text:
    James Patrick LAWRENCE, Appellant, v. STATE of Florida, Appellee. Ronald BOURGOIN, Appellant, v. STATE of Florida, Appellee. John MITCHELL, Appellant, v. STATE of Florida, Appellee.
    Nos. HH-50, HH-96 and HH-238.
    District Court of Appeal of Florida, First District.
    March 15, 1978.
    Rehearing Denied April 19, 1978.
    Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Michael H. Davidson, George R. Georgieff, Asst. Attys. Gen.,-for appellee.
   PER CURIAM.

By these consolidated appeals appellants seek review of the denial of their motions to dismiss, following which denial they each entered a plea of nolo contendere, reserving their right to appeal.

William Weaver, an undercover agent for the First Circuit Narcotics Investigation Unit, sold each of the appellants in three separate unrelated transactions one pound of marijuana. By their motion to dismiss the defendants urged unconscionable misconduct, abuse of prosecutorial discretion and violations of due process and equal protection. It is important to note that appellants do not rely upon the defense of entrapment.

Whether or not agent Weaver’s conduct is protected by F.S. 893.09(5) we need not determine. Clearly each of the defendants were guilty of unlawful possession of marijuana and they do not claim to have been entrapped. Neither does the record reveal that the state has infringed upon their constitutional rights. As stated in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976).

“ * * * If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law. * * * ” (Citations omitted: 96 S.Ct. at page 1650).

AFFIRMED.

McCORD, C. J., BOYER, J., and McLANE, RALPH M., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The CITY OF ST. PETERSBURG BEACH, etc., et al., Petitioners, v. MARINE ATTRACTIONS, INC., a Florida Corporation, Respondent.
    No. 78-326.
    District Court of Appeal of Florida, Second District.
    March 17, 1978.
    Gerald R. Colen of Devito & Colen, St. Petersburg, for petitioners.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of certiorari is denied without prejudice to the right of petitioners to seek review of the matters contained therein by way of an appeal from the final judgment. Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla. 2d DCA 1973).

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    Hon. Morton L. PERRY, as one of the Judges of the County Court in and for Dade County, Florida, Appellant, v. The STATE of Florida ex rel. James Terry MILLS and Trida Ann Gilbert, Appellees.
    No. 77-299.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearing Denied May 2, 1978.

      Janet Reno, State’s Atty., and Paul M. Rashkind, Asst. State’s Atty., for appellant.
    Richard G. Taylor, Miami, for appellees.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

This is an appeal by Morton L. Perry, judge of the county court for Dade County, from a rule absolute in prohibition, prohibiting him from exercising any further jurisdiction in two county court cases involving defendants James Terry Mills and Tricia Ann Gilbert. The rule, which was issued following an evidentiary hearing by the circuit judge sitting in his appellate capacity, contains lengthy findings of fact and conclusions of law, including the following:

On May 19, 1976, in a non-jury trial before Judge Perry, Mills was tried and convicted of maintaining a house of prostitution and operating a massage establishment without a registered masseur or masseuse, and Gilbert was tried and convicted of prostitution and the unlawful practice of massage without a certificate of registration. Mills was sentenced to a fine of $500.00 and a term of 45 days in the county jail, and Gilbert, was sentenced to a fine of $200.00 and 20 days in the county jail. Both defendants received a stay of execution and filed motions for mitigation which were denied.

At a later time, it appeared that the bench dockets in the Mills and Gilbert cases had been changed. On Mills’ bench docket, he was sentenced to 45 days in jail, but thereafter the word “and” is crossed out and the word “or” inserted, “pay a fine of $500.00.” The bench docket in the Gilbert file provides for a jail term of 20 days and again, the word “and” is crossed out and the word “or” inserted, “pay a fine of $200.00.” On October 20, 1976, defense counsel paid his clients’ fines and was advised by the clerk of the court that the cases were closed.

On January 7, 1977, however, Judge Perry sent a letter to defense counsel ordering that the defendants be produced in court on January 12, 1977, for the purpose of having them begin serving the jail terms to which he sentenced them. Defense counsel filed a petition in the circuit court for a writ of habeas corpus or alternative remedies, and an evidentiary hearing was held. A deputy clerk of the county court testified that there was a discrepancy between the defendants’ commitment orders, judgment and sentence on the reverse side of the arrest forms and the bench dockets, and that he was unable to explain the discrepancy. At the conclusion of the hearing, the circuit judge found that the letter of January 7, 1977, could only be construed as a request to present the defendants before the court for the purpose of clarifying the sentence, and that Florida Rule of Criminal Procedure 3.800, providing for correcting sentences, expressly states that such correction must be made “. . . within sixty days after such imposition . . . ” A rule absolute in prohibition was issued on the ground that the last official action before Judge Perry being on October 22,1976, and the defendants not having been incarcerated within sixty days, therefore, pursuant to Rule 3.800, Judge Perry lost jurisdiction to correct or clarify the sentences. We disagree and reverse.

Rule 3.800 of the Florida Rules of Criminal Procedure, entitled “Correction and Reduction of Sentences,” provides,

“(a) A court may at any time correct an illegal sentence imposed by it.
(b) A court may reduce a legal sentence imposed by it . . within sixty days after such imposition . . . ”

As the Rule, by its plain language, refers to correcting an illegal sentence, or reducing (mitigating) a legal sentence, we find that it has no application in this ease, wherein there was an alteration of sentences, which the trial judge denies having made. Judge Perry was neither correcting an illegal sentence nor reducing a legal sentence, but rather, he was attempting to execute the original and only sentence he rendered in the Mills and Gilbert cases. Generally, a court of record may, even after the term has expired, correct clerical mistakes in its own judgments and records. Boggs v, Wainwright, 223 So.2d 316 (Fla.1969).

Therefore, we hold that Rule 3.800 was misapplied in this case, and that Judge Perry has full jurisdiction to execute the sentences he imposed. In light of the foregoing, the other point raised on appeal will not be discussed.

Reversed.


author: SMITH, Judge.

text:
    Derrick Leverne SMITH and Fred Lee Brown, Petitioners, v. STATE of Florida, Respondent.
    No. JJ-122.
    District Court of Appeal of Florida, First District.
    March 23, 1978.
    Rehearing Denied April 4, 1978.
    Clinton H. Coulter, Jr. of Duvall & Coulter, Tallahassee, for petitioners.

      Robert L. Shevin, Atty. Gen., and Charles Musgrove, Asst. Atty. Gen., Tallahassee, for respondent.
   SMITH, Judge.

Petitioners are charged with the life felony of committing a sexual battery by penile-vaginal penetration of a woman aged 25, without her consent, and in the process using or threatening to use a deadly weapon or using actual physical force likely to cause serious personal injury. Sec. 794.-011(3), Florida Statutes (1977). The circuit court denied petitioners release on reasonable bail on the ground that the proof of guilt is evident or the presumption great. Petitioners went forward with the evidence before the trial court and adduced the testimony of all likely witnesses. No weapon was involved. The complaining witness testified:

Q. You said that your arm was behind you?
A. Oh, yes. All of the time. And I said, “Oh, my God.” And Derrick [Smith] had his arms, you know, around my head. And this arm was behind me all of the time. And I said, “Oh, my God, please don’t hurt me.”
Q. Were they holding your arm behind you?
A. Yes, they was.
Q. What is wrong with your arm, Audrey?
A. I had a stroke when I was in the ninth grade.
Q. Did they hurt you?
A. Yes, they really did. They bruised me and, you know, I saw a welt when I was — let me see, that night Mama said, — I took a bath and I saw a welt, you know, on me, I couldn’t bear it.

The officer who witnessed and interrupted the assault by the third of three men testified that the victim’s “crying and begging him to stop” could be heard throughout the house over music which was “playing real loud.”

Force likely to produce “serious personal injury” is defined by Section 794.-011(1)(e) as force likely to cause “great bodily harm or pain, permanent disability, or permanent disfigurement.” In their application for bail on this alleged life felony, the burden was on petitioners to show from the evidence that the proof is not evident or the presumption great. “If [the evidence] establishes no more than a probability of guilt bail should be granted.” Larkin v. State, 51 So.2d 185 (Fla.1951).

There is no evidence of the use of force likely to cause permanent disability or disfigurement. The question is whether there was evident proof of force likely to cause great bodily injury or great pain. A welt is not great bodily injury, and there is no evidence of force having a likelihood to cause great bodily injury. There was evident proof of great pain — proof given by the woman and corroborated by the officer. Given the triple assault, the victim’s physical impairment, and the wrenching of her lame arm, there was evident proof of great bodily pain. The measure of proof required by State ex rel. Hyde v. Thursby, 184 So.2d 505 (Fla. 1st DCA 1966) was satisfied.

The petition is DENIED.

McCORD, C. J., and ERVIN, J., concur.


author: LETTS, Judge.

text:
    STATE of Florida, Appellant, v. Raymond THOMPSON, Appellee.
    No. 77-1553.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1978.
    Rehearing Denied May 4, 1978.

      Michael J. Satz, State’s Atty., William W. Herring and Patti Englander, Asst. State’s Attys., Fort Lauderdale, for appellant.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   LETTS, Judge.

The State takes this appeal pursuant to Chapter 924.071 Fla.Stat. (1975), from an order suppressing evidence by reason of a defective search warrant. We reverse.

Having once successfully appealed a criminal conviction, a defendant is not entitled, during a new trial, to again raise matters previously expressly passed upon and found to be without merit by the appellate court.

Appellant was originally convicted of possession of both cocaine and marijuana and based his first appeal to this court on several grounds. In reversing the convictions, and ordering a new trial, Judge Owen said:

“Of the several points he urges as error on appeal, WE FIND MERIT IN ONLY ONE, that relating to improper and prejudicial remarks made by the prosecutor in his closing argument to the jury.” (Emphasis supplied). Thompson v. State, 318 So.2d 549, 550 (Fla. 4th DCA 1975).

One of the points raised in that appeal was that:

“THE COURT ERRED BY HOLDING THE SEARCH WARRANT TO BE VALID AND IN ALLOWING INTO EVIDENCE ITEMS SEIZED FROM A PREMISE NOT DESCRIBED IN THE WARRANT.”

Under the heading of the above quoted point on appeal, the appellant argued, in particular, that the wording of the warrant was insufficient to permit a search of the curtilage. This is exactly the same argument which he successfully raised again during the new trial.

In our opinion, by finding that only one point on appeal had merit, Judge Owen affirmatively rejected the argument that this warrant was invalid. This being so, the question of its validity became the law of the case. Accordingly, it was error for the trial judge, during the pendency of the new proceedings, to grant a motion to suppress the evidence seized, because of the insufficiency of the very same warrant.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

ALDERMAN, C. J., and MOORE, J., concur.


text:
    Vincent A. BRODA, Appellant, v. The CITY OF MIAMI, a Municipal Corporation, et al., Appellees.
    No. 77-15.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Rehearing Denied May 5, 1978.
    Sam H. Nedelman, South Miami, for appellant.
    George F. Knox, Jr., City Atty., and Sherman Bennett Mayor, Asst. City Atty., for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of City of Miami v. State ex rel. Groner, 164 So.2d 26 (Fla. 3d DCA 1964); City of Miami v. Shires, 167 So.2d 22 (Fla. 3d DCA 1964); Gallegos v. Bailey, 180 So.2d 210 (Fla. 3d DCA 1965).


author: HENDRY, Judge.

text:
    Dale WHITTEN et al., Appellants, v. MIAMI-DADE WATER & SEWER AUTHORITY et al., Appellees.
    Nos. 77-343, 77-484.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Rehearing Denied May 2, 1978.

      Horton, Perse & Ginsberg, Miami, Bernard H. Butts, Jr., Hialeah, for appellants.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HENDRY, Judge.

This consolidated appeal is taken from a summary final judgment and amended summary final judgment rendered in favor of appellees/defendants and against appellants/plaintiffs in a personal injury action.

Appellants, six in number, consisting of two members of the Hialeah Police Department and four members of the Hialeah Fire Department, responded to an emergency call by proceeding to a water plant located in Hialeah and operated and controlled by appellee Miami-Dade Water & Sewer Authority. Upon arrival, appellants discovered a heavy chlorine gas fog enveloping the area. Upon the realization of the dangerous condition, appellants went about their primary duties, i. e. the evacuation of occupants from nearby apartments and the diverting of traffic away from the area. Once the safety of the local populace had been effectuated, appellants’ concern was directed to the task of finding the source of the escaping gas and stopping the leak. While the others remained outside, appellant Carlton entered the premises and, after some time, discovered the source of the leak, a corroded pipe, and rectified the situation. In fulfilling their duties, however, appellants allegedly suffered chlorine gas poisoning.

Subsequently, appellants filed a personal injury lawsuit against Miami-Dade Water & Sewer Authority alleging, inter alia, negligence on the part of appellee in the maintenance and care of its plumbing system at the plant. Appellants claimed that by virtue of the aforementioned negligence, ap-pellees were strictly liable to appellants, as the chlorine gas is an inherently dangerous substance.

After discovery, both appellants and ap-pellees moved for summary final judgment. Appellants’ motions were denied, while ap-pellees’ motion was granted. An amended summary final judgment was later rendered. From the summary final judgment and amended summary final judgment, this consolidated appeal has been taken.

Appellants have raised two points on appeal. Point number one challenges the correctness of the trial court’s entrance of summary final judgment, while point number two raises the contention that the trial court erred in denying appellants’ motions for summary judgment on the issue of ap-pellees’ strict liability for the damages sustained by appellants.

For the following reasons, it is our opinion that no error has been committed.

It is well settled that Florida is among the majority of states that hold that an owner or occupant of premises is not liable to a policeman or fireman for injuries sustained on the premises by virtue of a negligently created condition which necessitated the policeman’s or fireman’s presence on the premise in discharge of his duty. Romedy v. Johnston, 193 So.2d 487 (Fla. 1st DCA 1967); Anno: “Duty and Liability of Owner or Occupant of Premises to Fireman or Policeman Coming Thereon in Discharge of his Duty,” 86 A.L.R.2d 1205 (1962). Once upon the premises, the fireman or policeman has a legal status of a licensee and the sole duty owed him by the owner or occupant of the premises is to refrain from wanton negligence or willful conduct and to warn him of any defect or condition known to the owner or occupant to be dangerous, if such danger is not open to ordinary observation by the licensee. Adair v. Island Club, 225 So.2d 541 (Fla. 2d DCA 1969).

There would seem little doubt that appellant Carlton, upon entering the premises in an attempt to discharge his duties, was fully cognizant of the observable danger and thus, fits squarely within the well-established law as set forth above. Counsel for appellants, however, attempts to distinguish the above cited cases on the grounds that the decisions rendered there were solely predicated upon the fact that the police officer and fireman possessed licensee status. Sub judice, appellants contend that because five out of the six appellants never actually entered the plant, they could not be classified as licensees. Rather, appellants, argue, appellees were strictly liable to appellants (as they would likewise be strictly liable to the general public) for the injuries sustained, by virtue of appellees’ negligent maintenance and handling of an inherently dangerous substance.

The issue we are faced with, then, is whether the same duty owed by the owner or occupant of premises to a policeman or fireman who is injured upon the premises while in the discharge of his professional duties likewise applies to a policeman or fireman whose injuries stem from the same discharge of professional duties but do not actually occur on the premises. We answer the question in the affirmative.

Faced with a similar issue, a California court, in the case of Scott v. E. L. Yeager Construction Co., 12 Cal.App.3d 1190, 91 Cal.Rptr. 232 (Cal. 4th DCA 1970), held that, pursuant to the so-called “fireman’s rule,” a negligent defendant who creates an apparent risk which is of the type usually dealt with by firemen and which is the cause of the fireman’s presence and the source of his injury will not be liable to the fireman, notwithstanding the fact that the injury did not occur on the defendant’s property. The applicability of the rule, as opined by the court, should be based upon whether the negligently created risk which resulted in the fireman’s injury was the reason for his being at the scene in- his professional capacity. Supra at 235.

While decisions in Florida admittedly rely upon an invitee vs. licensee distinction, Hall v. Holton, 330 So.2d 81 (Fla. 2d DCA 1976); Adair v. Island Club, supra; Romedy v. Johnston, supra, rather than the “fireman’s rule,” it is our opinion that the rationale of the latter is particularly applicable to the facts of this case. Sub judice, all appellants were present at the plant and in the performance of their professional duties when they were allegedly injured by the noxious fumes. To say that appellant Carlton is barred from recovery (as a licensee) by virtue of his having the misfortune of actually entering the premises, while his comrades, who stationed themselves adjacent to the property, are permitted to maintain a cause of action under either a negligence theory or strict liability, would not only defy logic, as well as common sense, but would create an inequitable result.

In conclusion, we hold that appellants are barred from recovery against appellees. Our holding, at least as far as the five appellees are concerned, is not based upon an invitee-licensee distinction, but rather upon an affirmative response to the query of whether appellants were acting in discharge of their professional duties when they were allegedly injured. As succinctly stated in Romedy v. Johnston,

“It is a matter of common knowledge that in the performance of their duties firemen are constantly exposed to dangerous and hazardous conditions. They face the risk of injury from exposure to fire, smoke, and collapsing structures. These are risks assumed by those voluntarily seeking and accepting this type of employment. The injurious effect of coming in contact with fire and smoke is exactly the same, whether the fire originates as the result of an accident or the negligent acts of the owner of the premises. It is in recognition of the public nature of the duties performed by firemen, and the dangers inherent therein, that both state and municipal pension funds are established to compensate them in the event they suffer injury or death while acting in the course of their employment.” Supra at 491.

Of course, for all practical purposes, the “licensee” concept is no different from the “discharge of duty” concept, with the one exception being that the latter has a more widespread application, as the facts sub ju-dice disclose. We therefore find no reason to abandon the cases cited herein which utilizes the “invitee-licensee” distinction in ascertaining the applicable standard of care owed by a landowner or occupant to a police officer or fireman who enters upon premises in the discharge of his duty and is injured thereon. Additionally, we point out that upon either theory, wilful conduct or wanton negligence on the part of the owner or occupant of the premises will be held actionable. Scott v. E. L. Yeager Construction Co., supra, 91 Cal.Rptr. at 238; Adair v. Island Club, supra. Sub judice, the record does not reflect that appellees’ conduct amounted to anything more than simple negligence.

Accordingly, after carefully reviewing the record and briefs, it is our opinion that the summary final judgments appealed from must be affirmed.

Affirmed.


author: NATHAN, Judge.

text:
    CRAWFORD DOOR SALES COMPANY and American Home Assurance Company, Appellants, v. David BRAUN et al., Appellees.
    No. 77-491.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Rehearing Denied May 5, 1978.

      Greene & Cooper, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Richman & Greer, Miami, Weaver & Weaver, Fort Lauderdale, for appellees.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   NATHAN, Judge.

By this appeal, appellants urge that the trial court erred in entering judgment in accordance with a settlement incorporated into the record, asserting that the requirements of Florida Rule of Civil Procedure 1.030(d) were not met and that there existed no valid settlement agreement which could have been recorded. We disagree. Both the law and the record support the correctness of the judgment as entered, and we affirm the order of the trial court.

The action giving rise to the events pertinent to this appeal was a products liability suit against multiple defendants brought by appellees herein, plaintiffs below, David and Sylvia Braun and Allied Leisure Industries, Inc., each acting individually and for the use and benefit of Aetna Insurance Company, their fire insurance carrier. Plaintiffs sought compensation for substantial property damages which resulted from the spread of a fire throughout the Allied Leisure manufacturing facility when defective fire doors failed to close.

Suit was brought against Crawford Door Sales Company (Crawford), which sold and installed the doors, Highlands Insurance Company, Crawford’s primary insurer, Cel-otex Corporation, which designed and manufactured the doors, and Aetna Casualty and Surety Company (Aetna Casualty), Cel-otex’s insurer. A jury verdict was rendered in favor of Celotex and Aetna Casualty, and against Crawford and its insurers.

Only Crawford and its excess carrier, American Home Assurance Company (American Home) are appellants herein. Although American Home was not a party defendant in the original action, it is an appellant here because final judgment was entered against it in accordance with the settlement to be discussed, infra. Initially, the interests of American Home were informally represented by James A. Smith, counsel for Crawford and its primary insurer. But prior to the conclusion of the trial, American Home retained independent counsel, Michael Sikes. Plaintiffs Braun and Allied Leisure were represented by James D. Little. Plaintiff Aetna Insurance was represented by Ben Weaver.

On the evening before the last day of trial, Mr. Sikes contacted Messrs. Little and Weaver, and later Mr. Smith, in an effort to reach a settlement. His client, American Home, feared the possibility of an excess judgment and sought to confine its liability in the event of an adverse verdict to the limits of its policy coverage. Mr. Sikes endeavored to convince Messrs. Little and Weaver to agree to a settlement with Crawford in the amount of $1,100,000, the combined limits of Crawford’s primary and excess liability coverage. However, Little and Weaver would not agree to a total settlement with all defendants of less than $2,200,000, and so informed Mr. Sikes. They did not reject the settlement offer from defendants Crawford and Highlands, but neither did they accept it at this juncture.

Mr. Sikes then authorized Mr. Smith to place the offer of $1,100,000 in the record on behalf of defendant Crawford and its insurers, and departed for the weekend, before trial resumed. Mr. Smith did place the offer on the record the following morning, out of the presence of the jury. Neither Mr. Sikes nor any representative of American Home was in the courtroom at the time, but it is undisputed that Mr. Smith acted as authorized by Mr. Sikes when he stated:

Your Honor, for the record, I would like to answer that, after all the testimony has been concluded and my client has evaluated this situation in the form of damages that may be awarded in this case, I answer to everybody that our clients, and not my particular client, but the primary and excess carrier, that the total and final offer we would make would be $1,100,000.

Counsel for plaintiffs did not accept the offer at that time.

After the jury retired for deliberation, Messrs. Little and Weaver told Mr. Smith that they would accept the $1,100,000. Because he was uncertain of whether he could accept the offer once the jury had so retired, Mr. Smith indicated that he thought they should confirm the acceptance with Mr. Sikes. (They did so later that day by sending him a telegram.) After this conversation, Mr: Smith voluntarily left the courtroom, and Mr. Little, in the presence of the trial judge, the court reporter, Mr. Weaver and counsel for Celotex and its insurer, accepted the $1,100,000 offer. The acceptance was entered in the record.

The jury returned several hours later with a verdict. It found against Crawford and its insurers in the amount of $400,000, and found Celotex not guilty. The verdict was entered on the record.

When American Home informed plaintiffs’ counsel that it took the position that there had been no settlement, plaintiffs moved for judgment in accordance with the settlement. The court promptly conducted a hearing at which the transcript was reviewed and testimony taken from the respective attorneys, whereupon the trial court entered a final judgment in the amount of $1,100,000 plus interest, “pursuant to the settlement.”

The trial court stated:

I was the trial judge in this case, and I heard the tenor of the case, and I listened to the conversations between the attorneys both off the record and on the record, and there is no doubt in my mind that this was a settlement for $1,100,000 while the jury was out, and I know and so rule that the figure to be derived from Mr. Smith’s client and his excess carrier, Mr. Sikes, was a settlement figure of $1,100,000.
I will enter an order today confirming that settlement.
Conversely, if the jury had come back with a verdict of $4,000,000 against Mr. Smith and Mr. Sikes, I would have confirmed the judgment for $1,100,000, on the other side of the coin.

Appellants first assert that since Mr. Smith was uncertain of his authority to settle once the jury retired to deliberate its verdict, and that since both sides were not present in the courtroom at the time appel-lees accepted the offer, no “agreement” between the parties was before the court. They contend that the requirements of Florida Rule of Civil Procedure 1.030(d) were not met.

The rule states:

(d) Stipulations. No private agreement or consent between parties or their attorneys shall be of any force unless the evidence thereof is in writing, subscribed by the party or his attorney against whom it is alleged; provided that parol agreements may be made before the court if promptly made a part of the record or incorporated in the stenographic notes of the proceedings and agreements made at depositions which are incorporated in the transcript thereof need not be signed when signing thereof is waived. (Emphasis supplied).

Examination of the record and of the authorities cited to us offers no support for appellants’ position. Mr. Smith was specifically authorized to place the offer on the record, and voluntarily withdrew from the courtroom when plaintiffs’ counsel informed him that they were accepting the offer. The acceptance was immediately placed in the record. At the hearing conducted prior to the trial court’s ruling on appellees’ motion for judgment in accordance with the settlement, Mr. Sikes affirmed the fact that he had never withdrawn the offer nor set a time limit for its acceptance.

We hold that the parties’ parol agreement was properly before the court and promptly made a part of the record in full compliance with the mandate of Rule 1.030(d). See Ryder v. MacKenzie, 235 So.2d 36 (Fla.3d DCA 1970). But cf. Arnold v. Arnold, 292 So.2d 384 (Fla.3d DCA 1974) and O’Neal v. McElhiney, 172 So.2d 492 (1st DCA 1965) (agreement not before the court or promptly incorporated in the record).

Appellants’ next argument, that under ordinary contract principles there was no settlement agreement, is premised on three assertions: (1) lack of consideration; (2) termination of the offer when trial proceeded; and (3) rejection through counter-offer. These assertions are refuted by facts contained in the record.

As to consideration, plaintiffs’ forbearance to accept the jury verdict and defendants’ desire to preclude an excessive verdict constitute mutual detriments sufficient to support legal consideration. Appellants’ argument that the offer to settle terminated when plaintiffs completed the trial without having accepted the offer is refuted by the record. The contention that plaintiffs’ statements that they would agree to a total settlement of $2,200,000 constituted a counter-offer which operated as a rejection of the first offer is also refuted by the record. It is clear that this was a negotiating point which related to a settlement between plaintiffs and all the defendants, not to the offer to settle between Crawford and the plaintiffs.

The record reflects that appellants’ offer was a continuing offer, there was no rejection by counter-offer, the offer was accepted in the courtroom before the jury rendered its verdict, the acceptance was promptly made a part of the record, and the entire situation was reviewed by the trial court at a hearing devoted to a consideration of just these issues. The decision of the trial court is affirmed.

Affirmed.

      . The limits of Highlands’ policy were $100,-000. Highlands was content to bear the burden of recovery against it for this sum, and did not join in this appeal. This insurer is a nominal appellee herein.


author: RYDER, Judge.

text:
    William J. LAMB, Appellant, v. STATE of Florida, Appellee.
    No. 76-839.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.
    Rehearing Denied May 4, 1978.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant Lamb was convicted and sentenced for the crimes of aggravated assault, carrying a concealed firearm, and resisting an officer with violence. He contends that the trial court erred when it permitted, over objection, and during the State’s case in chief, an investigating police officer to testify regarding statements the victim made to him which were consistent with the victim’s testimony previously received in evidence. We agree and reverse.

After appellant was charged with the aforementioned crimes, he entered a guilty plea to the concealed firearm charge, but pleaded not guilty and proceeded to trial on the two remaining counts. The jury found appellant guilty in both instances. He was adjudicated guilty of all three charges, and was sentenced to a term of three years “under the new mandatory gun law.”

During the trial Sandra Davis, appellant’s girlfriend and the alleged aggravated assault victim, testified that she, the appellant and others were drinking beer at an apartment. While she and appellant were alone in the kitchen, appellant grabbed her by the neck, placed a gun to her temple, and stated he was going to kill her. Appellant did not harm her and left immediately. Davis then called the police. No eyewitnesses to this event other than Davis were produced.

An Officer Potts, responding to Davis’ phone call, later arrived at the apartment whereupon Davis described the events to him. Over objection, Potts was permitted to testify that Davis had stated appellant had pointed a gun at her head, threatened to kill her, and that she was scared. On cross-examination, Davis testified that although she was seared at the time appellant placed the gun at her head, she later felt appellant did not intend to harm her.

We feel error was committed by the allowance of Potts’ testimony concerning Davis’ prior consistent statement as it violates the rule that a witness’s prior consistent statement may not be used to corroborate that witness’s trial testimony. In Roti v. State, 334 So.2d 146 (Fla. 2d DCA 1976), the defendant was charged with and convicted of receiving or aiding in the concealment of a stolen diamond ring. At trial a David Blackmer admitted he stole the ring and sold it to Roti. Blackmer also testified he told Roti the ring was stolen. A police officer was permitted to testify, also over objection, as to statements made to him by Blackmer during which Blackmer stated he had advised Roti the ring was stolen. This, of course, was consistent with Blackmer’s previous testimony. This court reversed Roti’s conviction and ordered a new trial holding that it was error to permit the police officer to testify concerning the prior consistent statement made to him by Black-mer. Roti was followed by this court in Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977). In Brown, the defendant was convicted of committing a lewd and lascivious act in the presence of a child under the age of fourteen. During trial, a police officer testified as to statements made to the victim’s mother by the victim concerning various details of the actions of the victim and appellant, which the victim’s mother had related to the officer at the police station. The victim’s mother then testified as to the same statements. The victim was called as a witness and proceeded to essentially track the recital related by the police officer and her mother. In reversing Brown’s conviction and awarding him a new trial, we stated the police officer’s testimony “had the immediate effect-of putting a cloak of credibility upon the succeeding testimony of the mother and the victim.” 344 So.2d at 643.

In the instant case, the State argues that Potts’ testimony regarding Davis’ prior consistent statement was not error because it served to clear up the ambiguity in Davis’ testimony regarding her fear at the time appellant placed a gun at her head. Alternatively, the State urges that Davis’ statement to Potts was admissible as part of the res gestae. We find both arguments unpersuasive. First, Davis’ testimony was not ambiguous. She testified she was indeed scared when appellant placed the gun at her head but, felt only upon later reflection, that appellant did not intend to harm her. She never testified that she was not seared at the time appellant held a gun to her head. Second, Davis’ statement is not admissible as part of the res gestae. This statement was made to the police after they arrived at her apartment in response to her telephone call. By the time the police arrived, the events of the crime had long occurred and terminated. Further in fact, Ms. Davis had time in which to reflect upon her statement.

For the above reasons, appellant is entitled to a new trial on the aggravated assault charge. Appellant pleaded guilty to the offense of carrying a concealed firearm, and the arguments in his brief do not question the validity of appellant’s conviction for resisting an officer with violence. Moreover, there is competent substantial evidence in the record to support appellant’s conviction for carrying a concealed firearm and resisting an officer with violence.

Turning to the sentencing of appellant, however, we also find error. Appellant was adjudicated guilty of all three charges and sentenced to three years “under the new mandatory gun law.” The sentence does not specify the crime to which the mandatory gun law is applicable. Further, the sentence imposed fails to apportion the sentence among the three offenses. See Darden v. State, 306 So.2d 581 (Fla. 2d DCA 1975).

The aggravated assault charge is an offense subject to the mandatory three year sentence of Section 775.087(2), Florida Statutes (1975). The offense of carrying a concealed firearm is not subject to the mandatory three year sentence requirement of Section 775.087(2), Florida Statutes (1975), nor is it subject to the enhanced sentencing provision of Section 775.087(1), Florida Statutes (1975), since the use of the firearm is an essential element of the offense of carrying a concealed firearm. Appellant’s conviction for resisting an officer with violence is not subject to the mandatory three year sentencing requirement of Section 775.087(2), Florida Statutes (1975), but is subject to the enhanced sentencing provision of Section 775.087(1). The record reflects appellant carried a firearm during the commission of that crime.

In sum, appellant’s convictions for carrying a concealed firearm and resisting an officer with violence are affirmed, but these cases are remanded for resentencing in light of Section 775.087, Florida Statutes (1975), and Darden v. State, supra. Appellant’s conviction for aggravated assault is reversed and the cause remanded for a new trial.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

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


author: DANAHY, Judge.

text:
    In re the MARRIAGE OF Barbara E. JONES, Appellant, and Luther G. Jones, Appellee.
    No. 77-472.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.
    Rehearing Denied May 4, 1978.

      Charles J. Cheves, Jr., of Cheves, Hazen & Rapkin, Venice, for appellant.
    Herbert W. Biggs, Hobe Sound, for ap-pellee.
   DANAHY, Judge.

The wife appeals from a final judgment of dissolution of marriage which is silent on the subject of alimony. We are called upon to determine whether, under the facts of this case, it was an abuse of discretion on the part of the trial judge to make no award of alimony to the wife. We find that it was.

The parties were married for 23 years and are the parents of three children, all of whom are now adults. The wife is 43 years of age and the husband is ten years older. They were both employed throughout the marriage. Her income was an essential contribution to the family living expenses, particularly during the first eleven years of the marriage when the husband was in the military service.

Until 1967 the wife was employed by various telephone companies. From 1967 until the final disruption of this marriage, she was employed to maintain the office and do the book work for a mobile home sales company of which the husband is president and general manager. During the years 1971 to 1975, the husband’s annual income from the company and his military retirement ranged from $14,624 to $19,275. During the same period of time, the wife’s income from her employment with the company ranged from $5,200 to $7,800.

The parties were working partners during the marriage, and their respective incomes went to accumulate their assets which, except for some items of personal property, are all jointly owned. They enjoyed a standard of living which was based upon their combined incomes. In addition to their marital residence, their other major assets include a savings account, an interest in five lots and mobile homes, property in Arkansas, 20% of the stock of the company which the husband manages, and notes of the company in the amount of $60,000. The total net value of their joint assets is about $250,000. However, the corporate notes of the mobile home sales company will be difficult to collect in the foreseeable future. The husband testified he did not know when these loans would be repaid to the parties since the company was deeply indebted.

The wife is in good health, has a high school education, and has about a year and a half of college credits in music. After the separation of the parties, it was not possible for her to continue to work in close quarters with the husband in his company office. The record discloses the practical difficulties she had in attempting to become reemployed by a telephone company. Shortly after the disruption of the marriage and their separation, she did obtain employment as a bank teller, earning $433 per month.

The husband’s separate income is $1,650 per month from his regular company pay and his military retirement check. In addition to that sum he realizes other income and cash equivalent fringe benefits by reason of his position with the company. The company furnishes his transportation, allows him entertainment expenses and provides him with the use of a mobile home residence. And finally, he receives an unspecified but admittedly substantial sum from a company related enterprise.

In Sisson v. Sisson, 336 So.2d 1129 (Fla.1976), the supreme court reminds us that the primary criteria to be used in determining an award of alimony are the husband’s ability to pay and the needs of the wife, taking into consideration their shared standard of living during the marriage. Tested by these criteria, the facts here clearly demonstrate that the trial court should have awarded alimony, as the wife requested in her petition.

It is manifest that the wife’s present income is not sufficient to enable her to even approach the standard of living which the parties enjoyed during their marriage. On the other hand, the husband’s present income, including his cash equivalent fringe benefits, is at least four times greater than hers. His standard of living will be reasonably commensurate with that which he enjoyed during their marriage.

The evidence shows that the wife’s em-ployability on the open job market is not accurately measured by the income she was earning while working for the company managed by her husband. The husband admitted that on her present income she could not enjoy the standard of living they had enjoyed together. He also admitted that he had the present ability to pay alimony. The facts in the record before us demonstrate such a substantial present disparity between the income of the wife and that of the husband that he should be required to contribute to her income where, as here, her present need is clear. Gall v. Gall, 336 So.2d 10 (Fla.2d DCA 1975). Accord, Lash v. Lash, 307 So.2d 241 (Fla.2d DCA 1975).

It is true that an equal division of their jointly owned assets as intended by the trial court will give each of the parties property from which they each may well derive income. But, while such income from her portion of the property might later be considered in any review of alimony, along with any other material changes in the circumstances of the parties, the wife is not required to erode her capital to maintain some semblance of the style of living which she and the husband have enjoyed. Gordon v. Gordon, 204 So.2d 734 (Fla.3d DCA 1967).

We are not unmindful that the parties here owe joint obligations requiring substantial monthly installment payments. When the trial court hereafter makes an award of alimony, he should take these factors into consideration together with all other factors present in this case. And when he fashions the award, the trial court may, of course, find it appropriate to award rehabilitative alimony, lump sum alimony, periodic permanent alimony, lump sum alimony payable in installments, or a combination of these, as the circumstances may require. See Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975).

The wife urges, as an additional basis for overturning the judgment below, the failure of the trial court to deal properly with the division of the parties’ jointly owned property, both real and personal. In her petition for dissolution of marriage, the wife requested a partition of all jointly owned property. The final judgment did not provide for partition of the parties’ jointly owned personal property and ordered only the following with regard to the marital residence:

The court grants a partition and sale of the marital residence upon appointment of a special master and conclusion of said proceeding.

The allegations of the wife’s petition substantially complied with the requirements for partition of real and personal property pursuant to Chapter 64, Florida Statutes (1975). It was, therefore, appropriate for the court to proceed with partition of the jointly owned property, but affording the parties a fixed reasonable time within which to make a voluntary sale of all or part of such property for cooperative maximization of the sales price. Carlsen v. Carlsen, 346 So.2d 132 (Fla.2d DCA 1977). In proceedings hereafter that procedure should be followed and the court should reserve jurisdiction to review and enforce the mechanics of partition as they are set forth in the statute. Sanders v. Sanders, 351 So.2d 1126 (Fla.2d DCA 1977).

This case is reversed and remanded for the entry of an award of alimony, partition of the jointly owned property, both real and personal, pursuant to Chapter 64 to the extent that said property is not voluntarily sold by the parties, and for other proceedings not inconsistent with this opinion.

BOARDMAN, C. J., and OTT, J., concur.

      . The final judgment contains the finding, which is not disputed, “that the parties were equal partners during their marriage and are equal partners upon dissolution in all their jointly held assets.”


author: MELVIN, Judge.

text:
    James W. GEIGER and Duval Teachers United, an unincorporated labor organization, Appellants, v. DUVAL COUNTY SCHOOL BOARD, Appellee.
    No. DD-464.
    District Court of Appeal of Florida, First District.
    March 30, 1978.
    Rehearing Denied May 3, 1978.

      William H. Maness, Jacksonville, for appellants.
    Dawson A. McQuaig, William Lee Allen, Jacksonville, for appellee.
   MELVIN, Judge.

Appellants-defendants seek review of a final judgment entered in favor of appellee-plaintiff (Duval County School Board). Plaintiff sought an injunction to restrain James W. Geiger and Duval Teachers United from engaging in certain activities in connection with the efforts of the defendants to obtain a teachers’ contract with Duval County School Board that would be acceptable to defendants. ■

After considering extensive testimony offered by the parties the court entered its final judgment, and we think it to be beneficial to set forth pertinent portions thereof:

“The Court makes the following findings:
“1. This action and the companion consolidated action 76-9208-CA arose out of a threatened illegal strike by members of Duval Teachers United by reason of the failure of the parties to agree upon a contract for the current school year.
“2. At the time of the filing of this action and of the counterclaim, the defendant Duval Teachers United was the exclusive bargaining agent for teachers and teachers aides in the Duval County School System and the defendant James W. Geiger was president of that organization.
“3. In the companion consolidated action, case No. 76-9208-CA, the Court entered an order on September 8, 1976, which is still in force and effect, containing the following:
“ ‘3. Until the further order of the Court, the parties shall continue to operate under the expired agreement with regard to wages, insurance, dues deductions and mail service, provided that the defendant Duval Teachers United, its members, representatives and all other persons are restrained and enjoined from using the inter-office mails for the school system or the bulletin board at any school or office building of the school system for the publication or dissemination of any writings, posters or other documents containing any critical, caustic, scurrilous or abusive matter of or concerning the School Board, its members, the Superintendent of public schools and negotiators or for urging or encouraging any teacher or other employee of the school system to strike or absent himself or herself from the assigned post of duty of such person.’
“4. At the time this action was filed, the Duval County School Board had established the following regulation or policy with regard to meetings and visitations by representatives of Duval Teachers United with teachers:
“ ‘MEETINGS AND VISITATION
“ ‘DTU members may hold meetings before or after the teachers’ normal work assignment on campus, provided such meetings do not conflict with other school activities or assigned duties of teachers.
“ ‘Representatives of the DTU may visit with teachers at school locations before or after school or during the lunch period, insofar as such visits shall not conflict with other school activities or assigned duties of teachers. DTU representatives may visit school locations at other times subject to the approval of the school Principal or the Assistant Superintendent for Personnel.
“ ‘In any event, DTU representatives shall report their presence to the Principal at the time of entry on school premises.’
“5. In the ‘Interim Order’ entered in this action on October 12, 1976, the Court made (and hereby confirms) the following findings:
“ ‘(a) Beginning September 30, 1976, and continuing through October 7, 1976, members and representatives of the Duval Teachers United have visited many schools in Duval County on the pretense or pretext that they had come to talk with teachers about the ‘issues in collective bargaining’ or to distribute materials.
“ ‘(b) In some instances, prior notice or information was given to one or more T-V stations by the Duval Teachers United representative as to the time of the visits, and on such occasions T-V cameras and T-V personnel were present when the representatives arrived.
“ ‘(c) In substantially all instances, the principal of the particular school has offered a suitable room or office to the representatives of Duval Teachers United for a meeting and offered to cooperate in giving teachers notice of the meeting, but the Duval Teachers United representatives have defiantly and arbitrarily gone to the teachers’ lounge over the objection of the principal; or, having gone into the teachers’ lounge without the principal’s knowledge, the Duval Teachers United representatives have refused to leave the lounge. Police were called and arrests were made in more than fifteen instances.
“ ‘(d) Representatives of Duval Teachers United have been accompanied on their visits to the schools by labor representatives from Massachusetts, New York, Pennsylvania, Illinois and Tallahassee. Their defiant attitudes, the police cars, the T-V cameras and the arrested persons being led through the halls and (in some cases) through lines of students have created an intolerable situation which is detrimental to pupil and teacher alike.
“ ‘(e) Since the entry of the injunction on October 1, 1976, the Duval Teachers United representatives have not attempted ‘to take over any space’ in a school. They have merely acted arbitrarily and irresponsibly by insisting on going into and remaining in teachers’ lounges in opposition to the school principals. As a consequence, they are not in contempt, but the injunction should be broadened to prevent further such conduct.’
“6. Many teachers in the school system are not members of the defendant union, and the lounges in the schools are used by union and non-union teachers alike for eating, smoking and drinking beverages which teachers are not permitted to do in other areas of school buildings and lounges are not appropriate places for the carrying on of union activities.
“Upon consideration, it is ORDERED AND ADJUDGED:
“I. The representatives of Duval Teachers United have the right to contact, visit and meet with teachers on and in school premises before and after school hours and during lunch periods, provided the same do not conflict with assigned duties of teachers or other school activities.
“II. Duval Teachers United and its representatives have the right to use school mails and bulletin boards in schools as provided in and subject to the prohibitions contained in paragraph 3 of the order of this Court set forth in paragraph 3 above.
“HI. Any representative of Duval Teachers United who goes on school premises or into a school building for the purpose of contacting, visiting or meeting with teachers is required to so notify the Principal or other person in charge, and upon being notified, the Principal or other person in charge is required to designate a suitable room or office for the representative to confer with teachers, and shall immediately post or permit the representatives to post on the bulletin board and at the entrance to the teachers’ lounge a notice of the time and location of the meeting or conference.
“IV. There is no right to and the defendants James W. Geiger, Duval Teachers United, its members, agents, representatives or any person acting therefor, are restrained and enjoined from going on or in the school premises, offices, or buildings of the Duval County School System and from using school mails for the purpose of distributing any writings, posters or other documents containing any critical, caustic, scurrilous or abusive matter of or concerning the School Board, its members, its negotiators and the Superintendent of public schools, and from going into any office or room in any such building, except such room or other space as is designated by the principal or other person in charge as herein provided.
“V. The Court retains jurisdiction to enforce and modify this judgment.”

Further insight into the problems surrounding the School Board and the Duval Teachers United in their efforts (or lack thereof) to bargain in good faith toward the entry of a contract may be found in the opinion of this court in Duval Cty. Sch. Bd. v. Florida Public Emp., 353 So.2d 1244 (Fla. 1st DCA 1978), in which we sustained the order of the Public Employees Relations Commission finding that the Duval County School Board had committed unfair labor practices in violation of applicable law in failing to engage in collective bargaining in good faith. So, we have here a situation in which, to say the least, it may be fairly said that the activities of the plaintiff and defendants fall short of the mark of leadership that the public, in all fairness, has a right to expect of its School Board and the union representing the Duval County teachers.

This appeal presents the basic issue of whether the final judgment here reviewed violates First Amendment rights vested in the Duval Teachers United and its members to communicate on school property, in a particular manner and at a particular place.

The Duval Teachers United has been duly selected as the exclusive bargaining agent for the Duval County Teachers. The Duval County School Board has the authority and responsibility, under the laws of Florida, to provide the facilities and the educational programs for the public schools of said county. Neither has the right to use any of the facilities of the school grounds, school buildings or related school properties as an arena to “slug out” their differences, which, under the law, should be settled in good faith around a conference table by those who have come with an open mind and with a purpose to negotiate with the view of reaching a just and equitable agreement considering the rights of all involved, as well as the question of finances reasonably available.

Let the parties here, and all in similar position, take heed of the obvious. The reason for the existence of school boards, educational facilities, colleges of education, supervisory and instructional personnel, union and non-union activity, is to afford, in an appropriate atmosphere, educational opportunities to the children of Florida. To this end, parents and non-parents yearly contribute of their earnings in the knowledge that the fate of this Government, the welfare and security of its citizens will soon come to rest in the hands of young citizens either educated and prepared to accept such responsibility, or uneducated and unprepared. Certainly under the First Amendment rights enjoyed by adults, students likewise are protected to the extent of having the right to speak and to learn uninterrupted by the type activity described in the trial court’s finding of fact.

In Connecticut S. Fed. of Teachers v. Bd. of Ed. Members, 538 F.2d 471 (2d Cir. 1976), the Court of Appeals considered the complaint of a minority teachers union. The substance of the complaint was that the appellees’ policy relating to teachers’ unions has the practical effect of extending an advantage to the teachers’ union that represented the majority of the teachers with the result that the minority union’s constitutional rights under the First Amendment were impermissibly trespassed upon. We have already noted in the case here considered that there is but one union involved and that union is the exclusive bargaining agency for the teachers in Du-val County. The constitutional questions, however, we perceive fall in the same broad category. We pause here to note that while school boards must meet a burden of justification in order to enforce a regulation that touches upon a teacher’s First Amendment rights, the mere assertion in a complaint that the teacher’s First Amendment rights have been infringed upon does not put the School Boards to the test. Before such test requirements may be placed upon a School Board, it is encumbent upon the teacher or teacher group to first establish that their first Amendment rights have, as a matter of fact, been imposed upon by policies adopted by the School Board. Connecticut S. Fed. of Teachers v. Bd. of Ed. Members, supra, at 479.

In a capsule, the complaint of the Duval Teachers United is that the policy of the Duval County School Board and the judgment here reviewed infringe upon their constitutional rights by placing a limitation upon the use, by Duval Teachers United and its representatives, of the school mailboxes, bulletin boards and a limitation upon the representatives of the union in visiting with the teachers in any place other than the room or area designated by the principal of the school. It is to be noted that the principal of the school, when notified by a representative of the Duval Teachers United of a desire for space to meet with its teacher members, is required to designate a suitable room or office for such conference, and is further required to immediately post appropriate notice on the bulletin board and the entrance to the teachers’ lounge as to the location and time for such meeting or conference.

Now, let us examine the First Amendment claim to rights of the Duval Teachers United to use the school mailbox facilities or to use the teachers’ lounge as a place for distribution of material or for a conference with teachers. In Connecticut S. Fed. of Teachers v. Bd. of Ed. Members, supra, the court dealt with this subject and pointed out that school mailboxes, bulletin boards and meeting rooms that were sought to be used by the union, in that case, were not a public forum or available generally to the public. In no particular manner do they compare to a street, park, sidewalk or other places that are almost daily used in the exercise of First Amendment rights. The court pointed out at page 481 that school mailboxes and bulletin boards are used for the primary purpose of internal communication among the teachers and other instructional personnel in school related subjects, and then pointedly stressed, at page 481:

. . The boards have no constitutional obligation per se to let any organization use the school mailboxes, bulletin boards, or meeting rooms, to communicate its views to the teachers, . whether or not the subject-matter of the communication is school-related. Since the facilities are not ordinarily open to the public, access to them for the purpose of engaging in First Amendment activities may be denied altogether. . . . ”

(Emphasis supplied)

In view of this court’s disposition of paragraph four of the final judgment, we observe that the judgment does not preclude, in any way, reasonable availability of alternative means of communication and distribution between the teachers and/or their union for discussion of educational matters or union activities or whatever they may be pleased to discuss before and after school, and during lunch periods. Further, the judgment requires the Board to furnish them a suitable meeting place. In view of our determination that Duval Teachers United has no First Amendment rights to the use of the school mailbox facilities, bulletin boards, or lunchroom, it follows that the provision granting the union the right to use such facilities but with limitation is not subject to First Amendment attack as made upon it.

The provisions of paragraph four of the final judgment must be vacated and set aside as constituting a First Amendment infringement upon the rights of the members of the Duval Teachers United and various teachers in the school system. The broad language employed in this paragraph would prevent teacher to teacher contact and teacher to teacher conversation concerning the administration that might be considered less than complimentary and viewed as sharp in their characterizing of attitudes of administration personnel.

The final judgment appealed from is affirmed with the exception of paragraph four and. the provisions of such paragraph are disapproved. The judgment is reversed with directions to eliminate paragraph four of the final judgment.

Affirmed in part and reversed in part.

SMITH, Acting C. J., and ERVIN, J., concur.


text:
    Martin CARRIZALES, Appellant, v. STATE of Florida, Appellee.
    No. 76-236.
    District Court of Appeal of Florida, Second District.
    March 31, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

WHEREAS the decision of this court (345 So.2d 1113) was entered on May 20, 1977, reversing the judgment of the circuit court of Hardee County, Florida, and awarding appellant a new trial on grounds the trial court erred in refusing to give the jury an instruction requested by appellant; and

WHEREAS the Supreme Court of Florida by its opinion and judgment filed February 23, 1978 (Case No. 51,788), 356 So.2d 274, and mandate now lodged in this court quashed this court’s judgment and remanded this cause to this court for consideration of appellant’s remaining points on appeal; and

WHEREAS this court has now considered the additional points raised on appeal by appellant and has found the same to be without merit.

NOW, THEREFORE, It is Ordered:

1. The opinion of this court issued in this cause on May 20, 1977 and reported at 345 So.2d 1113 is hereby withdrawn, as is the mandate issued pursuant thereto.

2. The opinion and judgment of the Supreme Court of Florida filed February 23, 1978 (Case No. 51,788), is hereby made the opinion and judgment of this court as supplemented by this opinion in which we find no merit in the additional points on appeal raised by appellant.

3. The judgment and sentence of the trial court appealed herein is hereby affirmed.

BOARDMAN, C. J., and GRIMES and SCHEB, JJ., concur.


author: OTT, Judge. BOARDMAN, Chief Judge, SCHEB, Judge,

text:
    STATE of Florida, Appellant, v. Christopher BECKETT, Appellee.
    No. 77-247.
    District Court of Appeal of Florida, Second District.
    March 31, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellee.
   OTT, Judge.

The state seeks reversal of the lower court’s order discharging appellee under the speedy trial rule, Fla.R.Crim.P. 3.191. I agree and reverse the order of discharge.

On July 15, 1976, appellee was arrested for attempted burglary and possession of burglary tools. Under Fla.R.Crim.P. 3.191(a)(1) the speedy trial time period for a felony is 180 days. An information was not filed until September 8, 1976. Finally, on January 10, 1977 appellee was brought to arraignment. Only seven days of the delay from arrest to arraignment were attributable to the appellee. At arraignment the appellee requested and obtained an order allowing a ten-day extension of the time to file motions attacking the sufficiency of the information. (Fla.R.Crim.P. 3.190(c) normally requires such motions to bq made on or before arraignment.) The state’s concurrent motion to toll the speedy trial period during this extension was summarily denied by the trial court. Either by coincidence or design, the last day of the 10-day extension — January 19, 1977 — was also the first day after the applicable speedy trial period (calculated without any effect of the 10-day extension on the speedy trial time prescribed by Fla.R.Crim.P. 3.191). On January 20, 1977 the appellee’s motion for discharge was filed. Prior to the hearing on the motion for discharge, the state filed, and was heard on, its motion to advance the trial date to a time within the speedy trial period (calculated with the speedy trial time being increased by the appellee’s 10-day extension). The lower court felt that the state’s motion was an attempt to “circumvent” the motion for discharge and denied the motion to advance the trial date. The motion for discharge was subsequently granted.

Florida Rules of Criminal Procedure, Rule 3.190(g), defines a continuance as “postponement of a cause for any period of time.” If a continuance or delay is attributable to the accused and is not excused, a pending motion for discharge shall, on motion by the state, be voidable by the court in the interest of justice provided that trial be scheduled and commence within 90 days. Fla.R.Crim.P. 3.191(d)(3).

In the instant case, the trial court granted appellee an additional ten days in which to file a motion to dismiss. We hold that this extension amounted to a continuance or delay by the appellee contemplated by Fla. R.Crim.P. 3.191(d)(3), effectively halted prosecution of the ease and extended the speedy trial time accordingly. It would be inconsistent for the trial court to allow the state to try the defendant within the ten days. The specific language of Fla.R. Crim.P. 3.191(d)(3) states that “[i]f a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interests of justice; provided, however, trial shall be scheduled and commence within 90 days.” Accordingly, the January 20 motion to discharge should have been denied and the state allowed 90 days within which to bring the appellee to trial.

The order of discharge is reversed and set aside and the cause remanded for further proceedings consistent herewith.

BOARDMAN, C. J., concurs specially with opinion.

SCHEB, J., dissents with opinion.

BOARDMAN, Chief Judge,

concurring specially.

The speedy trial rule provides that an accused must be brought to trial within 180 days of being taken into custody on a felony charge or on motion by the accused be discharged if he was continuously available for trial for that period of time. Fla.R. Crim.P. 3.191(a)(1). Subsection (e) clearly provides that during the time an accused is not available trial is stayed. In the typical case, running of the speedy trial rule period is tolled by the stay. See Fla.R.Crim.P. 3.191(e). The only exceptions to discharge after expiration of the 180-day period applicable to a felony offense are (1) a waiver of the rule by the accused which takes him out of the requirements of speedy trial codified in Rule 3.191 and (2) an extension of that period by order of the court which leaves the accused within the strictures of the rule.

The period within which to bring the accused to trial may be extended beyond that set out in the rule for “excusable” delays in proceeding to trial which were precipitated either by the actions of the state or of the accused. See Fla.R.Crim.P. 3.191(d)(2). If due to the state’s unexcused actions trial is not commenced during the period prescribed by the rule plus any reasonable extensions ordered for excusable delays, the accused is entitled to be discharged. See Fla.R.Crim.P. 3.191(d)(3). If trial is not timely commenced because of an unexcused delay attributable to the accused’s action, his motion for discharge will be denied. Fla.R.Crim.P. 3.191(d)(3).

I agree with Judges Ott and Scheb that at the time the motion for discharge was filed the speedy trial rule period had not expired by virtue of the ten-day allowance granted appellee from January 10 to January 19. Because Rule 3.190(c) provides that the defense of insufficiency of the information is waived unless it is challenged before or at arraignment, the ten-day allowance in which to file a motion attacking the sufficiency of the information had the effect of rendering appellee unavailable for trial as a result of his request.

The facts of the case before us, like the facts underlying several of the appellate decisions resolving speedy trial rule problems, do not fit any one provision or section of Rule 3.191. Although I believe that an extension for ten days would have been authorized under 3.191(d)(2), I do not base my decision on this point. My analysis of this problem is bottomed on what I believe is the threshold question in determination of an accused’s entitlement to discharge for failure of the state to comply with the speedy trial rule, which simply stated is: Was the accused available for trial for the prescribed period. Due to appellee’s unavailability, running of the period was tolled from January 10 to January 19, and the speedy trial period would not have expired as it otherwise would have on January 19. Accordingly, it is not necessary to determine whether the action was excused or unexcused since the delay was accounted for by tolling.

Appellee was available for trial after January 19, and the speedy trial period began running again on January 20 and should have expired on January 29. However, a second obstacle thwarted commencement of trial prior to January 29. On January 20 appellee’s attorney filed a motion for discharge based on his calculation of the expiration date as January 19 and scheduled a hearing on this motion for January 31. This panel’s common conclusion that the speedy trial rule period had not expired as of the time the motion was filed rendered the motion for discharge premature on that date and ineffective until it matured upon expiration of the period. See Fla.R.Crim.P. 3.191(d)(1). The trial court’s denial of the state’s motion to advance the trial originally scheduled for March 8 to a date within the period was predicated on this motion for discharge and what it termed the state’s attempt to circumvent the speedy trial rule.

Although in this case the premature filing of the motion for discharge ultimately proved to effectively render appellee unavailable for trial during the remainder of the speedy trial rule period, I am reluctant to conclude that the accused would be unavailable for trial as contemplated by 3.191(a)(1), (e) by filing the motion prematurely. Nonetheless, since appellee’s counsel had scheduled a hearing on the motion after the January 29 expiration date and since the trial court was determined to dispose of the motion for discharge before considering any further activity in this case, it is clear that an extension of the speedy trial period was necessary.

Subsequent to entry of the order of discharge, the state moved for an extension of the speedy trial period to allow for appeal of that order. The trial court granted an extension until the time it received the mandate of the appellate court. This was responsive to the state’s Rule 3.191(d)(2) motion. Where, as in this case, however, the appellate court reverses an order of discharge and remands for trial, the state is allowed ninety days from receipt of that mandate to commence trial. See State v. Anglin, 333 So.2d 502 (Fla.2d DCA 1976); Fla.R.Crim.P. 3.191(g).

SCHEB, Judge,

dissenting.

I respectfully dissent.

I am not persuaded that the ten days granted to appellee to file motions attacking the information amounted to a continuance under Fla.R.Crim.P. 3.191(d)(3). This subsection says in part:

If a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interest of justice; provided, however, trial shall be scheduled and commence within 90 days. (Emphasis added.)

The majority views the time granted as a continuance, and, therefore, implicitly finds the ten-day delay was “not excused” within the meaning of the Rule. If the record supported this implicit finding, I would concur in the majority opinion; however, I cannot find that it does.

Here the public defender was officially appointed to represent appellee on January 10, 1977, the day on which appellee was arraigned before the Honorable John H. Shearer, Jr., Circuit Judge. The public defender requested and Judge Shearer granted a ten-day period for the defense to attack the sufficiency of the state’s information.

Florida R.Crim.P. 3.191(d)(2) states:

The periods of time established by this Rule for trial may at any time be waived or extended by order of the court . (iv) a period of reasonable and necessary delay resulting from proceedings includ- ■ ing but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pre-trial motions, for interlocutory appeals, and for trial of other pending criminal charges against the accused. For the purposes of this Rule, any other delay shall be unexcused. (Emphasis added.)

Under the circumstances, I think the public defender’s request was “reasonable and necessary.” I, therefore, conclude that the ten-day period granted by the court was excusable and did not constitute a continuance under (d)(3).

When Judge Shearer granted the ten-day period to the public defender, the state requested that the speedy-trial time be “tolled.” I interpret this to mean that the state felt it was entitled under (d)(2) to have ten days added to the period of time in which it was allowed to bring appellee to trial. Judge Shearer denied the state’s request. I think this denial was error. The granting of the ten-day period to file motions attacking the information effectively precluded the state from bringing appellee to trial, since the ten-day period was all that remained of the speedy-trial time. It would be senseless to expect the state to bring a defendant to trial when he is still in a position to attack the charges upon which the trial is based.

If the speedy-trial time had been extended by ten days, as I suggest it should have been, it would have expired January 29, 1977, instead of January 19. Then appel-lee’s motion for discharge, made on January 20, would have been premature and should have been held in abeyance until after expiration of the speedy-trial time as extended, i.e., January 30. Fla.R.Crim.P. 3.191(d)(1).

On January 21 the state moved to reassign the case to another circuit judge, Honorable Jack R. Schoonover, for trial on January 27. The assistant state attorney who filed the motion stated that Judge Schoon-over had personally informed him of his availability to hear this case on that day. The state’s motion came on for hearing before Honorable Thomas W. Shands, Circuit Judge, on January 24. At that time Judge Shands refused to grant the motion for reassignment and advancement because appellee’s motion for discharge was pending. Judge Shands made no determination at that point as to whether a trial judge was available to hear the case on the date requested by the state. I think this was also error, since appellee’s motion for discharge was, in effect, filed prematurely.

Another question remains: Could appel-lee have been required to go to trial by having his trial date advanced on such short notice? The state by its own inaction cannot force a defendant to choose between accepting a speedy trial and thereby waiving his right to discovery and preparation of his case, or waiving speedy trial and thereby obtaining the right to discovery and preparation. See State v. Yawn, 320 So.2d 880 (Fla. 1st DCA 1975). The trial court did not answer this question.

In sum, I would hold it was an abuse of discretion by the trial court not to extend the speedy-trial time for at least the ten-day period granted appellee to file motions after his arraignment. I would remand to the trial court to determine whether a trial judge was available to try the case on January 27, and, if so, whether appellee could have reasonably been expected to go to trial on that date. If these questions were answered affirmatively, appellee should be scheduled for trial. If either were answered negatively, then appellee should be discharged.

      . The trial had been set for March 8. The state moved on January 21 to assign the case to another circuit judge for trial on January 27. This would have satisfied the speedy trial rule in that the seven-day delay plus the ten-day extension moved the 180th day from January 11 to January 28.

      . This situation is distinguishable from that where a specific and unconditional waiver is made in writing. See Thompson v. Mitchell, 353 So.2d 664 (Fla.2d DCA 1978).

      . The accused’s right to a speedy trial under the constitutional guarantee of trial within a reasonable time is not affected by a waiver of the speedy trial period set out by the Florida rules of procedure.

      . Discussion of the speedy trial rule is somewhat obscured by reference on occasion to “charging” an extension either to the accused or to the state. The scheme set out by the speedy trial rule does not contemplate that extensions of the speedy trial period are to be assessed against one party or the other.

      . Several sections of the rule imply that an unexcused delay constitutes a waiver of the speedy trial rule. A motion to discharge constitutes a demand for speedy trial within ninety days where the motion is denied due to the unexcused actions of the accused. See Fla.R.Civ.P. 3.191(d)(3).

      . Tolling of the running of the period or an extension of the period obviously has the same effect and there is no meaningful distinction between them in a situation such as the one we are considering. Nonetheless, in some instances the difference between tolling and an extension is significant. While an extension requires an order by the trial court the rule implies that tolling is an automatic result of the accused’s unavailability.

      .Under these circumstances it may well have been that a trial held before January 29 would not have afforded appellee his right to a fair trial. However, this does not affect the speedy trial issue raised by this appeal. See Sumbry v. State, 310 So.2d 445 (Fla.2d DCA 1975). Judge Grimes suggested in a special concurrence in Sumbry that where due to the state’s conduct it is necessary that the trial court grant the accused a continuance beyond the speedy trial period to protect his right to a fair trial, it would not necessarily follow that an extension of the speedy trial rule would be mandated.

      . In most instances an arraignment occurs nearer the beginning of the speedy-trial time. There the trial judge must be given considerable discretion in deciding if the speedy-trial period is to be extended or not.


author: HOBSON, Judge.

text:
    WARE CONSTRUCTION COMPANY, INC., a Florida Corporation, Appellants, v. Norman S. THOMAS et ux., et al., Appellees.
    No. 77-296.
    District Court of Appeal of Florida, Second District.
    March 31, 1978.
    Rehearing Denied May 4, 1978.

      Woodie A. Liles of Harris, Liles, McCon-naughhay & Weidner, Tallahassee, for appellants.
    Charles J. Cheves, Jr., of Cheves, Hazen & Rapkin, Venice, for appellees.
   HOBSON, Judge.

In this appeal we find that the trial court erred in construing ambiguous use restrictions, incorporated onto a recorded plat, as prohibiting development of a multi family structure on certain lots, and in failing to give effect to the clearly established intentions of the draftsmen. Consequently, we reverse the trial court’s final judgment permanently enjoining this use.

The trial transcript, when read in a light most favorable to appellees, reveals the following facts: In 1952, George Dignam and Art Mazzie owned a tract of land abutting a county road. They decided to subdivide the land and have a plat drawn. After the plat was drawn, and while the surveyor had pen and India ink in hand, Dignam and Mazzie conferred on use restrictions to be written upon, and recorded with, the plat. One of the restrictions recorded with the plat was as follows:

All lots shall have only one single family unit homes of at least 650 sq. ft. of floorspace, exclusive of carporte or garage, and septic tanks that conform to State Board of Health specifications.

After the ink on this and other restrictions had dried, Mr. Dignam noted that the lots abutting the highway were included in the above restriction. ■ He stated to Mr. Mazzie: “You don’t want to restrict these lots as single family dwellings, because this is a county road.” After some discussion about how to effectively remove the above restrictions from these lots, it appears that the surveyor recommended the following provision which was incorporated onto the plat:

No commercial, industrial, or business places to be established on any lots other than lots 4, 5, 12, 13 & 20.

Mr. Dignam later testified that it was their understanding at the time that the result of this subsequent provision was the removal of all the use restrictions imposed by the first-quoted provision. The surveyor had advised Messrs. Dignam and Mazzie that they could place whatever restrictions they wished upon these exempt lots by use restrictions placed in the deeds.

In 1975, appellant Ware purchased adjacent lots 13 and 20. At that time a duplex stood on these lots. Ware planned to build a 16-family structure on the two lots but had not decided whether to sell or lease the units. When appellees, nearby lot owners, learned of these plans, they filed this action in the trial court seeking to permanently enjoin construction of Ware’s planned development. After nonjury trial, the trial court entered final judgment ordering the permanent injunction.

The law favors the free and untrammeled use of real property. Restrictive covenants are regarded unfavorably and are, therefore, strictly construed in favor of the free and unrestricted use of the land. Ballinger v. Smith, 54 So.2d 433 (Fla.1951); Voight v. Harbour Heights Improvement Association, 218 So.2d 803 (Fla. 4th DCA 1969). Any “substantial ambiguity or doubt must be resolved against the person claiming the right to enforce the covenant.” Washingtonian Apartment Hotel Co. v. Schneider, 75 So.2d 907 (Fla.1954). Effect will be given to the intentions of the parties as shown by the language of the entire instrument in which the covenant appears, when considered in connection with the circumstances surrounding the transaction. Due regard must be had for the purpose contemplated by the parties to the covenant. Moore v. Stevens, 90 Fla. 879, 106 So. 901 (1925); Sinclair Refining Co. v. Watson, 65 So.2d 732 (Fla.1953) (en banc).

A plat is a written instrument and like all other documents must be construed as a whole in order that the intention of the parties may be ascertained and every part of the instrument given effect. Florida East Coast Ry. Co. v. Worley, 49 Fla. 297, 38 So. 618 (1905); Broward County v. Lerer, 203 So.2d 672 (Fla. 4th DCA 1967). Rejection of any part of the plat, as superfluous, should be avoided. North Lauderdale Corporation v. Lyons, 156 So.2d 690 (Fla. 2d DCA 1963). Where the plat is ambiguous, extrinsic evidence may be received in its aid. Porter v. Carpenter, 39 Fla. 14, 21 So. 788 (1897).

In the case at bar it is abundantly clear that, standing alone, the first provision restricting the use of all lots to single-family residential use would bar the development intended by Ware. However, the first provision does not stand alone. Rather, it is followed by the second, more specific, provision quoted above which limits the first provision. If the second provision applies to the intended development, then the development is not barred by the first provision. The pivotal question, then, is whether the intended development of a multi family structure for sale or lease of the individual family units is the development of a “commercial, industrial or business use” as that phrase was understood by the draftsmen at the time the plat was drawn. The plat contains-nothing which answers this question.

While the language “commercial, industrial or business places” is not defective, obscure, or insensible, it does consistently admit of two different interpretations; one encompassing the planned development and one not encompassing the planned development. Therefore, that phrase is latently ambiguous. Ace Electric Supply Co. v. Terra Nova Electric, Inc., 288 So.2d 544 (Fla. 1st DCA 1974). The trial court properly considered parol evidence of the circumstances surrounding the use of the phrase and its intended effect. However, the trial court erred in failing to give effect to the clear import of this evidence.

All the parol evidence elicited before the trial court could only be taken to mean that the draftsmen intended the latter provision to remove from the specified lots all the restrictions imposed by the earlier provision. It was clearly the understanding and intention of the draftsmen that use of the phrase “commercial, industrial, or business places” in the second provision would allow use of the specified lots for all purposes except that use otherwise permitted by the first provision. The draftsmen understood that any restrictions (such as prohibitions against multi family structures) could be later imposed on the exempt lots by deed restrictions. One of the draftsmen, Mr. Dignam, repeatedly asserted that this was the intent at the time the provisions were drafted. The trial court was bound by this, the only evidence of the intended interpretation and effect of the provisions.

We find that the trial court’s final judgment permanently enjoining Ware from constructing its multi family unit upon the lots here involved is contrary to the manifest weight of the evidence and cannot stand. In light of this disposition, we need not reach the issue of whether appellees had abandoned their right to enforce this provision by failing to challenge the construction of a duplex on the lots twelve to fifteen years before.

The final judgment of the trial court is REVERSED and the cause REMANDED for entry of final judgment in favor of the appellant.

BOARDMAN, C. J., and GRIMES, J., concur.

      .These cases deal with dedications to public use contained in plats.

      . Ibid.

      . Supra, note 1.


author: SCHEB, Judge.

text:
    David Andrew CLANTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1665.
    District Court of Appeal of Florida, Second District.
    March 31, 1978.
    Rehearing Denied May 5, 1978.
    Jack 0. Johnson, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, and Howard L. Dimmig, II, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant Clanton pled nolo conten-dere to the charge of possession of a controlled substance, specifically reserving his right to appeal the denial of his motion to suppress marijuana seized from his person. The court adjudged him guilty and placed him on probation for three years. Appellant contends the court should have suppressed the marijuana because it was seized incident to an unlawful arrest for disorderly conduct. We agree.

While on patrol in the early morning hours of March 25, 1977, Deputy Vernon Medders of the Polk County Sheriff’s Department observed several people in and around two cars parked in the Fort Meade Recreation Park. Suspecting that they might be juveniles drinking alcoholic beverages, Deputy Medders decided to check their identification. He approached one of the cars, opened the passenger door, and asked the driver to get out and produce identification.

Deputy Medders testified at the suppression hearing that appellant, who was standing beside the other vehicle, began to verbally castigate him. The deputy described appellant’s conduct as follows:

[H]e began to raise his voice and holler at me I had no damn right to open the door of the — that man’s car ... I didn’t have a Goddamn search warrant . I didn’t have the right to open the door and the man didn’t have to tell me anything ....

Deputy Medders said he then proceeded to the other car which appellant had just entered. He opened the car door, and smelling a slight odor of marijuana, requested that appellant get out of the car so he could search it. Appellant again used strong language to assert that the deputy had no right to search the car. When appellant refused to leave his vehicle, Deputy Medders took him by the hand, assisted him in getting out of the car, and placed him under arrest for disorderly conduct. The deputy then searched the car but found nothing.

After Deputy Medders transported appellant to jail, he observed two small plastic bags protruding from appellant’s pockets. He took the bags and, believing that one contained marijuana, placed appellant under arrest for possession of a controlled substance in violation of Section 893.13, Florida Statutes (1975).

Since the deputy did not have a warrant when he searched appellant, the search can be sustained, as the state concedes, only if incident to a valid arrest. Consequently we must focus our attention on the question of the legality of appellant’s arrest for disorderly conduct. We hold that appellant’s arrest was unlawful because his conduct fell within that which is protected by the First Amendment to the United States Constitution and Article I, Section 4, of the Florida Constitution.

Section 877.03, Florida Statutes (1975), defines and proscribes disorderly conduct. Because the statute could, when applied in certain situations, infringe upon the right of free speech, the Supreme Court of Florida has limited its application to verbal conduct which falls outside the ambit of constitutionally protected speech.

In State v. Saunders, 339 So.2d 641, 644 (Fla.1976), Justice Hatchett enunciated the following interpretation of Section 877.-03:

[W]e now limit the application of Section 877.03 so that it shall hereafter only apply either to words which “by their very utterance . . . inflict injury or tend to incite an immediate breach of the peace,” White v. State [Fla.], 330 So.2d [3] at 7; see Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others. We construe the statute so that no words except “fighting words” or words like shouts of “fire” in a crowded theatre fall within its proscription, in order to avoid the constitutional problem of overbreadth, and “the danger that a citizen will be punished as a criminal for exercising his right of free speech.” Spears v. State [Fla.], supra, 337 So.2d [977] at 980. With these two exceptions, Section 877.03 should not be read to proscribe the use of language in any fashion whatsoever. To this extent, we modify our previous decisions construing the statute.

339 So.2d at 644 (footnote omitted). So only “fighting words” or false words reporting a physical hazard and likely to cause harm are proscribed by' the statute.

From Deputy Medders’ testimony it is clear that it was appellant’s remarks which formed the basis of the arrest. But, did such offensive language constitute either fighting words or false words likely to cause harm? We think not.

Fighting words are those which are likely to cause the average person to whom they are addressed to fight. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 87 L.Ed. 1031 (1942). No one condones the language used by appellant or his lack of respect for the officer. Lamentably, in today’s society such outbursts are all too frequent. Nevertheless, appellant’s obviously offensive language did not amount to such a direct personal attack on Deputy Medders as would cause an average person to resort to violence.

The other verbal conduct for which the supreme court allows punishment consists of words like shouts of “fire” in a crowded theatre. State v. Saunders, supra. Clearly appellant’s language did not fall into this category, and since his remarks were not fighting words, he was not guilty of disorderly conduct.

Finally, we find no suggestion in the record that appellant’s actions impeded Deputy Medders in the performance of his duties as a law officer.

Accordingly, we reverse the order denying the motion to suppress, and remand this cause for further proceedings consistent with this opinion.

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

      . Section 877.03 provides as follows:
      Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.


author: ALDERMAN, Chief Judge.

text:
    Cindy KEANE, Appellant, v. STATE of Florida, Appellee. George Robert DEVINE, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-2701 and 77-18.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.

      Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

The defendants were convicted of robbery. They appeal and raise several points, two of which require reversal.

Firstly, we hold that the trial court erred in refusing to allow the defendants to cross-examine the alleged victim as to a pending criminal charge against him to which he had pleaded guilty. When a prosecution witness is under criminal charges at the time he testifies, the defense is entitled to bring this fact out. Blanco v. State, 353 So.2d 602 (Fla. 3d DCA 1977); Redden v. Wainwright, 340 So.2d 1187 (Fla. 4th DCA 1976); Fulton v. State, 335 So.2d 280 (Fla.1976); Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974).

Secondly, we concluded that the comments and repeated interjections by the trial court during the course of the trial deprived the defendants of a fair trial. No purpose would be served in setting out the numerous gratuitous comments and interjections by the trial judge during the course of the trial. This court’s admonition in Hunter v. State, 314 So.2d 174 (Fla. 4th DCA 1975), is applicable to the present case.

REVERSED and REMANDED for a new trial.

CROSS, J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.


text:
    UNITED JAX RENTALS, INC., Thomas J. Capobianco, Bruce K. Lambert, Richard L. Levinger, Deborah K. Parnell, Rose J. Vines, and Steven Randall Wiggins, Petitioners, v. FLORIDA REAL ESTATE COMMISSION, Respondent.
    No. 77-2495.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    John S. Winnie of Winnie & Winnie, P.A., and Michael J. Wilhelm, Gainesville, for petitioners.
    Howard Handley and Kenneth M. Meer of the Florida Real Estate Com’n, Orlando, for respondent.
   PER CURIAM.

Petitioners have filed a Suggestion for Writ of Prohibition and Petition for Writ of Certiorari alleging the respondent exceeded its authority and departed from the essential requirements of law by issuing its Emergency Suspension Order suspending the broker’s and salesmen’s registrations of petitioners. Because the statute provides the suspension shall only be effective for a period of ninety days, and that period has now expired, we determine the petition and suggestion to be moot. Section 120.54(8)(c), Florida Statutes (1975).

Suggestion for Writ of Prohibition and Petition for Writ of Certiorari DENIED.

ALDERMAN, C. J., and ANSTEAD and DAUKSCH, JJ„ concur.


text:
    Phillip LEVY and Francis Levy, his wife, Petitioners, v. WALT DISNEY WORLD COMPANY, a Florida Corporation and Insurance Company of North America, a Pennsylvania Corporation, Respondents.
    No. 77-2577.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Donald L. Gibson of Billings, Frederick, Wooten & Honeywell, P. A., Orlando, for petitioners.
    John L. O’Donnell, Jr. of Helliwell, Mel-rose & DeWolf, Orlando, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

ALDERMAN, C. J., and DAUKSCH, and MOORE, JJ., concur.