author: NESBITT, Judge.

text:
    Hyman ASH, Guardian of the Person of Aaron Ash, Incompetent, Appellant, v. COCONUT GROVE BANK, Guardian of the Property of Aaron Ash, Incompetent, and Patricia Ash, Appellees.
    No. 82-1853.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1984.

      Levin & Fishman and Jack Fishman, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael P. Andersen and Harold Braxton, Miami, for appel-lees.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

As the result of obstetrical malpractice, Aaron Ash was born profoundly and permanently retarded — both mentally and physically. The parents were divorced several years later and the husband was granted custody of the child. Pursuant to the terms of the property settlement agreement, the husband agreed to bear the expenses incurred in connection with raising his son. Subsequently, a lawsuit instituted on behalf of the child to recover for malpractice resulted in a settlement in excess of one million dollars. The entire proceeds were utilized to establish a guardianship over which the Coconut Grove Bank was appointed guardian of the property.

The instant appeal arises out of a petition in the trial court by the father seeking reimbursement from the guardianship for expenses incurred in connection with the support, care, maintenance and education of the child. The probate court granted the petition, but disallowed some of the expenses. The father appeals challenging the adequacy of the award; the mother and guardian of the property cross-appeal claiming that no reimbursement should have been granted. In order to resolve the issues presented by this appeal, it is necessary to relate common law principles of parent and child to existing guardianship statutes.

Under the common law, a parent or legal guardian has the sole obligation to provide his child with the necessities until he reaches the age of majority. State v. Winters, 346 So.2d 991 (Fla.1977); Ramey v. Fassoulas, 414 So.2d 198 (Fla. 3d DCA 1982). However, an exception to the rule of parental responsibility arises in instances where a trust has been set up to discharge that obligation. Bordman v. Bordman, 231 So.2d 543 (Fla. 3d DCA 1970) (trust for “sole benefit” of child); Carmody v. Carmody, 230 So.2d 40 (Fla. 1st DCA 1970) (trust funded by personal injury judgment). In that event, the parent’s duty is alleviated to the extent contemplated by the trust. In other words, if the trust is created for the express purpose of educating the child, then the parent is relieved of his responsibility only as to that particular expense. If, in the future, the trust becomes depleted, then the parent must once again provide for his child.

Another dimension is added where, as here, the minor child has received a settlement of a personal injury claim. In that situation, section 744.387(2), Florida Statutes (1981) provides that a legal guardianship of the property shall be required when the amount of the net settlement to the ward exceeds $5,000. This fund does not displace the parent’s duty to care for his child. To the contrary, section 744.397(3), Florida Statutes (1981) provides that:

If the ward is a minor and his parents are able to care for him and to support, maintain, and educate him, the guardian of the property of the minor shall not so use his ward’s property unless directed or authorized to do so by the court.

Such authorization will be granted cautiously inasmuch as the parents might one day be unable to care for the minor, at which time the guardianship would become the child’s sole means of support, and in any event once the child reaches eighteen, the guardianship estate will be utilized for his support.

With this as a background, we turn to the present case. The settlement entered into by the father, individually, and as next friend of his son, Aaron, necessarily contemplated those items of damages which he would have been entitled to recover individually as well as those to which Aaron was entitled. For the father, these included medical, educational and other special expenses incurred in raising a mentally or physically handicapped child, see Ramey v. Fassoulas at 200, Fla.Std. Jury Instr. (Civ.) 6.2(c); and for Aaron it included recovery for bodily injury, pain and suffering and loss of earning capacity, see Fla.Std. Jury Instr. (Civ.) 6.2(a), (d). Despite the fact that the guardianship laws only require that the ward’s settlement be placed in a guardianship, the father placed the entire settlement proceeds in his son’s estate. Having done so, we conclude that that portion of the settlement award which represented the father’s claim for the extraordinary expenses relating to his son’s condition should be treated as a trust to defray these contemplated expenses. Accordingly, the father will be relieved of this duty as long as funds exist in the trust. With respect to the normal expenses of childrearing, the father remains primarily obligated under both the common law and the property settlement agreement and cannot utilize the trust for these expenses.

Because, as we have previously stated, the guardianship funds of the child may not be utilized by a parent in the absence of court approval (which should be cautiously granted), it is necessary that an allocation be made between the trust funds which are accessible to the father for extraordinary expenses and the general guardianship assets. Were we to ignore this distinction, the possibility exists that the minor’s guardianship estate would be exhausted while the parents had other funds available to care for the child and then, when the parents’ resources are depleted, the child would be left without a guardianship estate. Consequently, on remand, the trial court must distinguish the trust assets from the guardianship estate.

Turning to the trust, the trial court must determine the more difficult issue as to which of the expenses of rearing Aaron are extraordinary and which would be incurred in raising a normal child. Such a division must contemplate those expenses for such things as food, clothing and shelter, which all parents would expect in childrearing as compared to expenses incurred for a mentally or physically defective child for such things as medical bills, therapy and special schools. It must then consider these factors in light of the parents’ financial position since it is surely true that “normal” and “extraordinary” will have varying connotations according to one’s financial position. Finally, such a determination must be gauged by the rule of reasonableness. In deciding what is reasonable, the probate judge should also weigh and consider the possibility that the trust may be depleted; Aaron’s somewhat affluent parents may not always enjoy that status; and at some future point, the child would then have to depend upon his guardianship funds for his sole support.

Reversed and remanded with directions.

      . Should the guardianship later be exhausted and by virtue of his mental or physical disability the individual is still unable to support himself, the parent must resume responsibility. See § 743.07(2), Fla.Stat. (1981).


source: Caselaw Access Project

author: BASKIN, Judge. BARKDULL, Judge,

license: Public Domain

text:
    Joseph H. COUNCIL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2307.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1984.
    Bennett H. Brummer, Public Defender and Robert Kalter, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   BASKIN, Judge.

Defendant Joseph Council was convicted of grand theft second degree based upon his presentation of a $175 check to a package store employee for cashing. The trial court withheld adjudication and placed him on probation for one year. We reverse.

Section 812.014, Florida Statutes (1981) requires proof of intent to deprive another person of a right to or benefit from the property involved. The state presented no evidence of Council’s intent to commit theft, State v. Allen, 362 So.2d 10 (Fla. 1978), and failed to establish that Council knew the cheek he had received in payment for homosexual activities was worthless. See Myers v. State, 115 Fla. 627, 155 So. 797 (1934); Anderson v. State, 338 So.2d 209 (Fla. 3d DCA 1976), cert. denied, 352 So.2d 174 (Fla.1977); Spurlock v. State, 281 So.2d 586 (Fla. 4th DCA 1973). The account on which the check was drawn had been closed, but the state did not call the drawer of the check as a witness. Thus, Council’s explanation that he believed the check to be good was unrefuted and constituted a reasonable hypothesis of innocence requiring reversal. Fisk v. State, 138 Fla. 815, 190 So. 10 (1939); A.R. v. State, 393 So.2d 1174 (Fla. 3d DCA 1981). The circumstantial evidence that a caller had attempted to verify the check while Council left the store may have demonstrated Council’s desire to hasten the transaction, but did not establish that Council knew the check was worthless.

Reversed.

BARKDULL, Judge,

dissenting.

I respectfully dissent. It was the province of the fact-finder to determine whether, under the circumstantial evidence, the hypothesis of innocence advanced by the defendant was not reasonable. Newberry v. State, 442 So.2d 334 (Fla. 5th DCA 1983). It is not for an appeal court to substitute its judgment for that of the fact-finder. State v. Smith, 249 So.2d 16 (Fla.1971); E.Y. v. State, 390 So.2d 776 (Fla. 3d DCA 1980); Wright v. State, 351 So.2d 1127 (Fla. 1st DCA 1977). I cannot say under the evidence presented that the fact-finder could not have reached the conclusion it did as to the defendant’s guilt and therefore I would affirm.


author: PER CURIAM.

text:
    MELROSE NURSERY, INC., Julio Cesar Espinal and Florida Farm Bureau Casualty Insurance Company, Appellants, v. Phyllis HUNT, Appellee.
    Nos. 83-56, 83-227.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1984.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Kathleen M. Williams, Miami, for appellants.
    Daniels & Hicks and Elizabeth K. Clarke, Anderson, Moss, Russo & Gievers and Louise McMurray, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

We reverse and remand for a new trial because it was error to exclude the court-appointed expert witness when, although the witness was not in the defendants’ pre-trial catalogue, the plaintiff had had possession of the expert’s report for several months prior to the trial and would, therefore, not have been prejudiced by his testimony. See Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981); First Republic Corp. of America v. Hayes, 431 So.2d 624 (Fla. 3d DCA 1983); Haines v. Haines, 417 So.2d 819 (Fla. 4th DCA 1982).

We note, without the necessity of having to decide the issue, that although the plaintiff’s introduction into evidence of the $300,000 liability policy limit might have been harmless error in light of the jury verdict of $40,000, see Odoms v. Travelers Insurance Co., 339 So.2d 196 (Fla. 1976); Josey v. Futch, 254 So.2d 786 (Fla. 1971); Stecher v. Pomeroy, 253 So.2d 421 (Fla.1971), it was error nonetheless, see Odoms; Josey; Stecher; Beta Eta House of Tallahassee v. Gregory, 237 So.2d 163 (Fla.1970); such a practice by trial counsel is disapproved, and should not be repeated.

Reversed and remanded for a new trial.


text:
    Jose TEJEDO and Gladys Tejedo, his wife, Appellants, v. Ermeida IZQUIERDO, Appellee.
    Nos. 83-221, 83-532.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1984.
    Mascaro & Peppier and Charles V. Peppier, Miami, for appellants.
    Stanley Jay Bartel, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellants appeal an adverse summary judgment and an order awarding attorney’s fees and costs entered in an action arising out of the purchase and sale of a business.

Our examination of the record on appeal conclusively establishes the absence of any genuine triable issues of material fact and that the appellee was entitled to a judgment as a matter of law.

No reversible error having been made to appear, the judgment and order appealed are affirmed.

Affirmed.


text:
    HOMESTEAD PROPERTIES, a General Partnership, Appellant, v. Carlos SANCHOO and Bibi Sanchoo, Appellees.
    No. 83-941.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1984.

      Richard Hersch, Miami, Marcus & Marcus, Homestead, for appellant.
    Jeffrey M. Feuer, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The Sanchoos entered into a contract to purchase a residence from Homestead Properties. Upon execution of the contract, the purchasers deposited $1,000 and subsequently deposited $9,000. They applied for financing and several months later were notified that they had qualified. Ultimately, the Sanchoos informed Homestead that the contract was cancelled because they had failed to sell two other properties which they owned and depended upon for cash to close. The instant action was filed in circuit court seeking the return of the buyers’ $10,000. From an order awarding the Sanchoos their deposit money, the seller appeals.

In essence, the purchasers argue that the notification from the bank was a qualification conditional on their sale of the two other properties. Having failed to sell these properties, the buyers theorize they were not qualified for a mortgage and thus, the return of their deposit was required.

We disagree based on the plain and unambiguous terms of the mortgage rider which provides in pertinent part:

I understand that you are not arranging for my mortgage, nor requiring me to use your recommended lender. This Rider will, however, be deemed void if I elect not to use your recommended lender or if I fail to perform my obligations under this Rider on time and I will then be required to close as if the agreement were for all cash. I further understand that you are not participating in the decision as to whether or not I will qualify for a mortgage. Obtaining the mortgage is entirely my responsibility.
I will be deemed qualified for purposes of this Rider regardless of conditions attached to the approval relating to matters outside the purchase and sale transaction, matters of title or execution of documents. Any change in my financial condition prior to closing or any other change which results in refusal of the lender to close the loan shall render this Rider void and I will be required to close for all cash.

Clearly, under these clauses, the purchasers were qualified despite their failure to sell other properties. In the alternative, the Sanchoos agreed that if all means and methods of financing were unavailable, they would close for all cash. Thus, under either provision, the buyers defaulted on the contract and their deposit has been forfeited. Because the trial court incorrectly rewrote the contract to provide otherwise, we reverse.

Reversed and remanded with directions to enter judgment in favor of the sellers.


text:
    Arthur Lee MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2987.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1984.

      Arthur Lee Moore, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed. Messer v. State, 439 So.2d 875 (Fla.1983); Palmes v. State, 425 So.2d 4 (Fla.1983); Thompson v. State, 410 So.2d 500 (Fla.1982).

Affirmed.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    FLORIDA STRUCTURES, INC. and American States Insurance Company, Appellants, v. Hallie A. MORTON, Appellee.
    Nos. AQ-441, AS-458.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1984.
    Michael M. O’Brien of Akerman, Senter-fitt & Eidson, Orlando, for appellants.
    William H. Yanger, Jr., Tampa, for appel-lee.
   THOMPSON, Judge.

In these consolidated cases the employer/ carrier (E/C) appeal a compensation order awarding medical benefits and a subsequent order awarding attorney’s fees. The E/C argue the award of medical benefits was barred by the statute of limitations, § 440.13(3)(b), Fla.Stat. (1977). We agree and reverse.

The claimant injured his right thumb in a compensable accident on October 24, 1977. Although the E/C had paid compensation and medical benefits, on November 23, 1977, he filed a general “shotgun” claim for:

Past and future medical care and attention; past and future temporary total and/or partial disability compensation benefits, upon employee reaching maximum medical improvement and/or recovery, permanent partial and/or total disability compensation benefits, all of such benefits payable at the correct average weekly wage; interest; penalties; costs, attorney’s fees payable to his counsel, transportation expenses and all other benefits to which employee is entitled.

The record does not reflect that any hearing was held on this claim until May 5, 1979, when a hearing was held on the claim for temporary total disability (TTD) to the date of maximum medical improvement (MMI), which claimant contended he had not yet reached. At the hearing the parties stipulated that the date of MMI was November 17, 1978, and that the sole issue presented for adjudication was claimant’s entitlement to TTD benefits from August 7, 1978 through November 17, 1978. The deputy awarded TTD benefits from August 7, 1978 through August 13, 1978.

On May 7, 1979 the E/C applied for a hearing to determine if claimant was entitled to any further benefits other than those they were voluntarily providing. A hearing was set for June 28, 1979, and after being rescheduled several times, was finally held on December 17, 1979. The resulting compensation order reflects that the only claims were for psychiatric treatment, payment of outstanding bills of Dr. Sprehe, Dr. Afield, and Janet Langford, and permanent total disability (PTD) benefits or alternatively permanent partial disability (PPD) benefits in excess of those paid by the E/C. In his March 3, 1980 order the deputy found that the claimant had not demonstrated any loss of wage earning capacity in excess of the physical and psychiatric impairments and denied the claim for further permanent disability in excess of the anatomical rating. He denied the claim for payment of the medical bill of Dr. Afield but authorized the payment of the medical bills of Dr. Sprehe and Janet Langford. He also denied the claim for future psychiatric treatment. Jurisdiction was reserved only for the determination of a reasonable attorney’s fee and proper taxable costs.

In an August 6, 1982 letter the E/C informed claimant’s attorney that it appeared the statute of limitations had run on the claim and that the file was being closed. On August 16, 1982 claimant’s attorney requested further medical treatment. On August 24, claimant made application for hearing on his claim for continued medical treatment. The E/C denied the claim for additional medical treatment on August 26, 1982, based on their belief that the statute of limitations had expired. A hearing was held on this claim on December 14, 1982. Based on the following reasons the deputy found that the statute of limitations did not preclude the claim for continued medical treatment:

(a) The claim for medical treatment was extant on the original claim for future medical treatment, and so long as the claim for future medical treatment was not adjudicated, the claim for medical treatment continued, and claimant was entitled to future medical care.
(b) That claimant was entitled to continued palliative care based on claimant’s continuing complaints of pain.

This finding is not tenable under the facts of this case. The only claims made at the December 17, 1979 hearing were for future psychiatric medical treatment, payment of outstanding medical bills, and PTD or alternatively PPD benefits in excess of those paid by the E/C. The deputy denied the future medical treatment and did not reserve jurisdiction to determine anything other than a reasonable attorney’s fee and costs. A claim for future medical expense could not have been in existence when the August 24, 1982 application for hearing was filed, because the claim had been previously resolved and denied by another deputy. The filing of a “shotgun” claim, shortly after the injury, for every benefit to which the claimant might be entitled as a result of his injury does not and cannot toll the running of the statute of limitations on all benefits enumerated in the claim. The claimant in this case reached MMI on November 17, 1978, which is the date after which recovery or lasting improvement can no longer reasonably be anticipated and the date after which remedial care ceases absent a change in condition. Concurrent findings of maximum medical improvement and the necessity of continuing remedial medical care are erroneous as a matter of law. See Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982). Accordingly, the award of future medical benefits in this ease is contrary to both the law and the facts and was reversible error.

The last remedial attention was furnished and the last compensation benefits were paid to the claimant on or before March 19, 1980. Pursuant to § 440.-13(3)(b), Fla.Stat. (1977):

All rights for remedial attention under this section shall be barred unless a claim therefor is filed with the division within 2 years after the time of injury, except that if payment of compensation has been made or remedial attention has been furnished by the employer without an award on account of such injury a claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last remedial attention furnished by the employer; and all rights for remedial attention under this section pursuant to the terms of an award shall be barred unless a further claim therefor is filed with the division within 2 years after the entry of such award, except that if payment of compensation has been made or remedial attention has been furnished by the employer under the terms of the award a further claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last remedial attention furnished by the employer.

No claim for future medical treatment was filed in this case within two years after the date of the last payment of compensation or within two years after the date the last remedial attention was furnished. The deputy therefore erred in finding the claim was not barred by the statute of limitations.

The order awarding medical benefits is reversed. Accordingly, the order awarding attorney’s fees is also reversed.

NIMMONS, J., concurs.

ERVIN, C.J., dissents with opinion.

ERVIN, Chief Judge,

dissenting.

I respectfully dissent. As the majority notes, Morton, who was injured on the job on October 24, 1977, filed a claim on November 23,1977, seeking, among other benefits, “future medical care and attention.’’ (e.s.) He later sought a determination of his entitlement to psychiatric examination and treatment. In each request for a hearing on those claims, Morton requested reservation of jurisdiction over any and all issues not specifically raised or decided at such hearings. An order was not entered on Morton’s initial claim until May 10, 1979, at which time only the issue of his entitlement to temporary total disability benefits was determined. In that order the deputy expressly reserved jurisdiction to determine “what other benefits, if any, claimant is entitled to _” (e.s.) The record discloses that a second order was entered on March 3, 1980, denying Morton’s request for psychiatric treatment but not, as the majority suggests, considering or denying his prior claim for future medical treatment.

The record also reveals that although Morton, a carpenter by trade, reached maximum medical improvement on November 17, 1978, he continued to experience pain, numbness and atrophy of his injured right thumb and hand. On December 4, 1980, and again on April 20, 1982, he returned to his authorized physician in the hope of obtaining relief. On both occasions, the doctor examined and x-rayed Morton’s hand to determine if it was properly healing after surgery. The physician attempted to reassure Morton regarding his condition, to encourage use of the hand and to prescribe exercises for Morton to perform at home. Charges for both visits were paid for by the carrier without objection.

When Morton was notified, in August of 1982, that the carrier considered the statute of limitations to have expired on his claim, he sought authorization for further medical care for his continuing pain and discomfort. Upon the denial of that request, Morton applied for a hearing to determine his entitlement to such future medical treatment. The deputy found that Morton was entitled to continuing palliative care, and concluded that his claim for such care was not barred by the statute of limitations as it was “extant on the original claim for future medical treatment” of November 23, 1977.

I am unable to agree with the majority’s conclusion that the deputy’s findings are erroneous. Morton’s original claim sought future medical benefits. Because the issue of entitlement to such benefits was not ripe for adjudication at the time of the prior hearings in this case, and was neither withdrawn, dismissed, nor resolved at any time prior to the hearing of March 3, 1983, the doctrine of res judicata clearly does not, as the e/c suggests, bar consideration of that issue once the need for future treatment was determined. “Once a claim is filed, it stays pending until withdrawn by claimant, or acted upon, or dismissed upon motion of either the Commission or the employer.... ‘Passage of time does not itself terminate the pendency of a proceeding.’ ” Turner v. Keller Kitchen Cabinets, 247 So.2d 35, 40 (Fla. 1971). In my view, the deputy was correct in finding the claim for future medical benefits to be still in effect.

Neither can I agree that the statute of limitations provisions of section 440.-13(3)(b), Florida Statutes, apply to require reversal of this case. Morton clearly met the threshold limitational requirement by filing a claim within two years of his injury. As a timely claim for future medical benefits was still pending, I consider it illogical to expect Morton to file a second claim for future medical benefits within two years of either the last payment of compensation or his receipt of remedial attention. Such a tortured interpretation of section 440.13(3)(b) is clearly contrary to general rules of construction applicable in workers’ compensation cases which call for liberal construction of such statutes in favor of claimants and compensation. See Sam Rogers Enterprises v. Williams, 401 So.2d 1388 (Fla. 1st DCA 1981); Topeka Inn Management v. Pate, 414 So.2d 1184 (Fla. 1st DCA 1982); Hardaway Construction Co. v. Brooks, 416 So.2d 837 (Fla. 1st DCA 1982). In our construction of Chapter 440, we are generally guided by the “most favorable remedy” doctrine, which requires that “ ‘where the Act is susceptible of disparate interpretations, the court will adopt the construction which is most favorable to the employee.’ ” Kerce v. Coca-Cola Company-Foods Division, 389 So.2d 1177, 1178 (Fla.1980), citing, Henderson v. Sol Walker & Company, 138 So.2d 323, 327 (Fla.1962). Finally, and most important, we should not place a construction on sections of Chapter 440 that exalt form over substance, “particularly where the result is to deprive the worker of needed medical care.” Mahoney v. Sears, Roebuck & Company, 438 So.2d 174 (Fla. 1st DCA 1983).

Had Morton not, in his original claim, sought future medical benefits, I would agree that we would be constrained to find the statute of limitations had barred his request for such benefits in August of 1982. Because his timely claim remained pending and unresolved, however, the deputy correctly found that claim to be extant on the original claim. A second claim was therefore unnecessary to satisfy the limita-tional requirements of section 440.13. I would affirm the deputy’s award of benefits . and would also affirm the award of $2,000.00 in attorney’s fees, which is the subject of the consolidated appeal.

      . The majority correctly notes that an award of remedial care subsequent to a finding of maximum medical improvement is erroneous as a matter of law. Florida, however, is among the substantial majority of jurisdictions which recognize that the provision of palliative care to prevent and ease pain and discomfort is proper after the claimant has reached his maximum level of improvement. See 2 Larson, The Law of Workmen’s Compensation, § 61.14 (1982); DiGiorgio Fruit Corporation v. Pittman, 49 So.2d 600 (Fla.1950); Johnson Electric Company v. Provenzano, 415 So.2d 745 (Fla. 1st DCA 1982). The deputy’s award of "continued palliative care" was therefore not erroneous.


author: WENTWORTH, Judge.

text:
    CITY OF HIALEAH and GAB Business Services, Inc., Appellants, v. Humberto CASCARDO & Division of Workers’ Compensation, Appellees.
    No. AR-497.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1984.

      John F. McMath, Miami, for appellants.
    David H. Levine and Edward Almeyda, of Cornell & Almeyda, Jay M. Levy, of Silver, Levy & Hershoff, Miami, for appel-lees.
   WENTWORTH, Judge.

The employer and its servicing agent appeal an order which modified a February 20, 1981 order, and awarded temporary total disability (TTD) benefits from July 9, 1981, through February 7, 1982. Appellants do not contest the existence of grounds supporting modification, but argue that the award of TTD was improper on procedural and evidentiary grounds. In addition, they argue that the deputy commissioner erred in increasing claimant’s compensation rate from that which had been paid previously. We affirm the TTD award but reverse that portion of the order increasing claimant’s compensation rate.

Claimant suffered a compensable accident on May 29, 1980, in which his right knee was injured. The employer voluntarily paid temporary total disability benefits (TTD) through July 14, 1980, at the rate of $157.66 per week. On August 29, 1980, a claim for further temporary benefits and medical treatment was filed. That claim was denied on February 20, 1981, by an order finding that claimant had reached maximum medical improvement (MMI) with no residual impairment.

On December 8, 1981, another final order was entered in which further medical treatment was awarded. That order states that a pretrial conference was held on May 26, 1981, and a hearing was held on August 6, 1981. It does not refer specifically to a petition for modification, nor does it find a change of condition other than that which is implicit in an award of further remedial medical treatment after the date of MMI previously determined.

On February 8, 1982, claimant was hospitalized by order of the authorized doctor, and the employer reinstituted TTD payments at the rate previously applied. On February 16, 1982, claimant filed a petition for modification of the February 1981 order which had denied his claim for temporary benefits. The order granting that petition awarded claimant TTD benefits from July 9, 1981, through February 7, 1982, at a compensation rate of $168.67; the increase representing the inclusion of the employer’s contribution to claimant’s health insurance premiums.

Appellants argue that the award of TTD was improper because there was insufficient evidence of a good faith work search. However, appellants did not raise this issue below and did not cross examine claimant when he testified as to this issue. The issue therefore was not preserved for our review. Alternatively, appellants argue that the claim for TTD was barred because it “should have been made a part of the claim resulting in the order of December 8, 1981.”

The latter contention has superficial merit because any claim which could have been made, i.e., was mature at the time of an earlier proceeding, will be barred by its omission. Winkel v. Grand Union Stores, 436 So.2d 351 (Fla. 1st DCA 1983); Hunt v. International Minerals and Chemicals Corp., 410 So.2d 640 (Fla. 1st DCA 1982). However, the record in this case does not show that the claim for TTD benefits for the period in question was mature at the time of the proceedings which resulted in the order for further medical treatment. In fact, the only evidence of those proceedings is the order itself. As noted, that order states that a pre-trial conference was held in May, at which presumably the issues to be litigated were set. Any claim which had matured at that time would ordinarily be barred by an ensuing final order, under the decisions cited. However, a claim for TTD benefits commencing in July could not have been made at that time and any attempt to supplement the claim after the pre-trial conference would have required consideration of the due process principles discussed in Winkel. In the seven-month time span between the date of the pre-trial conference and the date of the order, a claim for TTD benefits might, of course, have been raised. We will not, however, assume such to be the case in the absence of record evidence so indicating.

As to claimant’s average weekly wage, it is clear that any claim pertaining to the rate then used by the carrier was necessarily matured and could have been presented at the time of the proceedings which resulted in the order of February 1981. If the wage issue was urged at that time and the deputy failed to rule on it, claimant’s remedy was by review of that order; if he neglected to question the rate at which compensation had been paid, such a claim is generally barred thereafter. Hunt, supra. The increased rate awarded was not based on a mistake of fact, newly discovered evidence, or other superseding ground. The deputy therefore erred in assigning claimant a greater AWW and ordering reimbursement for the benefits which had earlier been paid at the lower rate.

That portion of the order increasing claimant’s compensation rate and ordering reimbursement for the benefits paid at the lower rate is reversed. The order is affirmed in all other aspects.

NIMMONS and ZEHMER, JJ., concur.

      . Claimant had suffered an earlier injury while working for the same employer, who was then covered by a different workers' compensation insurance carrier. However, issues pertaining to the effect of that accident on claimant’s present condition are not involved in this appeal.

      . Although the issue of the timeliness of the present claim is expressly raised by appellants, we have received no real analytical assistance on the question from either party.

      . If the order on appeal had awarded temporary benefits for months prior to May 1981, appellants’ argument would have apparent validity.

      . Appellant has the burden of providing such parts of the record as are necessary to support its contentions on appeal. Conner v. Coggins, 349 So.2d 780 (Fla. 1st DCA 1977).


text:
    Oliver Earl YOUNG, Appellant, v. PALM BEACH COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 82-1762.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.

      John M. Johnston of White & Case, Palm Beach, for appellant.
    Charles F. Schoech, County Atty., and David M. Wolpin, Asst. County Atty., West Palm Beach, and Robert S. Goldman of Messer, Rhodes & Vickers, Tallahassee, for appellee.
   PER CURIAM.

Appellant seeks reversal of a final judgment dismissing his amended complaint seeking inverse condemnation against Palm Beach County. The complaint alleged a taking of residential property due to noise from overflying aircraft as they enter and depart Palm Beach International Airport.

The amended complaint averred that for over fourteen years appellant has owned certain real property approximately 2000 yards from the eastern end of the East-West runway of Palm Beach International Airport, which is owned and operated by Palm Beach County. Regular and almost continuous flights to and from the airport over and near appellant’s property, often minutes apart, make it impossible during such flights for appellant or members of his family to converse, to speak over the telephone, or to listen to television. It was further alleged that the frequency of these flights has steadily increased over the past fourteen years; the noise emitted by said aircraft has severely diminished, deprived, and substantially interfered with the beneficial use and enjoyment of said property and has diminished the market value thereof. Finally, appellant alleged that appellee should be required to exercise its power of eminent domain and pay appellant for air or avigational easements or other property rights taken.

The trial court granted appellee’s motion to dismiss the amended complaint because appellant failed to allege 1) compliance with Section 768.28(6), Florida Statutes (1981), 2) that the conditions complained of are reasonably expected to continue, and 3) inadequate identification of the air or avigational easements or other property rights that were taken.

There now exists a variety of cases involving inverse condemnation of property neighboring airports. They describe the cause of action that arises when noise and other disruptive factors become so onerous as to constitute a taking of neighboring property. The cause of action alleged here does not sound in tort, a sine qua non for application of Section 768.28(6), Florida Statutes (1981). See State Road Department v. Tharp, 146 Fla. 745, 1 So.2d 868 (1941); City of Jacksonville, supra; see also Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540 (1964), cert. denied 379 U.S. 989, 85 S.Ct. 701, 13 L.Ed.2d 610 (1965). Rather, appellant seeks the equitable remedy of requiring the government to condemn the property taken and pay compensation therefor.

Appellee contends that appellant failed to allege that the conditions complained of are reasonably expected to continue. Assuming there is such an actual pleading requirement, we regard the allegation that the frequency of the offending flights has steadily increased over the past fourteen years as adequately meeting that requirement. Regarding the trial court’s finding that the air or navigational easements taken were not adequately described, we think appellant’s statement was sufficient to acquaint appellee with the relief sought and allow intelligent formulation of a responsive pleading. See Fontainebleau Hotel Corp. v. Walters, 246 So.2d 563 (Fla. 1971); City of Jacksonville, supra.

In view of the foregoing we conclude that the amended complaint adequately states a cause of action for inverse condemnation sufficient to require appellee to respond thereto. Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED with directions.

DOWNEY and DELL, JJ., and GOLDMAN, MURRAY (Associate Judge), concur.

      . E.g., Aaron v. United States, 160 Ct.Cl. 295, 311 F.2d 798 (1963); Hillsborough County Aviation Authority v. Benitez, 200 So.2d 194 (Fla. 2d DCA 1967), cert. denied 204 So.2d 328 (Fla. 1967); City of Jacksonville v. Schumann, 167 So.2d 95 (Fla. 1st DCA 1964), cert. denied 172 So.2d 597 (Fla.1965).


author: DOWNEY, Judge.

text:
    CITY OF BOYNTON BEACH, Appellant, v. V.S.H. REALTY, INC., Appellee.
    No. 82-1949.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.

      James R. Wolf of Caldwell, Pacetti, Barrow & Salisbury, Palm Beach, and. James W. Vance, West Palm Beach, for appellant.
    Gene Moore, Boynton Beach, for appel-lee.
   DOWNEY, Judge.

Appellant, City of Boynton Beach, seeks reversal of a declaratory judgment directing approval of a revised site plan necessary for the issuance of a building permit.

Appellee, the owner of a parcel of property located in the City, submitted an application to the City in order to build a convenience store and two independent commercial retail units on his parcel. Under applicable ordinances, such commercial development is allowed, but issuance of a building permit is conditional upon receiving site plan approval. An original site plan was approved at each level of review, but appel-lee subsequently submitted a revised site plan that altered the position of the proposed stores with respect to an adjacent residential neighborhood. The revised plan passed several levels of review, but was rejected by the City Council. More than thirty days after the Council’s decision and notice thereof, appellant filed the instant suit in the circuit court seeking declaratory judgment. The complaint alleged, in pertinent part, that the City applied its site plan ordinance in an illegal, unwarranted, unconstitutional, arbitrary, and confiscatory fashion,^ thus depriving appellee of his property rights. Furthermore, the complaint stated that the sole function of the City Council in connection with site plan approval is a ministerial one. The City moved to dismiss the complaint on jurisdictional grounds, contending that review should be by writ of certiorari rather than by a de novo action for declaratory judgment. The trial judge denied the motion and ostensibly proceeded to try the matter as one de novo; yet he refused to allow the City to adduce evidence from a noise expert because that evidence was not submitted to the City when it was considering approval of the site plan. He apparently intended to decide the case based on the record made before the City Council. In any event, the final judgment found that the Council exceeded its ordinance authority because ap-pellee was entitled thereunder to have the City Council approve its amended site plan upon recommendation of the zoning and technical review boards of the City. The trial court thus “instructed and directed [the City Council], based upon the recommendations of the technical and administrative staff, to approve the revised site plan.”

The City initially contends that the trial court had no jurisdiction to entertain this action because it involved a quasi-judicial decision reviewable only by petition for writ of certiorari. The trial judge and counsel wrestled mightily with this question and the judge finally ruled that the matter should be considered de novo rather than reviewed by certiorari. We hold that ruling was correct. As pointed out in the leading case of DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957), a judgment or order is judicial or quasi-judicial in nature when notice and a hearing are required and the judgment or order is contingent upon a showing made at the hearing. Further, the court held that the proper way in which to obtain appellate review of such a judgment or order was by certiorari. The decision of the City that is assaulted in this case was not a quasi-judicial decision as defined in DeGroot and thus certiorari was not the appropriate remedy. While not deciding the propriety thereof under the facts before it, the DeGroot court noted by contrast that the equity injunction has often been used to challenge legislative action at the state and local level where such action is claimed to adversely affect some constitutional right, such as an attack upon a municipal zoning ordinance.

Having held that the trial court properly entertained appellee’s action, we just now consider the manner in which the case was handled below and certain provisions of the judgment from which this appeal was perfected. The complaint sought declaratory relief. The appellee claimed therein that the City had arbitrarily applied the site plan ordinance because Council approval is simply a ministerial or perfunctory act and is required when a plan passes the levels of review specified in the ordinance. The trial judge apparently agreed with this analysis of the Council’s function. In that respect we believe error was committed. The site plan review ordinance generally provides that any owner desiring to obtain a permit to construct a building other than a single or two-family dwelling must submit a site plan to the City Planner together with specified information in order to assist the technical committee in reviewing and evaluating the proposed use, building, or structure. Specifically, section 19-18 of the City Code provides:

Except as otherwise provided in this article, no building permit shall be issued for the construction of any building, structure or other development of property, or appurtenances or alterations thereto, other than for construction of single family or two-family dwellings, unless the site plan has been reviewed by the technical committee and by the planning and zoning board and approved by the city council.

If City Council approval of the technical committee and planning and zoning board is perfunctory and the City Council acts only as a “rubber stamp,” the provision requiring council approval is surplusage. On the other hand, if it was intended that the Council should not have the power to exercise any intelligent discretion in considering the matter, it would seem the drafters of the ordinance would simply have provided for technical and planning and zoning board approval alone or indicated that the function of the Council was merely to recognize or affirm that such approval had been given.

Adverting to the facts of this case as we glean them from the record and briefs, it appears the Council initially approved ap-pellee’s site plan, which plan provided for a building containing a convenience store and two independent retail stores. The convenience store was situated on the westerly portion of the development, the area most remote from the neighboring residential property. The revised plan relocated the convenience store to the easterly portion of the parcel, the area closest to the residential neighbors. Therein apparently lies the rub in this case.

The ordinance provides for evaluation of numerous factors by the various review committees, such as “consideration as to economic effects, noise, glare, fumes, odors, vibration and other effects of the proposed site plan on adjacent and nearby properties and properties generally in the district” and “[provision for and effects of screening and buffering of the proposed uses and structures affecting the uses and structures adjacent and nearby properties and properties generally in the district, including but not limited to abutting residential properties.” In deciding whether to grant approval, the City Council is called upon to exercise an informed legislative discretion, which would clearly involve consideration of factors and criteria stated in the ordinance, so as to protect the various interests of the public, particularly neighboring residents and property owners.

Appellant attempted to adduce testimony at trial from a noise expert, we assume to show that there was justification for the Council’s action in overriding the review committees’ recommendations. It seems to us this type of evidence is most relevant to the issue before the court and the court’s exclusion of the same was error.

Accordingly, we reverse the judgment of the circuit court and remand the cause for trial on the issues raised by the complaint and appellee’s answer in a de novo proceeding.

REVERSED AND REMANDED, with directions.

HERSEY and DELL, JJ„ concur.


author: LETTS, Judge. GLICKSTEIN, Judge,

text:
    DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATION, Robert M. Smith, Jr. and Gary Rutledge, Appellants, v. Clifton WINFIELD, Nigel Winfield, Nikki Winfield, a minor, by and through her father and next friend, Malcolm Winfield and Frank Marano, Appellees.
    No. 83-464.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.

      Elliot H. Henslovitz, Staff Atty., Miami, for appellants.
    Robert M. Leen and Joseph L. Schneider of Leen & Schneider, Hollywood, for appel-lees.
   LETTS, Judge.

At issue is the power of the Pari-Mutuel Wagering Division of the Department of Business Regulation to subpoena a private citizen’s bank records without notice. The trial court entered a restraining order finding that the Division improperly brought plaintiff’s confidential banking records “into the realm of public scrutiny” resulting in irreparable injury. We must reluctantly reverse.

Apparently, the Division of Pari-Mutuel Wagering believed it had probable cause to suppose that this particular private citizen did not actually own the racehorses as he had reported and that his declared ownership was really a front for other members of his family and/or closely held family corporations.

The grounds for this belief are not before us, but pursuant to it, the Division subpoenaed the private citizen's bank records, those of his brother and those of various family held corporations. The subpoenas duces tecum were served on several banks, not only without notice, but with the request that the banks not advise the affected depositors that the Division had subpoenaed the information, lest it “obstruct and impede [its] efforts.”

We find first that the Supreme Court of the United States has held there is no legitimate expectation of privacy in bank records because all they contain is information voluntarily conveyed to the banks and exposed to bank employees in the ordinary course of business. Thus, there is apparently no protectible Fourth Amendment privilege arising out of governmental investigative activities even though no notice is given to the depositors. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). See also Cushing v. Department of Professional Regulation, Board of Dentistry, 416 So.2d 1197 (Fla. 3d DCA 1982).

Applying the foregoing to our Horseracing Statute, we note in Section 550.02, Florida Statutes (1981), that the Division is authorized to issue subpoenas duc-es tecum and as a consequence we are forced to the conclusion that the Division acted within its rights in the case at bar.

Notwithstanding, neither the United States Supreme Court in the Miller case, which involved the omnipotent Internal Revenue Service, nor the Florida Supreme Court, has yet considered this question in the light of our recent amendment to the Florida Constitution Article I Section 23 (effective January 1981) which ushered in a specific and powerful State right of privacy to “every natural person” thereby guaranteeing to all Florida citizens “the right to be let alone and free from governmental intrusion . Added to this, the United States Supreme Court has made it abundantly clear that normally the individual States should decide a person’s “general” right to privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Accordingly, it would seem to be Florida’s prerogative to decide the scope and extent of the amendment to our constitution, at least as to individuals if not corporations. We also note the Third District’s strongly worded holding that a bank may not with impunity disclose the details of its customers’ accounts, Milohnich v. First National Bank of Miami Springs, 224 So.2d 759 (Fla. 3d DCA 1969), though we recognize that decision did not involve an investigatory intrusion by Government. See Hagaman v. Andrews, 232 So.2d 1 (Fla.1970).

The Division argues that to require notice be given to anyone being investigated would essentially derail all State inquiries. However, what we have here is much more than an inquiry, for it includes broadly worded subpoenas addressed to all banking statements and accounts over a stated period, owned by various members of the family and its closely held corporations. By no stretch of the imagination are they limited to transactions affecting horses, and in Johnston v. Gallen, 217 So.2d 319, 321 (Fla.1969), the Florida Supreme Court said:

[t]he power of investigation is a necessary adjunct to the exercise of the power to legislate. But the power is not an unbridled one. It must be circumscribed by reasonable limitations and should never be used to “hunt witches.”

The subpoenas before us now may, or may not, involve witch-hunts but it is hard not to label them fishing expeditions. Nonetheless we recognize the power of the legislative body to seek out and acquire needed information and we cannot find the subpoenas in question to be an unbridled exercise of that power.

It is obvious we are unhappy with our conclusion here. There is something Gestapo-like about state agencies grabbing bank records not only without notice, but with entreaties to the banks to conceal the grab. In this respect, we have uncovered through our own research new Federal legislation enacted subsequent to United States v. Miller, supra, which requires that even the IRS must give 23 days notice of any seizure of bank records. 26 U.S.C. § 7609 (1983).

All this being so, and the matter being of great public importance we hereby certify the following questions to the Supreme Court:

1. DOES ARTICLE I SECTION 23 OF THE FLORIDA CONSTITUTION PREVENT THE DIVISION OF PARI-MUTUEL WAGERING FROM SUBPOENAING A FLORIDA CITIZEN’S BANK RECORDS WITHOUT NOTICE?
2. DOES THE SUBPOENAING OF ALL OF A CITIZEN’S BANK RECORDS UNDER THE FACTS OF THIS CASE CONSTITUTE AN IMPERMISSIBLE AND UNBRIDLED EXERCISE OF LEGISLATIVE POWER?

There is another point on appeal which merits discussion. The Division of Pari-Mutuel Wagering is headquartered in Dade County, yet the trial judge’s ruling here considered issued from a Broward County Court. The Division alleges improper venue, claiming Dade County to be the correct forum. See Florida Public Service Commission v. Triple “A Enterprises, Inc., 387 So.2d 940 (Fla.1980). We must also agree with this claim. As the First District opined in Commission on Ethics v. Lancaster, 421 So.2d 711 (Fla. 1st DCA 1982), an action against a State agency should normally be brought in the county where the agency maintains its headquarters unless the sword-wielder doctrine intervenes. That doctrine is not apropos here because of our reluctant conclusion that no unlawful invasion of a constitutional right is involved. Commission on Ethics v. Lancaster, supra. However, in the event the Supreme Court answers our certified questions in the affirmative, a Bro-ward County venue would be appropriate.

We conclude with a repetition of our warning in Taggart Corporation v. Benzing, 434 So.2d 964 (Fla. 4th DCA 1983), that certified questions do not automatically go forward to the Supreme Court and there must be an exercise of affirmative initiative by the losing party.

REVERSED AND REMANDED WITH INSTRUCTIONS TO PROCEED IN A DADE COUNTY CIRCUIT COURT.

DELL, J., concurs.

GLICKSTEIN, J., concurs with opinion.

GLICKSTEIN, Judge,

concurring.

I concur in the result but do not share Judge Letts’ stated concerns. That the fourth amendment does not protect a bank customer’s bank records from governmental scrutiny is clear. Moreover, the Florida constitution’s recently adopted article I, section 23, which guarantees a natural person’s right to be free from governmental intrusion, excepts contrary constitutional provisions. This exception must incorporate governmental examination of customers’ bank records, for the recent amendment to article I, section 12 states that this section’s search and seizure protection is coextensive with that of the federal fourth amendment as construed by the United States Supreme Court. Thus the agency’s action in the instant case cannot have violated article I, section 23.

      . For expanded discussion, see Cope, A Quick Look at Florida’s New Right of Privacy, 55 Fla.Bar J. 12 (Jan. 1981).

      . See also 26 U.S.C. §§ 3401-3422 (1983) and Weatherly, Confidentiality of Financial Institution Customer Relation in Florida, 58 Fla.Bar J. 33 (Jan. 1984).


author: BERANEK, Judge. LETTS, Judge,

text:
    Reverend Robert HENDLEY, Jr., Appellant, v. Forrest E. PARSON, Appellee.
    No. 83-568.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.

      James E. Weber and Larry Klein, West Palm Beach, for appellant.
    Louis L. Williams of Farish, Farish & Romani, West Palm Beach, for appellee.
   BERANEK, Judge.

This appeal arises from a suit to invalidate an inter vivos gift made by an elderly decedent to her stepson. Appellant/plaintiff asserted that the decedent transferred a certain stock certificate as a result of undue influence growing out of a confidential relationship. Simply stated, the appellate attack is that the defendant’s version of how he received the stock certificate was so lacking in credibility as to be unacceptable and unbelievable as a matter of law. In short, the members of this appellate panel do not have the prerogative of judging the credibility of witnesses. Old Equity Life Insurance Company v. Levenson, 177 So.2d 50 (Fla. 3rd DCA 1965), and In Re: Estate of Edmunds, 214 So.2d 65 (Fla. 4th DCA 1968). The trial judge chose to believe the testimony of witnesses which appellant would have this court reject. We cannot conclude that the court committed reversible error in this regard, and the judgment below is thus affirmed.

AFFIRMED.

HERSEY, J., concurs.

LETTS, J., concurs specially.

LETTS, Judge,

concurring specially.

While I agree with the opinion, under the facts of this case, I can conceive of situations where the testimony might be so incredible as to fail to rebut the presumption of undue influence referred to in In Re Estate of Carpenter, 253 So.2d 697 (Fla. 1971). However, this is not one of them. Certainly I agree the evidence favoring the stepson is suspect and that I as a trial judge probably would have ruled the other way. Notwithstanding, the evidence is not incredible and we have no power to substitute our judgment for that of the trial court which apparently accepted the rebuttal testimony and found it to be sufficient.


author: GLICKSTEIN, Judge.

text:
    Richard INGAGLIO, Appellant, v. Virginia ENNIS and Mathew Ennis, Appellees.
    No. 83-611.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.

      James L. Kershaw, Fort Lauderdale, for appellant.
    John P. Shevock of Gillespie, McCormick, McFall, Gilbert & McGee, Fort Lauderdale, for appellees.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment in favor of the plaintiffs against a defendant doctor following a jury verdict of $45,-000 for the wife and $10,000 for the husband. The sole issue is whether the trial court erred in entering a pretrial order which reads as follows:

THIS CAUSE having come before the Court on the plaintiffs’ Ore Tenus Motion to Strike Defendant’s Answer and Affirmative Defense for willful disobedience of the Court’s Order of December 19, 1980, requiring the filing of a responsive pleading within twenty days and for failure to file timely answers to interrogatories and Motion for Entry of a Default, the Court having heard argument of counsel and having considered the file and being otherwise fully advised, it is ORDERED AND ADJUDGED that the Answer and Affirmative Defenses of the Defendant are hereby stricken as sanctions imposed for willful disobedience of this Court’s Order of December 19, 1980, and for failure to file timely answers to interrogatories, and the Plaintiffs’ Motion for Entry of a Default is hereby granted. Upon notice by either party, this case will be set for trial on the issue of damages, only.

The original and supplemental record re-, fleet the following:

1.In August, 1980, appellees served written interrogatories upon appellant.

2. In December, 1980, the trial court denied appellant’s motion to dismiss directed to appellees’ complaint.

3. In June, 1981, appellees (a) moved for default against appellant for failure to file an answer after denial of appellant’s motion to dismiss; (b) moved to compel appellant to answer the interrogatories served almost one year prior thereto; and (c) noticed both motions for hearing to be held at 9:00 a.m. on July 30, 1981.

4. On July 29, 1981, appellant served upon appellees by hand delivery (a) answers to interrogatories and (b) his answer and affirmative defense to the complaint.

5. On July 30, 1981, at 8:44 a.m., appellant filed the original of his answer to the complaint; and at 9:25 a.m. on the same date filed his answers to interrogatories.

6. On July 30, 1981, the trial court as-sumedly conducted the hearing previously noticed and considered appellees’ written motions as well as their oral motion to strike appellant’s answer and affirmative defense and granted all of the motions by order dated August 10, 1981.

First, the trial court was without authority to default appellant because of his failure to answer. The answer was filed before the hearing on appellees’ motion for default. See Florida Rule of Civil Procedure 1.500(b) and (c) as well as Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015 (Fla. 4th DCA 1982).

Second, the trial court erred in considering an ore tenus motion when only written motions had been filed and noticed for hearing. The only notice appellant had prior to the hearing was that which was in writing; therefore he had a right to expect that (a) his filing of an answer and affirmative defense eliminated the risk of default and (b) the only sanction sought by appel-lees based on appellant’s failure to file answers to interrogatories was that contained in the motion; namely, to compel that the interrogatories be answered. They had been, albeit, on the day prior to hearing. In Devoe & Raynolds Co. v. KDS Paint Co., 382 So.2d 126, 127 (Fla. 4th DCA 1980), this court held:

Telephoning opposing counsel to' inform him of an intention to argue a motion served on opposing counsel by mail on the same day as the intended argument was surely not the procedure contemplated by subsection (6), supra. Moreover, the procedure here was in direct violation of Rule 1.090(d), Florida Rules of Civil Procedure, constituted a denial of due process and was, for all practical purposes, an ex parte consideration of appellees’ motion. Absent extraordinary circumstances, proper notice should include written notice served a reasonable time before the time specified for the hearing.

Here, appellant had absolutely no notice of any ore tenus motion or hearing thereon and he had reason to believe the motion to compel has become moot by his serving, however late, his answers to same. We could not have faulted the trial court had the written motion asked the court to consider other sanctions than to compel answers.

We are chagrined by all of the judicial effort that must be repeated by this decision — another jury trial becoming necessary because of unexplained foot dragging. It can be as deleterious to stretch the rules as it is to break them; and an unnecessary encumbrance upon the administration of justice makes it that much more difficult not only for the parties victimized by the stretching but for the entire system. It is outrageous, in the absence of any explanation, to consider the time and expense needlessly occasioned the trial judge, the judges of this court, jurors, witnesses, clerks, law clerks and others, simply because appellant waited until the axe was going to fall before filing his answer and answers to interrogatories. While we must reverse the trial judge, we can certainly understand her frustration in this case as well as that of appellees’ counsel.

REVERSED.

WALDEN, J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.

       Fla.R.Civ.P. 1.090(d) provides: “A copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing."

        Brooker v. Smith, 101 So.2d 607 (Fla. 2nd DCA 1958); State, Dept. of Transportation v. Plunske, 267 So.2d 337 (Fla. 4th DCA 1972).

        Hilton v. Florio, 317 So.2d 83 (Fla. 3rd DCA 1975); Lieberman v. Marshall, 236 So.2d 120 (Fla.1970).

        See Polland v. Visual Graphics Corp., 240 So.2d 835 (Fla. 3rd DCA 1970).


author: HURLEY, Judge.

text:
    STATE of Florida, Appellant, v. Donald MURRAY, Timothy Dame, and Jonathon Vernon, Appellees.
    No. 83-680.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellant.
    Leon St. John of Powell, Tennyson & St. John, P.A., West Palm Beach, for appellee, Donald Murray.
    Douglas N. Duncan of Foley, Colton & Duncan, P.A., West Palm Beach, for appel-lee, Timothy Dame.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee, Jonathon Vernon.
   HURLEY, Judge.

Four co-defendants filed motions for disclosure of the identity of a confidential informant. At the motion hearing, the state conceded that it could not prosecute one of the co-defendants without calling the confidential informant as a witness and, therefore, the state did not oppose disclosure to that single defendant. At the conclusion of the hearing, the trial court granted each defendant’s motion. Now, by petition for writ of certiorari, the state asks us to hold that the trial court departed from the essential requirements of law by requiring disclosure to all four co-defendants. We decline to issue the writ.

It is elemental that once an informant’s identity is disclosed, the privilege of non-disclosure is no longer applicable. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Pena v. State, 432 So.2d 715 (Fla. 3d DCA 1983); Garcia v. State, 379 So.2d 441 (Fla. 3d DCA 1980). Given the present posture of the case in which the state has agreed that at least one of four co-defendants is entitled to disclosure, we cannot hold that the trial court’s action constitutes a departure from the essential requirements of law. Our decision, however, should not be construed as approving the sufficiency of the allegations in the motions filed by the three co-defendants.

PETITION DENIED.

LETTS and HERSEY, JJ., concur.


author: HERSEY, Judge.

text:
    DE ANZA CORPORATION, Appellant, v. HOLLYWOOD ESTATES HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 83-916.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.

      Edward S. Jaffry and William L. Gros-senbacher of Horne, Rhodes, Jaffry & Horne, Tallahassee, for appellant.
    Jerold Hart of Law Offices of Jerold Hart, P.A., North Miami Beach, for appel-lee.
   HERSEY, Judge.

We are asked to review an order permitting parties to intervene in litigation eight months after rendition of final judgment. We reverse.

In May 1981, Hollywood Estates Homeowners Association, Inc. (HEHA) filed a complaint against appellant De Anza. Following several motions by appellant a settlement stipulation was entered into by HEHA and appellant on December 31, 1981, and reduced to final judgment on April 27, 1982.

In pertinent part, the settlement stipulation provided that the residents of De Anza’s mobile home park designated HEHA as their agent for the purpose of entering into the stipulation, and that the designation of HEHA as agent was solely for the purpose of avoiding the necessity of obtaining signatures of the tenants. Additionally, the stipulation provided as follows:

5.) ....
(b) That commencing from the date of the execution of this stipulation, and for a period of thirty (30) days, but not to exceed January 30, 1982, Defendant will offer to each tenant a lease for a term of three (3) years commencing on January 1, 1982, said lease to be in the same form and containing all of the terms and conditions as found in the lease presently offered to such tenants by Defendant as same is attached hereto as Exhibit “B.” Plaintiff specifically recognizes that said lease provides for yearly increases in rent to be paid to Defendant in a percentage amount not in excess of the amount of the reported Consumer Price Index as released by the United States Department of Labor, and also including, among other things, utility and tax assessment pass throughs.

Beginning approximately eight months after the entry of final judgment, a varying number of individual tenants sought enforcement of the final judgment and settlement stipulation (specifically paragraph 5b). Additionally, the individual tenants petitioned the court for leave to intervene and filed a motion to stay the enforcement of new leases raising rents. Appellant admits that the individuals are bound by the stipulation, but takes the position that since the final judgment had already been rendered and thus there was no pending litigation, it was too late for the individual tenants to intervene. Furthermore, appellant claims that there was an unreasonable delay in proceeding to enforce the stipulation and thus the individual tenants are es-topped from now claiming non-performance. Appellee/intervenors argue that they are parties to the suit, although collectively through the HEHA rather than individually, and that in any event they should be permitted to intervene in the interest of justice.

The trial court granted the petitions to intervene and also stated

all parties of said Petitions shall hereinafter be known as substituted party plaintiffs in the above-styled cause of action.

In Regency Highland Assocs. v. Regency Highland Condominium Ass’n, 405 So.2d 788 (Fla. 4th DCA 1981), the developer of a condominium sued a fence company for breach of warranty after it had transferred control of the condominium to the condominium association. Judgment was entered in favor of the developer and the fence company filed a motion for protective order expressing its concern over its possible liability to the association as the real party in interest. Thereafter, the association filed a motion to intervene pursuant to Rule 1.230, Florida Rules of Civil Procedure, alleging that it was the real party in interest entitled to recover the judgment entered against the fence company. At a hearing, the developer stipulated that it would use the money recovered from the fence company to repair the fence and the court accordingly denied the fence company’s motion for protective order. The opinion of this court then summarized the applicable principles of law as follows:

The trial court denied the association’s motion to intervene by applying the general rule against intervention after final judgment. Wags Transportation System v. City of Miami Beach, 88 So.2d 751 (Fla.1956); Dickinson v. Segal, 219 So.2d 435 (Fla.1969); Maryland Casualty Company v. Hanson Dredging, Inc., 393 So.2d 595 (Fla. 4th DCA 1981). On appeal, the association, however, asserts that the trial court abused its discretion by failing to apply an exception to this rule when intervention is in the interest of justice. See Wags Transportation System v. City of Miami Beach, supra. Wags Transportation System involved a motion by homeowners to intervene in a zoning case after final judgment. The court found that the trial court erred in denying the homeowners’ motion to intervene. The Court held that the motion to intervene showed such an interest in the res that the ends of justice require that it be granted. The Florida Supreme Court in Dickinson v. Segal, supra, however, refused to extend the exception in Wags Transportation System beyond the facts of that case. Furthermore, this Court has strictly adhered to the general rule against intervention after final judgment. Maryland Casualty Company v. Hanson Dredging, Inc.

405 So.2d at 789.

In Boca Dev. Assocs. v. Holiday City Civic Ass’n, 411 So.2d 343 (Fla. 4th DCA 1982), we reiterated this position. In that case the appellant sought review of its motion for leave to intervene filed after entry of final judgment. Affirming on the authority of Regency Highland Assocs. v. Regency Highland Condominium Ass’n, 405 So.2d at 788, we stated:

With particular reference to attempts to intervene in the latter stages of litigation, the Supreme Court of Florida has adopted the almost universal rule that intervention will not be allowed after final judgment. Dickinson v. Segal, 219 So.2d 435 (Fla.1969). The court referred to Wags Transportation System v. City of Miami Beach, 88 So.2d 751 (Fla.1956), a case establishing an exception where intervention was “in the interests of justice,” but declined “to extend it beyond the facts involved there.” Dickinson v. Segal, supra at 438.
More recently the Third District Court of Appeal has applied the general rule and refused to extend the exception. Wong v. von Wersebe, 365 So.2d 429 (Fla. 3d DCA 1978).
We are strongly inclined to the view that adherence to the rule rather than the exception will produce the best result in the great majority of cases.

411 So.2d at 344 (quoting Maryland Casualty Co. v. Hanson Dredging, Inc., 393 So.2d 595, 596 (Fla. 4th DCA 1981)).

In Idacon, Inc. v. Hawes, 432 So.2d 759 (Fla. 1st DCA 1983), the court repeated the rule and exception set forth in the foregoing opinions of this court and summarized that “Florida courts have recognized the breadth of the general rule and the narrowness of the exception.” 432 So.2d at 761.

In reversing the order permitting intervention based upon the foregoing authorities we do not intend to preempt all forms of relief for appellees. They may seek to enforce the stipulation as third party beneficiaries or commence a stockholder derivative action or use other appropriate means to obtain the advantage of the stipulation in which they were the real parties in interest. We do not prejudge the issue of whether they sat on their rights too long.

REVERSED and REMANDED.

DOWNEY and WALDEN, JJ., concur.


text:
    WAKEFIELD NURSERY, a Florida partnership, Appellant, v. David HUNTER, Appellee.
    No. 83-918.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.
    Neil G. Frank of Frank, Horowitz & Flaster, P.A., Sunrise, for appellant.
    Arnold Iloviteh of Ilovitch & Manella, P.A., Hollywood, for appellee.
   HERSEY, Judge.

In this appeal from a summary final judgment we reverse because only eight days transpired between the date of the Notice and the date of the hearing whereas the rules clearly require twenty days notice. Fla.R.Civ.P. 1.510(c). See Greer v. Workman, 203 So.2d 665 (Fla. 4th DCA 1967). In any event ownership of the pipes and an agreement as to their continued use were genuine material issues of fact the existence of which would have precluded summary judgment even after adequate notice. See, e.g., Tompkins v. Rosenberg, 194 So.2d 688 (Fla. 3d DCA 1967) the court there noting that it is not sufficient for the moving party to come forward with a mere preponderance of the evidence to obtain summary disposition of the issues.

REVERSED AND REMANDED.

LETTS and BERANEK, JJ., concur.


text:
    Marvin Jose DIAZ and Diaz, Greenhawt & Stone, M.D., P.A., Appellants, v. Susan EPSTEIN and Stanley Epstein, her husband, Appellees.
    No. 83-1385.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.
    Betsy E. Hartley of Talburt, Kubicki & Bradley, Miami, for appellants.
    Jack H. Vital, III, of Sheldon J. Sehlesin-ger, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

We reverse the order denying Defendants’ Verified Motion for Change of Venue pursuant to Section 47.122, Florida Statutes, upon authority of:

Hughes Supply, Inc. v. Pearl, 403 So.2d 614 (Fla. 4th DCA 1981).
Florida Power & Light v. Troutman, 396 So.2d 743 (Fla. 4th DCA 1981).
Hertz Corporation v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976).

Reversed and Remanded.

LETTS, HURLEY and WALDEN, JJ„ concur.


text:
    Nigel WINFIELD, Appellant, v. BROMPTON AIR SERVICES, A DIVISION OF AFRICAN AMERICAN TRADE CORP., a Massachusetts corp., Beverly Banks, Executor of the Estate of Jennings A. Crawford, individually, as partners and as joint venturers, et al, Appellees.
    No. 83-1676.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.
    Robert M. Leen of Leen & Schneider, Hollywood, for appellant.
    George dePozsgay of Howard, Brawner & Lovett, Miami, for appellees.
   HERSEY, Judge.

In aid of execution of a final judgment, various attempts were made to take the deposition of appellant, a party in the litigation out of which the judgment arose. Appellant appeared by counsel to protest discovery. Many attempts to take the deposition were to no avail. The latest attempt was subjected to a motion to strike which was denied. That denial is the subject of this appeal. We affirm.

A judgment debtor is subject to discovery procedures. Fla.R.Civ.P. 1.560. If represented by an attorney, service is obtained by delivering a copy of the notice of taking deposition to the party’s attorney. Fla.R.Civ.P. 1.080(b). Appellant flirts with contempt. No further impediments to discovery should be permitted.

AFFIRMED.

LETTS and DELL, JJ., concur.


author: CAMPBELL, Judge.

text:
    Gloria Dawn JONES, Appellant, v. Darlene DOWDY and Munford, Inc., d/b/a Majik Market, Appellees.
    No. 83-926.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1984.
    C. Daniel Akes, Lakeland, for appellant.
    H. Vance Smith and Ted R. Manry, III, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellees.
   CAMPBELL, Judge.

This is an appeal from a summary judgment in favor of appellee, Munford, Inc., a defendant below. Appellant, Gloria Dawn Jones, sued appellee for its alleged failure to use due care to protect appellant against damages caused by the negligent or wrongful acts of third persons which appellee should have reasonable cause to anticipate. We affirm.

Appellee is the owner of numerous neighborhood convenience stores known as Majik Markets. Appellant was a customer who was shopping inside one of appellee’s stores. Appellee’s store was typical of most convenience stores. It had an enclosed glass front with a sidewalk about ten to twelve feet wide along the length of the front of the building. The sidewalk was raised about six inches above the level of the parking lot also in front of the store. The edge of the sidewalk bordering the parking area was painted yellow. Appellant was injured when an automobile driven by Darlene Dowdy crossed over the sidewalk and crashed through the glass front of appellee’s store. This ease is virtually identical to Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla. 1st DCA 1961). We affirm the summary judgment for appellee on the authority of Schatz.

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


author: SCHEB, Judge.

text:
    A-1 CRANE SERVICE, INC., a Florida corporation, Ella M. Beyel and Daniel Beyel, Appellants, v. RCA STEEL & CONSTRUCTION, INC., a Florida corporation, Appellee.
    No. 83-1012.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1984.
    Sheldon D. Stevens of Rice, Stevens & Peters, P.A., Merritt Island, for appellants.
    John A. Grant, Jr., of Peavyhouse, Gig-lio, Grant, Clark, Charlton, Opp & Martino, Tampa, for appellee.
   SCHEB, Judge.

A-l Crane challenges the trial court’s entry of a nonfinal order determining the issue of liability by granting RCA’s motion for specific performance. We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

In Count III of a three count complaint, RCA alleged that notwithstanding its payment to A-l of the complete purchase price for a hydraulic crane, that A-l failed to deliver the title to RCA. RCA sought specific performance. A-l Crane answered, incorporating an affirmative defense of impossibility of performance. Specifically, A-l alleged that' title to the crane was being wrongfully withheld by its creditor, Credit Alliance, due to its alleged defaults on unrelated matters.

On motion of RCA, the court struck Al’s affirmative defense and granted summary judgment on Count III ordering A-l to transfer title to RCA within 20 days.

A-l’s affirmative defense appears legally sufficient on its face. In fact, it was supported by A-l’s answers to interrogatories. Thus, the court erred in striking it. Hulley v. Cape Kennedy Leasing Corp., 376 So.2d 884 (Fla. 5th DCA 1979). Moreover, given A-l’s affirmative defense, it was incumbent on RCA as movant for summary judgment to establish the nonexistence of any genuine issue of material fact by either disproving or establishing the legal insufficiency of A-l’s defense. Stewart v. Gore, 314 So.2d 10 (Fla. 2d DCA 1975). Only the parties’ pleadings and Al’s answers to interrogatories were before the court when the trial judge entered the order under review. Thus, the record fails to disclose that RCA met its burden. Consequently, it was error for the court to grant the relief sought by RCA.

We vacate the order striking A-l’s affirmative defense • and granting summary judgment and remand for further proceedings.

GRIMES, A.C.J., and LEHAN, J., concur.


text:
    STATE of Florida, Appellant, v. Marvin WHITE, Appellee.
    No. 83-1137.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellant.
    James H. Kynes of Winkles, Trombley & Kynes, P.A., Tampa, for appellee.
   PER CURIAM.

Appellant, State of Florida, appeals from an order granting a motion to dismiss an amended information purporting to charge appellee, Marvin White, with four counts of bookmaking in violation of section 849.-25(1), Florida Statutes (1981). Appellee was charged with taking or receiving bets (on various dates) on professional baseball, football and college football games. The wording of the counts of the information tracked the wording of section 849.25(1). Appellee argues that the decision of this court in State v. Tate, 420 So.2d 116 (Fla. 2d DCA 1982), requires that an information charging bookmaking, in order not to be fatally defective, must charge the defendant with the element of habitualness. Tate does not so hold, and we, therefore, reverse.

This court in State v. DiGuillio, 413 So.2d 478 (Fla. 2d DCA 1982), considered and sustained an information nearly identical with the amended information dismissed below. While the state must, in order to convict for the offense of bookmaking, prove more than an isolated act of placing a bet, if the information tracks the language of the statute in charging multiple acts, it is sufficient to withstand a motion to dismiss.

Reversed and remanded.

BOARDMAN, A.C.J., and RYDER and CAMPBELL, JJ., concur.


text:
    Gary E. WAGNER, Appellant, v. VIGOR ISLAND CORPORATION, a Florida corporation, Appellee.
    No. 82-1058.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1984.

      Gary E. Wagner, pro se.
    J. Michael Hughes of Mahoney Hadlow & Adams, Jacksonville, for appellee.
   PER CURIAM.

This is an appeal from a summary final judgment in a mortgage foreclosure action. We reverse because the record sustains appellant’s contention that he was given no notice of the hearing on plaintiff's motion for summary judgment. Neither does it appear to us that appellant was given sufficient opportunity to be heard or to provide affidavits to support his affirmative defenses when he called the lack of notice to the court’s attention and moved for a rehearing and an extension of time within which to provide such affidavits. The final judgment is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

ORFINGER, C.J., and DAUKSCH and FRANK D. UPCHURCH, Jr., JJ., concur,


text:
    Larry STARNES, Appellant, v. STATE of Florida, Appellee.
    No. 82-1570.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Briseno v. Perry, 417 So.2d 813 (Fla. 5th DCA 1982).

DAUKSCH, FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


text:
    Edgar C. PLATEL, Appellant, v. A.A. McCLANAHAN, Jr., Appellee.
    No. 83-49.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1984.

      Edgar C. Platel, pro se.
    William A. Leffler, III, Sanford, for ap-pellee.
   PER CURIAM.

AFFIRMED See Platel v. McGuire, Voorhis, and Wells, P.A., 436 So.2d 303 (Fla. 5th DCA 1983).

FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    STATE of Florida, Appellant, v. Frederick Alexander DUKES, Appellee.
    No. 83-239.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellant.
    No appearance for appellee.
   ORFINGER, Chief Judge.

The State appeals an order granting ap-pellee Frederick Alexander Dukes’ motion for discharge on speedy trial grounds. We affirm.

On April 16, 1982, several warrants for the arrest of Dukes were issued in Volusia County, charging Dukes with armed robbery, robbery, and possession of a firearm in the commission of a felony. Dukes was then living in Brevard County, free on bail because of charges against him there. On April 23, 1982, Dukes was taken into custody by the Brevard County Sheriff’s office on the basis of the Volusia County warrants. At a first appearance hearing on the Volusia County charges, Dukes advised the court of the pending Brevard County charges, and a second appearance hearing was scheduled, pending which Dukes was remanded to the custody of the Brevard County Sheriff.

Dukes’ second appearance in Brevard County on the Volusia County charges was made April 30, 1982. Because local charges were still pending, Dukes was remanded to custody in Brevard County until the local charges were disposed of, at which time he would be released to Volusia County. Having been led to believe that Dukes was available for delivery to Volusia County, Volusia deputies came to the Bre-vard County Jail on April 27, 1982, but were refused custody of Dukes because of the pending Brevard charges against him.

Dukes remained in Brevard County’s custody until August 13, 1982, when he was released, returned to Volusia County, and booked into Volusia County Jail on the same date. Volusia County’s records, indicate that the three warrants in question were recorded as executed upon Dukes on August 13, 1982, the day he was booked into Volusia County Jail. On September 22, 1982, two informations were filed; one charging Dukes with two counts of robbery and one count of use of a firearm while committing or attempting to commit a felony, and the second charging him with burglary of a conveyance and robbery. All charges were those described in the original warrants by virtue of which he had been taken into custody in Brevard County.

On December 3, 1982, Dukes filed motions for speedy trial discharge in both cases, asserting that he was taken into custody by full custodial arrest on April 23 in Titusville; that as early as April 26, Volusia County was aware of defendant’s incarceration in Brevard County based upon the Volusia County arrest warrants; that the defendant had, since April 23, been continuously available for trial; that as of the date of the motions, 223 days had elapsed since defendant’s arrest, the 180-day speedy trial period having expired on October 20, 1982; and, finally, that there had been no continuances of the cause, nor any implicit or explicit speedy trial waivers.

Although finding that Volusia County officials had no power to compel Bre-vard County to surrender defendant to Vol-usia’s jurisdiction, the trial court determined that Fla.R.Crim.P. 3.191 required the finding that speedy trial began when defendant was arrested in April, and that the 180-day period had run when the motion for discharge was filed. We are compelled to agree.

Florida Rule of Criminal Procedure 3.191(a)(1) provides that:

Except as otherwise provided by this Rule, and subject to the limitations imposed under (b)(1) and (b)(2), every person charged with a crime by indictment or information shall without demand be brought to trial within 90 days if the crime charged be a misdemeanor, or within 180 days if the crime charged be a felony, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion, shall make the required inquiry under (d)(3). The time periods established by this section shall commence when such person is taken into custody as defined under (a)(4). A person charged with a crime is entitled to the benefits of this Rule whether such person is in custody in a jail or correctional institution of this State or a political subdivision thereof or is at liberty on bail or recognizance. This section shall cease to apply whenever a person files a valid demand for speedy trial under (a)(2).

According to Fla.R.Crim.P. 3.191(a)(4), a person is taken into custody for speedy trial purposes under the following circumstances:

... (i) when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, or (ii) when the person is served with a notice to appear in lieu of physical arrest.

In Lewis v. State, 357 So.2d 725 (Fla. 1978), the supreme court rejected the argument that defendants held in jail while awaiting trial were persons “imprisoned in a penal or correctional institution of the state or a subdivision thereof” so as to be subject to the longer trial periods provided by former Rule 3.191(b)(2) (1972). In holding that the Rule .in question applied only to defendants imprisoned in a state or county penal institution pursuant to a criminal judgment of guilt, the court said:

[this section] does not apply to those defendants being held in jail while awaiting trial. If one jurisdiction in this state seeks to bring to trial a defendant awaiting trial in another county, the state should affirmatively request an extension of the speedy trial limits under Fla. R.Crim.P. 3.191(d)(2), alleging the existence of this exceptional circumstance.

This court has held that the time for trial is not interrupted merely because the defendant is incarcerated elsewhere in the state during the speedy trial period and such incarceration does not preclude him from asserting his speedy trial rights. Holmes v. Leffler, 411 So.2d 889 (Fla. 5th DCA), pet. rev. denied, State v. Holmes, 419 So.2d 1200 (Fla.1982). The 1980 amendment to Rule 3.191(a)(1), effective January 1, 1981, makes it clear that “[a] person charged with a crime is entitled to the benefits of this Rule [although] such person is in custody in a jail or correctional institution of this state or a political subdivision thereof.” See also, State v. Yero, 377 So.2d 45 (Fla. 3d DCA 1979); Ramos v. Amidon, 263 So.2d 602 (Fla. 2d DCA 1972).

Knowing that Dukes had been taken into custody on the Volusia warrants, when it became clear that Brevard County was not going to allow Dukes to be returned to Volusia until the Brevard charges were disposed of, Volusia could have and should have protected its prosecution rights by applying for an extension of speedy trial because of the existence of this exceptional circumstance. Lewis.

Morris v. Nimmons, 414 So.2d 568 (Fla. 1st DCA 1982), and Grace v. State, 354 So.2d 444 (Fla. 1st DCA 1978), relied on by the State, are both distinguishable. In Morris, the majority of the court found that defendant had not been arrested on the capias issued following his escape from the Jacksonville Correctional Center, but had been arrested in Nassau County on Nassau County charges, and that he had not been taken into custody under the Du-val County charges. The capias was treated as a detainer which is not the equivalent of an arrest, and which does not commence the running of the speedy trial period. See State v. Bassham, 352 So.2d 55 (Fla.1977); Cameron v. State, 376 So.2d 248 (Fla. 5th DCA 1979); State ex rel. Williams v. Eastmoore, 297 So.2d 572 (Fla. 1st DCA 1974). In Grace, the court held that when Grace was imprisoned in Walton County while under a charge in Okaloosa County and did not demand trial, the State had a year to bring him to trial in Okaloosa County under former Rule 3.191(b)(1). The holding of this case was impliedly overruled in Lewis, and the result in that case has been superseded by a change in the Rule.

In the case before us, the documentary evidence as well as the testimony presented to the trial court at the hearing on the motion for discharge show without dispute that Dukes was arrested and taken into custody on April 23, 1982, on the basis of the Volusia County warrants. This arrest triggered the start of the 180-day speedy trial time and nothing intervened here to stop it. The trial court correctly granted the motion for discharge, so the order appealed from is

AFFIRMED.

SHARP and COWART, JJ., concur.