author: SHARP, Judge.

text:
    Veronica Victoria WILLIAMS, also known as Tina Williams, Petitioner, v. STATE of Florida, Respondent.
    No. 83-1533.
    District Court of Appeal of Florida, Fifth District.
    June 7, 1984.
    Joseph W. DuRocher, Public Defender, and'Timothy E. DePalma, Asst. Public Defender, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for respondent.
   SHARP, Judge.

Williams petitions for a writ of certiorari to overturn the decision of a circuit court acting in its appellate capacity. The issue in this case is whether section 843.035, Florida Statutes (1983), passed as Chapter 82-150, Laws of Florida, is unconstitutional because it violates the single subject matter requirement for legislation in our state constitution.

The county court granted Williams’ motion to dismiss an information charging her with a violation of section 843.185, Florida Statutes (1981), now numbered 843.035, on the ground that it violated the single subject limitation and was therefore unconstitutional. The circuit court reversed, relying on State v. Bunnell, 447 So.2d 228 (Fla. 2d DCA 1983), which involved the same statute and the same constitutional challenge. We disagree with Bunnell, and accordingly we grant the writ.

Section 843.035 was enacted as the first section of Chapter 82-150. It defines the crime of obstruction by false information, and provides for a punishment. Section 2 of the act deals with amendments and revisions of subsections (3), (4), and (8), of section 23.152, Florida Statutes (1983). Those provisions change the membership and staff of the Florida Council on Criminal Justice, alter the members’ voting rights, terms of office, and add a sunset review provision to Chapter 23. The title of the act is as follows:

An act relating to the Florida Council on Criminal Justice; creating s. 843.185, Florida Statutes, prohibiting the obstruction of justice by false information; providing a penalty; amending s. 23.152(3), (4) and (8), Florida Statutes, changing and reducing the membership of the council; providing for nonvoting representatives of members; providing for review and repeal of Part VIII of Chapter 23, Florida Statutes, relating to the “Florida Criminal Justice Council Act” in accordance with the Regulatory Sunset Act; providing an effective date.

The Florida Constitution, article III, section 6, contains two pertinent limitations on the form in which the legislature may pass laws:

Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.

This language originated in article III, section 16 of Florida’s 1885 Constitution. Both constitutional provisions require that the subject be “briefly expressed in the title,” and that the bill contain only matters “properly connected” with the subject. The title of the act in this case briefly expresses the substance, and is not misleading; but the problem with the act as we analyze it, is that the two sections are not germane, nor “properly connected” to a single subject.

These provisions were designed to prevent various abuses commonly encountered in the way laws were passed by state legislatures. One was logrolling, which resulted in hodgepodge or omnibus legislation. Colonial Investments Co. v. Nolan, 100 Fla. 1349, 131 So. 178 (1930). As Justice Brown wrote in Nolan,

It had become quite common for legislative bodies to embrace in the same bill incongruous matters having no relationship to each other.... And frequently such distinct subjects, affecting diverse interests, were combined in order to unite the members who favored either in support of all....

131 So. at 179 (quoting Lewis’ Sutherland, Statutory Construction, § 3).

The logrolling problem has also been alluded to by our supreme court in its interpretation of article III, section 6 of the 1968 constitution. If diverse and dissimilar matters were included within one law, the legislative process could be subverted by passing matters which really have no majority support in the legislative body, but which were passed because legislators were voting to approve other provisions included in the bill. It could also impair the Governor’s veto power if he or she were forced to accept an unwanted or undesirable provision in order to obtain the enactment of a desirable one.

The Florida Supreme Court has interpreted this provision liberally, and has upheld laws which apparently contain many different subjects. Chenoweth v. Kemp, 396 So.2d 1122 (Fla.1981) (Sundberg, J., dissenting). It is perhaps a less stringent provision than the one which requires one subject for initiatives to amend the constitution. Fine v. Firestone, 448 So.2d 984 (Fla.1984). Very comprehensive law revisions have been sustained in the face of challenge by the one subject limitation for laws. See State v. Volusia County Indus trial Development Authority, 400 So.2d 1222 (Fla.1981); Chenoweth; Santos; State v. Lee, 356 So.2d 276 (Fla.1978); State ex rel. Flink v. Canova, 94 So.2d 181 (Fla.1957). However, the provision requiring that all the matters passed in one bill be germane and logically related in some way to each other has always been recognized by the courts.

The bill in question in this case is not a comprehensive law or code type of statute. It is very simply a law that contains two different subjects or matters. One section creates a new crime and the other section amends the operation and membership of the Florida Criminal Justice Council. The general object of both may be to improve the criminal justice system, but that does not make them both related to the same subject matter.

The Bunnell court reasoned that although not expressed in the title, it could infer from the provisions of the bill, a general subject, the criminal justice system, which was germane to both sections. Even if that subject was expressed, for example, in a title reading “Bill to Improve Criminal Justice in Florida,” we think this is the object and not the subject of the provisions. Further, approving such a general subject for a non-comprehensive law would write completely out of the constitution the anti-logrolling provision of article III, section 6.

We think this ease is. governed by Nolan and Albritton v. State, 82 Fla. 20, 89 So. 360 (1921). In Nolan, the court held that a law which contained provisions requiring sworn tax returns and which prohibited the recording of deeds without stating the grantor’s address, failed the one subject requirement because the two matters were too independent and unrelated. Significantly, the court did not say the two matters were related to the general “subject” of integrity in public documentation. As we stated above, the general objective of the legislative act should not serve as an umbrella subject for different substantive matters.

Similarly in Albritton, the court held that the inclusion of a provision making it a crime to become voluntarily intoxicated in a law prohibiting the manufacture and traffic in intoxicating liquor during Prohibition, failed the one subject requirement. The dissent pointed out that there is a logical connection between all the provisions, if the subject was broadly viewed as implementing the eighteenth amendment to the United States Constitution. However, the majority thought the substantive crime was not germane to the sale and manufacture' of liquor. In this case, the subject “Criminal Justice System” is much broader than the subject of Prohibition.

We find that section 843.035 is unconstitutional, and we certify a conflict with our decision and Bunnell. Accordingly, we quash the opinion of the circuit court, and reinstate the county court ruling dismissing the information against Williams.

WRIT OF CERTIORARI GRANTED.

DAUKSCH and COBB, JJ„ concur.

      . We have jurisdiction. Combs v. State, 436 So.2d 93 (Fla.1983); Art. V, § 4, Fla. Const.; Fla.R.App.P. 9.030(b)(2).

      . Whoever in any manner knowingly gives a false name or a false address with intent to obstruct the due execution of the law, or with the intent to intimidate, hinder, or interrupt any law enforcement officer or beverage enforcement agent in the legal performance of his duty under the constitution or laws of this state, whether such obstruction is effected or not, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      .Art. Ill, § 6, Fla. Const.

      . Williams v. State, 370 So.2d 1143 (Fla.1979); Rouleau v. Avrach, 233 So.2d 1 (Fla.1970).

      . The term "logrolling," originated perhaps two hundred or more years ago. It is an "allusion, originally American, to neighbors who assist a new settlor to roll away the logs of his clearing." Brewer’s Dictionary of Phrase and Fable, (Evans rev. ed. 1970). Originally benevolent, the term has suffered somewhat from its association with politics.

      . Santos v. State, 380 So.2d 1284 (Fla.1980).

      . Fine v. Firestone, 448 So.2d 984 (Fla.1984).

      . Brown v. Firestone, 382 So.2d 654 (Fla.1980).

      . See Santos; Board of Public Instruction of Broward County v. Doran, 224 So.2d 693 (Fla.1969); State ex rel. Flink v. Canova, 94 So.2d 181 (Fla.1957); Alterman Transport Lines, Inc. v. State, 405 So.2d 456 (Fla. 1st DCA 1981); State v. Volusia County Industrial Development Authority, 400 So.2d 1222 (Fla.1981).

      . Canova.


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Joseph Nunze MARROW, Appellee.
    No. 84-189.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Rehearing Denied July 13, 1984.

      Jim Smith, Atty. Gen. and Renee E. Rus-ka, Asst. Atty. Gen., for appellant.
    Mark King Leban, Goodhart, Rosner & Green, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

At a hearing conducted on the defendant’s challenge to the veracity of a sworn statement used by the police to procure a search warrant, it was revealed without dispute that notwithstanding the affiant’s sworn statement in the affidavit for the search warrant that “your affiant received information from a reliable confidential informant,” in fact, the affiant had never communicated with the alleged confidential informant, but had spoken only to a fellow police officer, who told the affiant about the reliability of the confidential informant and the information which the informant gave.

We affirm the trial court’s order suppressing the evidence seized pursuant to the search warrant upon a holding that (1) where, as here, the affiant clearly implied that the critical conversation discussed in the affidavit was between the confidential informant and him, even though the affiant did not expressly state that he “personally” spoke to or interviewed the informant, see, e.g., Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); United States v. Davis, 714 F.2d 896 (9th Cir.1983); Debord v. State, 422 So.2d 881 (Fla. 2d DCA 1982), the affiant’s statement is at least recklessly false; (2) the fact that probable cause existed and could have been readily shown by a truthful affidavit stating that the affiant’s information came from a fellow officer does not change the result, since it is the truth of the affiant’s statement, not the truth of the confidential informant’s statement, that is material to the magistrate’s decision to issue the search warrant, United States v. Davis, 714 F.2d 896; and (3) since after the required excision of the false information concerning the confidential informant, see Franks v. Delaware, 438 U.S. at 172, 98’ S.Ct. at 2684, there are not sufficient facts in the affidavit to support a finding of probable cause, the warrant is thus invalid, and suppression of the evidence seized thereunder was properly granted.

Affirmed.


author: DANIEL S. PEARSON, Judge. FERGUSON, Judge

text:
    Eddie Leroy MORTON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1191.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Rehearing Denied Nov. 2, 1984.

      Bennett H. Brummer, Public Defender; Kalter & Kutner, Miami, and Robert Falter, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   ON REHEARING

DANIEL S. PEARSON, Judge.

The State’s motion for rehearing is granted, and the panel opinion filed March 13, 1984, is withdrawn and the following opinion substituted therefor.

Morton was charged with three counts of robbery. At the conclusion of the trial, the court instructed the jury on the lesser-included offenses of the crimes charged, but inadvertently failed to instruct on any of the elements of robbery. Morton was found guilty of robbery on Count I and grand theft, a lesser-included offense of robbery, on Counts II and III. On appeal, Morton challenges his robbery conviction only, contending that the trial court’s failure to instruct on any of the elements of robbery is fundamental error, excusing Morton’s otherwise fatal failure to object to this omission. We disagree and affirm.

The rule of law applicable to this case is that it is not fundamental error to fail to instruct on an essential element of a crime where the existence of that essential element is not in genuine dispute. See Stewart v. State, 420 So.2d 862 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983); Henderson v. State, 429 So.2d 1284 (Fla. 3d DCA 1983); Lewis v. State, 411 So.2d 880 (Fla. 3d DCA 1981), rev. denied, 418 So.2d 1279 (Fla.1982); Leary v. State, 406 So.2d 1222 (Fla. 4th DCA 1981); Gibson v. State, 403 So.2d 1019 (Fla. 3d DCA 1981), rev. denied, 436 So.2d 32 (Fla.1983); McMurtroy v. State, 400 So.2d 547 (Fla. 3d DCA), rev. denied, 408 So.2d 1094 (Fla.1981); Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983). Although the rule has been employed in the above-cited cases to defeat the claim of fundamental error where there has been a failure to instruct the jury on a single undisputed and thus immaterial element of the robbery, namely, the intent to deprive another of his or her property, we see no reason why the rule is not equally applicable to the failure to instruct the jury on all elements of robbery where no element is in genuine dispute. In either case, the jury is not fully instructed, and it is not legally significant that they are more instructed in one and less instructed in the other.

The record in the present case reveals that no element of robbery was in dispute at any time during the trial, and thus, no element of robbery was material to the jury’s deliberations. Counsel for the defendant told the jury in his opening statement:

“As to the crime being committed, you will see these people, this family. You will see they are decent people. They are law abiding people and we are not disputing the fact that they were robbed. “We are simply saying that the defendant did not do it.... The evidence will show that someone committed this crime and because someone committed this crime, these people will come into court and they will sound very credible, because in fact they were robbed.”

As predicted by defense counsel, the sole defense throughout the trial was that the defendant was mistakenly identified by the victims of the robberies. Under these circumstances, where the only real issue put to the jury for its determination was whether the defendant was the person who committed the conceded robberies, it is inconceivable that the failure to instruct the jury on the elements of robbery prejudiced the defendant or that such an instruction would have made any difference in the jury’s verdict.

Therefore, we hold that no fundamental error excusing the defendant’s lack of objection to the omission of the robbery instruction exists where no element of the robbery was in dispute, and, a fortiori, no such fundamental error exists where, as here, for purposes of its deliberations, the jury was given the charging document, which fully described all the elements of robbery.

We do not for one moment suggest, as the dissenting opinion states, that where the defense is misidentification, “the State is relieved of its burden to prove anything other than identification.” (emphasis omitted). This case has nothing whatsoever to do with proof of the essential elements of the crimes; all elements were indisputably proved, and the defendant does not contend otherwise. This case merely concerns the question whether the lack of a jury instruction as to these clearly established elements, where no objection to the omission is made, constitutes fundamental error.

Moreover, we think the dissent unfairly denigrates the holding in Williams v. State, 400 So.2d 542, by stating that the decision to affirm was reached in order to avoid a mass exodus from the prisons which might result from a contrary decision. This court has never been hesitant to reverse a conviction where it has been convinced that reversal is required under the law. The imagined consequences of a reversal simply do not play a part in our decision-making process.

Affirmed.

FERGUSON, Judge

(dissenting)

The majority has created a rule of law which departs from the well-settled constitutional principle that in a trial by jury every element of a criminal offense must be proved sufficiently to satisfy the jury, not the court, of its existence. See Henderson v. State, 155 Fla. 487, 20 So.2d 649 (1945). Henderson holds, further, that an error in instruction which takes away from the jury its obligation to determine any element of the offense charged constitutes a denial of due process — consistent with Williams v. State, 366 So.2d 817 (Fla. 3d DCA), cert. denied, 375 So.2d 912 (Fla.1979). See also Gerds v. State, 64 So.2d 915 (Fla.1953) (failure to correctly and intelligently instruct a jury as to each element of the offense which the State is required to prove cannot be treated with impunity under the guise of harmless error).

The majority does not purport to rely on any authority for the proposition that a failure to instruct on all elements of the offense is not fundamental error. There is none. A not guilty plea places all at issue, even the most patent truths, and every factual element must be specifically considered by the jury. Roe v. United States, 287 F.2d 435 (5th Cir.), cert. denied, 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 29 (1961); see also United States v. McKenzie, 301 F.2d 880 (6th Cir.1962). That a jury will consider each element of an offense, even without instructions as to what constitutes any of the essential elements of the offense, assumes too much.

Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983), which carves out an exception to the general rule and permits omission of an instruction on the element of intent where it is not in issue, is an aberration born of necessity. Between 1976 and 1980, the standard jury instruction on robbery failed to include intent as an element. A reversal on that ground would have effectively opened the prison doors for every defendant convicted where the jury was instructed according to the defective instruction. The later Williams opinion, however, is not controlling because there the jury had been fully instructed as to each of the other elements of the offense. See id. at 544 n. 6 (distinguishing, as inapplicable, the cases which find fundamental error where there is a complete failure to define or explain the crime charged, e.g., Williams, 366 So.2d 817).

The defense in this case was misidentifi-cation where the defendant said, inter alia, that he was not present at the scene of the crime and that he, therefore, could not refute that a robbery had occurred. From these statements the majority reasons, contrary to existing law, that where such a defense is interposed, no other element of the offense is disputed and, therefore, the State is relieved of its burden to prove anything other than identification. But see United States v. McKenzie (even though the identification of defendant was the crucial issue at trial, the government still had to prove every other essential element of the offense charged to the satisfaction of the jury). An extension of the later Williams holding to the majority’s logical extreme cannot square with constitutional due process requirements.

The fact that the jury was supplied with a copy of the information is not made critical to the majority holding. But even if it were, that fact would be meaningless in the absence of some requirement that the information be read to the jury. There certainly is no assurance that merely because the charging document was sent into the jury room along with the evidence, the jury read it and understood that the State was obligated to prove each and every allegation.

The clear holding here is that the court’s failure to instruct the jury on what the State must prove in order to convict may be excused where the defense is misidenti-fication, so long as the court is satisfied that each element has been proved. It seems to me that dispensing with the jury altogether in such cases is, easily, the next logical step.

      . The rule has not been applied solely to the omission of the intent element in a robbery charge. See Pratt v. State, 429 So.2d 366 (Fla. 1st DCA 1983) (omission of knowledge element in drug case). Indeed, one appellate court has extended the rule in holding that the failure to instruct on an essential element over the objection of the defendant is harmless error where the existence of the element is not in genuine dispute. See Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982), rev. denied, 426 So.2d 26 (Fla. 1983). But see Holmes v. State, 412 So.2d 429 (Fla. 4th DCA 1982).

      . Williams v. State, 366 So.2d 817 (Fla. 3d DCA 1979), upon which the defendant relies, does nothing to further his position. One simply cannot tell from that opinion what the defense or disputed issues were. Nor does the earlier Williams have any greater precedential value because distinguished in Williams v. State, 400 So.2d at 544 n. 6, as involving a failure to instruct on all elements. The key to fundamental error is prejudice resulting in a denial of due process.

      . A representative count of the Information alleges in pertinent part that the defendant:
      "did unlawfully, by force, assault or putting in fear, take certain property, to-wit: PURSE, JEWELRY and CASH, good and lawful currency of the United States of America, said property being the subject of larceny and of the value of more than ONE HUNDRED DOLLARS (1100.00) the property of [_] as owner or custodian, from the person or custody of [_], with the intent to permanently deprive [_] of said property, etc.”
      (emphasis supplied).
      Thus, the elements of robbery, that is, (1) taking from the person or custody of the person, (2) the taking being by force, violence or assault, or by putting the person in fear, (3) the property taken was of some value, and (4) the intent being to permanently deprive the person of the property taken, were all before the jury.

      . Williams most assuredly is not limited to the omission of the element of intent from the robbery instruction or a situation in which an erroneous, but consistently-used, standard jury instruction is the cause of the omission.

      . Our initial vote was to deny rehearing in this case. While action on the State’s motion for rehearing en banc was pending, the author of the original opinion then changed his vote to agree with the dissent, forming a new majority. Contrary to what is set forth in note 2, the panel opinion on rehearing squarely conflicts with the holding in the earlier Williams case — which now sets the stage for an en banc rehearing.


author: PER CURIAM.

text:
    William FREDERICK, Appellant, v. STATE of Florida, Appellee.
    No. 83-1431.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.
    Rehearing Denied Oct. 1, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Frederick v. State, 451 So.2d 1066 (Fla. 5th DCA 1984). But see T.L.J. v. State, 449 So.2d 1008 (Fla. 2d DCA 1984); Bennett v. State, 438 So.2d 1034 (Fla. 2d DCA 1983) with which this decision is in conflict.

AFFIRMED.

COBB, C.J., and DAUKSCH and CO-WART, JJ., concur.


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

text:
    CITY OF MIAMI, Appellant, v. James SIMPSON and Division of Workers’ Compensation, Appellees.
    No. AW-421.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1984.
    Rehearing Denied Dec. 3, 1984.

      Jose Garcia Pedrosa, City Atty., and Gisela Cardonne, Asst. City Atty., Miami, for appellant.
    Richard A. Sicking, of Kaplan, Sicking, Hessen, Sugarman, Rosenthal, Susskind, Bloom & DeCastro, P.A., Miami, for appel-lees.
   NIMMONS, Judge.

The City of Miami appeals from an order of the deputy commissioner awarding rehabilitation benefits to James Simpson, a former City of Miami fire fighter and paramedic. The issue before us is whether the deputy, under the circumstances of this case, properly required the City to pay benefits in connection with a rehabilitation program which Simpson embarked upon before informing the employer of any need for or interest in such a program. We reverse.

Simpson was employed by the City in May, 1972, as a fire fighter. Two years later he became a paramedic and spent the next seven years with the rescue division. On March 29, 1980, Simpson sustained a lumbosacral strain while attending a heart attack victim. He continued to work alternate periods of regular and light duty work due to his recurrent back problems. The City was willing to allow Simpson to continue working under that arrangement during the “recovery period.” Although MMI was not reached until October 13, 1982, he resigned on April 26, 1982. The reason for his resignation is rather unusual. It seems that Simpson, a pilot licensed by the F.A.A., had been charged in federal court with smuggling drugs by airplane. He explained that he quit his job prior to the scheduled sentencing because he wanted to submit to the sentencing court letters of recommendation, and he felt that he “couldn’t ask for letters of recommendation without resigning first.” Simpson was subsequently convicted and placed on probation. Although the F.A.A. was proceeding to revoke his aviation licenses, the record does not indicate the results of such proceedings.

Simpson was 36 years old with better-than-average education and training. He had earned a two-year associate of arts college diploma and had experience as a helicopter mechanic, pilot, flight instructor and, for a brief period, electronic technician. Instead of looking for work or alerting the employer or the Division of Workers’ Compensation that he wanted or needed vocational training, Simpson, on the advice of his attorney, sought vocational rehabilitation outside the procedures contemplated by Section 440.49(1), Florida Statutes (1981). He went to the Division of Vocational Rehabilitation of the Department of Health and Rehabilitative Services (H.R.S.) in July 1982. After undergoing testing and evaluation, H.R.S. advised Simpson that he appeared suited to forest management and recommended that he enroll in college and work towards a degree in that field. This he did. Neither he nor his attorney mentioned anything of this to the employer until after Simpson was well into his course of study and had incurred substantial expenses associated therewith. The first mention to the employer of this vocational endeavor was Simpson’s attorney’s letter of November 3, 1982, which was a transmittal of bills incurred by Simpson and a demand that the employer pay the same.

This is not a case in which it can be said, as in Walker v. New Fern Restorium, 409 So.2d 1201, 1204 (Fla. 1st DCA 1982), that the claimant was in “substantial compliance” with Section 440.49(1). Indeed, Simpson and his attorney were proceeding totally outside the statutory framework. Further, the instant case is significantly distinguishable from Hurricane Fence Industries v. Bozeman, 413 So.2d 822 (Fla. 1st DCA 1982). There, the employee initially communicated his interest in vocational rehabilitation to the carrier which erroneously told the employee that he was not eligible for rehabilitation. A month later, he again contacted the carrier, informing the carrier of his intention to attend a particular vocational program in Chipley. Again, he was not eligible. Of course, there was no such communication involved in the case at bar. Also, this court’s recent opinion in C & H Construction v. Leyman, 453 So.2d 1163 (Fla. 1st DCA 1984) does not suggest affirmance of the deputy’s award in the instant case as the following portion of the Leyman opinion shows:

Hurricane Fence Industries [v. Bozeman] involved a situation like the one at issue here where the claimant’s desire for rehabilitation was made known to the carrier and the employer but they did nothing to provide the services, instruct the claimant on how to seek that help or invoke the procedure themselves until after the claimant had followed another path to obtain the needed services.

[At 1164],

Moreover, this is not the kind of case where we can say that the employer was derelict in not taking the lead in initiating the rehabilitation process. This 36-year-old claimant’s educational background was certainly above average. His vocational training and experience were varied and above average. Further, we do not have a situation where the employer terminated the claimant’s employment. On the contrary, Simpson quit his job for reasons entirely unrelated to his injury and apparently made no effort to secure other employment. Moreover, this claimant’s injury was not so severe such that a reasonable employer would have known that the injured employee would likely be precluded from earning amounts comparable to his pre-injury wages. It should be remembered that when Simpson quit his job and, for all intents and purposes as far as the employer was concerned, “disappeared” for a while, he was still six months away from reaching maximum medical improvement.

The order appealed is Reversed.

ERYIN, C.J., concurs.

JOANOS, J., dissents.

JOANOS, Judge,

dissenting.

The deputy commissioner found that although the City had knowledge of claimant’s work-related disability, at no time did it offer a rehabilitation plan of its own to claimant, nor did it request the Division of Workers’ Compensation to make its recommendations regarding claimant’s rehabilitation. The deputy commissioner further found that the program undertaken and approved by the Office of Vocational Rehabilitation, Florida Department of Health and Rehabilitative Services “... was eminently correct, proper and reasonable under the circumstances.” The deputy commissioner concluded that under the 1979 amendment to Section 440.49(l)(a), Florida Statutes, the claimant was not obligated to request permission from the employer before undertaking a program of rehabilitation.

Under the circumstances, the deputy commissioner should be affirmed. The record reflects that in this case the employer did not voluntarily offer rehabilitation. It appears also that the employer has not shown any prejudice by the efforts of claimant in directly undertaking a program of rehabilitation prescribed for him by the Division of Vocational Rehabilitation of the Florida Department of Health and Rehabilitative Services rather than making prior application through the Division of Workers’ Compensation of the Florida Department of Labor and Employment Security. The statute is permissive with regard to the party seeking rehabilitation, for application may be made by the employee, employer, or carrier. However, the statute is mandatory with regard to the provision of rehabilitation, requiring that “[t]he employer or carrier, at its own expense, shall provide such injured employee with appropriate training and education for suitable gainful employment _” Section 440.49(1)(a), Florida Statutes (1979), (e.s.). See, C & H Construction and Aetna Insurance Company v. Michael Leyman, 453 So.2d 1163 (Fla. 1st DCA 1984); Hurricane Fence Industries v. Bozeman, 413 So.2d 822 (Fla. 1st DCA 1982); Walker v. New Fern Restorium, 409 So.2d 1201 (Fla. 1st DCA 1982).

On Motion for Rehearing

PER CURIAM.

Our opinion stated that the claimant sustained “a lumbosacral strain”. We should have described his injury as “a lumbosacral strain with an intervertebral disc syndrome at L4-5 and sciatic radiculopathy” as found by the deputy commissioner. Our opinion is therefore modified to so reflect.

The motion for rehearing is otherwise Denied.

ERVIN, C.J., and NIMMONS, J., concur.

JO ANOS, J., dissents.

      . The City of Miami Fire Department has no permanent light-duty jobs. Light duty is assigned to injured employees for their recovery period, after which they return to regular duty. It was not disputed in this case that once Simpson reached maximum medical improvement there would be no position available for him with the City Fire Department.

      . Section 440.49(l)(a), Florida Statutes (1981) provides:
      440.49 Rehabilitation of injured employees; Special Disability Trust Fund.—
      (1) REHABILITATION OF INJURED EMPLOYEES.—
      (a) When an employee has suffered an injury covered by this chapter and it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. The employer or carrier, at its own expense, shall provide such injured employee with appropriate training and education for suitable gainful employment and may cooperate with federal and state .agencies for vocational education and with any public or private agency cooperating with such federal and state agencies in the vocational rehabilitation of such injured employees. For purposes of this section only, "suitable gainful employment” means employment or self-employment which is reasonably attainable in light of the individual’s age, education, previous occupation, and injury and which offers an opportunity to restore the individual as soon as practical and as nearly as possible to his average weekly earnings at the time of injury. If such services are not voluntarily offered or accepted, the Division of Workers’ Compensation of the Department of Labor and Employment Security, upon application of the employee, employer, or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for the evaluation of the practicality of, the need for, and the kind of service, treatment, or training, necessary and appropriate to restore the employee to suitable gainful employment. On receipt of such report, and after affording the parties an opportunity to be heard, the deputy commissioner may order that the service and treatment recommended in the record, or such other rehabilitation treatment or service deemed necessary, be provided at the expense of the employer or carrier.


author: LETTS, Judge.

text:
    BROWARD MARINE, INC., a Florida corporation, Appellant, v. AETNA INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 82-2598.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1984.
    Rehearing Denied Dec. 18, 1984.
    Thomas D. Lardin of Weaver, Weaver & Lardin, P.A., Fort Lauderdale, for appellant.
    Raymond 0. Holton, Jr., of Pyszka & Kessler, P.A., Fort Lauderdale, for appel-lee.
   LETTS, Judge.

The issue we address is whether a comprehensive general liability insurance policy, which excluded coverage of the “named insured's products,” precluded recovery by the insured boat builder because of fire damage to a boat which he had built. The boat was constructed in 1972 and additional work was done on it for the owner in 1974, after which the 87 foot vessel burned to the waterline in 1976. The trial judge granted the insurance company’s motion to dismiss. We reverse.

A threshold question presented is whether the boat builder’s subsequent suit filed against its insurer, for refusing to provide coverage or defend the prior law suit, stated a cause of action. The pleadings in that prior law suit by the boat owner against the boat builder did not specifically address the question of repair and only spoke to¡ construction defects (i.e. a product of the named insured) excluded under the policy. However, midway through that prior law suit, it became obvious that the boat owner was also proceeding against the boat builder on the theory of negligent repairs which would if successful provide coverage. Pursuant to this negligent repair claim the boat builder demanded that its insurer take over the defense of the original suit which demand was refused. Meanwhile, in this same initial suit the boat builder attempted to exclude any evidence of negligent repair, but its argument that this unpled matter was not pertinent was rejected by the trial judge. Significantly, the jury brought in a verdict against the boat builder based sole-, ly on negligence rather than breach of contract or breach of warranty.

As a consequence, the boat builder was well and truly driven into a box canyon at the trial level. In the original case by the boat owner against the builder, one trial judge permitted the issue of negligent repair to go to the jury, notwithstanding the allegations in the complaint, whereas in the subsequent suit by the builder against the insurance company, another trial judge, based on the identical complaint (attached as an exhibit) held that very same issue of negligent repair could not be considered and granted a motion to dismiss. As the boat builder tartly points out in his brief, this resulted in his being “beaten with both ends of the same stick.”

The foregoing factual recitation, complicated as it is, is still not complete, but is hopefully sufficient to support our conclusion. Distilled to its essence; the threshold question is whether the question of negligent repair was sufficiently raised in the initial law suit to withstand a motion to dismiss in the subsequent litigation. We conclude from the foregoing facts and circumstances that it was and adopt the rationale expressed in C.A. Fielland v. Fidelity and Casualty Co. of New York, 297 So.2d 122, 127 (Fla. 2d DCA 1974) where the Second District held that

The duty to defend, in the first instance, is determined from the allegations of the complaint.... Yet, if it later becomes apparent that claims not originally within the scope of the pleadings are being made which are within the insurance coverage, the insurance carrier upon notification would then become obligated to defend.

See also Milliken v. Fidelity and Casualty Company of New York, 338 F.2d 35 (10th Cir.1964).

The larger and remaining question is: If an insured builds, manufactures or constructs a product, does the product remain a “named insured’s product” excluded from a general liability insurance policy forevermore, no matter how much time passes after the buyer takes possession, if corrective work is later done by the insured? We answer the question in the negative.

We have not been cited to any existing Florida law on the question, but a case from the Supreme Court of Alabama, which we ourselves have uncovered, Cotton States Mutual Ins. Co. v. Norrell Heating and Air Conditioning Co., Inc., 370 So.2d 270 (Ala.1979), has considered the identical exclusionary language in a comprehensive general liability policy. The facts in Cotton States Mutual involved installation of an air conditioning system in 1965 and subsequent work done on it in 1976. The court held an ambiguity existed between the named insured’s products exclusion in the policy and the repair provision in another paragraph which latter would support coverage. The Alabama Court also held that the air conditioning system as a whole had become the building owner’s property and that the products exclusion provision applied only to the new parts used in the subsequent work.

Applying the Cotton States Mutual result to the case now before us, though we arrive there by a somewhat different route, we hold that a question of fact exists as to whether the later work done on the boat was a repair, in which case there was coverage, or but a correction of a defect in existence when the boat was first built and delivered, in which case coverage was excluded. Needless to say, this question of fact cannot be resolved by a motion to dismiss.

We do, however, agree with Cotton States Mutual that even if the work done is a repair, any defective parts such as a battery charger and wiring supplied for that repair would be appropriately excluded as the named insured’s product and, therefore, not covered by the general liability policy.

This case is reversed and remanded in accordance herewith.

REVERSED AND REMANDED.

GLICKSTEIN, J., concurs.

ANSTEAD, C.J., concurs in conclusion only.


author: DELL, JOHN W., Associate Judge.

text:
    Edna OSORIO, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 83-2711.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.
    Rehearing Denied Dec. 17, 1984.
    Schwartz, Klein, Steinhardt, Weiss & Weinstein, P.A., and Mark L. Weinstein and Alan D. Saekrin, North Miami Beach, for appellant.
    Robert A. Ginsburg, Dade County Atty. and James A. Jurkowski, Asst. County Atty., for appellee.
    Before HUBBART and NESBITT, JJ., and DELL, JOHN W., Associate Judge.
   DELL, JOHN W., Associate Judge.

Appellant, Edna Osorio, appeals an adverse final summary judgment.

Appellant suffered personal injuries an automobile accident which occurred at the intersection of East First Avenue and East Seventeenth Street in Hialeah, Florida. She filed suit against Dade County and alleged that Dade County negligently failed to maintain the existing stop sign and failed to warn her of a known dangerous condition at the intersection. She further asserted that mere compliance with the mandatory provisions of the manual on uniform traffic control devices does not bar an action for negligence in the installation of the signs. in

Appellant claimed that she had never driven through this intersection prior to the evening of the accident and that she did not see the “stop ahead” sign or the stop sign located at the corner of East First Avenue. Appellant presented evidence that a large ficus tree trunk obstructed the stop sign located at the intersection, which necessitated the placement of a stop ahead sign. She also presented evidence that notwithstanding a work order issued by appellee’s Department of Traffic and Transportation directing the exact placement of the stop ahead sign, the sign was actually installed in a different location.

Appellant contends that the trial court erred in granting summary judgment because genuine questions of fact as to the negligence of appellee exist. Appellee contends that the decisions concerning the placement of the stop sign and the stop ahead sign constituted planning functions which remain immune from tort liability. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Appellee also argues that the actual placement of the sign technically complies with the minimum mandatory provisions of the manual on uniform traffic control devices, thereby conclusively establishing its absence of negligence.

When the visibility of a stop sign is restricted, the manual only requires erection of a stop ahead sign “in advance of” the stop sign. The record contains the engineering study made of the intersection and the work order directing placement of the stop ahead sign at 210 feet east of the stop sign and four feet north of the roadway. Appellee’s decision to erect a stop ahead sign, as required by the manual, and the further decision regarding the proper location for the sign clearly constituted planning decisions that are immune from suit. Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982). However, in carrying out the operational activity of installing the stop ahead sign, the workers failed to implement the planning decision. Instead the stop ahead sign was installed 301 feet east of the stop sign and 10 feet north of the roadway. Although the actual placement of the sign fell within the recommendations of the manual, a question of material fact exists as to whether the worker’s deviation from the work order and misplacement of the sign constituted a legal cause of the accident.

Therefore we reverse the summary final judgment in favor of the appellee and remand this cause to the trial court for further proceedings.

REVERSED and REMANDED.


text:
    Lonnie James WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2322.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Rehearing Denied Dec. 17, 1984.

      Chaykin, Karlan & Jacobs and Sharon Jacobs, Coral Gables, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

The defendant Lonnie James Walker appeals his judgment of conviction and sentence for life imprisonment for the crime of second degree murder. The defendant, through counsel and through a proper person brief, raises a number of contentions on appeal. We have carefully examined these contentions and find them to be without merit. We accordingly affirm.

First, the defendant contends that the trial court erred by failing to conduct a probing voir dire of each individual potential juror outside the presence of the entire panel and by refusing to sequester the jury once it was selected, thereby depriving the defendant of a trial by an impartial jury. The defendant complains here of a number of rulings made by the trial court and claimed as error on appeal, which he argues both individually and cumulatively deprived him of a fair and impartial trial by jury. We cannot agree. Our review of the record reveals that the trial court more than adequately protected the right of the defendant to a fair trial and committed no reversible error in any of its rulings herein, either individually or cumulatively. See Oats v. State, 446 So.2d 90, 93-94 (Fla.1984); Stone v. State, 378 So.2d 765, 768 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980); Grimett v. State, 383 So.2d 698, 699 (Fla. 4th DCA), pet. for review denied, 389 So.2d 1110 (Fla.1980); Gavin v. State, 259 So.2d 544, 546-47 (Fla. 3d DCA), cert. denied, 265 So.2d 370 (Fla.1972).

Second, the defendant claims that the trial court made a number of rulings which failed to correct certain alleged discovery violations. Once again, the defendant refers us to a number of rulings which it is contended either individually or cumulatively amounted to reversible error. We are again unpersuaded, as the trial court in no way abused its discretion in making any of its discovery rulings. See Richardson v. State, 246 So.2d 771, 774-75 (Fla.1971); State v. Del Gaudio, 445 So.2d 605, 607-11 (Fla. 3d DCA 1984); Jones v. State, 360 So.2d 1293, 1296-97 (Fla.3d DCA 1978).

Third, the defendant, in his proper person brief and through counsel in his reply brief, has. raised numerous other points which we have examined. None of them merit a reversal in this case and must therefore be rejected.

Finally, in view of our affirmance on the main appeal, it is unnecessary for us to consider the state’s cross appeal. Bour v. Sherman, 113 Fla. 730, 152 So. 3 (1934). In this connection, we reject the state’s invitation for us to issue an advisory opinion on its cross appeal so as to prevent similar errors from occurring in other cases unrelated to the instant case. Plainly, we have no such advisory opinion authority, as “[i]t is a long-standing rule of appellate jurisprudence that the court will not undertake to resolve issues which, though of interest to the bench and bar, are not dis-positive of the particular case before the court.” Marion County Hospital District v. Akins, 435 So.2d 272, 273 (Fla. 1st DCA 1983). We do not, as urged, read Diecidue v. State, 119 So.2d 803 (Fla.2d DCA 1960), to stand for a contrary proposition, but to the extent that it does, we decline to follow it.

The final judgment of conviction and sentence under review is in all respects

Affirmed.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    DOUGLASS FERTILIZERS & CHEMICAL, INC., et al., Appellants, v. McCLUNG LANDSCAPING, INC., etc., Appellee.
    No. 83-1145.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 1984.
    Rehearing Denied Nov. 28, 1984.

      Marcia K. Lippincott of Marcia K. Lippin-cott, P.A., Dale 0. Morgan, Dean, Ringers, Morgan & Lawton, P.A., Orlando, for appellants.
    Abbott M. Herring of Abbott M. Herring, P.A., Sanford, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

McClung sued Douglass and its insurer, Florida Farm Bureau, for damages to its sod field following treatment by Douglass with fertilizer and herbicide. The jury awarded McClung damages in the amount of $260,348.88 which included $53,848.88, the cost of replacing sod at its numerous projects in Central Florida. As to that portion of the judgment, we find no error and affirm.

The question which concerns us is whether McClung was entitled to the remaining $206,500.00 as damages for lost profits. This award derived from the fact that Cardinal Industries ceased doing business with McClung after the delivery of bad sod to their job sites. Douglass maintained below that the claim for lost profits was too remote and speculative and that the evidence presented was insufficient to establish the claim.

This case went to the jury on breach of contract and negligence theories. It is well established that in both contract and tort actions, lost profits are recoverable only if their loss is proved with a reasonable degree of certainty. 17 Fla.Jur.2d Damages § 76. See Lucas Truck Service Co. v. Hargrove, 443 So.2d 260 (Fla. 1st DCA 1983). In addition, in contract actions, lost profits are allowed only if the loss was caused by the defendant’s wrongful act and the profits were reasonably within the contemplation of the defaulting party at the time the contract was entered into. Lucas Truck Service, 443 So.2d at 263. In tort cases, the rule, while stated differently, is basically the same, that the plaintiff may recover all damages which are a natural, proximate, probable or direct consequence of the act, but do not include remote consequences. Taylor Imported Motors, Inc. v. Smiley, 143 So.2d 66 (Fla. 2d DCA 1962).

For instance, in Taylor Imported Motors, the plaintiff sought to recover damages for loss of profits caused by the loss of sale of his automobile where the defendant negligently damaged the vehicle. The appellate court held that while the plaintiff could recover for actual damages to the car, his claim for loss of profits was too remote. The court, while recognizing that certain prior cases were based on a contractual relationship between the plaintiff and defendant, nevertheless referred to them as providing guidance in determining what is remote:

In the case of Brock v. Gale, 1874, 14 Fla. 523, Defendant’s loss of Plaintiff’s dental tools justified recovery of their market value, but not loss of the dentist’s profit or income from not being able to practice his profession until the tools were replaced, the latter being too remote.
In the case of Bayshore Development Co. v. Bonfoey, 1918, 75 Fla. 455, 78 So. 507, L.R.A. 1918D, 889, the difference between the value of a building as designed and constructed and its value as properly designed and constructed was recoverable, but not the loss of rentals or delays in occupancy, the latter being too remote.
In the case of State ex rel. Peters v. Hendry, 1947, 159 Fla. 210, 31 So.2d 254, although damage to a dragline was not passed on, it was held that loss of profit from depreciated sale value of cattle made sick and debilitated because, due to a breach of warranty of fitness, the dragline was not available to prepare proper drainage for their grazing lands was not recoverable as being too remote.

143 So.2d at 68.

The claim fox lost profits here is likewise too remote. McClung sought to recover for loss of future business with Cardinal, not business that it actually had with the developer. McClung had no future contract binding Cardinal to buy further shipments of sod. No future price was established or agreed upon. See generally Ohoud Establishment v. Tri-State Contracting, 523 F.Supp. 249 (D.N.J.1981).

In addition, such an award is speculative. The testimony below was somewhat dubious on why Cardinal refused to do further business with McClung. There was testimony that prior to the damaged grass being delivered, Cardinal had become dissatisfied with McClung’s grass because it was of poor quality and had a lot of weeds. Cardinal began buying a higher grade of grass, Floratam, and McClung did not grow this type of grass, though it claimed it could have bought such grass and resold it at a profit. Nevertheless, this evidence indicates the speculative nature of the award of lost profits.

The court should have granted the motion for directed verdict on the issue of McClung’s entitlement to recovery of lost profits. We therefore reverse and remand for further proceedings consistent herewith.

AFFIRMED in part; REVERSED in part.

ORFINGER and SHARP, JJ„ concur.

      . This award was based on testimony that Cardinal bought approximately 3.5 million square feet of grass (known as Floratam) in the year after it stopped doing business with McClung. Based on McClung’s stated profit of 5.9 cents per square foot, the jury awarded it $206,500.00 (3.5 million x 5.9 cents) in lost profits.


text:
    Dale Ray MURPHY, etc., Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1660, 83-1662.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 1984.
    Rehearing Denied Nov. 26, 1984.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant was sentenced to two concurrent five year terms for two separate charges of sale and delivery of cannabis. He later moved to correct the sentences arguing that he should have been sentenced under the new sentencing guidelines, Florida Rule of Criminal Procedure 3.701. The motion was granted, the sentences set' aside, and a new sentencing hearing held.

At this hearing, a scoresheet was presented which recommended any non-state prison sanction. Defense counsel pointed out that in each case, the marijuana involved was worth approximately $20.00. The trial court noted that a videotape introduced into evidence at the jury trial revealed that appellant was running a drug business in the parking lot of a convenience store; that he had scouts who would approach cars which entered the parking lot and if these “salesmen” succeeded in attracting a customer, appellant made the sale. The court sentenced appellant to concurrent five year sentences on each charge.

Appellant maintains that the court erred in departing from the recommended guidelines in sentencing him. Florida Rule of Criminal Procedure 3.701(d)(ll) provided at the time of appellant’s sentencing:

Departures from the guideline sentence: Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or pri- or arrests for which convictions have not been obtained, (emphasis added)

Appellant claims that in light of the language contained in the last sentence, the sentencing judge was not permitted to consider the circumstances of the offense before him in deviating from the guidelines. This contention is without merit. The comment following (d)(ll) provides as follows:

Recognizing the relative uniqueness of each criminal case, the commission elected not to include a list of factors which may be cited in aggravation or mitigation. Because the reasons for departure delineated by the sentencing judge are the primary source of information available to update the guidelines, it is extremely important that care should be taken in citing the circumstances used to aggravate or mitigate the presumptive sentence.

By this comment, the Commission indicated that the sentencing judge can indeed consider the “uniqueness of each criminal case” in deviating from the guidelines.

The language of the statement of purpose contained in Florida Rule of Criminal Procedure 3.701(b) follows:

3. The penalty imposed should be commensurate with the severity of the convicted offense and the circumstances surrounding the offense.

While the statement of 3.701(d)(ll) reads:

Reasons for deviating from the guidelines shall not include factors relating to either the instant offense or prior arrests for which convictions have not been obtained.

The above leads to an anomalous argument. Are circumstances surrounding a crime different than factors relating to a crime? If the court cannot consider a prior arrest for which a conviction was not obtained, how then can it consider conduct for which not even an arrest was obtained?

The rule makes it clear that the guidelines are not intended to usurp judicial discretion in sentencing. Fla.R.Crim.P. 3.701(b)(6). Departure from the guidelines does not result in a greater penalty than permitted by law, it only permits imposition of any sentence prescribed by the applicable statute when the severity of the convicted offense and the circumstances surrounding the offense render the guideline sentence inappropriate. Lindsey v. State, 453 So.2d 485 (Fla. 2d DCA 1984); Garcia and Wilson v. State, 454 So.2d 714 (Fla. 1st DCA 1984).

The evidence presented to the jury made it clear that these were not casual sales, but a well organized operation, so the trial court was justified in considering these sales, and defendant’s method of operation and concluding from those facts that a non-prison sanction was not in the public interest. The court’s consideration of the method of appellant’s operation in the two cases for which he was charged does not require, nor did it include, consideration of any other offense for which appellant was not charged, or for which he might have been acquitted.

We have recently held that because the sentencing guidelines do not articulate a specific list of reasons to which the trial court must adhere in order to depart from the recommended guideline sentence, the standard for appellate review in considering a departure is abuse of discretion. Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984). The traditional discretion of a sen-fencing court to consider all the facts and circumstances surrounding the criminal conduct of the accused has not been abrogated by adoption of the sentencing guidelines. Garcia v. State.

AFFIRMED.

ORFINGER and SHARP, JJ., concur.

      . See amendments to rule, The Florida Bar: Amendments to Rule of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984).


author: HENDRY, Judge. SCHWARTZ, Chief Judge

text:
    COOPER TRANSPORTATION, INC., and Transport Insurance Company, Appellants/Cross-Appellees v. James MINCEY, Appellee/Cross-Appellant.
    No. 83-2216.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Rehearing Denied Dec. 17, 1984.

      Miller, Hodges & Kagan and H. Jack Miller, Miami, for appellants/cross-appel-lees.
    Keyfetz, Poses & Halpern and L. Barry Keyfetz, Miami, for appellee/cross-appel-lant.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   HENDRY, Judge.

Transport Insurance Co., workers’ compensation carrier, and Cooper Transportation, Inc., employer, appeal the final judgment of the trial court which determined the amount of the carrier’s compensation lien, under section 440.39(3), Florida Statutes (1981). The lien constituted a pro rata distribution from a settlement obtained by the injured employee against a third party tortfeasor. Mincey cross-appeals that part of the judgment which allowed the claim of lien to be asserted.

Appellee Mincey was an owner-operator trucker, under contract with Cooper Transportation, Inc. when he was injured while making a delivery to J.C. Penney. Min-cey’s third party action instituted against J.C. Penney resulted in a jury verdict in the amount of $750,000, with a finding that Mincey was five percent negligent. This award included a $100,000 award for his wife’s derivative claim. Upon J.C. Penney’s motion for remittitur, the trial court reduced Mincey’s award to $478,947.36, or, with the inclusion of the five percent, to $455,000. The order of remittitur stated that the verdict was indicative of prejudice and passion caused by statements made by Mincey’s counsel, and alternatively, entered the reduced judgment or ordered a new trial on the issue of damages. The parties, uncertain of the questions of liability, subsequently settled for $527,921.19, which settlement included the wife’s claim. From that settlement, Mincey’s net recovery, after attorneys’ fees and costs, was $304,846.56.

Cooper Transportation, Inc. and Transport Insurance Co. filed a petition for distribution of the workers’ compensation lien pursuant to section 440.39(3)(a), Florida Statutes (1981). The trial court, during the subsequent hearing, announced that it felt that Mincey was 40 percent comparatively negligent and that it had accordingly reduced the jury verdict. The court then entered the now appealed from order which declared that the insurer would be reimbursed 60 percent of all benefits paid and could withhold 60 percent of all future benefits to be paid. It was stipulated that compensation in the amount of $28,391.19 had been paid at the time of the hearing. Additionally, the final judgment denied Mincey’s motion to strike and to deny claim of lien based upon a violation of section 440.21, Florida Statutes (1981). It further determined the motion to be irrelevant because Mincey had been provided with workers’ compensation benefits by Transport Insurance Co. and would be provided with further such benefits in the future.

The contentions of the appellants are (1) that the trial court did not have the authority to reduce the compensation carrier’s lien beyond the extent that full recovery was limited by comparative negligence and (2) that the trial court did not have the authority to substitute its opinion of the plaintiff’s negligence for that determined by the jury.

We have consistently held that a trial court cannot reduce a workers’ compensation lien beyond the extent to which the injured worker demonstrates to the court that he did not recover the full damages sustained because of his comparative negligence or the limits of insurance coverage and collectibility. In Lee v. Risk Management, Inc., 409 So.2d 1163 (Fla. 3d DCA 1982), we held that it was not an abuse of discretion to reduce the compensation carrier’s recovery of benefits by the exact extent to which the injured worker’s third party recovery was itself diminished owing to comparative negligence. But see State, Division of Risk Management v. McDonald, 436 So.2d 1134 (Fla. 5th DCA 1983). In Sentry Insurance Co. v. Keefe, 427 So.2d 236 (Fla. 3d DCA 1983), we held that a “trial court is mandatorily precluded by the new ‘100%’ version of Sec. 440.39(3)(a), Fla.Stat. (1981) from reducing a compensation carrier’s third-party lien beyond the extent that full recovery is limited by uncollectibility or comparative negligence.” Id. at 236. In United Parcel Services v. Carmadella, 432 So.2d 702 (Fla. 3d DCA), rev. denied, 441 So.2d 631 (Fla. 1983), we addressed the remaining unanswered question and held that “a trial court may [not] reduce a workers’ compensation carrier’s lien below an amount equal to a pro rata share of what the net third-party recovery is to the worker’s full damages, because the third-party’s liability is doubtful.” Id. at 704 (citation omitted).

Section 440.39(3)(a), Florida Statutes (1981), sets forth in relevant part the exact method by which a workers’ compensation lien shall be calculated.

Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover from the judgment, after attorney’s fees and costs incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collecti-bility.

The statute is clear that a workers’ compensation carrier shall recover from the judgment 100 percent of past and future benefits paid or to be paid, unless the employee demonstrates that he did not recover the full value of his damages because of his own negligence or collectibility. In the instant case, Transport Insurance Co. is entitled to recover from the judgment obtained by Mincey from J.C. Penney, after attorneys’ fees and costs incurred in obtaining the settlement have been deducted, 100 percent of what it has paid, reduced by Mincey’s comparative negligence. Aetna Insurance Co. v. Norman, 444 So.2d 1124 (Fla. 3d DCA), rev. granted, Case No. 64,-990 (Fla. June 18, 1984).

Numerically, the equation is as follows: $28,391.19 (100% of compensation paid by Transport) X 95% (100% - 5% [Mincey’s comparative negligence as found by the jury]) = $26,971.63 and 95% of all future benefits to be paid.

Addressing appellant’s second contention, a trial judge may not use the device of a new trial order conditioned on a remittitur to increase a jury’s determination of the percentage of responsibility for an injury that is attributable to a plaintiff’s contributory negligence. Akermanis v. Sea-land Service, Inc., 688 F.2d 898 (2d Cir.1982). We approved, in St. Pierre v. Public Gas Co., 423 So.2d 949 (Fla. 3d DCA 1982), this rationale which prevents adjustment in a jury finding because the question of apportioning the negligence between the plaintiff and defendant is one that is peculiarly within the province of the jury. It is not subject to adjustment by remittitur. Id. at 951. Even though the trial court in this action reduced the award because of some alleged improper influence on the jury and properly gave the option of a new trial on the issue of damages only, the trial court in the subsequent lien determination hearing took the unauthorized action of extending the jury’s findings. In view of the settlement and the inadequate record, however, we are unable to ascertain to what factors the reduction in Mincey’s recovery was attributable. Since the compensation carrier’s lien is reduced by the pro rata amount that Mincey demonstrated he did not receive his full damages, the 5% jury finding, it is unnecessary for us to determine the exact reasons for the settlement.

Having determined that Transport Insurance Co. should have received 95 percent of benefits paid and 95 percent of all benefits to be paid, we reject Mincey’s contention on cross-appeal that it was error to award any equitable distribution to Transport Insurance Co. § 440.39(2), Fla.Stat. (1981). We also find no basis for Mincey’s further contention that the trial court erred by failing to require the employer and workers’ compensation carrier to pay a pro rata share of costs and attorneys’ fees in obtaining the recovery. As conceded by Mincey in oral argument, Chapter 440, Florida Statutes (1981), is the controlling statute for this action. Nowhere in section 440.39(3)(a), Florida Statutes (1981), is it required that attorneys’ fees and costs be apportioned between the employee and the insurer. Risk Management Services, Inc. v. Scott, supra; Lee v. Risk Management, Inc., supra. Cf. § 440.39(3)(a), Fla.Stat. (1983).

The final judgment under review is affirmed, as modified in accordance with this opinion, with directions to enter judgment for Transport Insurance Co. and Cooper Transportation, Inc. in the amount of $26,-971.63 and to order that the obligation of Transport Insurance Company regarding Mincey’s future workers’ compensation benefits shall be 5 percent of further benefits for which they are obligated.

Affirmed as modified, with directions.

SCHWARTZ, Chief Judge

(specially concurring).

This court has made it clear that, under the applicable version of Sec. 440.39(3)(a), Fla.Stat. (1981), a compensation lien may be reduced if the claimant recovers less than the full value of his damages only if this occurs as a result of partial uncollecta-bility, which does not apply here, or comparative negligence, which does. United Parcel Services v. Carmadella, 432 So.2d 702 (Fla. 3d DCA 1982), rev. denied, 441 So.2d 631 (Fla.1983); Sentry Ins. Co. v. Keefe, 427 So.2d 236 (Fla. 3d DCA 1983). Thus, the supposed “fact” that the settlement was 70% of the “value of the case,” as measured by the verdict, is irrelevant unless any deduction is attributable to comparative negligence. Since there is no credible indication that such a deduction was made by the parties in reaching the settlement — as to which the statute places the “burden of proof ... upon the employee” — and the court correctly concludes that the trial judge’s determination of 40% comparative negligence is entitled to no weight, the only finding of comparative negligence which remains is the five per cent assessment made by the jury. Even beyond that, it must be recognized that the case was simply settled pending an appeal, a new trial or both, so that the $750,000 jury verdict, which had been set aside, was not directly pertinent to the amount of the actual recovery. Moreover, the new trial order determined that even that amount was excessive and therefore represented more than the full value of- the plaintiff’s case. Hence, there is no basis for giving the $750,000 figure any legal substance. For these reasons, I agree with the court’s determination of the compensation lien issue.

While I do not concur with the court that the cross-appeal has been mooted, I would reject it on the merits on the ground that an employee like Mincey who claims and accepts compensation benefits is precluded by Sec. 440.39(2), Fla.Stat. (1981) from asserting his present contention that the carrier is not entitled to a lien on his third-party recovery because of an alleged violation of Sec. 440.21, Fla.Stat. (1981).

      . Section 440.21 states, in relevant part:
      (1) No agreement by an employee to pay any portion of premium paid by his employer to a carrier or to contribute to a benefit fund or department maintained by such employer for the purpose of providing compensation or medical services and supplies as required by this chapter shall be valid, and any employer who makes a deduction for such purpose from the pay of any employee entitled to the benefits of this chapter shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.083.

      . Section 440.39(3)(a), Florida Statutes (1983), provides in relevant part, as follows:
      Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of this law, less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney’s fees for the plaintiff’s attorney. In determining the employer’s or carrier’s pro rata share of those costs and attorney’s fees, the employer or carrier shall have deducted from its recovery a percentage amount equal to the percentage of the judgment which is for costs and attorney’s fees. Subject to this deduction, the employer or carrier shall recover from the judgment, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility, (emphasis supplied.)

      . As amended by Chapter 83-305, Sec. 15, Laws of Florida, the statute now provides for the apportionment of the employee’s attorney’s fees and costs, contrary to our holdings in Sentry Ins. Co. v. Keefe, supra, and Lee v. Risk Management, Inc., 409 So.2d 1163 (Fla. 3d DCA 1982).


author: NESBITT, Judge.

text:
    COMMUNITY DESIGN CORPORATION, Appellant, v. Joseph D. ANTONELL, Appellee.
    Nos. 83-2279, 84-326.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Rehearing Denied Dec. 17, 1984.

      William A. Friedlander, Miami, for appellant.
    Douglas D. Stratton and Franklin J. Sie-gel, Miami, for appellee.
    Before NESBITT and DANIEL S. PEARSON, JJ., and DELL, JOHN W., Associate Judge.
   NESBITT, Judge.

Community Design Corporation (CDC) appeals a final judgment against it in a contract case and the award of attorney’s fees and costs. Antonell cross-appeals the amount of attorney’s fees. We affirm in all respects.

Joseph Antonell was hired by CDC to work as an architectural draftsman on the Brickell Key project. He worked on a weekly basis at $10.00 per hour, with time and one-half for overtime.

Sometime in the fall of 1980, Charles Cheezum, the then-president of CDC, promised a bonus to any employee still working at Christmastime of 1980, if the drawings were complete by that time. The amount each employee was to receive was apparently to be determined by the recommendation of Shirley Wooster, CDC’s vice president. Wooster, Antonell’s supervisor, promised a one-week paid vacation if the drawings were completed on time. After these promises were made, Antonell worked overtime in an effort to complete the drawings by the specified date.

On December 24,1980, with Antonell still in CDC’s employ, the draftsmen’s drawings were collected and blueprints were made. After Christmas, and through much of 1981, changes were made to the drawings, some of which were necessitated by a February 23, 1981 contract which required CDC to coordinate the drawings of various subcontractors. Final acceptance of the drawings for construction purposes occurred by March of 1982.

When Antonell received neither the bonus nor the paid vacation, he sued to recover both. The jury found for him on both claims, finding for CDC on a third claim for a promised raise.

CDC makes two arguments on the contract issue which are worthy of discussion. It contends, first, that the contract is too indefinite and uncertain to be enforced because there was no agreement as to the amount of the bonus, the degree of completion required and the division among the employees. We disagree.

Courts are reluctant to hold contracts unenforceable on grounds of uncertainty, especially where, as here, one party has received the benefit of the other’s performance. Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So.2d 404, 408 (Fla.1974); Burton v. Keaton, 60 So.2d 770 (Fla.1952). When the existence of a contract is clear, the jury may properly determine the exact terms of an oral contract, Pan American Bancshares, Inc. v. Trask, 278 So.2d 313 (Fla. 3d DCA 1973), which often depend on the credibility of the witnesses. While the exact amount of the bonus and the degree of completion required were disputed, there was sufficient evidence for the jury to find an oral contract between the parties with terms which support the award in this case. Goetz v. Brialmont, 287 So.2d 361 (Fla. 3d DCA 1973).

CDC asserts that there was no agreement as to exactly how much each employee would receive. While this is true, it is necessarily so because the bonus was to be divided among those still employed at Christmastime and in amounts recommended by Ms. Wooster. Once the drawings were completed, CDC’s contractual duty to act in good faith in recommending a bonus for those who qualified arose. It was Wooster’s failure to recommend a bonus, and CDC’s subsequent failure to pay one, which constituted the breach. It was appropriate for the jury to resolve the compensation question, Gulf Solar, Inc. v. Westfall, 447 So.2d 363, 365 (Fla. 2d DCA 1984), and the amount awarded is reasonable based on Antonell’s efforts in completing the drawings. Cf Robinson v. Pinsker, 303 So.2d 706 (Fla. 3d DCA 1974).

CDC’s second argument is that An-tonell did not substantially perform the conditions precedent to receipt of the bonus. Whether Antonell substantially performed was a proper question for the jury to decide. Oven Development Corp. v. Molisky, 278 So.2d 299, 302 (Fla. 1st DCA 1973); Ocean Ridge Development Corp. v. Quality Plastering, Inc., 247 So.2d 72, 75 (Fla. 4th DCA 1971). We find substantial, competent evidence to support the jury’s verdict. Bermil Corp. v. Sawyer, 353 So.2d 579, 583 (Fla. 3d DCA 1977).

CDC also challenges the award of attorney’s fees pursuant to section 448.08, Florida Statutes (1981) on two theories: (a) a bonus is not a wage within the meaning of the statute; and (b) Antonell was not a prevailing party because he did not prevail on all his claims and was awarded only part of what he sought on one of his claims. We reject both theories.

The first district noted in Doyal v. School Board of Liberty County, 415 So.2d 791, 793 (Fla. 1st DCA 1982) that the legislative intent in enacting section 448.08 was to avoid the inequity resulting from an employee being required to pay an attorney in actions for unpaid wages. The court in Gulf Solar, discussing section 448.08, utilized definitions of wages which included bonuses. We find those definitions are appropriate, especially in light of the legislative intent expressed in Doyal.

Addressing CDC’s second theory, we hold that a party prevails within the meaning of section 448.08 when there is an affirmative judgment rendered, even if it is for less than the amount claimed and recovery is not had on all counts. Cf. Hub Cap Heaven, Inc. v. Goodman, 431 So.2d 323 (Fla. 3d DCA 1983); American Insulation of Fort Walton Beach, Inc. v. Pruitt, 378 So.2d 839 (Fla. 1st DCA 1979); Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2d DCA 1978). (These cases reached the same holding in interpreting a similar provision of the Florida Statutes, § 713.29.)

We find no merit in Antonell’s cross-appeal. Accordingly, the judgment is, in all respects, affirmed.

      . The amount of the bonus was disputed, but was clearly between $20,000 and $35,000. The degree of completion required was also disputed.

      . The parties acknowledge that a particular amount was offered, which distinguishes this case from those in which the amount is indefinite or left for future agreement. See, e.g,, Drake v. Block, 247 Iowa 517, 74 N.W.2d 577 (1956); Varney v. Ditmars, 217 N.Y. 223, 111 N.E. 822 (1916).

      . While there were many changes made to the drawings after the initial blueprinting, there was evidence both that such changes are normal in the industry and that many were required by a February, 1981 contract which called for coordination of the architectural drawings with the electrical and mechanical drawings. Therefore, the jury could have found that the completion contemplated was the initial blueprinting and that the changes made were either those common in the industry, those required by a subsequent contract, or both.

      . We are in no way suggesting that employers are not free to establish bonus plans like that in Parrish v. General Motors Corp., 137 So.2d 255 (Fla. 2d DCA 1962). There, the bonus plan gave the employer, in writing, the discretion to award, or choose not to award, a bonus. Such a writing clearly establishes the employer’s intention and does not give rise to a contractual bonus right. Here, the contract is oral and the evidence is reasonably susceptible to the conclusion that once the drawings were complete the duty to recommend and pay a bonus arose. To find otherwise would allow CDC to induce extra efforts from its employees by oral promises and then hide behind a cloak of vagueness resulting from conflicting testimony.


author: HUBBART, Judge.

text:
    Maria Elena IBANEZ, Appellant, v. Gustavo SALAZAR, Appellee.
    No. 84-657.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Rehearing Denied Dec. 19, 1984.

      George C. Vogelsang and Deborah A. White, Miami, for appellant.
    Gilbride, Heller & Brown and Scott A. Silver, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   HUBBART, Judge.

The mother Maria Elena Ibanez appeals from an order entered on the father Gustavo Salazar’s post-judgment motion to modify a court-approved settlement agreement in a paternity action, which order reduces the father’s child support payments from $2,000 a month, as set by the agreement, to $500 per month. The sole basis for this reduction was the trial court’s finding that the mother’s financial circumstances had substantially improved since the court-approved agreement. Without dispute, the father is a man of considerable wealth who can well afford to pay the agreed-upon $2,000 a month child support payments. For the reasons which follow, the order under review must be reversed.

We conclude that the mother’s improved financial circumstances do require, as the father urges, that she contribute more to the support of her child, but afford no basis for reducing the father’s agreed-upon child support obligations. Our reason for reaching this conclusion is our belief that the child should not be relegated to the standard of living set by the parties at the time of the settlement agreement; the child, we think, should be entitled to share in the good fortune of his mother without suffering a corresponding reduction of support from his father. This reasoning was the basis of the court’s decision in Wanstall v. Wanstall, 427 So.2d 353 (Fla. 5th DCA 1983), which reversed a trial court’s refusal to increase child support payments based on the father’s improved financial circumstances, and we adopt it as the basis of our decision today. It was also an implicit basis for this court’s decision in Zammas v. Zammas, 328 So.2d 519 (Fla. 3d DCA 1976), which affirmed a trial court’s refusal to reduce child support payments based solely, as here, on the mother’s improved financial circumstances. Moreover, the decisions of other jurisdictions on this issue are in accord and fully support the result which we reach today. Beddoes v. Beddoes, 155 Colo. 115, 393 P.2d 1, 2 (1964); Martin v. Martin, 313 Ky. 797, 251 S.W.2d 302, 303 (1952); Slater v. Slater, 327 Mich. 569, 42 N.W.2d 742, 743 (1950); Luplau v. Luplau, 117 S.W.2d 366, 367 (Mo.Ct.App. 1938); Holbrook v. Holbrook, 116 Utah 114, 208 P.2d 1113, 1114 (1949).

In reaching our decision, we do not overlook Section 61.14(1), Florida Statutes (1983), relied on by the father, which authorizes a party to move to modify child support payments contained, as here, in a settlement agreement entered into between the parties where “the circumstances or the financial ability of either party has changed....” The statute, however, does not provide that the court is required to grant such a motion, but only that “the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties_” § 61.14(1), Fla.Stat. (1983). We conclude that the trial court abused its discretion and did not do equity when it reduced the father’s child support payments based solely on the mother’s improved financial circumstances. We further reject the contention that the father, by virtue of this statute, had a legal right to a reduction in his child support payments based solely on the mother’s change in financial circumstances as, in our view, the statute confers no such right.

The order under review is reversed and the cause is remanded to the trial court with directions to deny the father Gustavo Salazar’s motion to modify filed below.

Reversed and remanded.


author: GLICKSTEIN, Judge.

text:
    A.S.J. DRUGS, INC., d/b/a Deerfield Beach Drugs and Casualty Reciprocal Exchange, Appellants, v. Shirley B. BERKOWITZ, Colonial Penn Insurance Company, Jennie Greer and Robert A. Rosenblatt, Esquire, Appellees.
    No. 83-2767.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1984.
    Rehearing Denied Dec. 20, 1984.

      Anthony J. Beisler, III, of Anthony J. Beisler, P.A., Fort Lauderdale, for appellants.
    Paula C. Kessler and John M. Kelley of Pyszka & Kessler, P.A., Fort Lauderdale, for appellees — Berkowitz and Colonial Penn Ins. Co.
    Robert A. Rosenblatt of Gilmour, Morgan & Rosenblatt, Miami, for appellees— Greer and Rosenblatt.
   GLICKSTEIN, Judge.

This is an appeal from an order dismissing with prejudice a second amended complaint. We affirm in part and reverse and remand in part.

The facts show that Jennie Greer, while delivering medicine and getting sandwiches on her lunch hour, was involved in an accident with Shirley Berkowitz. Greer sued Berkowitz and her insurance company, settling out of court for $45,000. At this time, there had been no claim under worker’s compensation, and the worker’s compensation insurer was unaware of the accident. One month after the settlement, however, Greer did file for worker’s compensation. The deputy commissioner found that while the settlement prejudiced Greer’s worker’s compensation carrier, it did not constitute a waiver of her right to benefits. Greer therefore received another $10,716.12.

Greer’s employer and its worker’s compensation insurer filed a tort action against Greer, Berkowitz, Berkowitz’s insurer, and the attorney who handled Greer’s lawsuit against Berkowitz. Their first two complaints were dismissed without prejudice, and they filed a secónd amended complaint. The complaint alleges two counts of intentional misrepresentation against Greer and her attorney, saying that each misled the employer with regard to liability under worker’s compensation and intent to claim under it. Additionally, the complaint alleged that Berkowitz and her insurance company knew or should have known that her accident was compensable through worker’s compensation, but ignored the possibility, thus destroying appellants’ right to a share of the settlement proceeds. This complaint was dismissed with prejudice, whereupon follows this appeal.

The issue is whether the trial court erred in dismissing the second amended complaint with prejudice. We conclude:

A. As to counts I and II, it did; therefore we reverse and remand.

B. As to counts III and IV, it did not; therefore, we affirm.

COUNTS I AND II

Under count I, appellants made the allegations that Jennie Greer defrauded them of their rights to equitable distribution of the settlement recovery by telling her employer that the accident was not covered by worker’s compensation and that she would make no claim; that relying on this representation, her employer filed no injury notice with the state or his carrier; and that Greer intended that the statements deceive her employer and his carrier, who reasonably relied upon them 'to their material detriment.

While both parties have couched their briefs in terms of the various interpretations of the applicable worker’s compensation section, and the remedies available under it, the above count clearly states a cause of action sounding in fraud. If the facts as stated above are true, which they are considered to be for purposes of a motion to dismiss, then appellants have alleged a false statement regarding a material fact, knowledge of its falsity, the intention that the lie be acted upon, and injury to the other party caused by his reasonable reliance upon the representation. These are the elements of commonlaw fraud, e.g., Amazon v. Davidson, 390 So.2d 383, 385 (Fla. 5th DCA 1980), and state a cause of action. The representation that Greer would not be filing a claim for worker’s compensation would be considered fraudulent if she had every intention of filing when she made it. Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367, 1371-72 (Fla. 4th DCA 1981). There is, of course, no evidence that Greer knew that she could file a claim and/or that she intended to do so all along, however, evidence is not required at this stage, merely an allegation. If Greer did make the assertion that she would not be filing under worker’s compensation, this is a positive and definite representation upon which her employer could rely without further inquiry. Shepard v. Wyse, 374 So.2d 1173, 1174 (Fla. 1st DCA 1979). Undeniably, there was damage to the carrier, which lost its right to be subrogated to Greer to the extent of its compensation payment.

Count II, alleging fraud against the attorney who represented Greer in her suit against Berkowitz, bases the allegations on two statements, one written and one oral. The written statement was in a letter written to the employer, and included as exhibit B by reference in the complaint. The letter, however, is only a request that Greer’s employer fill in the blanks of a form with appropriate answers, and is not a representation as to the correctness of those answers. Under Health Application Systems, Inc. v. Hartford Life and Accident Insurance Company, 381 So.2d 294 (Fla. 1st DCA 1980) and Florida Rule of Civil Procedure 1.130(b), if the exhibit attached and incorporated by a pleading contradicts the cause of action, then the document will control and may serve as a basis for a motion to dismiss. In this case, the writing does not support the cause of action, so the motion to dismiss was proper as to it.

The oral statement does support a cause of action, however, depending upon what was said. A mere opinion, of course, will not serve as a fraudulent representation, unless the party making it did so with the intent of preventing the other party from making an independent investigation of the facts. See Travelodge International, Inc. v. Eastern Inns, Inc., 382 So.2d 789, 791 (Fla. 1st DCA 1980). Too, if appellants could show that the statement was made by one purporting to have superior knowledge, as alleged, the statement would support a claim for fraud. Ramel v. Chasebrook Construction Co., 135 So.2d 876, 879 (Fla. 2d DCA 1961). The other essential elements are alleged; namely, knowledge that the statement was a misrepresentation, intent that it be relied upon, reliance, and detriment caused by the reliance. Therefore, count II also alleges a cause of action in fraud as to any oral representation that the accident would not be covered by worker’s compensation.

COUNTS III AND IV

These counts appear to be seeking equitable distribution of the amounts paid by the carrier to Greer, under section 440.-39(3)(a), Florida Statutes (1983). This section provides that if an employee sues a third party tortfeasor for an accident covered by worker’s compensation, the employee shall notify his employer and the employer’s carrier. The employer or carrier may then file a notice in the suit of its payment of compensation and medical benefits, which will be a lien on the judgment for the amount to which the court decides it is entitled. The section obviously contemplates that a worker’s compensation claim will be at least filed before any third party suit is brought, and provides no guidance regarding what happens when a third party suit has been settled before any worker’s compensation claim has been filed.

This question was considered by the Florida Supreme Court in Shelby Mutual Insurance Company v. Russell, 137 So.2d 219 (Fla.1962). In Shelby Mutual, an employee was injured in an automobile accident that was caused by a negligent third party. The two settled the lawsuit, and the injured employee executed a release in exchange for the money. After the settlement, the employer’s worker’s compensation carrier paid her benefits, then sought its statutory subrogation rights from the tortfeasor. The question for the Florida Supreme Court was whether the release executed by the employee barred her employer’s carrier from seeking subrogation. The district court of appeal held that because the carrier’s rights came into being only after paying compensation, at which time settlement had already occurred, then there was no claim to which the carrier could be substituted. The Shelby Mutual court observed that the provisions found in section 440.39, Florida Statutes, clearly indicate an intent to allow an employer or its carrier subrogation rights to any recovery from a third party to the extent of the benefits paid. On the other hand, the court noted, the statute says nothing to prohibit defeat of this right by the course of action adopted above. Although this result is contrary to the expressed legislative intent, the court said that it was for the legislature to change, and upheld the district court.

Ten years later, the same question was before the Second District Court of Appeal in Brown v. State Farm Mutual Automobile Insurance Company, 281 So.2d 364 (Fla. 2d DCA 1973). The same fact pattern occurred in Brown as in the earlier case, an injury, settlement with a third party, then filing and payment of a worker’s compensation claim. The second district recognized the deference expressed in Shelby Mutual to the legislature, and the holding therein that the problem should be statutorily corrected, but pointed out that the legislature had taken no action despite the Shelby Mutual holding a decade earlier. The Brown opinion therefore accepted resolution of the question, holding that a decision must be made in each case on the basis of equitable considerations, and listing some of the factors that might be considered. It therefore remanded to the trial court for a determination of whether these factors would entitle the compensation carrier to maintain suit.

The problem now presents itself in this court. The legislature has done nothing to remedy the situation, despite the call to do so over 20 years ago in Shelby Mutual, and the Supreme Court has said that we should not move until they do. Accordingly, as to these counts, we affirm.

HERSEY and BARKETT, JJ., concur.


author: CAMPBELL, Judge.

text:
    Jessie Barry GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 84-540.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1984.
    Rehearing Denied Nov. 29, 1984.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, Jessie Barry Green, appeals his conviction for sale of a controlled substance (cannabis) in violation of section 893.13(l)(a), Florida Statutes (1983). We affirm. In doing so, we find it necessary to discuss only appellant’s first point which he raises on appeal and which he phrased as follows:

I. WHETHER THE TRIAL* COURT ERRED IN REFUSING TO GIVE APPELLANT’S REQUESTED INSTRUCTION ON DELIVERY OF A CONTROLLED SUBSTANCE WITHOUT CONSIDERATION?

At trial, appellant requested a jury instruction on delivery of less than twenty grams of cannabis without consideration, a violation of section 893.13(l)(f). The trial court denied the requested instruction on the ground that delivery of cannabis without consideration is not a lesser included offense of the crime of sale of cannabis. The trial court was correct.

Section 893.13(l)(a) provides that it is unlawful to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver a controlled substance. Section 893.13(l)(a)2 makes those offenses a felony of the third degree when the controlled substance is cannabis.

Appellant was convicted as specifically charged in Count I of the information on which he was tried with the sale of cannabis. He was not charged in the alternative language of the statute with sale, manufacture, delivery or possession. Appellant requested an instruction on delivery of cannabis without consideration, a misdemeanor of the first degree. That crime, created by section 893.13(l)(f), however, would be a lesser included offense only if the primary offense charged was delivery of more than twenty grams of cannabis. The “Schedule Of Lesser Included Offenses” to Florida Standard Jury Instructions In Criminal Cases, p. 272 (1981), makes this clear, When the primary offense is the sale, manufacture, delivery or possession with intent to sell, manufacture or deliver a controlled substance in violation of section 893.-13(l)(a), the only “Category 1” lesser offense is that provided in section 893.-13(l)(e), if possession is charged. The “Category 2” lesser offenses are attempts, except when delivery is charged, and 893.-13(l)(f), if possession or delivery of cannabis is charged. Thus, the only lesser included offense to a specific charge of sale would be an attempted sale.

Affirmed.

RYDER, C.J., and LEHAN, J., concur.