Datasets:

harvard-lil

/

cold-cases

like 14

"1853-01-17"

[ "2 Walk. 409" ]

[ { "author_str": "Lowrie", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe Supreme Court reversed the decision of the Court below on January 17, 1853, in the following opinion per :\nLowrie, J.\nThe Act of Assembly to incorporate this company gives a special remedy to the “owners” for any land entered upon or occupied by the company for the purpose of making their road, and this suit is in trespass in the common form. One of the pleas is substantially that the acts complained of were done in-pursuance of the statute and the right of entry granted by it Of course the company had a right to prove their plea and if they had proved it, what would have been the result ? If it is immaterial, the judgment would still have been against them, on the plea of not guilty, which was found against them. If it contains a sufficient defence the judgment would still have been in their favor, notwithstanding a verdict against them on the other plea. The plaintiffs below say that it is immaterial because the special remedy provided by the Act is given only to “owners” of land and not lessees which they are. But this is too strict a construction of the remedy provided. He is an owner of land in the meaning of the law, who has any interest in it, that is affected by the entry of the company. And this result cannot be evaded by saying here, that the injury complained of, is of a character not contemplated by the law; for .the defendant’s plea offers to prove that it is, and the Court excluded them *416from the benefit of their plea, by declaring that the parties plaintiff' were not entitled to that remedy, being only lessees and not owners within the meaning of the law.\nWhere a witness shows that he is acquainted with the land, he may say whether or not, the injury to plaintiffs is exceeded by the advantage of the road to them. We see no other matter of evidence that requires correction.\nJudgment reversed and new trial awarded.\n", "ocr": true, "opinion_id": 7673701 } ]

"1866-02-05"

[ "2 Walk. 487" ]

[ { "author_str": "Strong", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n*488The Supreme Court affirmed the judgment of the Common Pleas on February 5 1866, in the following opinion, per :\nStrong, J.\nAll the assignments of error are to the decisions of the Court below upon matters • of fact which are not reviewable here. Whether the parties had entered into an agreement to settle the damages caused by the construction of the railroad through the land before the petition for the appointment of viewers was filed was a question of fact to be determined by evidence. This certiorari brings up only matters of law. We can look at ' nothing more than the regularity or irregularity of the proceedings as they appear upon the record. That on their face the proceedings in the Court below are regular is not questioned.- It is said, however, such proceedings ought not to have been allowed because the company had agreed with the owner of the lands. The Court below decided no such agreement had been made and if we could review that\" decision, we should probably come to the same conclusion with no other evidence than that before us. If it be conceded that the parties to the alleged arrangement were competent to contract, the one to sell and the other to buy the land, a very liberal concession, there is no evidence of any thing more than a parol contract of sale unexecuted. And even that is proved by .an incompetent witness. Surely a parol contract of sale is no bar to an assessment of damages under the Act of Assembly.-\nThe judgment of the Court of Common Pleas is affirmed at the costs of the plaintiff in error.\n", "ocr": true, "opinion_id": 7673751 } ]

"1882-05-08"

[ "4 Walk. 35" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe Supreme Court affirmed the decree of the Common Pleas on May 8, 1882, in the following opinion :\n• Per Curiam.\nThe assignments of error are to the findings of the learned Master in the Court below on the facts ; and his findings have-been confirmed by the learned Court. An examination of the evidence has not satisfied us that any plain error has been committed, such as would justify us in reversing them. On the whole, we think the decree of the learned Court was in con-' formity to the justice of the case.\nDecree affirmed and appeal dismissed at the cost of the appellant.\n", "ocr": true, "opinion_id": 7673838 } ]

"1874-05-18"

[ "4 Walk. 229" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe Supreme Court affirmed the judgment of the Common Pleas on May 18, 1874, in the following opinion:\nPer Curiam.\nIt is very clear that the money, which paid for the property in question was that of Mrs. Sidle. It is not doubted, this being so, that tire conveyance to her husband was for her use, which he executed by his conveyance to her. The point made is, that this money was paid by one who purchased her real estate, but to whom a valid conveyance was not made, by reason of her failure to make a separate acknowledgment required by *231the Act of 1770. The purchaser went into possession under his deed and never has been ousted, and she has never made a, claim against him. The point, however, is not well taken, for it cannot be doubted that the money, paid by the purchaser of her estate was her money; whatever claim he might make-against her 011 the ground of the defect in his title, if indeed he could recover from her at all. Clearly it was not the money-of her husband. If not hers, it certainly was not his. As between him and her, or between his creditors and her, she alone-was the owner of the money. Hence when he conveyed toiler he conveyed nothing to which his creditors had any valid, claim. Even if the purchaser from her could recover from her the money she had received, her husband had no title to it, and would be bound to restore it to her, to enable her to refund it. In addition to the debt for which the property, was sold as Sheriff’s sale as the estate of her husband, arose long after the husband’s deed to his wife. When sold at Sheriff’s sale the-husband had no title in law or equity. On no ground, therefore,, was the plaintiff below entitled to recover the property from the tenants of Mrs. Sidle.-\nJudgment affirmed.\n", "ocr": true, "opinion_id": 7673944 } ]

"1993-10-15"

[ "625 So. 2d 1051" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Green, Thomas Jr.; — Plaintiff(s); applying for supervisory and/or remedial writ; Parish of St. Tammany, 22nd Judicial District Court, Div. “A”, No. 176843; to the Court of Appeal, First Circuit, No. KW92 0529.\nGranted. The district court is ordered to grant relator an out-of-time appeal and to appoint counsel to handle the appeal. See Lofton v. Whitley, 905 F.2d 885 (5th Cir. 1990). If appointed counsel, after review of the record, finds no basis for assigning error on appeal, he or she may follow the procedure outlined in State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).\nHALL, J., not on panel.\n", "ocr": true, "opinion_id": 7675018 } ]

"1993-11-17"

[ "626 So. 2d 961" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nDefendants’ only assignment of error urges excessiveness of his sentence and failure to grant his Motion to Reconsider. We find no error in the trial court’s ruling. The record was reviewed for errors patent and two were found. In the first the bill of information was not amended to reflect the charge to which defendant, Wendell Martin, pled. As the defendants did not raise this issue on appeal and the plea was to a lesser included offense of the offense charged, this is harmless error. See State v. Barclay, 591 So.2d 1178 (La.App. 1 Cir.1991). The second error is the trial court’s failure to give the defendants credit for time served prior to imposition of sentence. The trial court erred in failing to award this credit.\nAccordingly, the defendants’ convictions and the sentences imposed are affirmed and the matter remanded to the trial court to amend the commitment and minute entry of the sentence to reflect that defendants are given credit for time served.\nAffirmed and Remanded with Instructions.\n", "ocr": true, "opinion_id": 7675382 } ]

"1993-11-09"

[ "626 So. 2d 1025" ]

[ { "author_str": "Cope", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCOPE, Judge.\nHector Pefaur appeals an order awarding temporary alimony and child support. We affirm.\nAfter consideration of the record herein, we conclude that there was no abuse of discretion in the amounts of support awarded, nor in the retroactive effective dates. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).1\nThe temporary support order provides, in part, that “If the child support is not paid as provided by this Order, then this Court shall appoint an attorney and the Coral Gables marital home shall be transferred to the Wife’s name to pay child support.” Order, paragraph 5. As we understand it, the purpose of this part of the order was to identify an asset within the jurisdiction of the court which could be used to satisfy the child support obligation in the event of nonpayment.2\nThe husband complains that the phrase “marital home” should not have been used in the order. That is so, argues the husband, because the question of the existence of a marriage is a disputed issue in this case which has not yet been finally adjudicated. See Pefaur v. Pefaur, 617 So.2d at 426-26. Further, the husband expresses concern that the phrase “marital home” could also be read to imply a determination that the Coral Gables residence is a marital asset, see § 61.-675, Fla.Stat. (1991), an issue which has likewise not yet been determined in the case.\nThis court has previously affirmed the trial court’s determination that “the wife has made a prima facie showing that she is married to the appellant husband.” Pefaur v. Pefaur, 617 So.2d at 425. Based on that preliminary determination only, the parties have been referred to in the trial court’s orders and in this court’s opinions as “husband” and “wife.” In that same sense, the Coral Gables residence has been referred to as a “marital home.” The use of that phraseology is entirely without prejudice to the husband’s position regarding the validity of the marriage, and his right to a final determination of that issue by the trial court.\nThe husband argues that this portion of the order is infirm because it does not specify a procedure for enforcement of the house transfer provision should there be a nonpayment of child support. More specifically, the husband contends that the order should specify that any invocation of this provision by the wife must be with notice and an opportunity to be heard by the husband. As we view the matter, the order is sufficiently clear. Nothing in this order authorizes ex parte proceedings. Plainly, the trial court contemplated that there would be notice and an opportunity to be heard should there be an effort to invoke this provision for nonpayment of child support.\nThe husband concedes that the wife’s entitlement to temporary alimony has been effectively resolved by this court’s decision in Pefaur v. Pefaur, 617 So.2d at 425 (affirming trial court determination of prima facie showing that wife is married to appellant husband). Finally, no reversible error has *1027been shown with regard to the claim of evi-dentiary error.\nAffirmed.\n\n. The husband argues that the wife has in effect conceded that the amount of temporary alimony and child support is excessive. The husband argues that the amount awarded by the trial court exceeds the amount that the wife herself requested. However, when the motion for temporary support is read as a whole, it is clear that the husband is relying on one paragraph in the motion for temporary support which contains a scrivener's error. The text of the motion makes clear that the wife had requested a higher monthly amount, and the trial court in reality made an award which was lower than the request. Further, when the award is compared with the wife’s financial affidavit, it appears clear that the trial court agreed with many of the husband's arguments and reduced the support claim.\n\n\n. The husband is a citizen and resident of Argentina. See Pefaur v. Pefaur, 617 So.2d 425, 426 n. 2 (Fla. 3d DCA), review denied, 626 So.2d 207 (Fla.1993).\n\n", "ocr": true, "opinion_id": 7675409 } ]

"1993-10-29"

[ "626 So. 2d 1178" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPrior report: La.App., 619 So.2d 1071.\nIn re State of Louisiana; — Plaintiff(s); applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. KA92 0746; Parish of East Baton Rouge, 19th Judicial District Court, Div. “H”, No. 6-91-1755.\nDenied.\nKIMBALL, J., not on panel.\n", "ocr": true, "opinion_id": 7675554 } ]

"1993-11-16"

[ "627 So. 2d 48" ]

[ { "author_str": "Jorgenson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJORGENSON, Judge.\nHerminio Ramirez, a retired police officer, appeals from an order of final summary judgment in an action to recover back pay and retirement benefits from the City of Miami. We affirm.\n\nThe Officer’s Employment History\n\nRamirez is a wartime veteran who served in the armed forces from 1961-1964 and was then hired as a police officer by the City of Miami. He served continuously with the de-. partment once he was hired. Ramirez completed an examination for promotion to Sergeant on August 15, 1977; on October 26, 1977, the department posted the register of candidates for promotion. An amended register was posted in May, 1978. Based upon the test scores, Ramirez was ranked 26th. Ramirez was not promoted from that register, which was in effect at least until October 26, 1978.1 In August, 1980, Ramirez completed another examination for promotion to Sergeant; he received his promotion in September, 1981. Ramirez has since retired from the department. In this action he seeks back pay and retirement benefits for a period when, he alleges, he was wrongfully denied promotion to Sergeant by not being awarded veteran’s preference points on his 1977 promotional examination.\n\n*49\nA Brief History of Veteran’s Preference Points\n\nIn 1977, returning wartime veterans who were employed pursuant to a career service system by the State and its political subdivisions and who sought a promotion for the first time following “re instatement or re employment” were entitled to have “preference points” added to their promotion examination results. § 295.09, Fla.Stat. (1977) (emphasis added). “The purpose of veterans’ preference acts is sometimes said to be to reward those who served their country in time of need; ... such acts are a recognition of the qualities and traits developed by military service which tend to make of veterans superior public servants.” Yates v. Rezeau, 62 So.2d 726, 727 (Fla.1952) (citations omitted).\nThe Florida legislature amended section 295.09, effective June 20, 1978, to provide that veteran’s preference points were to be awarded on promotional exams upon the employee’s “first promotion after employment, reinstatement, or reemployment.” § 295.09, Fla.Stat. (1979) (emphasis added). However, the legislature soon repealed that amendment, effective July 5, 1980, and reenacted the former version of section 295.09 that awarded preference points “only to a veteran’s first promotion [examination] after re instatement or re employment, without exception.” § 295.09, Fla.Stat. (1981) (emphasis added).\nIn sum, veterans who were first employed after discharge from the armed services and whose employment was not interrupted by a tour of duty were entitled to veteran’s preference points on their first promotional exam only in the short time period between June 20, 1978 and July 5, 1980.\n\nThe Officer’s Claim for Veteran’s Preference Points\n\nAlthough Ramirez was eventually promoted to the rank of Sergeant in 1981, he filed suit for back pay and retirement benefits.2 He alleged that he was entitled to an award of veteran’s preference points on the results of his 1977 promotion examination, and that the City of Miami’s failure to award him those points resulted in the wrongful denial of promotion to Sergeant until 1981, after he had passed a second examination.\nRamirez admits that he was not entitled to veteran’s preference points when he took the promotion examination in 1977, and that only returning veterans who sought their first promotion after reinstatement or reemployment could have been awarded those points under the 1977 version of section 295.09. Instead, he argues that the amendment to section 295.09 took effect during the life of the promotional register that ranked him with the other 1977 exam takers, and that the City wrongfully refused to add preference points to his score as posted on the register once the amendment was in effect.\nRamirez was not entitled to veteran’s preference points under section 295.09, Florida Statutes (1977), when the City posted the results of the 1977 promotional exam. His ranking on the promotional register, along with the rankings of 72 other candidates for Sergeant, was determined as of the date the register was posted in October, 1977, and then amended in May, 1978. No veteran’s preference points were awarded to any candidate on that register. Moreover, promotions to Sergeant were made from that register while the 1977 statute was in effect, before the amendment to section 295.09 took effect.\nSection 295.09, as amended in 1978, cannot be applied retroactively to award preference points to a veteran who took the exam and was ranked on the promotion register before the amendment was enacted or effective. “It is a well-established rule of construction that in the absence of clear legislative expression to the contrary, a law is presumed to operate prospectively.” State v. Lavazzoli, 434 So.2d 321, 323 (Fla.1983) (citations omitted). Section 295.09, Florida Statutes (1979), provided for the award of preference points “on promotional examinations.” By its own terms, the statute did not provide for the award of preference points on promotional registers, and did not take effect until June 20, 1978, long after Ramirez’ 1977 promotional exami*50nation, and after higher-ranking individuals had been promoted from the register as it was configured under the 1977 statute. This court has held that a veteran hired after service in the armed forces was not entitled to an award of preference points on a promotional examination that he took in 1981, even though he had been employed by the City in 1979 and had taken and failed a promotional examination in 1979 when section 295.09 applied not only to returning veterans, but to veterans who were hired after their service. City of Miami v. Burmeister, 512 So.2d 1047 (Fla. 3d DCA 1987), rev. denied. 520 So.2d 583 (Fla.1988). In Burmeister, the court focused on the version of section 295.09 in effect when the employee took the promotional examination, and concluded that the employee had no vested interest in retaining preference points “not used” on an examination taken during the lifetime of the 1978 amendment to section 295.09. Burmeister, 512 So.2d at 1048. By analogy, Ramirez is not entitled to an award of preference points on the results of an examination that he took before the legislature amended the statute to cover veterans hired after their service.\nAFFIRMED.\n\n. \"The term of eligibility of each register and of the names appearing thereon shall be fixed by the [Civil Service] Board at not less than one (1) year nor more than two (2) years.” City of Miami, Florida Civil Service Rules & Regulations Rule VII, Part I, § 2 (June, 1976).\n\n\n. We do not address any of the procedural aspects of this litigation, which began in 1976 and took a long and tortuous path through both state and federal court.\n\n", "ocr": true, "opinion_id": 7675611 } ]

"1994-01-21"

[ "630 So. 2d 227" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe judgments and sentences herein are reversed and the case is remanded for a new trial, on the authority of Gonzalez v. State, 627 So.2d 63 (Fla. 2d DCA 1993).\nALTENBERND, A.C.J., and LAZZARA and QUINCE, JJ., concur.\n", "ocr": true, "opinion_id": 7677247 } ]

"1994-02-01"

[ "630 So. 2d 1245" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAppellant, Juan Hernandez, contends on appeal that an arresting officer’s gratuitous comment that “most people who consent to a search are guilty” deprived appellant of a fair trial. We conclude that if there was any error, it was harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Accordingly, appellant’s convictions and sentences for trafficking in cocaine and possession of marijuana are affirmed.\nAffirmed.\n", "ocr": true, "opinion_id": 7677536 } ]

"1993-12-22"

[ "631 So. 2d 11" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nApplicant in this capital murder case challenges the ruling of the trial court relieving appointed counsel due to counsel’s lack of experience and the unavailability of funds to pay counsel. The matter apparently came before the trial court on a motion to withdraw filed by applicant’s appointed counsel, Jacque Derr.\nThe applicant seeks to have us to enter an order requiring the treasurer of Winn Parish to provide sufficient funds to pay overhead costs and fees of appointed counsel, or, in the alternative, to order that the charges against him be dismissed. We grant the writ in part, deny the writ in part, and remand the matter to the trial court.\nFootnote 1 of the trial court opinion noted that the court “also allowed Green’s two co-defendants to join in th[e] motion” (Jimmy Teat for John Dale Hall and James E. Calhoun for James Micha'el Washington, Jr.). The court also said that “[t]wo other cases have likewise been joined to this one. See State v. Mark Hattaway, No. 32,554 (Winn Parish, 1990) (counsel, Mike Small); State v. James Edward Pardue, No. 33,607 (Winn Parish, 1993) (counsel, James E. Calhoun).”\nLikewise, counsel for applicant, Mr. Clive Stafford Smith, indicated in Footnote 1 of the instant application that he was “representing Mr. Green and his similarly-situated colleagues in Winn Parish Jail on a pro bono publico basis.... ” In the interest of judicial economy, we therefore consider this application as also being on behalf of the other four defendants referenced in Footnote 1 of the trial court opinion.\nWe have not been furnished the pertinent minute entries of these cases in this writ application. We also have not been favored with a copy of the specific motion (or motions) upon which the October 19,1993, hearing was held. We do note that the transcript indicates it is a “Motion to Withdraw Appointment as Counsel.” We therefore presume that similar motions were also filed by the other attorneys referenced in the trial court’s Footnote 1, as was indicated would be filed at the end of the October 19, 1993, hearing.\nIn response to our request for briefs from the state, the district attorney’s office responded that for it to take a position would violate LSA-Const. Art. 5 § 26, which precludes a district attorney from defending or assisting the defense of any criminal prosecution. The district attorney also cited a conflict because of the reliance by that office on the criminal court fund, noting that the fund is a potential source of funds for an accused’s counsel per State v. Wigley, 624 So.2d 425 (La.1993). The district attorney also cited a conflict of interest as statutory legal counsel for the parish police jury.\nWe express serious doubt that active participation by the instant district attorney’s office conflicts with the constitutional article cited. However, we do not need to decide the question at this point. We also note that if the district attorney has a conflict of interest in any matter, it is incumbent on the district attorney to recuse himself and seek *13other counsel to represent the state. LSA-R.S. 16:9.\nThese motions appear to be the type contemplated in State v. Wigley, supra, contending that the appointment of private counsel and the requirement that counsel represent a capital defendant without reasonable expectation of reimbursement of expenses (and/or compensation) is an unreasonable extension of counsel’s professional obligation.\nAn indigent defendant facing incarceration, or worse, is entitled to counsel. U.S. Const, amend. VI; LSA-Const. Art. 1, § 13. The defense provided need not be perfect, but should be effective and competent. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bates v. Blackburn, 805 F.2d 569 (5th Cir. 1986), cert. denied, 482 U.S, 916, 107 S.Ct. 3190, 96 L.Ed.2d 678 (1987); Kirkpatrick v. Blackburn, 777 F.2d 272 (5th Cir.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986). Each defense will necessarily be case specific. See generally, Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); State v. Carmouche, 553 So.2d 467 (La.1989); State v. Carmouche, 527 So.2d 307 (La.1988).\nThere was extensive testimony by attorneys well-versed in defending death eases as to the ideal support required in defending capital matters. However, this testimony was extremely general and in many particulars was not specific to the instant case or eases. There was only a limited cross-examination by the state, which was represented at the hearing by Mr. Terry R. Reeves, district attorney, and Mr. Martin S. Sanders, Jr. assistant district attorney.\nMuch of the testimony in the record, particularly that of Mr. Robert Neal Walker of the Loyola Death Penalty Research Center in New Orleans, argues for virtually unlimited resources in indigent capital cases. Such is not necessary or required. Also, much of what Mr. Walker indicated is required is not supported by the jurisprudence.\nAfter careful review, we conclude that the record supports the trial court determination that requiring Mr. Derr to represent the defendant Green in this capital case will be unduly oppressive. The ruling relieving Jacque Derr as attorney for applicant Green in this case is therefore affirmed.\nThe order relieving the other attorneys in the cases cited in Footnote 1 of the trial court opinion is reversed. We conclude the record does not support the determination that their representation of any defendant listed here is unduly oppressive in any specific case, and further hold that funds are likely to be available to reimburse them as required by law.\nThe trial court also erred in implying it only had the authority to appoint attorneys residing in the Eighth Judicial District. Indeed, it appears that at least two other counsel who “joined in” reside out of the district, and at least one of the attorneys at issue here who resides out of the judicial district has previously accepted an appointment in the Eighth Judicial District on another unrelated criminal matter.\nThe trial court is therefore ordered to appoint new counsel for the defendant Green in this capital case. The trial court should be satisfied that such counsel regularly practices law in the Eighth Judicial District and has the experience required to represent a defendant in a death penalty case. The attorney need not reside in the Eighth Judicial District.\nIt is possible that the attorneys may be required to spend several hundred hours on these cases. We set an overhead rate of $30 an hour for each attorney in these cases. The attorneys may require an independent investigator at an early stage in the case, the expense of which the trial court found to be approximately $2,000. Also, it may be necessary for this investigator, or another investigator more specially trained, to assist the defense in the penalty phase investigation for a sum which the trial court estimated might be as high as $3,000. The record does not support, at this point, the trial court determination that such an investigator or psychological and psychiatric experts will be necessary for the penalty phase.\nHowever, we are not persuaded from this record that at this juncture any *14attorney is entitled to be paid an attorney’s fee, although we have no quarrel with the rate of $45 an hour set by the trial court. Wigley says that no fee is due unless and until the time the attorney must devote to cases for which he does not receive a fee reaches an unreasonable level. In our view that level is no less than 100 hours per calendar year. Moreover, other factors, such as the amount of pro bono work rendered in eases in previous years, should be considered by the trial judge in determining what is unreasonable.\nThis case also presents the issue of where the reimbursement funds are to be obtained. It seems clear to us that we should follow the lead of the justices of the Supreme Court, who, recognizing the legislature’s constitutional obligation to provide for a system to adequately secure and compensate defense counsel for indigents, were unwilling to undertake more intrusive and specific measures to assure compliance until after the legislature had a chance to address the problem in the first instance. State v. Peart, 621 So.2d 780 (La.1988); Wigley, supra. Further, and contrary to our ruling in In re Compensation for Indigents’ Criminal Defense, 580 So.2d 1058 (La.App.2d Cir. 1991), the Supreme Court in Peart, supra, and Wigley, supra, implied that La.R.S. 15:304 required the local government subdivision, here Winn Parish, to fund the indigent defender system and that funds from the parish be used to reimburse defense attorneys’ expenses and overhead.\nA review of the testimony of Mrs. Thelma Jarnigan, secretary-treasurer of the Winn Parish Police Jury, indicates that the Winn Parish Police Jury’s budgets of over $1.6 million have a surplus of about $14,500. (Some of these funds may be dedicated.) Although she testified there were no funds budgeted for criminal defense, we find that the parish is able to provide incremental payments as necessary for these cases. Obviously, some adjustment to the parish budgets may have to be made. Nevertheless, as the Supreme Court has stated “budget exigencies cannot serve as an excuse for the oppressive and abusive extension of attorneys’ professional responsibilities.” Wigley, supra, at 429.\nThe trial court is ordered to direct the Winn Parish Police Jury to provide reimbursement for the initial investigations in these cases in such amounts as may be shown to be necessary in each specific case, after contradictory motion tried with the parish and the State. Additional funding for experts or further investigation as likewise determined to be appropriate after contradictory motion with the parish and the state shall be authorized by the trial court upon the trial court’s determination that such is reasonable and necessary for an adequate defense in a specific case, and is supported by law. In addition, the court shall order the police jury to reimburse reasonable overhead costs at $30 an hour (and attorneys’ fees at $45 an hour after the trial court’s determination that the attorney’s pro bono work for cases for which he has not received a fee has reached unreasonable levels, but in no event shall it be less than 100 hours of annual pro bono services previously rendered) as periodically determined after motion and a contradictory hearing. The court may order the payment of these funds in incremental amounts as necessary.\nThis matter is remanded for further proceedings consistent herewith.\n", "ocr": true, "opinion_id": 7677571 } ]

"1993-12-22"

[ "631 So. 2d 241" ]

[ { "author_str": "Ingram", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nINGRAM, Justice.\nWilliam T. Williamson and Flora V. Williamson appeal from a summary judgment entered in favor of Nissan Motor Acceptance Corporation (“Nissan”) and Scott Campbell on their claim alleging misrepresentation, conversion, and wrongful repossession.\nOn February 1, 1989, Mr. Williamson purchased a new 1989 Nissan automobile and financed it through Nissan. The “Retail Installment Contract” created a security interest in Nissan, with a right to repossess the ear upon default, without notice to the debt- or. The agreement also contained both a nonmodification clause, which required that any changes in the agreement be made in writing, and a nonwaiver clause, which gave the lender the right to -delay the enforcement of any of its rights under the agreement *242without destroying the right to enforce the contract as written.\nIn October 1991, Mr. Williamson defaulted on the note, and Nissan repossessed the car. There is no contention that the repossession was not peaceful. Mr. Williamson and his wife Flora Williamson filed this action against Nissan and its agent Scott Campbell. Flora Williamson was not a party to the contract with Nissan. On this appeal the Williamsons make no argument regarding Scott Campbell; therefore, as to him the judgment is due to be affirmed. ’\nThe law is clear that a summary judgment is proper and must be affirmed on appeal if the evidence, viewed in a light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Lowe v. East End Memorial Hospital & Health Centers, 477 So.2d 339 (Ala.1985). Once the party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the nonmovant fails to meet this burden, then a summary judgment must be entered in favor of the movant. Coggin v. Starke Bros. Realty Co., 391 So.2d 111 (Ala.1980).\nIt is undisputed that Mr. Williamson was in default for nonpayment at the time of the repossession. Given this default, Nissan acted within its contractual and statutory right to repossess the car.\nTherefore, we also affirm the judgment as to Nissan. See Johnson v. Central Bank of the South, 514 So.2d 969 (Ala.1987); Williams v. Ford Motor Credit Co., 435 So.2d 66 (Ala.1983); and Hale v. Ford Motor Credit Co., 374 So.2d 849 (Ala.1979). This Court in Williams, at 68, stated:\n“We think our decision in Hale v. Ford Motor Credit Co., 374 So.2d 849 (Ala.1979), in which this Court delineated the rights and obligations of the parties under the terms of a security agreement containing both a non-waiver acceleration clause and a non-modification clause, is controlling here. In Hale, supra, this Court ruled that the secured party is not required to give notice to the debtor prior to repossession, even though past-due payments have been accepted on previous occasions. Further, this Court concluded that a security agreement is effective according to the terms expressed in the agreement and that the inadvertence of the debtor in failing to make timely payments cannot raise an es-toppel against the contractual interest of the creditor under the express terms of the security agreement, when there has been no written modification as required by the terms of the agreement. 374 So.2d at 853; McAllister v. Langford Investigators, Inc., 380 So.2d 299, 300 (Ala.Civ.App.1980).”\nAFFIRMED.\nMADDOX, SHORES, STEAGALL and COOK, JJ., concur.\n", "ocr": true, "opinion_id": 7677589 } ]

"1994-01-26"

[ "631 So. 2d 326" ]

[ { "author_str": "Ryder", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nRYDER, Acting Chief Judge.\nRichard Svenson appeals the sentences received after revocation of probation on his previously imposed split sentences. He challenges only the trial court’s failure to award credit for time served on the offenses for which he initially received a prison term.\nAppellant received concurrent nine-year prison sentences on four burglaries and probationary terms on various third degree felonies, all probationary terms to run consecutive to the prison term. Upon revocation of probation, the court sentenced him to five-year prison terms on all the third degree felonies without awarding credit for either the time actually served or the gain-time earned on the burglaries. All offenses occurred after October 1, 1989.\nHaving initially imposed a term of probation consecutive to a term of incarceration, the court should have given credit for at least the time actually served on the prison term. Tripp v. State, 622 So.2d 941 (Fla.1993). Be*327cause the .offenses occurred after October 1, 1989, however, the appellant is not entitled to receive credit for the gain-time earned on the original prison sentences. See §§ 944.28(1) and 948.06(6), Fla.Stat. (1993); Bradley v. State, 616 So.2d 1156 (Fla. 2d DCA 1993); Tripp at 942 n. 2 (pursuant to chapter 89-531, revocation of probation serves to forfeit gain-time previously earned). Accordingly, we vacate the sentences in part and remand for a proper award of credit for time served.\nSentences vacated in part and remanded.\nSCHOONOVER and THREADGILL, JJ., concur.\n", "ocr": true, "opinion_id": 7677605 } ]

"1994-01-13"

[ "631 So. 2d 1151" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Transportation & Dev., Dept. of;— Defendant(s); applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, Nos. CA92-090B, CA92-0904, CA92-0906, CA92-0906; Parish of St. Martin, 16th Judicial District Court, Div. “B”, No. 48781; 16th Judicial District Court, Div. “F”, No. 48883; 16th Judicial District Court, Div. “B”, Nos. 48975, 48985.\nGranted.\nHALL, J., not on panel.\n", "ocr": true, "opinion_id": 7677860 } ]

"1994-01-13"

[ "631 So. 2d 1152" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Seales, Kevin J.; — Plaintiffs); applying for supervisory and/or remedial writ; Parish of East Baton Rouge, 19th Judicial District Court, Div.'“F”, No. 08-91-1032.\nGranted. Relator is to be furnished the requested appeal records, checking them out through Mrs. Dora Rabalais of Angola’s Le*1153gal Services Office, who will assume responsibility for their return.\nDENNIS, J., not on panel.\n", "ocr": true, "opinion_id": 7677866 } ]

"1993-12-03"

[ "632 So. 2d 497" ]

[ { "author_str": "Yates", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nYATES, Judge.\nThis appeal concerns certain statutes and regulations governing the licensing of persons to practice psychology in the State of Alabama. The appellants are six individuals whose applications to be licensed as psychologists in this state have been denied. The Alabama Board of Examiners in Psychology (Board), following an administrative hearing, found that the appellants could not sit for the psychology examination, the passing of which is a prerequisite for obtaining a license to practice as a psychologist in this state. The appellants sought judicial review of the Board’s decision in the Circuit Court of Montgomery County, pursuant to Ala.Code 1975, § 41-22-20. The circuit court affirmed the decision of the Board; hence, this appeal.\nThe material facts are not in dispute. The appellants all graduated from Forest Institute of Professional Psychology (Forest). Forest was established in Huntsville, Alabama, in 1989. The school was not accredited by the American Psychological Association (APA), however, it was accredited by the North Central Association of Colleges and Schools (NCA), a member of the Council on Post-Secondary Accreditation (COPA). Forest located in Huntsville following the closing of The American Institute of Psychotherapy (AIP). Forest purchased AIP’s library, furnishings, and electronic equipment, and moved into the building previously occupied by AIP. Forest also inherited a majority of AIP’s students, which included the appellants. AIP was not accredited by the APA, nor by any member of COPA.\nForest normally required a student to complete 142 credit hours of study, over four years, to qualify for a Doctor of Psychology (Psy.D.) degree. When the appellants enrolled at Forest, the school had a written policy that it would grant a maximum of 36 hours of transfer credit to any student enrolled in its Psy.D. program. However, Forest deviated from that policy by allowing the appellants to transfer 125 credit hours obtained at AIP. Thus, after completing one year of study at Forest, the appellants were awarded a Psy.D.\nUpon its application of the law to the facts, the circuit court affirmed the decision of the Board. We agree with the well-reasoned order of the circuit court, and we adopt the following language as our own:\n“The issue in this case is whether the statutes and the administrative codes of the Board of Examiners in Psychology grant to the Board the discretion to go *499beyond the facially valid Doctor of Psychology degree granted by an institution (Forest) accredited by a recognized accrediting agency (NCA).\n“The [appellants] emphasize the following language from the Board’s enabling act:\n“ ‘Any person wishing to obtain the right to practice as a psychologist in this state ... shall .;. furnish the board with satisfactory evidence that ... he has received a doctorate degree from a department of, or school of, psychology, from an educational institution accredited and recognized by national and regional accrediting agencies as maintaining satisfactory standards.... ’ § 34-26^41(a)(3), Code of Alabama, (1975).\n“The cojurt notes, however, that the enabling act expressly authorizes the ‘board ... to promulgate and adopt such rules and regulations as are necessary to implement the requirements of this chapter; _’ § 34-26-22(c). Pursuant to this rule-making power, the Board has adopted 'an administrative code which goes into some detail about the academic qualifications of a candidate for a license to practice psychology upon the public.\n“Rule 750-X-2.04(3) of the Board’s administrative code provides for the licensing of graduates from schools not accredited by the APA (like Forest). That rule reads, in pertinent part as follows:\n“ ‘(3) Departments or schools which do not meet requirements of (2) above (APA accreditation) ... will be recognized as meeting the Board’s definition of a department or school of psychology if they meet the following organizational and curriculum criteria:\n“(a) Organizational Requirements.\n“(1) Training in psychology must be doctoral training offered in an institution of education accredited by the Council on Post-Secondary Accreditation (COPA),\n“(b) Curriculum Requirements.\n“The curriculum shall encompass a minimum of three academic years (nine months each) of full-time graduate study....’\n“The Board and [appellants] agree that each [appellant] has three or more years of ‘full time graduate study,’ but each [appellant] has only one year of full time graduate study at an institution accredited by COPA, i.e. at Forest. The [appellants] argue that the Board has exceeded its authority by refusing to ‘piggy-back’ the three years from unaccredited AIP onto the one-year at Forest, which is accredited by NCA, a member of COPA. The Court, however, finds that the above rule logically requires at least three academic years of study at a COPA accredited program.\n“The rulings of a state administrative agency or licensing board must be reviewed with a presumption of correctness. Benton v. Ala. Bd. of Medical Examiners, 467 So.2d 234 (Ala.1985). The presumption is particularly important where the subject matter is peculiar to the field of competence which has been entrusted to the agency by the Alabama legislature. Alabama Dept of Public Health v. Perkins, 469 So.2d 651 (Ala.Civ.App.1985).\n' “As discussed above, the rule at issue in this case is Rule 750-X-2.04(3). The Board has decided that the rule ‘contemplates and requires three academic years of full-time graduate study in a doctoral program ... accredited by a member of the Council on Post-Secondary Accreditation.’ The [appellants] would have this Court interpret the rule to require three years of study at any institution coupled with a degree from an accredited institution.\n“An agency’s interpretation of its own regulation must stand if it is reasonable, Ferlisi v. Ala. Medicaid Agency, 481 So.2d 400.(Ala.Civ.App.1985), and the Court finds that the Board’s interpretation is indeed reasonable. Moreover, this Court finds that the Board was not, as [áppellants] argue, in excess of its statutory authority in interpreting the regulation.\n“It is therefore ORDERED, ADJUDGED and DECREED that the decision of the Board of Examiners in Psychology is due to be and is hereby AFFIRMED.\n*500“DONE, this 2nd day of December, 1992.\n“s/Joseph D. Phelps, Circuit Judge”\nThe judgment of the circuit court is hereby affirmed.\nAFFIRMED.\nROBERTSON, P.J., and THIGPEN, J., concur.\n", "ocr": true, "opinion_id": 7678088 } ]

"1994-03-03"

[ "632 So. 2d 752" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nRespondent was charged with one count of misconduct, involving his failure to account properly to clients regarding settlement funds, failure to promptly deliver settlement funds to his clients, commingling and converting clients’ funds to his own use, failure to properly communicate with his clients, and failure to act with reasonable diligence in handling his clients’ affair's. Respondent’s actions were in violation of Rules of Professional Conduct 1.3, 1.4, 1.5, 1.15, and 8.4(a)(b) and (c). At the hearing before the Hearing Committee, respondent admitted to the formal charges.\nThe Hearing Committee concluded that numerous mitigating circumstances were involved in this case, including the absence of a prior disciplinary record, lack of a dishonest or selfish motive, payment of full restitution by respondent after the client’s complaint was filed with the Bar Association but prior to the filing of formal charges, payment of legal interest on the late disbursement upon demand, cooperation with the disciplinary proceedings, admission of the formal charges, four year lapse of time since the events giving rise to the charges, respondent’s financial reverses and domestic problems during the relevant time period, good character and remorsefulness. The Committee found no aggravating factors. The Committee further noted that the clients’ incarceration at the time of the events giving rise to the charges was a complicating factor in this case. The Hearing Committee recommended a six month suspension and that respondent be required to take and pass a test on legal ethics prior to reinstatement.\nOn review the Disciplinary Board concurred in the Committee’s recommendation of a six month suspension. The Board further recommended that respondent be required to take and pass the Multistate Professional Responsibility Exam (MPRE) before he will be eligible for reinstatement.\nDisciplinary Counsel filed an objection to the proposed discipline, stating that the discipline recommended by the Committee and the Board is inadequate since the evidence established that respondent knowingly and intentionally used his clients’ money for his own purposes and failed to pay them upon demand. Counsel further concluded that the clients suffered serious harm in being deprived of their money for eighteen months. Counsel noted that respondent was not fully cooperative with the disciplinary process but rather delayed the proceedings by failing to *753submit a substantive answer to the complaint for fourteen months after being notified. Finally, Disciplinary Counsel alleged that this incident did not represent an isolated act of misconduct since respondent represented other clients, received funds belonging to those clients, and failed to deposit those funds in a client trust account. Disciplinary Counsel found that most of the factors warranting a three year suspension are present in this case, but recommended a suspension of one year and one day because of the numerous mitigating factors. Disciplinary Counsel concurred with the Board’s recommendation that respondent take and pass the MPRE prior to reinstatement.\nUpon review of the findings and recommendations of the Hearing Committee and the Disciplinary Board, the objections and recommendations of Disciplinary Counsel, and upon consideration of the oral argument before this court and the record filed herein, this court adopts the recommendations of the Disciplinary Board.\nDECREE\nAccordingly, it is ordered that James E. Burks be suspended from the practice of law for six months, effective on the date of this order. Respondent is further ordered to take and pass the Multistate Professional Responsibility Exam and to notify the Office of Disciplinary Counsel of his successful completion of that exam as a condition of reinstatement.\nSUSPENSION ORDERED.\nMARVIN, Justice Pro Tem. in place of Justice Dennis, was the Justice not on panel in this case. See Rule IV, Part 2, Section 3.\nLEMMON, J., dissents and assigns reasons.\n", "ocr": true, "opinion_id": 7678164 }, { "author_str": "Lemmon", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nLEMMON, Justice\ndissenting.\nA lawyer who uses a client’s funds for his own purposes commits a serious ethical violation. In this case respondent used his client’s funds for his own purposes, and his conduct was clearly intentional and selfish, even if he intended to restore the funds eventually. I therefore disagree with the finding of the existence of the mitigating factor of lack of selfish or dishonest motive.\nI further disagree with the penalty imposed. Under Louisiana State Bar Association v. Hinrichs, 486 So.2d 116 (La.1986), the misconduct in this case warrants a suspension of eighteen to twenty-four months. Even though there were significant mitigating factors, the seriousness of the misconduct dictates that the penalty should be a suspension of at least one year and one day.\n", "ocr": true, "opinion_id": 7678165 } ]

"1994-02-01"

[ "632 So. 2d 1058" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed. Miller v. Stavros, 174 So.2d 48, 49 (Fla. 3d DCA 1965).\n", "ocr": true, "opinion_id": 7678281 } ]

"1994-03-18"

[ "633 So. 2d 1148" ]

[ { "author_str": "Peterson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPETERSON, Judge.\nOrange Lake Country Club (OLC) petitions for a writ of certiorari seeking review of an order compelling discovery. We grant the petition.\nCharles M. Levin sought damages and in-junctive relief against OLC for an alleged breach of contract relating to his employment in OLC’s timeshare sales and marketing department. He also alleged defamation and sought a declaratory judgment as to the validity of a non-compete clause contained in the employment contract.\nHe later requested production of documents supporting the 1992 annual financial report of revenues and expenses for Orange Lake Country Club Villas Condominium Association, Inc., apparently an owner’s association managed by OLC. Specifically, production was sought of all documents evidencing costs listed in the financial report as “Master Restriction Fee” and as “Club Membership Fee.” Also pending at the time of request for production was OLC’s counterclaim alleging tortious interference with business relationships and requesting damages and in-junctive and declaratory relief based upon the non-compete clauses.\nOLC objected to the request for production as overbroad, irrelevant and not designed to lead to the discovery of admissible *1149evidence. It argued in support of its objection that the requested documents related solely to common areas and recreational facilities used by condominium association members to which Levin has never had a connection.\nLevin stated in a deposition taken prior to a hearing on OLC’s objection to production that he was fired because his performance intimidated his supervisor and because he was “honest, committed, loyal, outspoken, aggressive, creative, young, capable, wealthy, Jewish, ambitious, effective.” Levin made no mention that the financial statements were in any way related to his termination. Yet Levin’s counsel argued at the hearing that when his client had confronted the president of OLC and claimed that the fees charged to timeshare owners for maintenance and membership were arbitrary and unnecessary, the president became angry and almost immediately thereafter, Levin’s employment was terminated without notice or justification. When asked how this related to the. lawsuit, Levin’s counsel said, “We want to know what’s going on” and ‘We might file a class action suit.”\nWe agree with OLC that nothing in the record supports any relationship between Levin’s employment termination and the requested documents notwithstanding the expression of Levin’s attorney’s inquisitiveness and interest in a future class action.\nFlorida Rule of Civil Procedure 1.280(b) provides that parties may obtain discovery of any matter, not privileged, that is relevant to the subject matter of the pending action, and discovery is not objectionable because the information sought will be inadmissible at trial, if it appears reasonably, calculated to lead to the discovery of admissible evidence. The discovery clearly must relate to the pending action, thus any claim made that the discovery was needed for a class action suit is insufficient to support compelled disclosure. The supreme court, in Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987), found that irreparable harm could result from the disclosure of information which could be used by an unscrupulous litigant to injure a party outside the context of the litigation. Nonetheless, if the discovery is relevant to the pending action or is reasonably calculated to lead to the discovery of admissible evidence in that action, the fact that it could be used in a separate suit should not preclude disclosure. However, none of the discovery depositions made mention of any confrontation regarding association fees as a reason for Levin’s dismissal. This assertion was made only by Levin’s attorney at the hearing on the objection to production. In Lanahan Lumber Co., Inc. v. McDevitt & Street Co., 611 So.2d 591 (Fla. 4th DCA 1993), the court held that unproven utterances documented only by an attorney are not facts that can be acknowledged by the trial or appellate court. See also Schneider v. Currey, 584 So.2d 86 (Fla. 2d DCA 1991). Likewise, in Equifax Corp. v. Cooper, 380 So.2d 514 (Fla. 5th DCA 1980), this court held that the gratuitous speculation of counsel as to the possible use of material sought in discovery does not stand as satisfactory evidence of relevancy.\nEven assuming that counsel’s allegations are true and that a confrontation took place between Levin and the club president regarding the fees and was a cause of his termination, the documents sought are irrelevant. Assuming that Levin obtained the documents and was able to establish that the fees charged were improper, that fact has no relevancy to the breach of employment contract action or the defamation action.\nThe trial court’s order requiring production of the documents requested by Levin under item 27 of the Amended Request for Production is quashed.\nWRIT ISSUED.\nCOBB and THOMPSON, JJ., concur.\n", "ocr": true, "opinion_id": 7678611 } ]

"1994-04-05"

[ "634 So. 2d 310" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAffirmed. Barfield v. State, 594 So.2d 259 (Fla.1992); State v. Betancourt, 552 So.2d 1107 (Fla.1989).\n", "ocr": true, "opinion_id": 7678753 } ]

"1994-02-11"

[ "634 So. 2d 377" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re: Brent, Deidre Lee Meyers; — Other(s); applying for supervisory and/or remedial writs; to the Court of Appeal, First Circuit, No. CJ93 1306; Parish of Livingston, Twenty-First Judicial District Court, Div. “E”, No. 4573.\nDenied.\nORTIQUE, J., would grant the writ.\nDENNIS, J., not on panel.\n", "ocr": true, "opinion_id": 7678848 } ]

"1994-03-11"

[ "634 So. 2d 397" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re American Bankers Ins. Co.; — Defendants); applying for writ of certiorari and/or review; to the Court of Appeal, Third Circuit, No. CA93-0220; Parish of Calcasieu, 14th Judicial District Court, Div. “A”, No. 6551-90.\nDenied.\nDENNIS, J., not on panel.\n", "ocr": true, "opinion_id": 7678918 } ]

"1994-03-24"

[ "634 So. 2d 527" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAppeal No. 18781 from Judgment dated September 8, 1992, Ray Hillman, Montgomery, Ruling Judge, Yazoo County, Chancery Court.\nBefore PRATHER, P.J., and SULLIVAN and JAMES L. ROBERTS, Jr., JJ.\nAffirmed.\n", "ocr": true, "opinion_id": 7678945 } ]

"1994-03-18"

[ "634 So. 2d 855" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Brupbacher, Benjamin S.; Brup-' bacher, Lois Weil; — Defendant(s); applying for supervisory and/or remedial writs; to the Court of Appeal, Fourth Circuit, No. 93CW-1666; Parish of Orleans, Civil District Court, Div. “B”, No. 92-10777.\nDenied. Relator may reraise the prescription issue during or at the end of trial, or on appeal in the event of an adverse judgment.\nMARCUS and ORTIQUE, JJ., would grant the writ.\nDENNIS, J., not on panel.\n", "ocr": true, "opinion_id": 7679136 } ]

"1993-12-29"

[ "634 So. 2d 897" ]

[ { "author_str": "Edwards", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nEDWARDS, Judge.\nThe defendants, International Grain Transfer, Inc., its worker’s compensation insurer, now liquidated, Rockwood Insurance Company, and Louisiana Insurance Guaranty Association (LIGA) appeal a trial court judgment which granted the plaintiffs motion to reinstate worker’s compensation benefits. At issue are (1) whether LIGA is entitled to a credit on future benefits owed, in the amount of $32,184, as a result of overpay-ments erroneously made to the plaintiff by Rockwood; and (2) whether LIGA is entitled to offset the plaintiffs benefits pursuant to LSA-R.S. 23:1225 (as a result of plaintiffs receipt of Social Security benefits) and if so, the nature and extent of such offset.\nBackground Facts\nThe facts of this case are not in dispute. In May, 1980, the plaintiff suffered a heart attack which was later determined to be work related. By way of judgment dated January 4, 1984, plaintiff was rendered permanently and totally disabled, and Rockwood was ordered to pay $149 per week in worker’s compensation benefits. In January, 1985, as a result of a technical computer error, Rockwood began paying the plaintiff $298 per week, and continued to pay this amount through March 7, 1989. In February, 1990, Rockwood filed a Reconventional Demand for Declaratory Judgment seeking a credit for the overpayments as well as an offset for the social security benefits which plaintiffs applied for and obtained as a result of the judicial determination of his disability. Subsequently, Rockwood entered liquidation and LIGA took over its claims as the insurer. In August, 1991, LIGA summarily terminated the plaintiff’s benefits, based on its contention that it is entitled to a credit for the overpayments made by Rockwood. In May, 1991, LIGA filed a motion for summary judgment which was denied.1 In February, 1992, plaintiff filed a motion to reinstate benefits. A hearing was held and the trial court rendered judgment on April 16,1992, reinstating plaintiffs benefits retroactive to the January, 1984 judgment, and ordering an offset for the social security benefits in the amount of $1.15 per week.\nApplicability of LSA-R.S. 23:1206\nBoth, appellants and appellee, argue that the application of LSA-R.S. 23:1206, as it read in 19802 when this incident occurred, *899to the facts of this case would yield a result in their favor, respectively. Naturally, then-interpretations of the statute and the jurisprudence differ. However, we find this statute and the cases interpreting it inapplicable to the facts of this case, thus we need not determine which interpretation urged is proper. This statute provides for deductions from benefits for “voluntary” payments made by an employer or insurer, when such payments “were not due and payable when made.” This statute is designed to reimburse an employer (or insurer) who makes voluntary payments, overpayments or wages equal to or exceeding the amount of compensation after an accident, prior to a judicial determination of disability. Worker’s compensation law does not contemplate the payment of wages in addition to payment of compensation benefits, see Moore v. Travelers Insurance Company, 79 So.2d 507, 510 (La.App. 2nd Cir.1955), and the aim of this statute is to remedy such an occurrence. The payments made to the plaintiff by Rock-wood were not “voluntary payments” within the contemplation of the statute; they were made pursuant to a judicial order. The fact that a technical error caused the payments to be made in excess of that ordered does not bring such payments within the scope of this statute.\nUnjust Enrichment\nThe issue is more properly resolved by application of LSA-C.C. art. 2301. This statute provides:\nHe who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.\nLSA-C.C. art. 2302 further provides that “[h]e who has paid through mistake, believing himself a debtor, may reclaim what he has paid.” A cause of action is stated in unjust enrichment when there is an enhancement of one estate at the expense of another estate, without cause recognized by law, and for which no other remedy is readily apparent and available. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422, 432 (1967). Unjust enrichment was found to exist when a judgment debtor erred in calculating the amount of judicial interest and paid in excess of $100,000 of the amount actually due pursuant to the judgment. In that case, the fourth circuit reversed a trial court judgment and found that the debtor had stated a cause of action for restitution from the creditor’s attorneys, who were named as co-payees, and deemed to be “recipients of the payment of a thing not due.” New Orleans Public Service, Inc. v. Vanzant, 580 So.2d 533, 536 (La.App. 4th Cir.), writ denied, 584 So.2d 1168 (1991).\nThe record contains copies of the checks evidencing the overpayment. These checks, issued approximately every two weeks, in the amount of $596 each, were made jointly payable to Troy W. Shatoska and his attorney, Edward A. Shamis and mailed to Mr. Sham-is’s office. Shatoska does not dispute receiving these payments, nor does he argue that such payments were due when made. Based on the law and the record, we find that the appellants have adequately stated a cause of action of unjust enrichment, and are accordingly entitled to a credit for the $32,184 which was overpaid to the plaintiff and his attorney.\nOffset for Social Security Benefits\nFollowing the judgment which rendered him totally and permanently disabled, the plaintiff applied for and obtained social security benefits. LSA-R.S. 23:1225(A) provides:\nThe benefits provided for in this Subpart for injuries producing permanent total disability shall be reduced when the person receiving benefits under this Chapter is entitled to and receiving benefits under 42 U.S.C. Chapter 7, Subchapter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits, on the basis of the wages and self-employment income of an individual entitled to and receiving benefits under 42 U.S.C. § 423; provided that this *900reduction shall be made only to the extent that the amount of the combined federal and worker’s compensation benefits would otherwise cause or result in a reduction of the benefits payable under the Federal Old Age, Survivors, and Disability Insurance Act pursuant to 42 U.S.C. § 424a, and in no event will the benefits provided in this Subpart, together with those provided under the federal law, exceed those that would have been payable had the benefits provided under the federal law been subject to reduction under 42 U.S.C. § 424a. However, there shall be no reduction in benefits provided under this Section for the cost-of-living increases granted under the federal law after the date of employee’s injury.\nPursuant to this statute, a reduction in compensation shall be made only to the extent that the combined Federal and Worker’s Compensation benefits exceed those that would have been payable under the federal law guidelines. Cross v. Travelers Insurance Company, 619 So.2d 610, 616 (La.App. 2nd Cir.1993).\nOn February 20, 1990, Rockwood filed a Reconventional Demand for Declaratory Judgment in which it asserted its entitlement to an offset for the Social Security benefits received by the plaintiff. In that pleading, Rockwood stated that based on information supplied by the Social Security Administration, plaintiffs average current earnings were $944.80 and his total family benefits were $687.80. Prior to a hearing on the above demand, Rockwood and International Grain filed a motion for summary judgment, on May 29, 1991, to which was attached an affidavit sworn out by Joel B. Peters, branch manager of the Department of Health and Human Resources, Social Security Administration Office. This affidavit reflected that plaintiffs average current earnings were $1,181.00; 80% of his average current earnings was $944.80; and his total family benefits, before offset, from December 1990 through May 1991 were $858.70. The affidavit further stated that the Social Security Administration had approved worker’s compensation offset to plaintiffs social security benefits at a rate of $379.60 per month from August, 1985 to the present (May, 1991). In a memorandum filed in support of summary judgment, the defendants asserted that based on the figures provided by the affidavit, they are entitled to an offset, and that the future worker’s compensation benefits due the plaintiff after offset would be $59.30. In response, plaintiff filed a memorandum in opposition to the motion for summary judgment claiming that the calculations for offset submitted by the defendants were in error. Attached to this memorandum was a letter from the Social Security Administration, dated August 2, 1991, which reflects that plaintiff received benefits at a rate different than those submitted by defendants.\nDefendants then filed a supplemental memorandum to which they attached the deposition of Joel B. Peters, which was taken on October 29,1991, for the purpose of establishing the correct amount of the offset. Based on information provided in the deposition, defendants asserted: (1) the amount of benefits used in the calculation refer to amounts received on the date of entitlement, which for Shatoska was August, 1985; (2) at the date of entitlement, Shatoska’s total family benefit was $687.80 per month; (3) at the date of entitlement, Shatoska’s average current earnings was $1,181.00 per month; (4) 80% of the average current earnings is $944.80; (5) Shatoska’s monthly worker’s compensation benefits were $645.67; (6) based on these numbers the monthly offset should be $388.67, or $89.69 per week, retroactive to the date of judicial demand, February 20, 1990.\nIn response, the plaintiff filed a supplemental memorandum in opposition and again asserted that the offset claimed by the defendants was incorrectly calculated. Essentially, plaintiffs calculations differ from those submitted by the defendants based on the figure used for total monthly benefit; plaintiff submitted the amount presently received by Shatoska, $449.00 per month, rather than the $687.80 per month received at the date of entitlement, as submitted by the defendants. According to plaintiff, then, the total weekly offset to which LIGA would be entitled is $1.15, instead of $89.69.\n*901Based on this disagreement between the parties, the trial court denied the motion for summary judgment, finding that the correct figure to use in the calculation was a genuine issue of material fact.3 Subsequently, the plaintiff filed a motion to reinstate benefits, and at a hearing held on March 9, 1992, the issue of overpayment and the issue of the offset were heard. The only additional evidence offered with regard to the offset issue was the testimony of Mr. Shatoska that he was currently receiving social security benefits in the amount of $449.00 per month. At the close of this hearing, the trial court granted reinstatement of benefits, together with an offset “based on the calculation determined by [plaintiffs] supplemental memorandum.” (No further reasons for judgment were given.) Accordingly, a judgment was rendered ordering a social security offset in the amount of $1.16 per week, retroactive to the date of judicial demand for the offset.\nWe find that the trial court erred in setting the offset at $1.15 per week. By affidavit and deposition, Joel B. Peters, branch manager of the Social Security Administration Office provided the correct figures to be used in the calculation, as set forth in Lofton v. Louisiana Pacific Corporation, 423 So.2d 1255 (La.App. 3rd Cir.1982). Peters’ testimony was uncontroverted. Therefore, based on the figures submitted by Peters, and the formula set out in Lofton, supra, 423 So.2d at 1259, we calculate the offset as follows:\n(a) Total Family Benefits.$ 687.80\n(b) Average Current Earnings.$1,181.00\n(c) 80% of Average Current Earnings.$ 944.80\n(d) Total monthly payment (effective Aug. 1985) including worker’s compensation and total family benefit cannot exceed.$ 944.80\n(e) Maximum payment due monthly from worker’s compensation without being subject to reduction (d-a).$ 257.00\n(f) Converted to weekly payments $257.00 x 3 divided by 13.$ 59.31\n(g) Weekly offset by worker’s compensation $149.00 - $59.31.$ 89.69\nSee also Carter v. Continental Assurance Co., 554 So.2d 688, 691 (La.App. 3rd Cir.1989). Therefore, LIGA is entitled to an offset in the amount of $89.69 per week, pursuant to LSA-R.S. 23:1225.\nFor the foregoing reasons, the judgment of the trial court ordering a reinstatement of benefits and an offset in the amount of $1.15 per week is reversed; LIGA is hereby entitled to a credit on future worker’s compensation benefits owed in the total amount of $32,184, as well as a weekly offset in the amount of $89.69 for social security benefits received by Shatoska. Plaintiff is assessed all costs of this appeal.\nREVERSED AND RENDERED.\n\n. The denial of this motion for summary judgment is the subject of an application for supervisory writs which is also before this court; a decision on that application is being rendered this same date. (See 93 CW 1410).\n\n\n. In 1980, the statute provided:\nAny voluntary payments made by the employer or his insurer either in money or otherwise, to the injured employee or his dependents, and accepted by the employee, which, by the terms of this act, were not due and payable when made, may, subject to the approval of the court, be deducted from the payments to be made as compensation; provided, that in case of disability, such deduction shall be made by shortening the period during which compensation shall be paid, and not by reducing the amount of the periodical payments.\n*899LSA-R.S. 23:1206 was subsequently amended La.Acts 1983, 1st Ex.Sess., No. 1, § 1, effective July 1, 1983. The amendment added \"or unearned wages\" to voluntary payments, and deleted the final proviso which specified that the credit had to be taken by shortening the time period of benefits rather than reducing the amount of periodic payments.\n\n\n. See footnote 1.\n\n", "ocr": true, "opinion_id": 7679176 } ]

"1994-05-10"

[ "635 So. 2d 1007" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAfter the defendant and the prosecution entered into a written plea agreement whereby she pled guilty to reduced charges in return for a sentence of twenty-five years followed by a period of probation of up to thirty years, she was sentenced to twenty-five years, followed by two years community control and twenty-three years probation with several special conditions. On this appeal, we order that the sentence be modified in conformance with the agreement by providing for twenty-five years probation following the prison term, thereby omitting the more onerous community control requirement. See Fraser v. State, 602 So.2d 1299 (Fla.1992).\nWe do not consider the appellant’s separate challenge to the conditions of probation. She did not object to them below and there is no showing that the conditions in question were “so egregious as to be the equivalent of fundamental error.” Larson v. State, 572 So.2d 1368, 1371 (Fla.1991); McCarthren v. State, 635 So.2d 1005 (Fla. 5th DCA 1994). Moreover, unlike the community control issue, there is no showing that the conditions involved a departure from the plea and sentencing agreement. Obviously, the “probation” it provided would necessarily involve the imposition of conditions of some kind. If Rodriguez wishes to withdraw her plea (and reinstate the original charges) on the grounds that the conditions actually imposed were not fairly contemplated, were overly restrictive, or otherwise, she is free to file a 3.850 or 3.800 motion to that effect.1\nAffirmed as modified.\n\n. Of course, we express no opinion as to the validity of such a motion.\n\n", "ocr": true, "opinion_id": 7679543 } ]

"1994-04-12"

[ "636 So. 2d 105" ]

[ { "author_str": "Lawrence", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nLAWRENCE, Judge.\nGaylynn Sue Meek (Meek) and her husband Barry M. Meek seek review of a summary final judgment entered against them by the trial court.1 The facts are not in dispute. Meek and her parents returned to the latter’s home at Cedar Grove, an apartment complex, on March 19, 1990, following an overnight boating trip. They noticed a small box on their doorstep upon entering the apartment. Meek and her mother stepped over the box and into the kitchen to unload several items. A tremendous explosion rocked the entire apartment while they were still in the kitchen. The force of the explosion shattered windows, light fixtures, and also blew a smoke detector and thermostat from the wall. A glass light fixture suspended from the kitchen ceiling shattered and fell on Meek and her mother. Meek screamed and then made her way through the billowing, black smoke to the front door where she *107saw her father, who lay scorched, mutilated, and dying. Meek did not suffer any significant physical injuries as a direct result of the smoke or shattered pieces of glass that fell on her.\nMeek began having insomnia (for which she took prescribed medication) shortly after the bombing, coupled with depression (for which she continues to take prescribed medication), short-term memory losses, an extreme fear of loud noises, bad dreams, and an inability to stop reliving the event. She began psychological treatment within three weeks of the bombing and continued intermittently for a period of two years with three different psychologists. Meek’s sexual relationship with her husband also suffered adversely during this time.\nMeek first began experiencing physical impairment in December 1990 (approximately nine months after the bombing), when she developed severe pains in the upper area of her stomach. The pain below her rib cage became worse in January 1991. She became very ill in March 1991, with pain spreading into her chest area. This pain was eased somewhat with ulcer medication prescribed by her physician. She experienced a blockage in her esophagus in November 1991, was unable to swallow, and had difficulty in breathing. The results of a diagnostic test (esophagram) were negative. Meek developed joint pain in her hips and elbows in May 1992, which she treats with Ibuprofen. Meek’s treating physician expressed the following opinion:\nI have treated [Meek] for anxiety with depressed mood, orodental dysphagia [esophageal contractions], fibromyalgia [pain in hip and elbow joints], dyspepsia [stomach pains] and irritable bowel symptoms. In my medical opinion, within a reasonable degree of probability, the psychological trauma she suffered as a result of her father’s death has contributed to her physical symptoms and increased [her] need for medical care. Additionally, in my medical opinion, within a reasonable degree of probability, she has suffered from insomnia and anxiety with depressed mood, with situational depression secondary to her father’s death.\nMeek sued Zell (owner of the apartment complex) and First Property (apartment managers) alleging that they were negligent in failing to take reasonable steps to protect their tenants and invitees from foreseeable criminal conduct.2 Defendants filed a motion for summary judgment. They did not dispute the foreseeability of the bombing which killed Meek’s father. They instead asserted that Meek suffered no physical injuries from the shattered glass which hit her during the explosion, and that the physical symptoms which she subsequently suffered did not occur within a “short time” of her psychic injury. The trial court granted summary judgment for the defendants, concluding that there had been no “physical impact” upon Meek as that term is defined by Florida law and “specifically that pieces of glass from a shattered light fixture falling upon a person without cutting that person or injuring that person does not constitute any physical impact.” The trial court further concluded that “unspecified stomach pains, insomnia, difficulty in swallowing and breathing and unspecified pains in the hip and elbow joints do not constitute ‘demonstrable physical injury’ or ‘discernable physical impairments’”; nor do the injuries meet the temporal proximity requirements of Florida law. We reverse.\nFlorida strictly followed the requirements of the impact doctrine in precluding recovery for psychic injury alone, until the supreme court modified this principle in Champion v. Gray, 478 So.2d 17, 20 (Fla.1985):\nWe hold that a claim exists for damages flowing from a significant discernible physical injury when such injury is caused by psychic trauma resulting from negligent injury imposed on another who, because of his relationship to the injured party and his involvement in the event causing that injury, is foreseeably injured.\nMeek’s claim meets all of the requirements of the Champion holding. She suf*108fered significant discernible physical injuries which consisted of severe pain in several areas of her body, an esophageal blockage rendering her unable to swallow, and pain in the joints of her hips and elbows. A causal relationship between these physical manifestations and the psychic injury is supported by competent medical evidence. Her relationship to the person involved in the original injury was that of daughter and father. Meek was directly involved in the event; she saw her father bleeding and dying. Thus although we agree with appellees that the shattered glass which fell upon Meek without injuring her, and the black smoke which she breathed, did not constitute an impact within the meaning of that doctrine, we do not regard this as dispositive under Champion.\nThe interval of time between the psychic injury and the onset of a discernible physical impairment was not an issue in Champion v. Gray, in that the physical impairment (death) occurred within moments of experiencing the psychic injury. Neither was that issue included in the Court’s holding quoted above. The Champion court nevertheless, in dictum, emphasized that the “physical impairment must accompany or occur within a short time of the psychic injury.” Id. at 19. The time interval in the instant ease, in contrast, is the principal issue. The Champion court declined to adopt a pure foreseeability test, but recognized that the public policy of this state required an opportunity to seek compensation for legitimate damages flowing from physical injuries resulting from psychic trauma under some circumstances. The court’s concern was expressed in part as follows;\nFor this purpose we are willing to modify the impact rule, but are unwilling to expand it to purely subjective and speculative damages for psychic trauma alone. We recognize that any limitation is somewhat arbitrary, but in our view is necessary to curb the potential of fraudulent claims, and to place some boundaries on the indefinable and unmeasurable psychic claims.\nId. at 20.\nWe view the Champion court’s concern with the need for a short time interval primarily in the terms expressed above. The shorter the interval of time between the psychic injury and the physical injury, the better opportunity there is for avoiding fraudulent claims and defining or measuring the extent of legitimate claims. In the instant case, there is a clear and definitive basis for a jury or fact-finder to conclude that there is a causal connection between the psychic injury and the physical injury. The manifestations of Meek’s psychic injury began immediately with insomnia, depression, short-term memory losses, extreme fear of loud noises, bad dreams, and similar occurrences, resulting in professional treatment within three weeks of the bombing. They continued in a progressive pattern of exacerbation before rising to the level of physical impairment within nine months after the bombing. Thereafter, the resulting physical injuries continued to become more and more serious. The opinion of Meek’s treating physician further strengthened her position that her claim of a causal connection is easily measured and defined, with little or no chance of malingering or other fraudulent conduct.\nWe thus conclude that under the facts of this case, Meek is not precluded as a matter of law, on a motion for summary judgment, from an opportunity to seek relief under her claim. The trial court’s order granting the defendants’ motion for summary judgment is therefore in error.\nWe certify the following question to the supreme court as one of great public importance because of the dictum in Champion v. Gray:\nIS THE INTERVAL OF TIME BETWEEN A PSYCHIC TRAUMA AND THE MANIFESTATION OF PHYSICAL TRAUMA MERELY ONE ISSUE FOR THE TRIER OF FACT’S CONSIDERATION IN DECIDING WHETHER THE CAUSE OF ACTION RECOGNIZED IN CHAMPION V. GRAY HAS BEEN ESTABLISHED; OR IS THERE SOME ARBITRARY PERIOD AFTER WHICH THE MANIFESTATION OF PHYSICAL IMPAIRMENT WILL BE CONCLUSIVELY PRESUMED NOT TO HAVE BEEN CAUSED BY THE PSYCHIC TRAUMA?\n*109For the reasons expressed, we vacate the summary judgment entered by the trial court in favor of the defendants, and remand for proceedings consistent with this opinion.\nBARFIELD and WEBSTER, JJ., concur.\n\n. Meek's complaint sought to allege a cause of action for negligent infliction of emotional distress. A derivative cause of action for loss of consortium formed the basis for the husband's claim.\n\n\n. It was undisputed that Zell and First Property received threats prior to the bombing but did not warn their tenants or invitees, or otherwise take any reasonable steps to provide for their safety and security.\n\n", "ocr": true, "opinion_id": 7679777 } ]

"1994-05-06"

[ "636 So. 2d 561" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe state agrees with the defendant that the crime for which the defendant was on probation when he violated the conditions of that probation occurred prior to the effective date of the sentencing guidelines permitted range. See Florida Rules of Criminal Procedure Re: Sentencing Guidelines (Rules 3.701 and 3.988), 522 So.2d 374 (Fla.1988). The trial court erred by finding that it could employ the permitted range to impose defendant’s sentence. Hicks v. State, 543 So.2d 1312 (Fla. 5th DCA 1989).\nNevertheless, the state argues that the court validly departed from the guidelines. The state cites Hicks as authority for allowing a departure from the recommended guidelines if the court supports the departure with written reasons. Here, the sentencing scoresheet contains the notation, “subsequent offenses,” next to the printed notation, “Reasons For Departure.” Notably, the state does not attempt to argue that the departure reason is valid and we hold that the two words are insufficient to support a departure sentence. Also, “new offenses” is an invalid departure reason because the reason did not exist at the time Williams was originally placed on probation. Snead v. State, 616 So.2d 964 (Fla.1993); Williams v. State, 581 So.2d 144 (Fla.1991).\nIn addition, the one-cell bump up provided for in the guidelines for pre-permitted range scoresheets is the only allowable increase. Hamilton v. State, 548 So.2d 234 (Fla.1989). In Lambert v. State, 545 So.2d 838 (Fla.1989), the supreme court prohibited departure sentences for the original offense after a probation violation where the departure is based on an offense for which the offender has not been convicted or where conviction on the new offense constituting the probation violation is obtained prior to sentencing on the original offense. In Franklin v. State, 545 So.2d 851, 853 (Fla.1989), the supreme court held:\nUpon a violation of probation during a probationary split sentence, a trial court may resentence the defendant to any term falling within the original guidelines range, including the one-cell upward increase. However, no further increase or departure is permitted for any reason. Lambert.\nWe vacate the sentence only in case number 89-962 for which the defendant received a departure sentence of six and one-half years and remand for sentencing within the *562recommended range with a one-cell bump. The sentences in the remaining cases are affirmed.\nREVERSED IN PART; AFFIRMED IN PART.\nPETERSON, DIAMANTIS and THOMPSON, JJ., concur.\n", "ocr": true, "opinion_id": 7679878 } ]

"1994-04-22"

[ "636 So. 2d 789" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nCharles Kersey appeals the summary denial of his motion for postconviction relief claiming ineffective assistance of trial counsel. Of the seven grounds raised, we hold that only one may have merit and reverse and remand for the trial court to consider that single issue.\nKersey claims that trial counsel was ineffective for refusing to allow him to take the witness stand in his own behalf. In his memorandum in support of his motion, Ker-sey states that “because of Defense Counsel’s domination” he did not take the stand. It is asserted that, had he been allowed to testify as requested, he would have explained statements made in his taped confession.\nThis court has recently examined the right of a defendant to prevail on a claim of ineffective assistance of counsel when he is denied the right to testify. See Gill v. State, 632 So.2d 660 (Fla. 2d DCA 1994); Nixon v. State, 637 So.2d 935 (Fla. 2d DCA 1994); Dukes v. State, 633 So.2d 104 (Fla. 2d DCA 1994).1\nIn its order denying the motion for post-conviction relief, the trial court points out that Kersey does not indicate the additional facts which would have been presented had he testified. The trial court concludes that Kersey fails to demonstrate ineffective assistance of counsel because the record rebuts his claim. This reasoning is insufficient. See Williams v. State, 601 So.2d 596 (Fla. 1st DCA 1992). The allegations presented by Kersey are adequate to warrant an evidentia-ry hearing to determine if he waived his right to testify during trial, or whether the right was waived by his trial counsel without Kersey’s concurrence. Id., 601 So.2d at 599.\nTherefore, we reverse and remand for an evidentiary hearing concerning Kersey’s allegations that he was denied the right to testify at trial. In the alternative, the trial court may attach those portions of the record which conclusively rebut Kersey’s claim. See Williams and Gill. In all other respects the trial court’s order denying the motion for postconviction relief is affirmed.\nHALL, A.C.J., and FULMER and QUINCE, JJ., concur.\n\n. The Florida supreme court held that the right to testify is not a fundamental right. See Torres-Arboledo v. State, 524 So.2d 403 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). However, the federal courts have stated that the defendant’s right to testify is fundamental. U.S. v. Teague, 953 F.2d 1525, 1534-35 (11th Cir.), cert. denied, - U.S. -, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992). The proper method of raising this issue is through a claim of ineffective assistance of counsel. Id.\n\n", "ocr": true, "opinion_id": 7679951 } ]

"1994-04-22"

[ "637 So. 2d 164" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Murray, Bennie, Jr.; — Plaintiffs); applying for supervisory and/or remedial writ; Parish of Calcasieu, 14th Judicial District Court, Div. “D”, No. RC747-93.\nDenied. Moot.\nDENNIS, J., not on panel.\n", "ocr": true, "opinion_id": 7680164 } ]

"1994-04-22"

[ "637 So. 2d 166" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Fournet, M. Michelle; — Other(s); applying for supervisory and/or remedial writs; Parish of East Baton Rouge, 19th Judicial District Court, Div. “E”, No. 0889-837.\nDenied.\nORTIQUE, J., would grant as to “salary guidelines” only, otherwise deny.\nDENNIS, J., not on panel.\n", "ocr": true, "opinion_id": 7680171 } ]

"1994-04-29"

[ "637 So. 2d 465" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Crittle, Mary L.; — Plaintiffs); applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No. CA93 0946; State Civil Service Commission, No. S-9543.\nDenied.\nDENNIS, J., not on panel.\n", "ocr": true, "opinion_id": 7680336 } ]

"1994-06-08"

[ "637 So. 2d 1000" ]

[ { "author_str": "Zehmer", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nZEHMER, Chief Judge.\nEmployer and Carrier appeal a workers’ compensation order awarding Claimant wage loss benefits pursuant to a compensable accident that occurred on August 20, 1988. Wage loss benefits had been paid until terminated by the employer and carrier on November 4,1988. The Judge of Compensation Claims rejected Employer and Carrier’s contention that subsection 440.15(3)(b), Florida Statutes (1991), precluded as a matter of law the finding of permanent impairment because it was based solely on subjective complaints by the claimant. We reject Employer and Carrier’s proposed construction of this recently enacted statutory provision and affirm the appealed order.\nI.\nThe factual and legal issues are adequately discussed by the Judge of Compensation Claims in the order under review. That order reads in pertinent part:\nIt was the position of the claimant that she is entitled to wage loss benefits for the time period from 11-4-89 to 9-20-91 pursuant to forms previously submitted, including interest thereon. Further, claimant claims entitlement to costs and attorney’s fees, with the latter being based on Florida Statute 440.34(3)(b).\nThe position of the employer/carrier was that claimant has been paid all benefits due, and she is not entitled to wage loss since 11^4-89, and that no costs or attorney’s fees are due.\nUpon hearing the testimony, observing the witness and her demeanor, and from the stipulations and all of the evidence presented, the undersigned resolves all conflicts in the evidence and makes the following findings of fact and conclusions based thereon.\n1. I find that the above stipulations numbered one through six are proper and are herewith accepted.\n2. I find that the claimant was involved in an industrial accident on 8-20-88, sustaining a right foot injury as indicated in the medical records. All parties acknowledge that claimant has reached MMI on 6-7-89.\n*10023. Claimant -returned to work on a light-duty capacity with the employer, Gates Energy Products, after claimant’s 8-20-88 accident and injury. Claimant’s light-duty job allowed claimant to work in a sitting position with claimant’s injured right foot propped up level with her chair. Claimant was terminated from her light-duty sitting job at Gates Energy on 10 — 18— 88.\nClaimant began treating with Dr. Lane, an authorized treating physician, on 9-20-88. As of 11-1-88, Dr. Lane had Ms. Wheeler on off-work status. On 11-9-88, Dr. Lane told claimant that she could return to a sitting job only as of 12-1-88.\nOn 6-7-89, Dr. Lane placed claimant at MMI with a zero percent PPI rating. However, Dr. Lane stated in his 6-7-89 office note that claimant “has some burning and numbness about the fifth MTP joint, and some radiating numbness distally.” Dr. Lane testified that said observations were based on claimant’s complaints. Despite placing claimant at MMI, Dr. Lane continued claimant’s work restrictions of a sitting job only. On 6-7-89, Dr. Lane referred claimant to Dr. Fry for his opinion.\nOn 8-18-89, Dr. Fry conducted an examination and an evaluation of claimant. He found claimant had a sensory deficit in the terminal ends of the superficial cutaneous nerves. Dr. Fry assigned claimant a 1% permanent partial impairment to the body as a whole based on loss of function due to sensory impairment pursuant to the AMA Guidelines.\nClaimant has continued to treat with Dr. Lane for claimant’s foot injury, her most recent office visit being on 8-27-91. Dr. Lane’s office records and his deposition testimony show that on each of claimant’s office visits since 11-9-88, through at least 12-14-90, Dr. Lane recommended that claimant limit herself to a sitting job or that claimant “continue her current regimen.” Dr. Lane’s office notes and his deposition testimony do not show that Dr. Lane ever communicated to claimant that she was released to full duty work without restrictions. The undersigned accepts as credible the claimant’s testimony that Dr. Lane’s continuing advice to her was to limit herself to a sitting job and that Dr. Lane never communicated to her that she was released to full duty without limitations or restrictions.\nThe undersigned accepts as creditable the following uncontroverted testimony of the claimant in regard to claimant’s foot injury: That she suffers from intermittent pain and numbness in varying degrees in her right foot; and that her pain and numbness are aggravated by excessive standing or walking.\nClaimant began to do a recorded job search in December, 1988, after her release to a sitting job by Dr. Lane. Claimant testified that from December, 1988, to the present time and continuing, she has uninterruptedly continued to perform her job search. Unfortunately, claimant’s job search has been entirely unsuccessful. The employer/carrier conceded and stipulated during the merits hearing that claimant has performed an extensive good faith job search. Indeed, claimant’s uncontro-verted testimony and job search documents show that claimant generally looked for at least fifteen jobs every two weeks, that she utilized the state job service, job hotlines, newspapers, and word-of-mouth in her unsuccessful search for employment. During claimant’s job search, claimant searched for jobs that required only limited walking or standing. The undersigned accepts claimant’s testimony that she searched jobs with limited walking or standing because she continued to have right foot problems and because she reasonably believed that Dr. Lane’s recommendation was a sitting job only.\nThe undersigned finds that the carrier controverted and discontinued paying claimant wage loss benefits as of 11-4-89 and has paid no further wage loss benefits through the date of this hearing.\nThe undersigned recognizes that during all times from November 4, 1989, to the present, claimant has performed a continuous, extensive and good-faith job search as conceded by employer/carrier during the merits hearing.\n*1003The undersigned recognizes that claimant has a 1% impairment rating pursuant to the AMA Guides, according to Dr. Fry’s uneontroverted testimony. The Employer/Carrier argues in its Bench Memorandum that the 1% impairment, which Dr. Fry specifically stated in his report, was based on the AMA Guidelines, is no impairment at all because the rating was subjective and not pursuant to the schedule adopted by the statutes as required. The E/C seems to suggest that any indication or response given by a claimantypa-tient during a test is not an objective finding and therefore disallowed by the AMA Guides in the determination of an impairment rating. Many of the tests as set forth and prescribed in the AMA Guides have some subjective component to them whereby the claimant/patient must give some type of response, whether it be a strength test, range of motion test or sensory loss test.\nThe Guides to Evaluation of Permanent Impairment, (3rd ed. 1988), make specific reference to permanent impairment based on loss of sensation in Table 10, entitled Grading Scheme and Procedure for Determining Impairment of Affected Body Part Due to Pain, Discomfort or Loss of Sensation. Similar information is also set forth in the Guides to Evaluation of Permanent Impairment, (2nd ed. 1984), in Table 4, entitled Grading Scheme and Procedure for Determining Impairment of Affected Body Part Due to Pain, Discomfort or Loss of Sensation.\nThe Employer/Carrier’s Bench Memorandum cites Maggard v. Simpson Motors, 451 So.2d 529 (Fla. 1st DCA 1984), for the proposition that the existence in degree of permanent physical impairment must be proved by testimony based on the AMA Guidelines and cannot be based on claimant’s complaints of pain alone.\nIn the instant case, there was competent substantial evidence that the 1% impairment rating assigned to claimant by Dr. Fry was based on the results of Dr. Fry’s examination of claimant. Dr. Fry testified that he performed a pinprick test which solicited a finding of decreased sensation over the top and outside of claimant’s right foot. In the Maggard case, the court noted that the doctor had done no testing whatsoever on claimant Maggard. The doctor in that case even acknowledged that he did not and could not use the AMA Guidelines. In contrast, Dr. Fry performed a thorough examination and multiple tests on Ms. Wheeler and rated her in accordance with the AMA Guides as above stated.\nThe Employer/Carrier argues in its Bench Memorandum that even if claimant is found to have permanent impairment, claimant’s claim for wage loss benefits should be denied because the claimant has no work restrictions. This argument is rejected pursuant to the below cited case law.\nIn Iverson v. Holy Cross Hospital, 498 So.2d 620 (Fla. 1st DCA 1986), on facts similar to the instant ease, the claimant sustained an industrial injury resulting in a 2% permanent impairment rating, was released to return to work with no restrictions or limitations and claimed wage loss. The 1st DCA stated, relying on the well known case of City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), “that a claimant’s burden is satisfied by showing a change in employment status due to the injury and an adequate and good faith attempt to secure employment ... so as to establish prima facia [sic] an economic loss”. Once a claimant shows such wage loss, the burden is upon the employer/carrier to demonstrate a voluntary limitation of income or refusal of work.\nIn the instant case, the claimant satisfied her burden according to Iverson. Ms. Wheeler’s employment status was changed from full duty employment to limited duty employment due to the industrial injury. She made “an adequate and good faith attempt to secure employment”, as conceded by the employer/carrier. Employer/Carrier did not demonstrate that she voluntarily limited her income or refused to work.\nMore recently in Davis v. Broward County Health Department, 570 So.2d 371 (Fla. 1st DCA 1990), the 1st DCA has held that “... it is a permanent impairment *1004rating, not the existence of physician imposed restrictions, that is a prerequisite to a wage loss claim.”\nThe First DCA went on to say [in] Davis at 374 that:\nA claimant with a permanent impairment rating has some ‘physical limitation,’ and can establish his wage loss claim by demonstrating a causal connection between the physical limitation and his earnings. Although physician-imposed restrictions are a means of establishing causal connection, the claimant may also offer an extensive but unsuccessful job search as proof. (Citing Certified Grovers [sic] v. Conerty, 529 So.2d 1201, 1203 (Fla. 1st DCA 1988).\nThe undersigned rejects E/C’s argument that claimant’s claim for wage loss benefits must be denied due to no physician-imposed work restrictions. The undersigned therefore finds that based on the medical facts of this case releasing claimant with a 1% impairment rating and further finding that the claimant has met her burden of showing an adequate and good faith attempt to secure employment that claimant has established 'prima facie economic loss and that the claimant in this case is therefore entitled to receive wage loss benefits.\nThe record contains competent, substantial evidence to support the Judge of Compensation Claims’ findings of fact, and we perceive no legal error in the ruling for the following reasons.\nII\nSubsection 440.15(3)(b) sets forth the requirements for an injured worker to recover wage loss benefits after reaching maximum medical improvement. Prior to the 1990 amendment to that subsection, an injured worker seeking wage loss benefits was required to establish a permanent impairment “determined pursuant to the schedule adopted in accordance with subparagraph (a)3,”1 and to establish that “such permanent impairment results in a work-related physical restriction which affects such employee’s ability to perform the activities of his usual or other appropriate employment.” § 440.-15(3)(b), Fla.Stat. (1989). The schedules required by subparagraph (a)3 establish the different types of permanent impairments that will support a claim for benefits. The 1990 amendments to chapter 440 (see generally, Ch. 90-201, at 894, Laws of Florida) accomplished the following two changes to the statutory requirements for establishing a wage loss claim pursuant to subsection 440.-15(3)(b).\nFirst, the provisions in subparagraph (a)3 regarding the schedule of permanent impairments were materially changed by the addition of an entirely new provision that reads:\n3. The three-member panel, in cooperation with the division, shall establish and use a uniform disability rating guide by January 1,1991. This guide shall be based on medically or scientifically demonstrable findings as well as the systems and criteria set forth in the American Medical Association’s Guides to the Evaluation of Permanent Impairment; the Snellen Charts, published by American Medical Association Committee for Eye Injuries; and the Minnesota Department of Labor and Industry Disability Schedules. The guide shall be more comprehensive than the AMA Guides to the Evaluation of Permanent Impairment and shall expand the areas already addressed and address additional areas not currently contained in the guides.\nCh. 90-201, § 20, at 937, Laws of Fla.2 (Emphasis added.) The language deleted by this *1005amendment is quoted in note 1, supra. These changes manifest legislative intent to modify and “expand” the types of permanent impairments that will support a claim for benefits.\nSecond, an additional restriction on the right to recover wage loss benefits was added to the two existing statutory requirements. This additional restriction specifies that the injured worker’s permanent impairment determined pursuant to the newly specified schedules cannot be “based solely on subjective complaints.” § 440.15(8)(b) 1, Fla. Stat. (Supp.1990). This restriction, it is argued by Employer and Carrier, means that even though the evidence establishes in accordance with generally accepted medical standards that a permanent impairment of the type recognized by the specified schedules exists, nevertheless that impairment cannot lawfully provide a basis for wage loss benefits if it “is based solely on subjective complaints.” The statute provides no definition of the term “subjective complaints,” however, so we must look to appropriate definitions of these words to ascertain their meaning.\nThe word “subjective” is used in medical parlance to mean “pertaining to or perceived only by the affected individual; not perceptible to the senses of another person.” Dor-land’s Illustrated Medical Dictionary, verba subjective at p. 1264 (26th ed. 1981). The word “complaint” is used in medical parlance to mean “a symptom, disease, or disorder.” Id., verba complaint at p. 293. The word “subjective” in ordinary usage has been defined as meaning, “1. a. Proceeding from or taking place within an individual’s mind such as to be unaffected by the external world_ 3. Existing only in the mind; illusory_ 5. Med. Designating a symptom or condition perceived by the patient and not by the examiner.” The American Heritage Dictionary, verba subjective at p. 1211 (2d coll. ed. 1991) The word “complaint” in ordinary usage has been defined as meaning, “1. An expression of pain, dissatisfaction, or resentment_ 3. A cause of physical pain; malady; illness.” Id., verba complaint at p. 301.\nGiven these definitions of the words “subjective” and “complaint,” we observe an inherent ambiguity in the use of the term “subjective complaints” in the 1990 amendment. In the broadest sense, this phrase would encompass any “symptom, disease, or disorder” that is “pertaining to or perceived only by the affected individual” but is “not perceptible to the senses” of the examining physician. Although “hearing” is one of the senses used by the examining physician, if one were to nevertheless exclude verbal responses of a patient, this broad construction of the two words would appear to exclude from the list of statutorily prescribed permanent impairments all impairments that cannot be actually perceived by an examining physician independent of verbal statements or responses by the patient to the physician.\nA more narrow but equally permissible definition of “subjective complaints” would encompass only those complaints of symptoms or disorders made by the patient to the physician concerning which the physician cannot perceive either through his own senses or through the administration of generally accepted medical diagnostic tests and procedures ordinarily relied on by the medical practitioner involved. This narrower construction of the two words is more in accord with the universally recognized fact that physicians have long relied on their patient’s subjective complaints and verbal responses to testing stimuli in arriving at a correct diagnosis and treatment of the patient’s medical condition.\nFor example, a physician cannot personally perceive a patient’s headache or other pain independently of the patient’s complaint, yet medication is frequently prescribed for such *1006complaints and they may be permanent in nature. Medical tests to determine the degree of restriction of motion often require the patient’s verbal response to the physician’s manipulation of the body. Similarly, medical tests to determine the extent of loss of visual acuity are often dependent solely on the responses given by the patient to the examining physician; yet, the AMA Guides allows for a finding of permanent impairment based on loss of visual acuity. Likewise, no physician can perceive, through his own senses alone (apart from hearing the patient’s statements), a loss of sensory response in the nervous system independent of a patient’s response to a prick of the skin by a needle or pin or other generally accepted diagnostic procedure. The notion that only an “objectively” proven injury or disease of the body can now be classified as a compen-sable permanent impairment presupposes a level of medical expertise and technology in the field of neurological examination that belies reality:\nThe sensory part is the most difficult portion of the entire neurological examination, in that the neurologist is dealing with “hearsay evidence,” or at least subjective reports of the patient; at least, at the present, there is no way to evaluate or test heat, cold, touch, pain, pressure, or any other form of sensation, except to ask the patient to report what he feels. The pattern of the examination of the sensory system is based conventionally on neuroan-atomy. Since all modalities of sensation are not transmitted along the same pathways, the strategy has been to design the sensory examination so that all of the major sensory transmitting systems will be assayed.\n9 Marshall Houts & Leonard Marmor, Proving Medical Diagnosis and Prognosis § 277.09 (1991).\nThe critical question, therefore, is whether the legislature intended to broadly exclude from the meaning of permanent impairment all medical conditions that cannot be perceived by physicians through their own senses independently of verbal responses or information furnished by the patient, that is, does the statutory language necessarily exclude all conditions confirmable through generally accepted medical diagnostic tests and procedures that are subjective in nature; or whether the statutory language is only intended to exclude permanent impairments determined “solely” by reference to the patient’s subjective complaints of “a symptom, disease, or disorder” to the physician, thereby continuing to recognize those permanent impairments that are diagnosed through the use of generally accepted medical diagnostic tests and procedures, even though such procedures rely on verbal responses to testing procedures.\nEmployer and Carrier argue for the broadest definition of the phrase, contending that a permanent impairment determined by a generally accepted medical diagnostic test that relies on verbal responses from the patient is nothing more than a “subjective complaint” and can no longer support an award of benefits. From this argument, it would necessarily follow that the amendatory language excludes many types of permanent impairments that were previously compensa-ble for wage loss purposes if the impairment can be determined only by the administration of a “subjective” medical test.\nWe see no valid reason to approve this broad construction of the statutory language to defeat recovery of the wage loss benefits awarded in this case. On the contrary, the more narrow construction of the statutory language must prevail so that the amending language does not operate to exclude from compensability those permanent impairments subject to confirmation only through the administration of diagnostic tests and procedures that, although characterized as subjective in nature, are generally accepted and used in the medical discipline involved. This construction of the statute is required by the long standing principle applicable in workers’ compensation cases that when the statutory language employed is ambiguous, we are obligated to adopt the statutory construction that is most favorable to the employee. Daniel v. Holmes Lumber Co., 490 So.2d *10071252 (Fla.1986); City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA), rev. denied, 458 So.2d 271 (Fla.1984).3 Consistent with this rule of construction, the 1990 amendments manifest legislative intent to broaden the scope and types of permanent impairments compensable under subsection 440.-15(3), not to reduce the number and type of impairments that can support an award of benefits.\nEmployer and Carrier’s construction of the statute would exclude certain permanent impairments otherwise determined in strict accordance with the AMA Guides based on generally accepted medical standards and diagnostic tests simply because the diagnostic test employed by the physician required total reliance on verbal responses from the patient. In the instant case, such a construction would necessarily result in the significant diminution of Claimant’s right to recover wage loss benefits, even though she has sustained a bona fide permanent impairment under the AMA Guides that can only be diagnosed and rated through subjective medical procedures. Dr. Fry, the physician who opined that Claimant has a permanent impairment, based his opinion on the results of a “pin prick” test administered to the claimant’s right foot. This diagnostic test, as far as this record shows, is a generally accepted medical procedure for determining decreased sensation in the nerves of Claimant’s foot. The Judge of Compensation Claims correctly recognized in his order that the AMA Guides to Evaluation of Permanent Impairment provides for a finding of permanent impairment based on loss of sensation in a worker’s foot, which in this instance was measured by an accepted medical test that depended on the patient’s verbal response to certain stimuli.4 Furthermore, as the Judge of Compensation Claims correctly observed, “Many of the tests as set forth and prescribed in the AMA Guides have some subjective component to them whereby the claimant/patient must give some type of response, whether it be a strength test, range of motion test or sensory loss test.” The construction given by the Judge of Compensation Claims to the phrase “subjective complaints” in the 1990 amended statute thus recognizes the com-pensability of a permanent impairment of the neurological system that was also deemed compensable under the 1989 version of subsection 440.15(3). For this reason, it is unnecessary for us to address the arguments concerning whether the 1990 amendment should be given effect retroactively or prospectively only.\nThe order under review is, therefore, AFFIRMED.\nBARFIELD and MINER, JJ., concur.\n\n. Subparagraph (a)3 of subsection 440.15(3), Florida Statutes (1989), provided in part:\nIn order to reduce litigation and establish more certainty and uniformity in the rating of permanent impairment, the division shall establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings. The schedule shall be based on generally accepted medical standards for determining impairment and may incorporate all or part of any one or more generally accepted schedules used for such purpose, such as the American Medical Association's Guides to the Evaluation of Permanent Impairment.\n[Emphasis added.]\n\n\n. The amending language to subsection 440.-15(3)(a)3 also provides:\n*1005For injuries after July 1, 1990, pending the adoption by division rule of a uniform disability rating guide, the Minnesota Department of Labor and Industry Disability Schedule shall be temporarily used unless that schedule does not address an injury. In such case, the Guides to the Evaluation of Permanent Impairment by the American Medical Association, shall be used.\nCh. 90-201, § 20, at 937, Laws of Fla. This language suggests that the new statutory requirements for permanent impairment are to be given prospective effect only.\n\n\n. We stated in City of Clermont v. Rumph:\nAs Regency Inn thus indicates, in the present case employer/carrier’s suggested construction of the 1983 amendment to § 440.15(3)(b) would seriously imperil the constitutional validity of the workers' compensation law. We are obliged to construe statutory pronouncements in such a manner as to effectuate their constitutionality. See Miami Dolphins Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla. 1981). We are also obliged to adopt the statutory construction which is most favorable to the employee. See Kerce v. Coca-Cola — Foods Division, 389 So.2d 1177 (Fla.1980).\n450 So.2d at 576.\n\n\n. Dr. Fry, the examining physician, had previously rated Claimant with a 1% permanent impairment and placed restrictions on her physical activities. He noted in a subsequent medical report that the permanent impairment he had previously given for loss of sensation of peripheral nerves in her foot \"is based on her reports of a decreased sensation of peripheral nerve; it is not an objective measurement.” He testified that while he found no objective evidence of anything wrong with Claimant’s foot, he knows of no diagnostic tests that can prove whether or not there is decreased sensation in the foot, and that he had to take the patient’s word for it. He further stated that he had no reason to doubt the authenticity of Claimant's responses to the point of tenderness and pin prick tests.\n\n", "ocr": true, "opinion_id": 7680559 } ]

"1994-06-08"

[ "638 So. 2d 137" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAppellant raises four points on appeal. Only a portion of one has any merit, and will be addressed herein. The trial court erred in denying appellant’s judgment of acquittal as to count V, failing to appear before a circuit judge on September 22, 1992. There is no evidence in the record that appellant was ever notified of the correct date to appear after being misinformed by the trial ' judge as to the date he needed to be there. The conviction and sentence as to count V are reversed. In all other respects, the judgment and sentence of the trial court are affirmed.\nBARFIELD, ALLEN and WOLF, JJ., concur.\n", "ocr": true, "opinion_id": 7680790 } ]

"1994-07-06"

[ "638 So. 2d 631" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nBased on the concession of appellee, we grant the stipulated motion to expedite this case, reverse the sanction order and those portions of the consequent final judgment affected thereby, and remand to the trial court for further proceedings. Both parties having filed motions for appellate attorney’s fees, we direct the trial court to determine in connection with its resolution of the other contested issues both entitlement and amount, if any, as to both motions.\nPOLEN, FARMER and PARIENTE, JJ., concur.\n", "ocr": true, "opinion_id": 7680955 } ]

"1994-06-17"

[ "638 So. 2d 1085" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Long, Ronnie W.; — Defendant(s); applying for supervisory and/or remedial writ; Parish of Rapides, 9th Judicial District Court, Div. “B”, No. 209,571; to the Court of Appeal, Third Circuit, No. KW92-0545.\nDenied.\nDENNIS, J., not on panel.\n", "ocr": true, "opinion_id": 7681109 } ]

"1994-07-06"

[ "638 So. 2d 1245" ]

[ { "author_str": "Doucet", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\nAMENDED OPINION\n\nDOUCET, Judge.\nIt has come to the court’s attention that the awards of child support in this matter were incorrectly calculated. We have recalculated the awards as shown in the Child Support Obligation Worksheets attached hereto as Appendices A and B. In accordance with the revised recommended child support order shown therein, we amend the award of child support to reflect that Robert Douglas Greene is required to pay child support in the amount of $783.75 for Jeffrey and Robert Greene from June 1, 1992, until November 24, 1992, and child support in the amount of $985.53 for Kristopher, Jeffrey, and Robert Greene from November 25, 1992, and thereafter.\nAMENDED.\n_APPENDIX A_ WORKSHEET — CHILD SUPPORT OBLIGATION and ROBERT DOUGLAS GREENE CHERYL ELAINE FLAHARTY GREENE Petitioner Respondent Children Date of Birth Children Date of Birth JEFFREY ALLEN GREENE 2-12-80 ROBERT MICHAEL GREENE 9-21-81 Petitioner Respondent Combined 1. MONTHLY GROSS INCOME $3,755.00 $ 1,600.00 //////////////// xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx ■ + 331.00*+ 1,280.00 //////////////// b. Minus preexisting spousal support payment_-_-_//////////////// 2. MONTHLY ADJUSTED GROSS INCOME_$4,086.00 $ 2,880.00 $6,966.00 3. PERCENTAGE SHARE OF INCOME (Line 2. Each party’s //////////////// income divided by Combined Income.) 59% 41% //////////////// 4. BASIC CHILD SUPPORT OBLIGATION llllllllllllllllllllllllllllllllllll (Apply line 2 Combined to Child Support Schedule.) Illlllllllllllllllllllllllllllllllll $1,368.00 a. Net Child Care Costs (Cost minus Federal Tax Credit.) Illlllllllllllllllllllllllllllllllll + b. Child’s Health Insurance Premium Cost llllllllllllllllllllllllllllllllllll + 57.00\n*1246c. Extraordinary Medical Expenses (Uninsured Only) llllllllllllllllllllllllllllllllllll (Agreed to by parties or by order of the court)_llllllllllllllllllllllllllllllllllll +_ d. Extraordinary Expenses (Agreed to by parties or by llllllllllllllllllllllllllllllllllll order of court.)_ llllllllllllllllllllllllllllllllllll _+ e. Optional. Minus extraordinary adjustments llllllllllllllllllllllllllllllllllll (Child’s income if applicable.) Illlllllllllllllllllllllllllllllllll + 5. TOTAL CHILD SUPPORT OBLIGATION llllllllllllllllllllllllllllllllllll (Add lines 4. 4a. 4b. 4c. and 4d: Subtract line 4e.)_llllllllllllllllllllllllllllllllllll $1,425.00 6. EACH PARTY’S CHILD SUPPORT OBLIGATION $ 840.75 $ 548.25 //////////////// (Multiply line 3 times line 5 for each parent.) //////////////// 7. RECOMMENDED CHILD SUPPORT ORDER //////////////// (Bring down amount from line 6 for the non-eustodial $ 840.75 $ //////////////// or non-domiciliary party only. Leave custodial or domiciliary -57.00 ** //////////////// party column blank.) 783.75 //////////////// Comments, calculations, or rebuttals to schedule or adjustments if non-custodial or non-domiciliary party directly pays extraordinary expenses: * Benefit from spousal expense, sharing. *⅜ Credit for payment of insurance premium.\nWORKSHEET — CHILD SUPPORT OBLIGATION and ROBERT DOUGLAS GREENE CHERYL ELAINE FLAHARTY GREENE Petitioner_Respondent Children Date of Birth Children Date of Birth KRISTOPHER LEVI GREENE 4-11-76 ROBERT MICHAEL GREENE 9-21-81 JEFFREY ALLEN GREENE 2-23-80 _Petitioner Respondent Combined 1. MONTHLY GROSS INCOME $ 3,755.00 $ 1,600.00 //////////////// xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx + 331.00*+ 1,280.00 *//////////////// b. Minus preexisting spousal support payment_- - //////////////// 2. MONTHLY ADJUSTED GROSS INCOME_$ 4,086.00 $2,880.00 $6,966.00 3. PERCENTAGE SHARE OF INCOME (Line 2. Each party’s //////////////// income divided by Combined Income.) 59% 41% //////////////// 4.BASIC CHILD SUPPORT OBLIGATION llllllllllllllllllllllllllllllllllll (Apply line 2 Combined to Child Support Schedule.)_llllllllllllllllllllllllllllllllllll $1,710.00 a. Net Child Care Costs1 (Cost minus Federal Tax Credit.) IIIIIIIIIIIIIIIIIIIIIIIIIIIIIJIIIIII + b. Child’s Health Insurance Premium Cost_IIIIIIIIIIIIIIIIIIIIIIÍIIIIIIIIIIIII + 57.00 c. Extraordinary Medical Expenses (Uninsured Only) llllllllllllllllllllllllllllllllllll (Agreed to by parties or by order of the court) llllllllllllllllllllllllllllllllllll + d. Extraordinary Expenses (Agreed to by parties or by llllllllllllllllllllllllllllllllllll order of court.) Illlllllllllllllllllllllllllllllllll + e. Optional. Minus extraordinary adjustments (Child’s income if applicable.) Illlllllllllllllllllllllllllllllllll llllllllllllllllllllllllllllllllllll -\n*12475.TOTAL CHILD SUPPORT OBLIGATION llllllllllllllllllllllllllllllllllll (Add lines 4, 4a, 4b, 4c, and 4d: Subtract line 4e.) Illlllllllllllllllllllllllllllllllll $1,767.00 6. EACH PARTY’S CHILD SUPPORT OBLIGATION //////////////// (Multiply line 3 times line 6 for each parent.) $1,042.63 $ 724.47 //////////////// 7. RECOMMENDED CHILD SUPPORT ORDER //////////////// (Bring down amount from line 6 for the non-custodial $1,042.53 $ //////////////// or non-domiciliary party only. Leave custodial or domiciliary 67.00 ** //////////////// party column blank.) 985.63//////////////// Comments, calculations, or rebuttals to schedule or adjustments if non-custodial or non-domiciliary party directly pays extraordinary expenses * Benefit from spousal expense sharing ** Credit for payment of insurance premium\n", "ocr": true, "opinion_id": 7681204 } ]

"1994-06-30"

[ "639 So. 2d 1199" ]

[ { "author_str": "Jjplotkin", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\njJPLOTKIN, Judge.\nBrian Perkins was charged by bill of information on December 13, 1988, with purse snatching, a violation of LSA-R.S. 14:65.1.1 At his arraignment on December 21,1988, he pleaded not guilty. The trial court found *1200probable cause and denied the Motions to Suppress the Evidence and the Identification on January 20, 1989. After trial on April 20, 1989, a six-member-jury found him guilty as charged. He was sentenced on May 5, 1989, to serve twenty years at hard labor. He appealed, arguing that the trial court erred in imposing an excessive sentence. This Court agreed; his conviction was affirmed, but his sentence was vacated, and the case was remanded to the trial court for resen-tencing. State v. Perkins, 568 So.2d 610 (La.App. 4th Cir.1990). On December 11, 1990, Brian Perkins was resentenced to serve twenty years at hard labor. This Court granted the appellant an out-of-time appeal on October 13, 1993, and Brian Perkins now appeals his resentencing. He again argues that the trial court erred in imposing an excessive sentence. We agree.\nl2The facts from the earlier appeal are adopted.\nArticle I, § 20 of the 1974 Louisiana Constitution prohibits the imposition of excessive punishment. The sentence range under R.S. 14:65.1 is two to twenty years. A sentence may be reviewed for excessiveness even though it is well within statutory guidelines. State v. Cann, 471 So.2d 701 (La.1985). The imposition of a sentence may be unconstitutionally excessive if it is “grossly out of proportion to the severity of the crime” or “is nothing more than the purposeless imposition of pain and suffering.” State v. Brogdon, 457 So.2d 616, 625 (La.1984), cert. den. Brogdon v. Louisiana, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985).\nTo insure adequate review by the appellate court, the record must indicate that the trial court considered the factors set forth in La.C.Cr.P. art. 894.1.2 State v. Forde, 482 So.2d 143 (La.App. 4th Cir.1986); State v. Caston, 477 So.2d 868 (La.App. 4th Cir.1985). At the second sentencing hearing on December 11, 1990, the trial court stated:\nThis Court has reviewed the evidence in the case, both before and during the trial, in light of the provisions of Code of Criminal Procedure, Article 894.1 A and B, and finds as follows: One, the comments made at the original sentencing are reiterated and expanded herein. Two, there is abundant evidence in the district attorney’s file and the police report, including information received from the defendant’s mother and sister, to support the conclusion that the defendant committed several robberies over a three-day period. At least two of these robberies involved elderly ladies, one of whom was brutally knocked to the ground and injured.\nIt is a considered opinion of this Court that there were no substantial grounds tending to excuse or justify the defendant’s conduct; that his victims were completely without fault; that the defendant has not, nor will he compensate the victims of this crimes; that he does have a history of prior criminal activity; that his criminal conduct was a result of circumstances likely to recur; and that he is unlikely to respond to probationary treatment.\nIn short, the defendant is, in the opinion of this Court, incorrigible and a menace to society who should never be permitted out of jail. It is, therefore, the sentence of this Courtjjthat the defendant, Brian Perkins, serve 20 years at hard labor in the custody of the Department of Corrections.\nHere the trial court finds the defendant to be “incorrigible” and a “menace to society” and imposes the maximum sentence; however, the court considers as justification for the sentence crimes for which the defendant was not tried and convicted. The court refers to “several robberies over a three-day period,” elderly women who were injured, the defen*1201dant’s “victims,” and the fact that he could not compensate them. Yet Brian Perkins was convicted of taking the purse of one young woman who was not harmed and who received all of her property back when Perkins was apprehended. Moreover, Brian Perkins has one previous conviction for possession of marijuana.\nWe reiterate our position as stated in our previous consideration of this matter:\nA court may properly consider prior arrests and police reports in sentencing a defendant. State v. Soco, 508 So.2d 915, 917 (La.App. 4th Cir.1987). However, a trial judge does not have “unbridled authority” to consider prior arrests when the defendant may have been innocent of those charges. State v. Gleason, 533 So.2d 1032, 1033 (La.App. 4th Cir.1988).\nThe primary factory to be considered is whether there were aggravating factors in the present offense. State v. Willis, 452 So.2d 796, 797 (La.App. 4th Cir.1984). In the instant case, the judge found the aggravating factors in a different case, one in which the defendant had been arrested, but not convicted. A court cannot rely on allegations as to the factual circumstances of other offenses of which a defendant has not been convicted in order to find that the present crime for which the defendant is being sentenced was aggravated or severe.\nAccordingly, for reasons stated above, the defendant’s conviction is affirmed, the sentence is set aside, and the case is remanded for resentencing. La.C.Cr.P. art. 894.1(B). State v. Soco, 441 So.2d 719, 721 (La.1983), appeal after remand 508 So.2d 915 (La.App. 4th Cir.1987). We recognize that the original sentencing judge has retired and the vacancy has been filled by another judge. The defendant is entitled to an expeditious sentencing hearing considering that the original May 5, 1989 sentence was vacated twice. The trial judge is instructed to sentence the defendant consistent with our prior opinions.\n\nCONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.\n\n\n. Perkins was originally also charged with two counts of possession of stolen property, violations of R.S. 14:69(B). While there is no indication in the minute entries of disposition of these charges, the State's brief explains that these counts were nolle prosequied because the defendant's mother and sister — who had found and returned stolen property to victims — refused to testify against him.\n\n\n. When Perkins was resentenced, article 894.1 provided the following:\nA. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:\n(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;\n(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or\n(3)A lesser sentence will deprecate the seriousness of the defendant's crime.\nB. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation....\n\n", "ocr": true, "opinion_id": 7681598 } ]

"1994-08-11"

[ "640 So. 2d 1239" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThe appellants, after pleading nolo conten-dere to burglary of a dwelling, challenge subsequent trial court orders directing Teas-ley to pay $7,500 in restitution1 and R.M.B. to pay $1,500 in restitution.2 We reverse in part and remand for further proceedings.\nThe amount of restitution that Teasley was ordered to pay for a native American ceremonial pipe is not supported by the evidence. We accordingly reverse and remand for another hearing to determine the amount of restitution to be ordered for this item. In all other respects, the orders on appeal are affirmed.\nReversed in part and remanded.\nBARFIELD, MINER and MICKLE, JJ., concur.\n\n. Teasley's liability was joint and several with two other co-defendants, H.S. and Gary Wilson. See Wilson v. State, 640 So.2d 1238 (Fla. 1st DCA 1994) and H.S. v. State, 640 So.2d 1238 (Fla. 1st DCA 1994).\n\n\n. R.M.B.’s liability was joint and several with co-defendant T.F.F.\n\n", "ocr": true, "opinion_id": 7681876 } ]

"1994-09-08"

[ "641 So. 2d 863" ]

[ { "author_str": "Wells", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWELLS, Justice.\nWe have for review Cheek v. State, 630 So.2d 231 (Fla. 5th DCA 1994), in which the district court addressed the same question we recently answered in Jones v. State, 640 So.2d 1084 (Fla.1994). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.\nIn accordance with our decision in Jones, we approve the decision of the district court in the instant case.\nIt is so ordered.\nGRIMES, C.J., and OVERTON, SHAW, KOGAN and HARDING, JJ., concur.\n", "ocr": true, "opinion_id": 7682309 } ]

"1994-09-30"

[ "642 So. 2d 864" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Williams, Donald R.; — Plaintiff/s); applying for supervisory and/or remedial writ; Parish of Orleans, Criminal District Court, Div. “A”, No. 305-606; to the Court of Appeal, Fourth Circuit, No. KA-5034.\nMotion to dismiss without prejudice granted at relator’s request.\nDENNIS, J., not on panel.\n", "ocr": true, "opinion_id": 7682774 } ]

"1994-09-30"

[ "642 So. 2d 869" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Tyler, Felicia; — Plaintiff(s); applying for writ of certiorari and/or review; Parish of Lafayette, 15th Judicial District Court, Div. “G”, No. 93-1203-G; to the Court of Appeal, Third Circuit, No. CA93-1012.\nDenied.\nDENNIS, J., not on panel.\n", "ocr": true, "opinion_id": 7682795 } ]

"1994-10-06"

[ "642 So. 2d 1208" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAFFIRMED. Green v. Chromally-Turbo-cumbustor, 540 So.2d 874 (Fla. 1st DCA 1989); Carpet Shop v. Vance, 542 So.2d 1039 (Fla. 1st DCA 1989).\nMINER and WOLF, JJ., and WENTWORTH, Senior Judge, concur.\n", "ocr": true, "opinion_id": 7682908 } ]

"1994-09-29"

[ "643 So. 2d 644" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nThis cause is before us on appeal from a summary final judgment finding sections 8 and 9 of chapter 90-310, Laws of Florida, to be violative of various provisions of the Florida Constitution.* Appellants raise numerous procedural and substantive challenges to the final order. We address (1) whether the trial court erred in holding that appellee had standing to challenge section 8 of chapter 90-310; (2) whether the trial court erred in holding that section 9 of chapter 90-310 was violative of the single-subject requirement of article III, section 6 of the Florida Constitution; (3) whether the trial court erred in holding that section 9 of chapter 90-310 was violative of article III, section ll(a)(20) of the Florida Constitution, which prohibits local laws relating to occupations regulated by the State; (4) whether the trial court erred in holding that section 9 of chapter 90-310 was violative of article III, section 11(b) of the Florida Constitution, which prohibits unreasonable classifications of political subdivisions; and (5) whether the trial court erred in holding that section 9 of chapter 90-310 was violative of article III, section 11(a)(2), which prohibits local laws relating to the assessment of taxes for state purposes.\nAppellee lacked standing to challenge section 8, chapter 90-310, Laws of Florida, under which revenue collected in compliance with the oyster surcharge enacted in section 18, chapter 89-175, Laws of Florida, prior to July 1, 1990, was deemed lawfully collected. A party seeking an adjudication as to the constitutionality of a statute must show that he or she has been charged with violating the statute, is threatened for prosecution for violation of the statute, or that the adjudication requested will otherwise affect his or her rights. Martinez v. Scanlan, 582 So.2d 1167, 1171 (Fla.1991); Dixie Ins. Co. v. Gaffney, 582 So.2d 64 (Fla. 1st DCA 1991); Register v. Pierce, 530 So.2d 990 (Fla. 1st DCA 1988), rev. denied, 537 So.2d 569 (Fla.1988). Appellee did not enter the wholesale seafood business until August 1, 1990. Section 8 is therefore inapplicable to him. Appellee has no need or colorable right that will be directly affected by a ruling on the constitutionality of section 8. We therefore reverse as to the first issue.\nAs to the second issue, whether the trial court erred in finding chapter 90-310 *646violative of the single-subject rule of article III, section 6, of the Florida Constitution, we must also reverse. In its order below, the trial court offered no explanation for its conclusion that the challenged statute violated the single-subject rule. We will not burden this opinion by listing the titles of each of the 12 sections of chapter 90-310, Laws of Florida. Suffice it to say, however, our review of the record satisfies us that each section has a “natural or logical connection” to the stated purpose of the statute, which is an “act relating to salt water fisheries.” See Martinez v. Scanlan, 582 So.2d at 1172; Chenoweth v. Kemp, 396 So.2d 1122 (Fla.1981); compare State v. Leavins, 599 So.2d 1326, 1333-1335 (Fla. 1st DCA 1992). We therefore reverse as to the second issue.\nThe last three issues involve the constitutionality of section 9, chapter 90-310, Laws of Florida. Section 9, codified at section 370.07(3), Florida Statutes (Supp.1990), provides:\nSubsection (3) of section 370.07, Florida Statutes, as enacted in section 18, chapter 89-175, Laws of Florida is hereby reenacted and amended to read:\n\n370.07 Wholesale and retail saltwater products dealers; regulations\n\n(3) Apalachicola Bay oyster surcharge.—\n(a) For purposes of this section, “bag” means an amount of oysters with shells weighing approximately 60 pounds.\n(b) Effective October 1, 1989, and not withstanding — the—provisions—of—Sr 370.16(21), there shall be assessed a surcharge of 50 cents on each bag of oysters to be paid by the wholesale dealer first receiving, using, or selling the oysters after harvesting from the waters of Apalachicola Bay.\n[[Image here]]\n§ 9, Ch. 90-310, Laws of Florida. Section 9 goes on to reenact section 18, chapter 89-175 verbatim.\nWe reverse on each of these issues based on our decision in State v. Leavins, 599 So.2d at 1335-1337. In Leavins, we held that section 18 of chapter 89-175, from which section 9, chapter 90-310 was taken, did not violate either article III, section ll(a)(20) [prohibiting local laws or general laws of local application relating to occupations regulated by the state] or article III, section 11(b) [prohibiting unreasonable classification in general laws of political subdivisions or other government entities]. Leavins, 599 So.2d at 1335-1337. Although the Leavins case does not directly address section 11(a)(2), the reasoning in Leavins is applicable. The analysis in Leav-ins was not limited to whether chapter 89-175 violated the prohibition against local laws concerning regulations of occupations found in article III, section ll(a)(20); instead, it first addressed the broader question of whether chapter 89-175 was a general or local law. We held that chapter 89-175 did not violate article III, section 11 because it was a general law and not a special or local law. Id. at 1335. Section 9, chapter 90-310, which was taken almost verbatim from section 18, chapter 89-175, is therefore also a general law rather than a special or local law. Section ll(a)’s prohibition against special or general laws of local application pertaining to various subjects is inapplicable. Therefore, section 9, chapter 90-310, does not violate the specific prohibition found in section 11(a)(2) against special or local laws pertaining to assessment or collection of taxes for state or county purposes.\nREVERSED.\nKAHN and MICKLE, JJ., concur.\nBOOTH, J., dissents in part and concurs in part with written opinion.\n\n Section 9 is codified as section 370.07(3), Florida Statutes (Supp.1990).\n\n", "ocr": true, "opinion_id": 7683294 }, { "author_str": "Booth", "per_curiam": false, "type": "035concurrenceinpart", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBOOTH, Judge,\ndissenting in part and concurring in part.\nI respectfully dissent, and would affirm the trial court’s holding that section 9 of chapter 90-310, Laws of Florida, violates article III, section 11(a)(2) of the Florida Constitution prohibiting local laws relating to the assessment of taxes for state purposes. In all other respects, I would concur with the majority.\nSection 370.07(3), Florida Statutes, provides a surcharge of 50 cents “on each bag of oysters to be paid by the wholesale dealer first receiving, using, or selling oysters after harvesting from the waters of Apalachicola *647Bay.” There is no equivalent surcharge imposed on any of the other more than 54 shellfish harvesting areas or on the other 19 harvesting areas having commercial landings for oysters in the state.\nThe trial court granted appellee’s motion for summary judgment, declaring chapter 90-310 unconstitutional on a number of grounds, including the ground pertinent to this dissent: violation of article III, section 11(a)(2), prohibiting local laws pertaining to the assessment or collection of taxes for state or county purposes. Three months after the trial court entered this order, this court decided State v. Leavins, 599 So.2d 1326 (Fla. 1st DCA 1992), holding the statute was not violative of article III, section ll(a)(20), prohibiting special laws relating to occupations regulated by a state agency, and article III, section 11(b), which prohibits unreasonable classifications of political subdivisions in general laws. In reaching these conclusions, this court relied principally on the importance to the state of the oyster industry centered upon Apalachicola Bay and held the challenged surcharge and other provisions of chapter 89-175, Laws of Florida, to be a valid exercise of the state’s police power. 599 So.2d at 1335-1337.\nThe pertinent holding of Leavins was that the Apalachicola Bay oyster tax, which is collected from seafood wholesalers dealing in Apalachicola Bay oysters, is not a local law relating to an occupation (seafood wholesaling) regulated by the state. The court’s reasoning was that a law will be considered general if it operates universally throughout the state or uniformly within a reasonable classification. Leavins holds that because the state has a paramount concern with the preservation of the oyster industry centered in Apalachicola Bay, the regulation of those dealing in Apalachicola Bay oysters was a reasonable exercise of the state’s police power. 599 So.2d at 1336.\nAs persuasive as Leavins may be on this point, Leavins must be distinguished since the question raised here was not there presented. The instant case challenges the statute as a local law relating to the assessment of taxes for state purposes and is therefore prohibited under article III, section 11(a)(2), of the Florida Constitution. A discriminatory classification can be upheld as necessary to the proper exercise of the police power, but will not stand as a basis for the unequal imposition of tax.\nThe State concedes that the statute is a revenue-raising measure. The tax is imposed for the stated purpose of providing1.\n[A] steady revenue source for oyster rehabilitation in the Apalachicola Bay by establishing ... an oyster surcharge to be used for oyster relaying, transplanting and shell planting.... These fees will also fund educational programs for licensed oyster harvesters on oyster biology, aquaculture, boating and water safety, small business management, and other relevant topics.\nMoreover, chapter 90-310, section 9, does not, as the State contends, merely impose a tax on the privilege of conducting a particular type of business. Section 370.07(3), Florida Statutes (Supp.1990), entitled “Apalachicola Bay Oyster Surcharge,” provides that “there shall be assessed a surcharge of 50 cents on each bag of oysters2 ... from the waters of Apalachicola Bay.” Wholesale dealers who do not buy and sell Apalachicola Bay oysters pay no tax, and those who deal in oysters from other areas as well as Apalachicola Bay are only required to pay the tax on oysters identified as being from Apalachicola Bay; all other oysters are exempt. Thus, the tax imposed is a tax on fungible goods or produce, to-wit: oysters, and it is limited to those oysters taken from Apalachicola Bay. Oysters from St. Andrews Bay in Bay County, for example, are not subject to the tax, giving those harvesting and dealing in Bay County oysters a competitive advantage over the harvesters and dealers in Franklin County.\n*648The Legislature enjoys broad discretion in formulating tax statutes. People Against 561.501 v. Department of Business Regulation, 587 So.2d 644 (Fla. 1st DCA 1991). However, the State has not cited, nor have we been able to find after extensive research, any authority for the Legislature to single out the produce of one area for taxation, while other like produce in other parts of the state are exempted from tax. To the contrary, in cases in which appellate courts have sustained such taxes, the tax has been imposed state-wide on all like produce. E.g., State Department of Citrus v. Griffin, 239 So.2d 577 (Fla.1970); C.V. Floyd Fruit Co. v. Florida Citrus Commission, 128 Fla. 565, 175 So. 248 (Fla.1937). To do otherwise unfairly burdens those persons who depend for their livelihood on the produce which has been subjected to taxation.\nThe State relies on subsection (f) of the statute, which provides that the Department of Revenue collect the oyster tax for transfer into the Apalachicola Bay Conservation Trust Fund for the benefit of Apalachicola Bay. The difficulty with this argument, however, is that the two provisions are not interdependent and the validity of the tax must be determined independently of the special purpose stated. This is a tax, not a police power exaction, and whether the funds collected go into the general revenue or into some special fund is not determinative of validity of the tax. There is nothing to prevent the Legislature from amending the statute in question to provide for another use of the funds that do not benefit the Apalachicola Bay.\nWhat is presented here is a revenue-raising measure in the form of a tax on the produce of one area of the State. This tax is distinct from purely regulatory exactions or fees imposed for inspection and licensing that primarily support the regulatory purposes. See City of Daytona Beach Shores v. State, 483 So.2d 405 (Fla.1985); and City of Panama City v. State, 60 So.2d 658 (Fla.1952). This statute represents a significant departure from previous uses of the tax power which have been held reasonable.\nI would affirm the trial court’s holding that chapter 90-310, section 9, Laws of Florida, contravenes the article III, section 11(a)(2) prohibition against local laws relating to the assessment of revenues for state purposes.\n\n. House Analysis and Economic Impact Statement of the House of Representatives Natural Resources Committee, as revised by the Committee on Appropriations for House Bill No. 1545 dated May 25, 1989.\n\n\n. Section 370.07(3)(a), Florida Statutes, provides, \"For purposes of this section, ‘bag’ means an amount of oysters with shells weighing approximately 60 pounds.\"\n\n", "ocr": true, "opinion_id": 7683295 } ]

"1994-10-06"

[ "643 So. 2d 940" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAppeal No. 905506 from Judgment dated July 13, 1993; Melvin McClure, Ruling Judge, DeSoto County Chancery Court.\nBefore PRATHER, P.J., and BANKS and McRAE, JJ.\nAffirmed.\n", "ocr": true, "opinion_id": 7683345 } ]

"1994-09-09"

[ "643 So. 2d 1120" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAFFIRMED.\nSTEVENSON, J., and MICKLE, STEPHAN P., Associate Judge, concur.\nANSTEAD, HARRY LEE, Associate Judge, dissents with opinion.\n", "ocr": true, "opinion_id": 7683376 }, { "author_str": "Ansteadlee", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nANSTEAD, HARRY LEE, Associate Judge,\ndissenting:\nI would reverse and remand for reconsideration, if not a full rehearing, because the trial court apparently misinterpreted the opinion in Bryan v. Century Nat’l Bank, 498 So.2d 868 (Fla.1986), to require prior court approval for a valid personal services contract entered into with, and for the benefit of, the ward of a voluntary property guardianship.\n", "ocr": true, "opinion_id": 7683377 } ]

"1994-11-09"

[ "644 So. 2d 351" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nNeither the plea colloquy nor any other portion of the record refutes the appellant’s claim that his nolo plea to two counts of battery on a law enforcement officer was induced by his counsel’s erroneous advice that he “would be eligible for controlled release credits” on the agreed sentence. Griffin was therefore entitled to an evidentiary hearing on his 3.850 motion to set the plea aside. See Ortiz v. State, 622 So.2d 131 (Fla. 3d DCA 1993); Eady v. State, 604 So.2d 559 (Fla. 1st DCA 1992); Carter v. State, 599 So.2d 773 (Fla. 2d DCA 1992); McCray v. State, 578 So.2d 29 (Fla. 2d DCA 1991); Tarpley v. State, 566 So.2d 914 (Fla. 2d DCA 1990). The order below denying the motion on its face is therefore reversed and the cause is remanded for further consistent proceedings.\n", "ocr": true, "opinion_id": 7683558 } ]

"1994-11-11"

[ "644 So. 2d 383" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Johnson, Joseph — Plain tiff(s); applying for motion to enforce this Court’s Order of December 21, 1992, La.App., 609 So.2d 246; Parish of Orleans, Criminal District Court, Div. “G”, Nos. 269-738; 269-739.\nDenied. Moot. The Court of Appeal has acted.\nJOHNSON, J., not on panel.\n", "ocr": true, "opinion_id": 7683599 } ]

"1994-10-27"

[ "644 So. 2d 1256" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAppeal No. 7818 from Judgment dated Aug. 8, 1991; John Leslie Hatcher, Ruling Judge, Coahoma County Circuit Court.\nBefore PRATHER, P.J., and BANKS and McRAE, JJ.\nAffirmed.\n", "ocr": true, "opinion_id": 7684028 } ]

"1994-11-14"

[ "645 So. 2d 129" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPER CURIAM.\nAppellant has appealed a habitual violent felony offender sentence imposed for aggravated battery following his plea of nolo con-tendere. He alleges that contrary to the requirements of Ashley v. State, 614 So.2d 486, 490 n. 8 (Fla.1993), he was not advised of the possible imposition of a 10 year minimum mandatory sentence at the plea colloquy before acceptance of his plea, and therefore his sentence should be reversed. Appellant is challenging the voluntary or intelligent character of his plea without having presented this issue to the trial court. The issue that Simmons asks this court to consider should be presented first to the trial court through a motion to withdraw his plea. If the action of the trial court on such a motion is adverse to the defendant, it would be subject to review on direct appeal. Robinson v. State, 373 So.2d 898 (Fla.1979); Heatley v. State, 636 So.2d 153 (Fla. 1st DCA), rev. denied, 645 So.2d 452 (Fla.1994).\nAFFIRMED\nZEHMER, KAHN and VAN NORTWICK, JJ., concur.\n", "ocr": true, "opinion_id": 7684089 } ]

"1994-07-08"

[ "645 So. 2d 370" ]

[ { "author_str": "Bowen", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBOWEN, Presiding Judge.\nThis is an appeal from the denial of a petition for a writ of habeas corpus. The appellant, Thomas Grimsley, an inmate of the Alabama prison system, challenges the denial of “retroactive good time.”\nThe appellant was convicted of rape in the second degree on August 10, 1990, and was sentenced to 10 year's’ imprisonment. He contends that his denial of good time is based on Ala.Code 1975, § 14 — 9—41(h), which denies good time to sex offenders.\nIn Brooks v. State, 622 So.2d 447, 451 (Ala.Cr.App.1993), this Court held that “the sex offender exception to § 14-9-41(h) (Supp.1992) is without rational basis and therefore a violation of equal protection principles.”\nThe judgment of the circuit court dismissing the appellant’s petition for a writ of habeas corpus is reversed and this cause is remanded with directions that the circuit court reconsider the petition in light of the principles announced in Brooks.\nREVERSED AND REMANDED.\nAll Judges concur.\n", "ocr": true, "opinion_id": 7684143 } ]

"1994-11-17"

[ "645 So. 2d 958" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAppeal No. 0125 from Judgment dated Nov. 23, 1992; Bill Jones, Ruling Judge, Greene County Circuit Court.\nBefore HAWKINS, C.J., and JAMES L. ROBERTS, Jr., and SMITH, JJ.\nAffirmed.\n", "ocr": true, "opinion_id": 7684243 } ]

"1994-12-01"

[ "645 So. 2d 1351" ]

[ { "author_str": "Smith", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSMITH, Justice,\nfor the Court:\nThis case comes before the Court on appeal of Refrigeration Sales from the grant of summary judgment by the chancellor of the Hinds County Chancery Court against this foreign corporation in favor of the State of Mississippi.\nThe controversy between these parties centers on the interpretation of the word “state” in Miss.Code Ann. § 31-7-47. This statute requires ■ that a nonresident bidding on a. Mississippi public contract be accorded treatment commensurate with the treatment a Mississippi resident would receive if bidding on a contract in the state of domicile of the nonresident. The chancellor agreed with the State’s position that “state” means any governmental unit capable of promulgating and enforcing policies which grant preference to contractors domiciled in that governmental unit and granted a motion for summary judgment.\nIn this case, Refrigeration Sales Co., Inc., the lower bidder on a contract to supply refrigerant gas to the State, was not awarded the contract because the City of New York gives a preference to resident bidders in awarding contracts. Refrigeration Sales is a New York corporation. The State of New York does not have a preference statute as did the City of New York. Refrigeration Sales had previously been awarded Mississippi state contracts without this preference being raised.\n*1352In bringing this appeal from the grant of summary judgment Refrigeration Sales raises the following issues:\nI. THE MEANING OF THE WORD “STATE” AS USED IN SECTION 31-7-47 IS CLEAR AND UNAMBIGUOUS AND DOES NOT INCLUDE POLITICAL SUBDIVISIONS.\nII. THE MISSISSIPPI LEGISLATURE DID NOT INTEND THE WORD “STATE” TO INCLUDE ALL POLITICAL SUBDIVISIONS OF THE STATE.\nIII. A MISSISSIPPI CONTRACTOR BIDDING UNDER SIMILAR CIRCUMSTANCES IN NEW YORK WOULD NOT HAVE PREFERENCE APPLIED AGAINST ITS BID.\nThe clear language of the statute does not indicate that “state” includes the expansive interpretation given by the lower court. The statute intends that there be equal or reciprocal treatment on the same levels of government. The legislature utilized only the word “state.” Had the legislature intended to mean between any political subdivisions, such as cities, counties, or nations, then doubtless that language would have been included. It is equally clear that a Mississippi contractor bidding in the State of New York would not have preference applied against its bid, because New York State does not have a preference statute.\nWe must agree with Refrigeration Sales. This case is reversed and rendered.\nTHE FACTS\nRefrigeration Sales is a New York corporation with its principal place of business in Long Island City, New York.\nOn or about December 20, 1990, the State of Mississippi invited Refrigeration Sales to submit a bid on a contract to supply the State’s refrigerant gas requirements for the six month period March 1,1991 to August 31, 1991. Refrigeration Sales had supplied the State’s refrigerant gas requirements for several years.\nThree other suppliers submitted bids to the State on Bid File Number 740-11. The bids were unsealed on January 23, 1991. The bids were as follows:\nRefrigeration Sales —■ $158,581.50\nClimate Supply • — 165,251.30\nPaine Supply — 169,586.70\nJohnson Supply — 195,952.90\nSince Refrigeration Sales had been represented at the bid opening and knew that they had the lowest bid, they expected to be awarded the contract. On February 26, 1991, Refrigeration Sales learned that the State had awarded the contract to the second lowest bidder, Climate Supply, a Mississippi corporation. Refrigeration Sales then notified the State of its concern in not being awarded the contract.\nIn a February 27, 1991, letter from Don Buffum, Senior Contract Analyst, Department of Finance and Administration, Refrigeration Sales was told that the State based its decision to award the contract to Climate Supply on its interpretation of Miss.Code Ann. § 31-7-47 (1972). While the State of New York does not have a preference for New York contractors in granting public contracts, the City of New York does have a 5% preference for New York City vendors. Refrigeration Sales is considered a New York City vendor.\nThe State applied the preference given vendors in the City of New York to the bid submitted by Refrigeration Sales. By adding this 5% penalty to the total bid submitted by Refrigeration Sales, the bid submitted by Climate Supply effectively became the lowest responsive bid and Climate Supply was awarded the contract.\nRefrigeration Sales filed suit on April 19, 1991, seeking a declaratory judgment that a preference should only be given Mississippi resident contractors under Section 31-7-47 when the laws of the state of domicile of a nonresident bidder give preference to local contractors.\nThe State sought to dismiss the complaint on May 21, 1991, on grounds that it failed to state a claim for which relief could be granted.\nRefrigeration moved for summary judgment on May 24, 1991, arguing, among other *1353things, that the State of New York does not give a preference to New York resident contractors when the State of New York grants public contracts.\nThe trial court converted the State’s motion to dismiss into a motion for summary judgment. The trial court made certain findings and granted the State’s motion for summary judgment. •\nDISCUSSION\nI. The Meaning Of The Word “State” As Used In Section 31-7-47 Is Clear And Unambiguous And Does Not Include Political Subdivisions.\nThis issue necessitates review of several appropriate statutes but ultimately the question turns on the statutory definition of the term “state.”\nUpon examination of Miss.Code Ann. § 31-7-47 (1972) we find the following:\nIn the letting of public contracts, preference shall be given to resident contractors, and a nonresident bidder domiciled in a state having laws granting preference to local contractors shall be awarded Mississippi public contracts only on the same basis as the nonresident bidder’s state awards contracts to Mississippi contractors bidding under similar circumstances. Resident contractors actually domiciled in Mississippi, be they corporate, individuals or partnerships, are to be granted preference over nonresidents in awarding of contracts in the same manner and to the same extent as provided by the laws of the state of domicile of the nonresident.\nMiss.Code Ann. § 31-3-21(3) also speaks of the preference to be given to resident contracts and states in part:\n(3) In letting of public contracts preference shall be given to resident contractors, and a nonresident bidder domiciled in a state having laws granting preference to local contractors shall be awarded Mississippi public contracts only on the same basis as the nonresident bidder’s state awards contracts to Mississippi contractors bidding under similar circumstances; and resident contractors actually domiciled in Mississippi, be they corporate, individuals, or partnerships, are to be granted preference over nonresidents in awarding of contracts in the same manner and to the same extent as provided by the laws of the state of domicile of the nonresident. When a nonresident contractor submits a bid for a public project, he shall attach thereto a copy of his resident state’s current law pertaining to such state’s treatment of nonresident contractors.\nIn these statutes there are obvious parallels made between the term “state” and “Mississippi.” This is also indicated when comparing the language speaking of “state of domicile” and “domiciled in Mississippi.” Trying to engraft another political or governmental unit onto “state” or expand the meaning simply does not make sense. To attempt such expansion would be usurping the authority of the legislature as well as creating ambiguity and uncertainty in many other statutes using the word state.\nMiss.Code Ann. § 1-3-49 (1972) defines the term “state” as follows:\nThe term “state,” when applied to different parts of the United States, shall, when used in any statute, extend to and included the District of Columbia and the several territories created or recognized by congress.\nThe chancellor in this case held that “[t]he word ‘state’ as used in this statute included any governmental unit capable of promulgating and enforcing policies which grant a preference to resident contractors domiciled in that governmental unit.” It is argued by the State that the definition of “state” “can and does include the City of New York as surely as the state of Missouri or the nation of Japan.”\nLooking at the use of the word “state” not only in the statute in question but elsewhere, the position taken by the lower court and the State on appeal cannot be justified. In terms of definition only, which is what we consider under this assignment of error, there is no persuasive authority for interpreting “state” other than in the normal limited and specific sense. In cases where another governmental entity foreign or domestic has been intended that “municipality,” *1354“country,” or other governmental unit has been so designated. No other statute in which this expansive interpretation has been used has been put forth.\nAdopting the interpretation proposed by the lower court would create ambiguities in other statutes. The term “state” as used in any statute would hereafter be interpretable as any governmental unit on any level. If the intent in a statute is to designate one of the fifty units of the federal government, what term should be used? If the term “state” is debased to designate a nonspecific or generic form of governmental unit, what certainty will there be in other statutes using the term “state”?\nIn short, “state” as used in the statute does not mean City of New York.\nII. The Mississippi Legislature Did Not Intend The Word “State” To Include All Political Subdivisions Of The State.\nThe Court has cited:\nLegislative intent as an aid to statutory construction, although often elusive to the perception of unaided vision, remains nevertheless the pole star of guidance. Appel-lee invokes an elemental formula acceptable to lay and legal usage that what the legislature said is clear and unambiguous and what it meant is to be found simply by what is said. This formula should not be discredited. It is only by words that statutory intent is to be disclosed, but it does not follow that such intent is always accurately so revealed. Ambiguity is not solely the product of obscurity....\nAnderson v. Lambert, 494 So.2d 370, 373-74 (Miss.1986), citing Quitman County v. Turner, 196 Miss. 746, 18 So.2d 122 (1944).\nIt is not disputed that the legislative purpose of Section 31-7-47 is to give preference to contractors who are residents of the State of Mississippi. That portion of the statute is clear and to that extent the chancellor was correct. As previously set out, however, there is no cause to infer that the legislature intended that reciprocal treatment extend beyond the highest level of state governments.\nThe State’s brief often uses the term, a “level playing field,” in describing the intent of the statute. As we would agree that the statute clearly indicates comparison among equal players. By analogy, the minor leagues will not be compared to the major leagues.\nTo administer the revised statute as read by the chancellor would require that the State be cognizant of every governmental unit’s policies on resident bid preference for each nonresident bidder. This would be too heavy a burden.\nThe State urges that consideration should be given to the state agency’s interpretation of the statute. Grant Center Hospital of Mississippi v. Health Group of Jackson, 528 So.2d 804, 809 (Miss.1988), states as follows:\n[WJhere an administrative agency errs as a matter of law, courts of competent jurisdiction should not hesitate to intervene. To be sure, the construction placed upon a statute by the agency charged with its administration and implementation is entitled to weight. Notwithstanding, this Court will not defer to an agency’s interpretation of the statute when that interpretation is repugnant to the best reading thereof, (citations omitted)\nAlso, in State Tax Commission v. Trailways Lines, Inc., 567 So.2d 228 (Miss.1990), quoting Mississippi Cotton Seed Products Co. v. Stone, 184 Miss. 409, 422, 184 So. 428, 431-32 (1938), this Court stated:\nWhen the construction placed upon a statute by an administrative department of the government is clearly erroneous, and has not been followed by it for a long time, or where the administrative department, at various times, places different constructions upon the statute, the Court will not adhere to such constructions when, in its opinion, they are erroneous. See Virden v. State Tax Commission, 180 Miss. 467, 177 So. 784 [ (1938) ]. While it is proper for the Court to follow a reasonable construction, long used and practiced by the administrative officers of the law, to the end that there shall be no unnecessary hardship upon the taxpayers, yet, where it is of the opinion that such construction is not proper, it must reach its own conclusions.\n*1355The interpretation of this statute taken by the state agency was apparently of recent origin. The president of Refrigeration Sales clearly states in his affidavit that Refrigeration Sales had been supplying the State of Mississippi with refrigerant gas since 1987. He also stated, “Prior to receiving the contracts on any of these bids, the State of Mississippi invited Refrigeration Sales to bid. On each bid proposal for which Refrigeration Sales was the lowest responsive and responsible bidder, Refrigeration Sales was awarded the contract.” The date and origin of this change in policy cannot be determined from the record. Refrigeration Sales was clearly unaware of this change.\nIn addition to being a recent change in policy, the new interpretation by the state agency caused the State of Mississippi taxpayers to pay more for its refrigerant gas under this interpretation.\nSince the interpretation of the statute was not of long standing and would serve no purpose other than to benefit a local bidder at the expense of the taxpayers, this interpretation by the agency should have no weight.\nIII. A Mississippi Contractor Bidding Under Similar Circumstances In New York Would Not Have Preference Applied Against Its Bid.\nThe language of Section 31-7-47 speaks of the preference applied against a nonresident contractor and in favor of a Mississippi contractor “bidding under similar circumstances.” As previously suggested this requires some parallel between the two “states.”\nThe State of New York has no statutory, regulatory or de facto bid preference for resident contractors. A Mississippi contractor bidding on a State of New York public contract would be treated the same as a New York resident contractor bidding on the same contract. Had this contract been put up for bid in New York, the contract would have gone to the lowest bidder without consideration of the domicile of the bidder.\nIn the present case, the application of the bid preference is misguided because of the lack of similar circumstances and the lack of reciprocity in the process.\nUnder this separate assignment of error, Refrigeration offers no additional legal support for its argument and therefore it cannot be a separate basis for reversal. However, there is ample previous authority for finding that the interpretation of the statute is erroneous.\nCONCLUSION\nThe interpretation of Miss.Code Ann. § 31-7-47 that “state” includes “any governmental unit capable of promulgating and enforcing policies which grant a preference to resident contractors domiciled in that governmental unit” is contrary to the language used in that statute. State means state, such as the State of Mississippi. State does not mean the City of New York or any other governmental unit not of equal status with the State of Mississippi. Summary judgment against Refrigeration Sales cannot prevail.\nREVERSED AND REMANDED.\nHAWKINS, C.J., PRATHER, P.J., and SULLIVAN, PITTMAN, BANKS and JAMES L. ROBERTS, Jr., JJ., concur.\nMcRAE, J., dissents with separate written opinion joined by DAN M. LEE, P.J.\n", "ocr": true, "opinion_id": 7684360 }, { "author_str": "McRae", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMcRAE, Justice,\ndissenting:\nCommon sense dictates this dissent.\nThe majority splits hairs in its interpretation that the term “state” in Miss.Code Ann. § 31-7 — 47 (1972) does not include “any governmental unit capable of promulgating and enforcing policies which grant a preference to resident contractors domiciled in that government unit.” The majority opinion unjustifiably harms Mississippi contractors wishing to do business in New York, New York and frustrates the Legislature’s true intent behind enacting Miss.Code Ann. § 31-7-47 (1972). Accordingly, I dissent.\nThe clear, unambiguous language in Miss. Code Ann. § 31-7-47 (1972) provides that a “nonresident bidder domiciled in a state having laws granting preference to local contractors shall be awarded Mississippi public contracts only on the same basis as the nonresi*1356dent bidder’s state awards contracts to Mississippi contractors bidding under similar circumstances.” The majority correctly provides that in interpreting the statutes, this Court’s primary objective is to employ that interpretation which best suits the legislature’s true intent or meaning. Anderson v. Lambert, 494 So.2d 370, 372 (Miss.1986). It is obvious that our Legislature intended that this state treat out-of-state contractors identical to how they are required by law to treat Mississippi contractors bidding in their state. Hence, the general theme of reciprocal, mutual treatment comes to mind.\nFor example, let’s just say that a Mississippi contractor bids on a contract in New York. And let’s just say that this contract is located in New York, New York [hereinafter New York City]. It is undisputed that New York City gives a five percent (5%) preference for New York City contractors. Therefore, if a Mississippi contractor submitted the lowest bid on a contract in New York City and a New York City vendor submitted the second lowest bidder on the contract, it is highly probable that the New York City contractor would receive the contract after taking into consideration the five percent (5%) preference. The meaning and purpose of Miss.Code Ann. § 31-7-47 (1972) is clearly to provide equal footing or rather, follow the “Golden Rule.” With the majority’s opinion today, the true intent of our Legislature is not being followed.\nThe majority inaccurately holds that the outcome of this appeal ultimately turns on the interpretation of the term “state.” However, the pertinent and appropriate term to question within the language of Miss.Code Ann. § 31-7-27 (1972) is what is the meaning of “a state having laws granting preference....” Miss.Code Ann. § 31-7-47 (1972). The language “having laws” evidences or signifies that any law, whether it be a city ordinance or state statute, must be taken into consideration.\nIt has never before been disputed that a local government is an arm of a state’s overall government. The State of New York grants the local government of New York City the power to enact provincial ordinances. New York State acquiesces to the city’s established law giving preferential treatment to New York contractors. Because the State of New York lends credence to the City of New York’s law, it should be charged with the City’s laws. The chancellor was correct in holding that Refrigeration Sales Co., Inc., a New York City contractor, was subject to the five percent (5%) penalty while bidding in Mississippi.\nThe majority opinion does nothing but hurt those Mississippi contractors aspiring to do business in New York City. The majority opinion is misleading, as it states, “[h]ad this contract been put up for bid in New York, the contract would have gone to the lowest bidder without consideration of the domicile of the bidder.” This deceptive assertion does not contemplate a contract located in the busiest city in our nation, New York City. To the contrary, the domicile of the bidder would most definitely be taken into consideration, and a five percent (5%) preference would be given to those contractors domiciled in New. York City. However, the State of Mississippi has erroneously decided that it will not reciprocate New York City’s law and give its contractors the same benefit when bidding in Mississippi.\nIt just makes common sense that the five percent (5%) preference for Mississippi contractors be employed in the case at hand.\nDAN M. LEE, P.J., joins this opinion.\n", "ocr": true, "opinion_id": 7684361 } ]

"1994-11-18"