellees.
    No. AW-42.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    Jay M. Levy of Hershoff & Levy, Miami, for appellant.
    Jerry V. Wilkey, Coral Gables, for appel-lees.
   JOANOS, Judge.

Claimant appeals from a workers’ compensation order in which the deputy commissioner denied claimant’s request for lump-sum advance payments to enable him to purchase investment property. The deputy commissioner found that Section 440.-20(13)(d), Florida Statutes (1983), imposing a limitation on advances in excess of $2,000.00, would not allow the requested advance of $45,000.00. In light of our opinions in Union Boiler/FP&L Martin Wrap-Up and Claims Management Services, Inc. v. Walker, 461 So.2d 117 (Fla. 1st DCA 1984) and Cone Brothers Contracting and Whiting National Services v. Gordon, 453 So.2d 420, (Fla. 1st DCA 1984) the Deputy Commissioner’s Order is reversed and remanded for determination under the law in effect at the time of claimant’s accident.

REVERSED and REMANDED for consideration in accordance with this opinion.

SMITH and ZEHMER, JJ., concur.


author: BASKIN, Judge.

text:
    Irving WALTMAN and Albert Cohen, Petitioners, v. PRIME MOTOR INNS, INC., Respondent.
    No. 84-1519.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Rehearing Denied Jan. 22, 1985.
    Lapidus & Stettin and Richard Lapidus, Miami, for petitioners.
    Spencer, Dunn, Bernstein, Seemann & Klein and Richard Dunn, Miami, Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, Miami, for respondent.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   BASKIN, Judge.

By petition for writ of certiorari Walt-man and Cohen seek review of the .trial court’s order granting a new trial. We have jurisdiction. See Jones v. Knuck, 388 So.2d 328 (Fla. 3d DCA 1980); Robinson v. Gale, 380 So.2d 513 (Fla. 3d DCA 1980).

We grant the petition for writ of certio-rari and quash the order under review upon a holding that the trial court’s order granting a new trial constitutes an unauthorized deviation from this court’s mandate issued in a prior appeal in this cause, Waltman v. Prime Motor Inns, Inc., 446 So.2d 185 (Fla. 3d DCA 1984) (Waltman I). In Walt-man I, this court directed the trial court to reinstate jury verdicts in favor of petitioners Waltman and Cohen. Upon remand, Prime Motor Inns, Inc. (Prime) obtained a ruling on an alternative motion for new trial which had been rendered moot by the trial court’s grant of a directed verdict. Prime neither requested nor received permission from this court to revisit previously filed motions. The trial court lacked authority to deviate from our mandate by granting the motion for new trial. It was limited by our direction to the task of reinstating the verdicts. See Robinson; Stirling v. Sapp, 238 So.2d 697 (Fla. 2d DCA 1970). Cf. Navarro v. City of Miami, 402 So.2d 438 (Fla. 3d DCA 1981) (trial court may rule upon earlier motion for new trial where appellate court specifically directs trial court to do so upon remand).

The order under review is quashed and the cause remanded to the trial court with directions to reinstate the jury verdicts in accordance with our prior mandate.


author: SMITH, Judge.

text:
    W.W. TRUCKING COMPANY and RTC Transportation, Inc., Appellants/Cross-Appellees, v. Thomas W. BOYD, W. W. Trucking Company and Carriers Insurance Company, Appellees/Cross-Appellants.
    No. AX-183.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1984.
    Susan W. Fox and Richard A. Valeri of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellants/cross-appellees.
    H. Guy Smith, Lakeland, for appel-lee/cross-appellant, Thomas W. Boyd. .
    John S. Smith of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for appellees, W.W. Trucking Co. and Carriers Ins. Co.
   SMITH, Judge.

Appellants W.W. Trucking Company and RTC Transportation, Inc. (RTC) raise two issues in this appeal: First, whether the deputy commissioner erred in finding that appellee/cross-appellant Boyd (Boyd) suff-fered a potentially compensable accident in February or March 1982, and second, whether the deputy commissioner erred in ordering RTC to reimburse appellee Carriers Insurance Company (Carriers) for benefits paid by Carriers to Boyd for a subsequent industrial accident. On cross-appeal, Boyd contends that the deputy commissioner erred in failing to excuse him from the formal notice requirement of Section 440.-185, Florida Statutes (1981), regarding Boyd’s first accident. We affirm as to the appellant’s first issue and as to the cross-appeal, but reverse as to the appellant’s second issue.

Boyd filed two claims for benefits in this cause. The first was filed October 28, 1982, and was based on an accident to his left knee which occurred July 16, 1982. Carriers was the carrier on risk at the time of this accident. This claim was acknowledged by both W.W. Trucking and Carriers, and hence is not contested in this appeal. Boyd filed a second claim March 8, 1983, based upon an alleged injury to his right knee which happened sometime in February or March 1982. RTC was the carrier on risk during the time of this purported accident.

Boyd first noticed pain in his right knee sometime in February or March 1982. His job duties at this time involved fueling trucks, hooking and unhooking trailers, transferring freight, and “spotting” trailers, requiring him to climb in and out of truck cabs and trailers continuously. Climbing in and out of truck cabs required a peculiar bending and twisting motion. Boyd sought medical attention for his right knee from Dr. Arain, who examined Boyd on March 11, 1982. Boyd subsequently underwent surgery on his right knee, returning to work for W.W. Trucking sometime later and performing more or less the same duties he had performed prior to the surgery. Boyd did not inform W.W. Trucking that the injury to his knee was work-related, although he did make a claim for group insurance coverage benefits from W.W. Trucking and apparently did inform his treating physician, Dr. Arain, that his knee problems were work-related. Boyd did, however, inform W.W. Trucking that the July 16, 1982, accident to his left knee was work-related.

At the conclusion of the testimony at the hearing below, the deputy commissioner ruled that there was a lack of statutory notice by Boyd to the employer/carrier for the February-March 1982 accident, even though the accident was otherwise compen-sable. However, the deputy commissioner further found a medical merger between the two accidents, and determined that it would be inequitable to require Carriers to make payments for treatment of Boyd's injured right knee. Hence, the deputy commissioner apportioned the medical expenses incurred, both past and in the future, between RTC and Carriers. This appeal followed.

After examining the record on appeal and the briefs filed in this cause, we affirm the deputy commissioner’s finding that Boyd’s March 1982 accident arose out of the course of his employment. See Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980), rev. den. mem., 388 So.2d 1119 (Fla.1980). We also affirm that portion of the order finding that the above-mentioned accident is not compensable because of a lack of formal notice by Boyd to the employer/carrier at risk at the time. Overholser Construction v. Porter, 173 So.2d 697 (Fla.1964); Cf. City of Tampa v. Tingler, 397 So.2d 315 (Fla. 1st DCA 1981). However, we hold that the deputy commissioner erred in finding Carriers entitled to reimbursement from RTC for medical expenses incurred in treatment of Boyd’s right knee subsequent to the July 16, 1982 compensable accident. We have been furnished no authority, nor has our independent research uncovered any, justifying reimbursement in these circumstances. Cf., Hayward Trucking, Inc. v. Aetna Insurance Company, 445 So.2d 385 (Fla. 1st DCA 1984), where the claimant’s first injury was compensable, and hence reimbursable between carriers. See also Miami-Dade Water and Sewer Authority, et al. v. Leech, 447 So.2d 979 (Fla. 1st DCA 1984) (same). Section 440.32(3), Florida Statutes (1981), by its terms requires that the first accident of two or more accidents creating a potential for reimbursement must be compensable in order to trigger liability between carriers. U.S. Electric Company v. Sisk Electric Service, Inc., 417 So.2d 738 (Fla. 1st DCA 1982).

Accordingly, this cause is remanded to the deputy to strike from the order here examined the requirement that RTC reimburse Carriers for medical expenses incurred in treating Boyd’s right knee. In all other respects, the order appealed from is AFFIRMED.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

BOOTH and THOMPSON, JJ„ concur.


author: FERGUSON, Judge. TILLMAN PEARSON, Associate Judge,

text:
    IVARAN LINES, INC. and Farovi Shipping Corporation, Appellants, v. Mauricio WAICMAN and Allstate Insurance Company, Appellees.
    Nos. 84-108, 84-269.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Rehearing Denied Jan. 22, 1985.
    Richard F. Ralph and Roderick F. Coleman, Miami, for appellants.
    Urich & Shenkman and Robert Urich, North Miami, Bierman, Sonnett, Beiley, Shohat & Sale, Miami, for appellees.
    Before HUBBART and FERGUSON, JJ., and TILLMAN PEARSON, (Ret.), Associate Judge.
   FERGUSON, Judge.

This appeal is taken from a final summary judgment. The question presented is: whether plaintiff is entitled to a summary judgment on a theory of negligence per se in a civil action where defendant is found to have violated a penal statute which is the proximate cause of property loss, but the evidence shows that compliance with the statute was impossible.

The facts are as follows. Mauricio Waic-man was the owner of a Rolls Royce automobile which was stolen in June, 1979. In July, 1979, the automobile was shipped out of the United States from Miami, Florida, without Waicman’s knowledge or consent, aboard a vessel belonging to Ivaran Lines, Inc. Arrangements for the shipment were made by Farovi Shipping Corporation, a shipping agent for Ivaran Lines, Inc.

Waicman and his insurer, Allstate Insurance Company, brought suit against the shipping company and its shipping agent. The complaint was based on the single theory that defendants violated Section 319.36, Florida Statutes (1979) by shipping the automobile without a certificate of right of possession as required by statute. The statute in question, as it existed in July, 1979, provided:

319.36 Definitions; shipment of motor vehicles; proof of right of possession; penalties.—
⅜ * * sfc sje sjs
(2) No master or captain of any vessel, captain of any aircraft, or person who owns any vessel or aircraft in whole or in part shall take on board, or allow to be taken on board, said vessel or aircraft at any port in this state any motor vehicle to be transported to any destination outside of the continental United States without:
(a) Having received a right of possession certificate issued by the department in the name of the person offering such motor vehicle for transportation; and
(b) Having examined said motor vehicle and having verified that the description and serial number are identical with the description and serial number shown in said certificate of right of possession.
(3) No person shall transport, or cause to be transported, from any port or airport facility in this state, any motor vehicle, by watercraft or aircraft, outside of the continental United States without first having obtained a certificate of right of possession of such vehicle issued by the department.
(4)Any owner of a motor vehicle may file an application for a certificate of right of possession with the department, upon a form prescribed by the department, which shall be sworn to before a notary public or other officers empowered to administer oaths. Such application shall be accompanied by a fee of $2, together with evidence of the applicant’s right of possession of such vehicle satisfactory to the department, which may consist of:
(a) A certificate of title issued in the name of the applicant by this state or a foreign state wherein such vehicle is currently registered; or
(b) A registration certificate issued in the name of the applicant by a foreign state wherein such vehicle is currently registered, which state does not require issuance of a certificate of title.
Upon receipt of such application, the fee prescribed by this section, and said evidence of right of possession, the department shall issue to such applicant a certificate of right of possession. Such certificate shall not be negotiable or transferable.
(7) The department shall adopt and promulgate such rules and regulations as are deemed necessary to administer the provisions of this section. The department shall provide and furnish all forms required by this section.

Defendants denied a violation of the statute contending that the State of Florida, including the Department of Highway Safety and Motor Vehicles, did not implement or put into effect Section 319.36, Florida Statutes (1979), in that no certificates of right of possession or forms of application therefor were available until a date subsequent to shipment of the subject automobile. They urge here, as the proper rule, that a statute is not operative and enforceable until completion of the administrative tasks authorized and mandated by the statute.

It appeared without controversy that defendants did not comply with the statute. They admittedly were aware of the statute but because they knew that certificates were not being issued, they were not able to comply. It is also uncontroverted that the Department of Highway Safety and Motor Vehicles did not adopt and promulgate rules and regulations necessary to administer the provisions of Section 319.36, Florida Statutes (1979) until November, 1979, and did not provide and furnish all forms required by that statute until December, 1979. The shipment here was made in July, 1979.

Section 319.36 became effective in 1970 and was subsequently amended several times with minor changes. However, the statute, specifically subsections (2), (3), and (4) — which require the owner of a motor vehicle to apply for a certificate of right of possession from the Department of Highway Safety and Motor Vehicles and present the certificate to the carrier, who is prohibited from shipping the vehicle without first obtaining that certificate from the owner— was not operative against carriers and owners until the promulgation in November, 1979 of Chapter 15C-3, Florida Administrative Code (1982), the rules and regulations adopted pursuant to Section 319.36(7), Florida Statutes (1979).

Plaintiffs, appellees, urged that the statute creates a duty to fulfill certain requirements in order to protect a specified class of individuals from a particular type of injury and that a violation of the statute constitutes negligence per se, citing: Sloan v. Coit International, Inc., 292 So.2d 15 (Fla.1974); DeJesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla.1973); Tamiami Gun Shop v. Klein, 116 So.2d 421 (Fla.1959); Stephen v. L.P. Evans Motors of West Palm Beach, Inc., 417 So.2d 778 (Fla. 3d DCA 1982); Concord Florida, Inc. v. Lewin, 341 So.2d 242, 246 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 946 (Fla.1977).

The trial judge agreed, ruling that the administrative failure of the Department of Highway Safety and Motor Vehicles to carry out its implementing duties did not relieve defendants from the duty imposed upon them by statute. On that basis a summary judgment as to liability was entered against each defendant. This appeal followed. For reasons set forth below; we reverse.

Generally, the violation of a duty prescribed by statute is negligence per se but exceptions to this rule have been recognized where compliance with the provisions of the statute is impossible or where noncompliance is excusable. Under such circumstances the violation becomes, in effect, nothing more than prima facie evidence of negligence, subject to being overcome by proof to the contrary with the jury being so instructed. Jenkins v. City of Fort Wayne, 139 Ind.App. 1, 210 N.E.2d 390 (1965); see generally Swoboda v. United States, 662 F.2d 326 (5th Cir.1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982) (a finding of negligence does not terminate the inquiry; a court must then determine whether the violation of the regulation was. somehow excusable); Lister v. Campbell, 371 So.2d 133, 135 (Fla. 1st DCA), cert. denied, 378 So.2d 346 (Fla.1979) (the violation of a statute which imposes upon a person the affirmative duty to take certain action, and provides penalties for the failure to do so, even if negligence per se, may be overcome by proof of other circumstances).

The law does not require the performance of impossibilities as a condition to assertion of acknowledged rights, and if a statute requires performance of something which cannot be performed, the court may hold it inoperative. Gigliotti v. New York, Chicago & St. Louis R. Co., 107 Ohio App. 174, 157 N.E.2d 447, 452 (1958). The Restatement (Second) of Torts § 288A(2) is consistent with the cases previously cited. Section 288A(2) provides that violation of a statute or regulation is excused when:

* * ¡⅜ * * *
(b) [the actor] neither knows nor should know of the occasion for compliance;
(c) he is unable after reasonable diligence or care to comply;

We hold in accordance with the prevailing law that violation of a statute or regulation, whether deemed prima facie evidence of negligence or negligence per se, is excused where it appears without dispute that compliance with the statute is impossible even in the exercise of reasonable diligence.

Because the complaint was based only on a violation of the statute and there is no claim or showing, aside from the statutory claim, that the defendants failed to exercise ordinary care, there is no need to remand for further proceedings.

Reversed and remanded with instructions to enter judgment for appellants.

TILLMAN PEARSON, Associate Judge,

dissenting.

I respectfully dissent. The ordinary rule is clear. Statutory law becomes effective and a part of the law of the state upon its passage by the legislature and its approval by the governor, unless a later date is specified in the legislative act. Art. Ill, sec. 9, Fla. Const. There is a corollary: the failure to enforce the law does not unmake the law. State v. Egan, 287 So.2d 1, 7 (Fla.1973) (“a statute is not repealed by nonuse.”) Any other rule would allow executive officers to decide what shall be the law. It is evident that the failure to enforce can frustrate the purpose of a law. In the present instance, this unfortunate result seems to have occurred. The statute was enacted and became law in 1970. There can be no adequate explanation of the failure of officers of the state to do their duty until November of 1979. Only an investigative body can adequately fix the responsibility for this nonfeasance.

Impliedly, appellants’ answers in the trial court and here seek to plead an impossibility of the performance of their statutory duty. We need not determine the adequacy of a defense of impossibility of performance to a statutory duty because it is not supported by the admitted facts brought forward upon the motion for summary judgment. Defendants knew of the requirements of the statute and made no effort to secure from their shipper a certificate of right of possession. No inquiry was made; no official was petitioned. Appellants’ argument that the shipping industry did not obtain certificates of right of possession during the period in which the vehicle in question was shipped is not persuasive. It is well settled that following industry custom cannot defeat a claim of negligence founded upon failure to obey a state statute. See Cooke v. Commercial Bank of Miami, 119 So.2d 732 (Fla. 3d DCA 1960). Appellees’ position is strengthened by the practical effect of an industry’s failure to make any effort to comply, coupled with an administrative office in no haste to proceed with the legislative directive.

Further, it appears from the facts presented to the trial judge without issue that defendants took no steps to require any form of proof of ownership or the right to export from the person who exported plaintiff’s car. These facts support the trial judge’s determination that there was not an issue upon either the failure of defendants to comply with the statute or the impossibility of compliance or of a good faith attempt to comply.

The single issue presented in appellants’ initial brief is: [That] “Section 319.36 was not implemented and effective as to [these] defendants _” I find no reversible error under this point and would affirm the judgments.

      . Section 319.36 was enacted as Chapter 70-289, Laws of Florida, and was formerly codified as Section 814.07. It was changed in particulars but remained substantially the same until the date of the instant shipment.

      . See supra note 1.

      . One may be permitted to suspect that some action would have been taken by officials if the overseas shipment of automobiles had been stopped until certificates could be routinely procured.


author: COBB, Chief Judge. COBB, Chief Judge.

text:
    Jeffery Jerome MILTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1769.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 1984.
    On Rehearing Jan. 3, 1985.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, for appellee.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Chief Judge.

In this case, the trial judge revoked the defendant’s probation which had commenced in July of 1982, and imposed sentence in November, 1983, without utilizing the sentence guidelines, which the trial judge found to be inapplicable on the basis that the sentence related back to the time probation was imposed. This approach is reflected in the dissenting opinion of Judge Campbell in Boyett v. State, 452 So.2d 958 (Fla. 2d DCA 1984). This court, however, previously has adopted the Boyett majority view. See Mack v. State, 458 So.2d 347 (Fla. 5th DCA 1984); Rutlin v. State, 455 So.2d 1347 (Fla. 5th DCA 1984); O’Brien v. State, 454 So.2d 675 (Fla. 5th DCA 1984); Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984). The First District Court of Appeal also agrees with Boyett. See Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984).

On authority of the foregoing cases, we vacate the sentence imposed and remand for sentencing in accordance with the sentencing guidelines. See In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

SENTENCE VACATED; REMANDED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

ON MOTION FOR REHEARING

COBB, Chief Judge.

Pursuant to motion for rehearing by the state, we certify to the supreme court as a question of great public importance the same question certified in Boyett v. State, 452 So.2d 958 (Fla. 2d DCA 1984):

IS A DEFENDANT WHO WAS PLACED ON PROBATION BEFORE OCTOBER 1, 1983, ENTITLED TO ELECT TO BE SENTENCED UNDER THE SENTENCING GUIDELINES AFTER OCTOBER 1, 1983, UPON A REVOCATION OF HIS PROBATION?

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: HENDRY, Judge.

text:
    Sandor SZABO and Joan Szabo, his wife, Appellants, v. ESSEX CHEMICAL CORPORATION, Appellee.
    No. 83-1865.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Rehearing Denied Jan. 22, 1985.
    Horton, Perse & Ginsberg and Edward A. Perse, Virgin, Whittle & Kray, Miami, for appellants.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

The plaintiffs appeal the adverse final summary judgment wherein their complaint was dismissed on statute of limitation grounds. § 95.11(3), Fla.Stat. (1981). The trial court also found that the service of process on the defendant, Essex Chemical Corporation, effected 20 months after the filing of the complaint, without any indication of an exercise of due diligence to effect the service, impaired the sufficiency of process and did not toll the statute of limitation, nor did service relate back to the date of filing of the complaint.

All parties to this appeal agree that our holding in Szabo v. Ashland Oil Co., 448 So.2d 549 (Fla. 3d DCA 1984), is dispos-itive of the first issue — whether the trial court erred in granting summary judgment in favor of Essex on the grounds that the action was barred by the statute of limitations. Therein we held that a certain affidavit filed on behalf of plaintiff, Szabo, attested that it was not until approximately December, 1977 that Szabo was informed of any causal connection between exposure to the defendants’ chemicals and his illness. Therefore summary judgment was precluded on the issue of whether the complaint filed in June, 1981 was timely filed. § 95.11(3), Fla.Stat. (1981).

Essex additionally contends that even if the complaint was timely filed, the trial court was correct in granting the summary judgment since the service of process, effected 20 months after the filing of the complaint, impaired the sufficiency of process and did not relate back to the date of the filing of the complaint. Essex bases this contention on the proposition that due diligence in effectuating service is required to toll the statute of limitations. While there are numerous Federal cases which hold to this proposition, such is not the law of Florida. Professional Medical Specialties, Inc. v. Renfroe, 362 So.2d 397 (Fla. 4th DCA 1978).

Since 1955, an action is commenced in Florida by the filing of a complaint. W.W. Friday v. Newman, 183 So.2d 25 (Fla. 2d DCA (1966); Fla.R.Civ.P. 1.050. Section 95.11(3), Florida Statutes (1981), provides that actions other than for recovery of real property shall be commenced within four years (from the time the cause of action accrues, § 95.031, Fla.Stat. (1981)). Thus, the filing of the plaintiffs’ complaint tolled the statute of limitations. Klosenski v. Flaherty, 116 So.2d 767 (Fla.1959); Robb v. Picarelli, 319 So.2d 645 (Fla. 3d DCA 1975); McArthur v. St. Louis-San Francisco Railway Co., 306 So.2d 575 (Fla. 1st DCA), cert. denied, 316 So.2d 293 (Fla.1975).

We recently held in Bermudez v. Florida Power & Light Co., 433 So.2d 565, 568 (Fla. 3d DCA 1983), pet. for rev. den., 444 So.2d 416 (Fla.1984), wherein the appellee urged the same argument as Essex does presently, that the delay in the service of the summons was controlled by Pratt v. Durkop, 356 So.2d 1278 (Fla. 2nd DCA 1978). Pratt reiterated the holdings of Klosenski and McArthur, and stated that the requirement of the Florida statute of limitations is met when an action is commenced within the applicable limitations period, and that, under our rules of civil procedure, an action is commenced by the filing of a complaint. Id. at 1280. Additionally, we note that no time limitations for issuance and service of process, whether a fixed time or requirement of due diligence, are contained in our rules.

We are not unmindful, however, of the court’s inherent power to dismiss a cause which is not being prosecuted with reasonable diligence, Gonzalez v. Ryder Systems, Inc., 327 So.2d 826 (Fla. 3d DCA 1976); Maloy v. Bristow, 138 So.2d 801 (Fla. 3d DCA), cert. denied, 146 So.2d 381 (Fla.1962), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963), or, on its own motion or by motion of an interested party, to dismiss a cause for failure to prosecute, pursuant to Rule 1.420(e), Florida Rules of Civil Procedure. The circumstances of the instant case, however, do not call for such a result.

Accordingly, we reverse the trial court’s final order and remand for further proceedings.

Reversed.


author: PER CURIAM.

text:
    AMERICAN LEGION COMMUNITY CLUB OF COCONUT GROVE, INC., and Del Rossi Enterprises, Inc., Appellants, v. Murry DIAMOND, Appellee.
    Nos. 83-2655, 84-363.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Rehearing Denied Jan. 22, 1985.
    Weintraub, Weintraub, Seiden, Dudly & Press; Blackwell, Walker, Gray, Powers, Flick & Hoehl and Diane H. Tutt and J. Phillip Carver, Miami, for appellants.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Cotton States Belting and Supply Company v. Florida Railway Company, 69 Fla. 52, 67 So. 568 (1915); Commercial Garden Mall v. Success Academy, Inc., 453 So.2d 934 (Fla. 4th DCA 1984); Twenty-Four Collection, Inc. v. M. Weinbaum Construction, Inc., 427 So.2d 1110 (Fla. 3d DCA 1983); Rodriguez v. Gonzaga, 387 So.2d 1054 (Fla. 5th DCA 1980); Kendall East Estates, Inc. v. Banks, 386 So.2d 1245 (Fla. 3d DCA 1980); § 689.01, Fla.Stat. (1983).


text:
    COLONIAL PENN INSURANCE COMPANY, a foreign insurance corporation, Appellant, v. Timothy WILLIAMS, as Personal Representative of the Estate of Constance Williams, deceased, Appellee.
    No. 83-2681.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Rehearing Denied Feb. 19, 1985.
    Pyszka & Kessler and William M. Doub-erley, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward Perse; Carroll, Halberg & Meyerson, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Reversed on the binding authority of Behrmann v. Industrial Fire & Casualty Insurance Co., 374 So.2d 568 (Fla. 3d DCA 1979).


text:
    James Russell ANDERSON, Appellant, v. Georgia Gayle ANDERSON, a/k/a Georgia Gayle Anderson Benson, Appellee.
    No. 84-1045.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Rehearing Denied Jan. 22, 1985.

      Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellant.
    Hendricks & Hendricks and Ben Hendricks, Jr., Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Pursuant to a provision in the final judgment which granted the court that authority, the order under review gave permission to the mother-custodian for the minor child of the parties to move with her to her new home and employment in Kansas City, Missouri. We conclude that no abuse of the broad discretion afforded the trial judge in determining the best interests of the child has been demonstrated. See Simon v. Simon, 435 So.2d 941 (Fla. 4th DCA 1983).

Affirmed.

      . The Wife shall be prohibited from moving the primary residence of the minor child of the parties out of Dade or Broward Counties, without the written approval of the Husband; or permission of the Court.


author: WIGGINTON, Judge. WIGGINTON, Judge.

text:
    Martha C. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. AX-318.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.
    On Motion for Clarification Dec. 20, 1984.
    Robert R. Kimmel, Pensacola, for appellant.
    Jim Smith, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., for appellee.
   WIGGINTON, Judge.

Appellant appeals her convictions after trial by jury of first degree murder of her husband with a firearm and aggravated battery with a firearm of Frances Farren. We reverse and remand for a new trial.

Appellant’s major defense at trial was excusable homicide. At the charge conference, the attorneys and the judge did not specifically mention a charge on excusable homicide, but they agreed that the standard charges would be given save for certain exceptions. The Standard Jury Instruction (1981) on excusable homicide reads as follows:

The killing of a human being is excusable, and therefore lawful, when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or by accident or misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner. (Emphasis supplied).

The Standard Jury Instructions direct that a full instruction on excusable homicide should include the following additional instruction:

An issue in this case is whether the killing of (victim) was excusable.
A killing of a human being is excusable if committed by accident and misfortune. In order to find the killing was committed by accident and misfortune you must find the defendant was:
1. a. doing a lawful act by lawful means and with usual care and
b. acting without any unlawful intent.
2. in the heat of passion brought on by a sudden provocation sufficient to produce in the mind of an ordinary person the highest degree of anger, rage or resentment that is so intense as to overcome the use of ordinary judgment, thereby rendering a normal person incapable of reflection.
3. engaged in sudden combat. However, if a dangerous weapon was used in the combat or the killing was done in a cruel or unusual manner, the killing is not excusable.
Definition A “dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.

The judge read the following excusable homicide instruction to the jury:

The killing of a human being is excusable, and therefore lawful, when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or by accident or misfortune in the heat of passion, upon any sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.

According to the trial transcript, on the last morning of trial, immediately prior to the closing arguments, the judge and the attorneys received the typed charges and made some changes, which resulted in the charges being retyped while the closing arguments were being made. The transcript does not indicate the nature of those late-hour changes but no one contends that they related to the excusable homicide instruction. The final copies were distributed to the attorneys immediately after the conclusion of the closing arguments and prior to the charging of the jury. At that time, the judge held a bench conference at which the following colloquy took place:

MR. EDGAR [PROSECUTOR]: Does the defense have any requests for additional instruction or change in the instructions that have been proposed and handed to them?
MR. KIMMEL [DEFENSE COUNSEL]: None by the defense.
MR. EDGAR: None by the state.

Thereupon, the judge began to read to the jury the typed instructions, a copy of which had been given to each juror. During the reading of the instructions, defense counsel attempted to interrupt the judge to object but the judge directed him to wait until the conclusion of the instructions, at which time, before the jury was sent from the room, at a side bar conference, defense counsel raised the objection that the instruction on excusable homicide, as read, did not conform to the standard jury instruction. The judge replied that the instruction he read was basically the same as the standard instruction. He refused to change the instruction or give a curative instruction.

The instruction as read by the judge was defective for two reasons. First, it was incomplete in that it did not include the second portion of the standard instruction which was applicable to the facts of this case. Second, the instruction read by the judge excluded the phrase “upon any sudden and sufficient provocation, or ...” which, in our view, changed the meaning of the excusable homicide instruction to the point that the instruction became “equivocal, incomplete or confusing.” Blitch v. State, 427 So.2d 785 (Fla. 2d DCA 1983). In Blitch, the judge read only the introductory excusable homicide instruction despite the fact that he had expressly agreed with defense counsel to read parts one and two of the additional three-part instruction on excusable homicide. When, at the conclusion of the instructions, defense counsel advised the judge that he had failed to read the additional instruction as agreed, the judge denied the renewed request for instruction on that additional part, surmising that his summary instruction was “sufficient.” On appeal, the court reversed on that ground, concluding that a judge’s instruction on a theory of defense should not be equivocal, incomplete or confusing and that a reading of the additional instruction would have prevented the possibility of any confusion on the jury’s part as to certain misinterpretations of the introductory instruction. Compare also Colon v. State, 430 So.2d 965 (Fla. 2d DCA 1983), where, in giving the additional instruction, the judge connected parts one, two and three with the conjunction “and” when the conjunction “or” actually should have been used. The court found that error to be harmful.

Similarly, in the instant case, the reading of only the abbreviated version of the introductory instruction was harmful in that the abbreviated version itself created confusion, and, by omitting the full standard jury instruction on excusable homicide, the judge failed to properly apprise the jury of the full defense available. Since the instruction, as read, very likely may have misled or confused the jury as to appellant’s available defense, the error was harmful and requires that this cause be remanded for a new trial.

The state contends that the jury instruction issue should not be reviewed on appeal because of defense counsel’s failure to meet the contemporaneous objection rule. We find that contention to be without merit since, although defense counsel probably could have and should have brought the matter to the trial judge’s attention earlier, he did raise a timely objection before the jury retired for deliberation.

Another point raised by appellant merits discussion. Prior to trial, while appellant was being retained in the county jail, the state had occasion to investigate an alleged conspiracy to murder the key state witness in appellant’s case. While searching appellant’s personal belongings at the jail during the course of the investigation, the prosecutor found a letter addressed to appellant’s attorney in which appellant recounted her various activities on the day of the murder. Prior to trial, defense counsel was successful in convincing the judge to rule that the letter was privileged. The judge instructed the state not to produce any evidence or material at trial that was gained only as a result of that letter. However, during appellant’s testimony, the prosecutor asked her a question which, upon defense counsel’s motion for a mistrial, the prosecutor admitted was posed from knowledge he gained solely from the fruits of the letter. However, the prosecutor pointed out that he was not presenting any evidence on the question and would not attempt to impeach the answer of appellant on that point. The judge ruled that the state could not impeach appellant’s answer to that question with the use of any information obtained through the letter and then denied the motion for mistrial. In our view, the judge’s ruling, if error at all, was harmless. However, for purposes of the new trial, the prosecutor should refrain entirely from making any reference at trial to any information gained solely as a result of the discovery of the letter, in keeping with the judge’s pretrial ruling.

Appellant has raised a final point, alleging that several improper comments were made by the prosecutor during closing argument. However, having reviewed the comments, we do not find them to constitute reversible error. Further, appellant has seemingly abandoned this issue on appeal, having made no argument in support of her position thereon.

REVERSED and remanded to the trial court for a new trial.

JOANOS and BARFIELD, JJ., concur.

ON MOTION FOR CLARIFICATION

WIGGINTON, Judge.

This Court’s opinion reversing and remanding the cause for a new trial pertains to appellant’s conviction of first degree murder of her husband with a firearm. Appellant’s conviction of aggravated battery with a firearm of Frances Farren is affirmed.

JOANOS and BARFIELD, JJ., concur.


author: ZEHMER, Judge.

text:
    Jake W. PURVIS, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF VETERINARY MEDICINE, Appellee.
    No. AX-497.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1984.

      William F. Casler, Sr., St. Petersburg, for appellant.
    James H. Gillis, Dept, of Professional Regulation, Tallahassee, for appellee.
   ZEHMER, Judge.

Appealing from a final order of the Department of Professional Regulation, Board of Veterinary Medicine (Board), finding him guilty of negligence and incompetency in the practice of veterinary medicine, appellant contends that the Board erroneously substituted its own findings of fact for the findings of the hearing officer and that the Board’s order is not supported by competent substantial evidence. We agree and reverse.

On March 27, 1981, an administrative complaint was filed by the Board charging in two counts that Dr. Purvis was guilty of negligence and incompetence in the practice of veterinary medicine and that Dr. Purvis failed to maintain proper records as required by statute and regulatory rule. The Board voluntarily dismissed the charge of failure to maintain records, and a formal administrative hearing on the remaining count was held before the Department of Administrative Hearings.

Evidence presented at the hearing showed that on June 14, 1980, Dr. Purvis treated a black Labrador Retriever that had been struck by an automobile. The dog, when brought to him on a Saturday morning by its owners, was comatose. Dr. Purvis immediately examined the dog and opined that it had suffered a concussion and spinal shock. Dr. Purvis indicated that only time would tell whether the dog would recover, and said he would call the owners and let them know how the dog was doing. After the owners left the office, Dr. Purvis treated the dog with antibiotics and an intravenous injection for shock.

Because they had not received a call from Dr. Purvis, the owners returned to his office on Sunday morning. The office was closed, but around noon they found a caretaker who let them in. As the owners describe it, they found their dog comatose and immobile, saturated with urine and its own defecation, in a cage in the examining room. Later that afternoon, Dr. Purvis received a call from the owners and went down to the office to cheek on the dog. While at the office, he gave the dog 500 cubic centimeters of fluid and attempted to clean the still comatose animal as best he could. Because the dog was incontinent, it was constantly dribbling urine and fecal matter, which made it very difficult to keep the animal clean. Dr. Purvis then called the owners and reported that the dog, although still comatose, had shown some improvement because it was making some movements.

On Monday morning, the owners removed their dog to their own veterinarian, Dr. Wood, who examined it and made two X rays. His physical examination revealed that the dog was clearly a quadraplegic, and he recommended euthanasia. The primary purpose of the X rays, according to Dr. Wood, was to help the owners understand his recommendation of euthanasia. Dr. Wood was called as a witness for the Board and testified that he could not state that the treatment given by Dr. Purvis was negligent or incompetent. No other expert testified on behalf of the Board.

The hearing officer filed a recommended order containing various findings of fact, including a finding that “there was no evidence that Dr. Purvis’s care fell below the standard of care for veterinarians in the community.” Based upon these findings, the hearing officer concluded that the Board had failed to prove its charges against Dr. Purvis. Counsel for the Board did not file any exceptions to the recommended order and urged the Board to accept the findings and conclusions of the hearing officer. On January 26, 1984, the Board considered and rejected the recommended order at a regularly scheduled public meeting. On February 3, 1984, the Board entered its final order adopting, with a single exception, all of the hearing officer’s findings of fact. The Board substituted its finding that “Dr. Purvis did not make a presumptive diagnosis, and his evaluation, documentation, and therapy fell below the standard of care provided by veterinarians in the community” for the hearing officer’s finding quoted above. Based upon its substituted finding, the Board concluded that Dr. Purvis was guilty of negligence and incompetency and imposed a $350 fine and two years probation.

Section 474.214(l)(q), Florida Statutes, sets forth “negligence, incompetency or misconduct, in the practice of veterinary medicine” as a ground for disciplinary action. The parties to this appeal have treated “negligence” and “incompetency” as meaning a failure to comply with the minimum standard of care or treatment required of a veterinarian under the circumstances. We accept that construction of this penal statute. Unlike a charge of violating a statute or rule under section 474.-214(l)(g), which requires no proof of a standard of care, the charge against Dr. Purvis necessarily required evidentiary proof of some standard of professional conduct as well as deviation therefrom.

As evidentiary support for its final order, the Board primarily relies upon the records of Dr. Purvis allegedly showing that he failed to make a presumptive diagnosis of the dog’s condition upon his initial examination. Dr. Purvis testified, however, that upon examining the dog he diagnosed it as having a concussion and spinal shock, and his testimony was accepted by the hearing officer and the Board in its final order. Why this diagnosis does not satisfy the need for a “presumptive diagnosis” does not appear in the record or in the Board’s order. The Board does not dispute the diagnosis.

Of greater importance, however, is the fact that the Board never introduced any evidence at the administrative hearing to show the appropriate standard of care which it contends Dr. Purvis failed to meet. The Board introduced no expert testimony, no statute, no rule, nor any other type of evidence to establish the appropriate standard of care or that Dr. Purvis fell below that standard.

To justify its substituted finding of fact, the Board argues that “consideration of the ultimate facts in this matter were less questions of witness credibility or factual issues susceptible of ordinary methods of proof, and more subjects which the Board may rightfully claim very special insights beyond those of the Appellee [DPR], the Appellant [Purvis], and the Hearing Officer,” citing in support McDonald v. Department of Banking & Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977). The precise language of McDonald on the cited page states that:

In determining whether substantial evidence supports the agency’s substituted findings of fact, a reviewing court will naturally accord greater probative force to the hearing officer’s contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those facts the agency may not rightfully claim special insight.
* * * * * *
At the other end of the scale, where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer’s findings in determining the sub-stantiality of evidence supporting the agency’s substituted findings.

Id. at 579.

McDonald involved an application for authority to organize and operate a bank. While we do not question the validity of the proposition quoted from McDonald, neither do we agree that it is applicable in this proceeding to discipline a professional for impermissibly deviating from accepted standards of conduct. In disciplinary proceedings of this nature, the Board has the burden of proving the applicable standard of conduct by competent substantial evidence, and there is a substantial difference between “evidence which ‘substantially’ supports conventional forms of regulatory action and evidence which is required to support ‘substantially’ a retrospective characterization of conduct requiring suspension or revocation of the actor’s license.” Bowling v. Department of Insurance, 394 So.2d 165, 171 (Fla. 1st DCA 1981). In Bowling, the court emphasized:

Rather, we glean a requirement for more substantial evidence from the very nature of licensee discipline proceedings: when the standards of conduct to be enforced are not explicitly fixed by statute or by rule, but depend on such debatable expressions as ‘in the applicable regular course of business’; when the conduct to be assessed is past, beyond the actor’s power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as ‘substantial’ as the consequences.

Id. at 172.

Section 120.57(l)(b)9, Florida Statutes, prohibits an agency from rejecting or modifying the hearing officer’s findings of fact “unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence.” Yet the Board’s order failed to state with particularity any reasons for rejecting the hearing officer’s finding. Since there was simply no evidence to establish that Dr. Pur-vis’s conduct fell below any particular standard, the hearing officer’s rejected finding of fact was a correct statement supported by the record and should have been accepted by the Board. It was error for the Board to substitute its own finding of deviation from a standard of conduct known only to them which had not been proven in the record. Johnston v. Department of Professional Regulation, 456 So.2d 939 (Fla. 1st DCA 1984); Thorn v. Florida Real Estate Commission, 146 So.2d 907, 910 (Fla. 2d DCA 1962). Since the record contains no competent substantial evidence to support the Board’s finding of negligence and incompetence, we vacate the Board’s order and remand with directions to dismiss the charges against appellant with prejudice. Johnston v. Department of Professional Regulation, supra; Sneij v. Department of Professional Regulation, 454 So.2d 795 (Fla. 3d DCA1984).

Dr. Purvis has also moved for an award of attorney’s fees and costs pursuant to section 120.57(l)(b)9, Florida Statutes. As in Johnston v. Department of Professional Regulation, supra, we conclude that, under the circumstances shown by the record, Dr. Purvis is entitled to an award of attorney’s fees for all proceedings, including this appeal, and costs to be taxed against appellees pursuant to that statute; and we remand this aspect of the case to the hearing officer of the Division of Administrative Hearings to hold a fact-finding hearing and to make recommendations to this court as to the amount of awardable costs and attorney’s fees for appellant at the hearing level and on this appeal. The hearing officer shall promptly consider this matter and file his report with this court within forty-five (45) days of the date of this opinion. We will then enter a separate order taxing the amount of costs and attorney’s fees.

REVERSED and REMANDED.

ERVIN, C.J., and MILLS, JJ., concur.

      . The Board’s substituted finding that appellant's “documentation” was below acceptable standards is patently erroneous in view of the Board’s voluntary dismissal of the second count charging failure to maintain proper records.


author: FERGUSON, Judge. BARKDULL, Judge,

text:
    Terry WEISZ, Appellant, v. MIAMI SHORES VILLAGE, Appellee.
    No. 83-2997.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Rehearing Denied Jan. 22, 1985.
    Sperber & Goldberg and Harris Sperber, Miami, for appellant.

      William F. Fann, Jr., Miami Shores, for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   FERGUSON, Judge.

On May 2, 1983, the Miami Shores Police Department seized a 1983 Cadillac El Dora-do worth approximately $25,000. At the time of the seizure, the respondent/owner was not in the vehicle. Instead, the car was being driven by a Richard Jacques, friend of respondent, and the sole passenger was Herbert H. Cameron, respondent’s live-in boyfriend. The vehicle had been stopped after a computer check revealed that the license tag was registered to another vehicle. The police searched the car and its occupants, finding a “trace” of cocaine in a container carried by Mr. Jacques and a firearm underneath the passenger seat of the vehicle. The two men were arrested for possession of a controlled substance and carrying a concealed firearm. The State subsequently filed no criminal charges against either man; however, Mr. Jacques was charged with driving a vehicle with a license plate number assigned to another vehicle in contravention of Section 320.06, Florida Statutes (1983), a motor vehicle statute.

The petitioner, Miami Shores Village, initiated forfeiture proceedings pursuant to Sections 932.701-.704, Florida Statutes (1983) (the Florida Contraband Forfeiture Act) and filed a Petition for Rule to Show Cause in circuit court. The petition was granted and respondent answered, stating that she was the legal owner of the seized vehicle. At the forfeiture proceeding, respondent testified that on the date of the seizure, she was in Vero Beach with a realtor looking at some properties. She had taken the keys to the vehicle with her, but a spare set was on a key rack in her home. She had not given consent to use her vehicle to either Mr. Cameron or Mr. Jacques; she had no knowledge of the use of her vehicle until she returned from Vero Beach; she had never previously loaned this or any other vehicle to either of the two men; and she did not know that Mr. Jacques would be carrying a trace amount of cocaine or that a gun would be placed under the seat of the car. The trial court, finding respondent’s testimony not credible, entered a final judgment of forfeiture.

Respondent contends here that the trial court erred in holding that she did not meet her burden of proof, as imposed by Section 932.703(2), to show that she neither knew nor should have known, after reasonable inquiry, that her vehicle was likely to be used in criminal activity. She further maintains that because her testimony on this issue was not impeached or contradicted in any manner, the trial court should have accepted it. See Bergh v. Bergh, 160 So.2d 145 (Fla. 1st DCA 1964).

We accept the trial judge’s findings of fact, as we must, since they are supported by competent, substantial evidence. See Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982). Nevertheless, by application of appropriate legal principles to these facts reversal is compelled.

First, in regard to the felony of carrying a concealed firearm, the respondent testified that she knew that both Mr. Jacques and Mr. Cameron owned handguns. The trial court conceivably could have inferred from this testimony that respondent should have known that if she left the keys to her vehicle in the house she shared with Mr. Cameron, the latter was likely to use her vehicle to carry his handgun and to conceal it while driving.

The forfeiture must nonetheless fail if based on the crime of carrying a concealed weapon. Section 932.703(1) provides for forfeiture of a motor vehicle in which contraband is discovered if possession of such contraband article constitutes a felony. Section 932.701(2) defines contraband. The only definition relevant here is in Section 932.701(2)(e), which, in pertinent part, defines as contraband: “Any personal property, including ... any ... weapon ... which has been or is actually employed as an instrumentality in the commission of ... any felony.” A handgun, which is not contraband per se, would fall under this definition only if it were employed as an instrumentality in the commission of a felony. Although petitioner argues that the felony here is carrying a concealed firearm, such a construction of the statute would be nonsensical, for it would require that the firearm be used as an instrumentality in the commission of the felony of carrying a concealed firearm. Rejecting petitioner's argument, we hold here that Section 932.-701(2)(e) applies to make a handgun contraband only where the felony in which it is an instrumentality is, by generic definition, an independent felony which can be committed without that firearm.

Second, the forfeiture also fails even if based on the felony of possession of a trace amount of cocaine. The record is devoid of any testimony tending to show respondent’s knowledge that either Mr. Cameron or Mr. Jacques ever used, possessed, or dealt in cocaine. Thus, there was no basis for the trial court to conclude that respondent should have known that Mr. Jacques was likely to possess cocaine in her vehicle.

For the foregoing reasons, the judgment below is REVERSED.

BARKDULL, Judge,

dissenting.

I think it was within the discretion of the trial judge to disregard the only witness’s uncorroborated statement that she did not give Cameron permission to use the automobile. Her credibility was clearly put in issue by the evidence surrounding her lack of knowledge as to where Cameron worked (even though he lived with her) the circumstances of her purchasing the automobile for cash, the no corroboration as to where the cash came from, knowledge that Cameron and the driver of the vehicle possessed firearms and that she did not appear to have any gainful employment and had previously been arrested in connection with narcotic violations.

      . The use of a firearm is, with some offenses, a factor which aggravates the severity of the crime, e.g., robbery, assault, battery, murder. By “generic definition," we refer to the offense as described by its essential statutory elements, exclusive of aggravating factors. For instance, robbery is, by generic definition, a felony which can be committed without a firearm. See § 812.13(1), Fla.Stat. (1983). Use of a firearm in the commission of the robbery is but an aggravating circumstance. See § 812.13(2)(a). Thus, under the rule we adopt, a vehicle may be subject to forfeiture where its occupant possesses a firearm which has been used as an instrumentality in an independent felony, e.g., robbery, since robbery can be committed without a firearm. The vehicle is not subject to forfeiture, however, where the felony attendant to the possession is merely concealment of that firearm, because that offense could not be accomplished without the possession.

      . Moreover, the Florida Supreme Court, in Griffis v. State, 356 So.2d 297 (Fla.1978), held that a vehicle in which narcotics are found may be forfeited only upon a showing of "a nexus between the illegal drugs found in the car and the furtherance of an illegal drug 'operation'.” Id. at 302. The court reasoned that the legislature, in enacting the Florida Contraband Forfeiture Act, intended it to apply only to the transportation of controlled substances for distribution and not for personal possession and consumption. Id.; see also One 1978 Lincoln Versailles Georgia License MZR 349, VIN 8W84G804437 v. State, 388 So.2d 1383 (Fla. 2d DCA 1980); Nichols v. State, 356 So.2d 933 (Fla. 2d DCA 1978). The continuing vitality of the holding in Griffis is uncertain. Several cases of the Second District Court of Appeal interpreted a 1980 legislative amendment to the forfeiture statute as an overruling of the Griffis holding. City of Clearwater v. Malick, 429 So.2d 718 (Fla. 2d DCA 1983); State v. Peters, 401 So.2d 838 (Fla. 2d DCA 1981). Since it is not necessary to the disposition of this case, we do not resolve that question here, nor will we consider the constitutional implications of such a holding.


text:
    The STATE of Florida, Appellant, v. Raul MOLINA, Appellee.
    No. 84-100.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Rehearing Denied Jan. 22, 1985.

      Jim Smith, Atty. Gen. and William P. Thomas and Henry Barksdale, Asst. Attys. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); United States v. Rios, 637 F.2d 728 (10th Cir.1980), cert. denied, 452 U.S. 918, 101 S.Ct. 3054, 69 L.Ed.2d 422 (1981).


text:
    Eva KANTOR, Appellant, v. CITY OF MIAMI BEACH, a municipality, Appellee.
    No. 84-573.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Rehearing Denied Jan. 22, 1985.
    Wolpe & Leibowitz and Steven R. Berger and Amy N. Dean, Miami, for appellant.
    James F. Dougherty, II, and James Fish-man, Miami, for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Schoen v. Gilbert, 436 So.2d 75 (Fla.1983); Sari v. Aetna Casualty & Surety Co., 452 So.2d 64 (Fla.3d DCA 1984). See also Kessler v. Gumenick, 358 So.2d 1167 (Fla.3d DCA 1978).


text:
    CUYAHOGA WRECKING CORPORATION, a Florida corporation, Casa Del Tesoro, Inc., a Florida corporation, Appellants, v. AMERICAN TELEPHONE AND TELEGRAPH CORPORATION, a New York corporation, and Southern Bell Telephone and Telegraph Company, Appellees.
    No. 84-753.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Rehearing Denied Jan. 22, 1985.
    Douglas M. Bates, Fort Lauderdale, for appellants.
    Fowler, White, Burnett, Hurley, Baniek & Strickroot and Douglas C. Broeker, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Damaso v. Damaso, 453 So.2d 933 (Fla. 3d DCA 1984); Fla.R.App.P. 9.200(b)(3).


text:
    The CITY OF DELRAY BEACH, Appellant, v. Shalanda WATTS, a minor by and through her natural mother and next friend, Naomi WILLIAMS and Naomi Williams, individually, Gerome Gholston, Owner and Progressive American Insurance Company, etc., et al., Appellees.
    No. 83-2106.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1984.
    Rehearing Denied Jan. 21, 1985.
    Steven R. Berger and Amy N. Dean of Steven R. Berger, P.A., and Peterson & Fogarty, P.A., Miami, for appellant.
    Gary E. Garbis of Gary E. Garbis, P.A., Miami, for appellees.
   PER CURIAM.

We reverse because "the placement of the garbage dumpster was a planning-level decision of the City thereby entitling it to sovereign immunity and, further, no exception was created because the dumpster did not constitute a known danger not readily apparent to potential victims or a hidden trap or danger. The dumpster and its location, and whatever danger they created, were open and obvious. Payne v. Broward Co., 461 So.2d 63 (Fla.1984); City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); and Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982).

Reversed.

HERSEY and WALDEN, JJ„ and GREEN, OLIVER L., Jr., Associate Judge, concur.


text:
    Reholga MACK, a/k/a Reholga Mack Woods, Appellant, v. The STATE of Florida, Appellee.
    Nos. 83-634, 83-1495.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.
    Rehearing Denied Jan. 22, 1985.

      Joel Hirschhorn, Miami, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

These appeals arise from Reholga Mack’s conviction for first degree murder, armed robbery and unlawful possession of a firearm by a convicted felon, all springing from the episode involving the much-publicized shooting of off-duty police officer Cheryl Seiden. We affirm.

Mack raises several points on appeal as grounds for reversal: (1) prosecutorial misconduct; (2) improper exclusion of jurors expressing opposition to the death penalty; (3) failure to suppress oral and written admissions and statements; (4) improper evidentiary rulings; (5) electronic media coverage throughout the trial; and (6) imposition of three consecutive minimum mandatory sentences for three counts of armed robbery arising out of a single criminal transaction in violation of Palmer v. State, 438 So.2d 1 (Fla.1983).

Aside from the error in sentencing, conceded by the state, we conclude that none of the grounds asserted by appellant warrant reversal. We find it necessary, however, to address Mack’s argument concerning prosecutorial misconduct. Mack contends that numerous instances of prose-cutorial misconduct tainted the trial, including improper expressions of personal belief or opinion, elicitation of testimony calculated to arouse the jurors’ bias, passion or prejudice and improper efforts to indulge in appeals to the jury’s sympathy. Mack asserts that many of these instances of prose-cutorial misconduct, by themselves, constitute reversible error and that the cumulative impact of the prosecutor’s conduct deprived him of his right to a fair trial, mandating reversal. Although we deplore and thoroughly disapprove of the conduct of the prosecutor in this case and find that it, indeed, constitutes error, we hold that reversal is not justified because the overwhelming evidence of guilt against Mack rendered the error harmless. See, e.g., State v. Murray, 443 So.2d 955 (Fla.1984); Williams v. State, 425 So.2d 591 (Fla. 3d DCA 1982); Tacaronte v. State, 419 So.2d 789 (Fla. 3d DCA 1982); Zamot v. State, 375 So.2d 881 (Fla. 3d DCA 1979). We reiterate Judge Cross’s admonition in Kirk v. State, 227 So.2d 40, 42-43 (Fla. 4th DCA 1969):

It is ... the duty of a prosecuting attorney in a trial to refrain from making improper remarks or committing acts which would or might tend to affect the fairness and impartiality to which the accused is entitled. Trihue v. State, Fla.App.1958, 106 So.2d 630. The prosecuting attorney in a criminal case has an even greater responsibility than counsel for an individual client. For the purpose of the individual case he represents the great authority of the State of Florida. His duty is not to obtain convictions but to seek justice, and he must exercise that responsibility with the circumspection and dignity the occasion calls for. His case must rest on evidence, not innuendo. If his case is a sound one, his evidence is enough. It [sic] it is not sound, he should not resort to innuendo to give it a false appearance of strength. Cases brought on behalf of the State of Florida should be conducted with a dignity worthy of the client.

See Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980).

As conceded by the state, the imposition of three consecutive minimum mandatory sentences for a single armed robbery was error. Palmer. The three consecutive minimum mandatory sentences are therefore reduced to one insofar as the armed robbery is concerned.

We find no merit in the state’s cross-appeal.

Affirmed as modified.


text:
    Sherif SHAFEY, Appellant, v. Wafiya SHAFEY, Appellee.
    Nos. 83-1458, 83-1897 and 83-2835.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.
    Rehearing Denied Jan. 22, 1985.
    Lapidus & Stettin and Herbert Stettin, Miami, for appellant.
    Floyd, Pearson, Richman, Greer, Weil, Zack & Brumbaugh and Ray H. Pearson and Bertha Claire Lee and Bruce A. Christensen, Miami, for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Schuttler v. Schuttler, 429 So.2d 1338 (Fla. 4th DCA 1983); Creel v. Creel, 378 So.2d 1251 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1111 (Fla.1980); Snider v. Snider, 375 So.2d 591 (Fla. 3d DCA 1979), dismissed, 385 So.2d 760 (Fla.1980); Storer v. Storer, 353 So.2d 152 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1250 (Fla.1978).