author:
PER CURIAM.
      ENGLAND, Chief Justice, and SUND-BERG and HATCHETT, Justices,

text:
    Robert A. SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 57027.
    Supreme Court of Florida.
    June 22, 1979.
    Rehearing Denied July 24, 1979.

      Roy E. Black and Frank Furci, Miami, for appellant.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Robert A. Sullivan appeals from the trial court’s denial of his motion under Florida Rule of Criminal Procedure 3.850.

Sullivan seeks review of twelve issues that were alleged in his motion before the trial court. Eleven of these issues were raised or could have been raised in Sullivan’s first appeal to this Court. Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976). These matters will not support a collateral attack. State v. Matera, 266 So.2d 661 (Fla.1972); Spenkelink v. State, 350 So.2d 85 (Fla.1977), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977).

The remaining issue alleges ineffective assistance of counsel. After an evidentiary hearing, the trial court, in denying Sullivan’s motion, said:

I have seen some frivolous motions come down the pike, but this has got to take the cake. On the ground of inadequacy of counsel, the motion to vacate is denied.

The transcript of the 3.850 hearing supports this conclusion of the trial court.

No substantial questions of law or fact are presented for our determination. The only issue properly before the Court is that of ineffective assistance of counsel, and the transcript of the hearing below together with the record in this cause reveals that it is also without merit.

This appellant was convicted and sentenced to death in November, 1973, and this Court affirmed that conviction on November 27, 1974. Sullivan v. State, 303 So.2d 632 (1974). This was the first case in which the death penalty had been imposed which this Court affirmed under the new death penalty statute. The United States Supreme Court denied certiorari on July 6, 1976, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220. In May of 1977, the Court on its own motion made inquiries to determine if there were any violations of the dictates of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393. We received no response from the appellant or his counsel and an order denying Gardner relief was entered in January, 1979. The appellant in March, 1977, filed a complaint attacking the executive clemency process. His requested relief was denied in the trial court, the Supreme Court of Florida, Sullivan v. Askew, 348 So.2d 312 (1977), and, finally in October, 1977, by the United States Supreme Court cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977). As this record reflects he obtained new counsel in the fall of 1978 and in March of 1979 commenced this post conviction relief action. It has been more than 4V2 years since the appellant’s conviction and sentence during which time he has received consideration of multiple issues by the trial court on three occasions and by this Court on four occasions.

The order of the trial court denying Sullivan’s 3.850 motion is affirmed, ■ and Sullivan’s motion for stay of execution is denied.

It is so ordered.

ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.

ENGLAND, C. J., and SUNDBERG and HATCHETT, JJ., dissent with an opinion.

ENGLAND, Chief Justice, and SUND-BERG and HATCHETT, Justices,

dissenting.

This is an appeal, taken pursuant to Florida Rule of Appellate Procedure 9.140(b)(1)(C), to review an order of the Dade County Circuit Court denying a motion for post-conviction relief filed by Robert Sullivan pursuant to Florida Rule of Criminal Procedure 3.850. The trial court summarily and without evidentiary hearing denied all but one of the points raised by the motion filed on March 15, 1979. Finding that the remaining point presented a prima facie basis for relief, the trial court held an evidentiary hearing on Sullivan’s allegation that he had not received effective assistance of counsel in his original pre-trial and trial proceedings. At the conclusion of the hearing on this issue, the trial court denied all relief. The court subsequently entered a written order denying all relief. Contrary to the dictates of rule 3.850, however, the order did not contain findings of fact and conclusions of law.

On May 25, 1979, Sullivan filed a timely appeal in this Court. On June 19, before the record had been brought up or appellant’s brief filed, the governor signed a warrant directing Sullivan’s execution. Sullivan immediately filed a motion to stay his execution pending the determination of his appeal. We directed the state to respond to Sullivan’s motion promptly, and we scheduled and conducted an expedited oral argument on that motion. The thrust of the state’s position before us is that a stay should not be entered, and that on an expedited basis, the appeal should be considered and the order affirmed. Although the appellant has not been afforded the opportunity to present his case on the merits, the majority accedes to the state’s position and decides the appeal today.

There is no basis to assert that Sullivan’s request for post-conviction relief — the first that he has filed in the trial courts of Florida — was not presented in good faith. The fact that an evidentiary hearing was ordered and conducted, with the state’s concurrence, lays to rest any suggestion that Sullivan’s collateral attack on his original conviction and sentence was wholly without merit. Similarly, there is no basis to assert that his appeal as of right to this Court was brought solely for the purpose of delaying his execution.

In the case at bar appellant has pending a timely filed appeal. Consequently this Court has authority to stay his execution. When entertaining an application for a stay the factors to be considered for exercise of the Court’s discretion are (i) the probability of irreparable injury if no stay is granted, (ii) the remediable quality of any such injury, and (iii) the likelihood of ultimate success on the merits. An application for stay in a capital ease should be more liberally construed than one in a civil case.

The record demonstrates that there are at least three colorably meritorious issues presented. First, the trial court failed to comply with the requirements of rule 3.850 in not making findings of fact and conclusions of law — a requirement which is calculated to make meaningful review possible. Second, the only evidence regarding the effectiveness of appellant’s original counsel comes from the testimony of the state’s only witness at the hearing. That witness, who represented appellant at trial and on appeal, testified that he had told appellant that his original counsel had afforded him ineffective assistance during pre-trial proceedings.

Finally, a substantial question is presented as to whether the trial court abused its discretion by denying the appellant the opportunity to be present and to testify at the hearing on the 3.850 motion. State v. Reynolds, 238 So.2d 598 (Fla.1970), holds that one in custody, even in another state, must be presented before the trial court to testify where there are questions of fact within his personal knowledge. Mr. Justice Adkins, speaking for a unanimous Supreme Court, said:

If, upon hearing, there are questions of fact within the personal knowledge of the prisoner to be resolved, then the prisoner should be given an opportunity to testify. As stated in Bryant v. State [Fla.App., 204 So.2d 9], supra:
“When there are questions of fact to be decided, it may be the better practice to receive evidentiary statements from a movant either by his being present in the court or by written interrogatories or by deposition taken before a commissioner at the penal institution wherein the movant is incarcerated.”

238 So.2d at 600.

The issue before the trial court was whether Sullivan’s original attorney, who handled pre-trial matters, had given effective assistance. Sullivan made specific allegations regarding that attorney’s shortcomings, but the trial court refused to allow Sullivan to be present at the hearing to aid his attorney in cross-examination or to testify in his own behalf. This order was made notwithstanding the state’s concession that the appellant should have been present at the evidentiary hearing. ■ In fact, although the issue revolved around transactions between Sullivan and his original attorney, neither testified and the only witness who did testify indicated that the original attorney had furnished ineffective assistance.

The majority holds, notwithstanding the condition of this record, that the issue on effective assistance of counsel is without merit. We disagree.

None of the foregoing issues may compel a reversal of the trial court’s order. For purposes of entry of a stay, however, there need only be a reasonable likelihood of success on the issues. We are convinced that such likelihood has been demonstrated. Furthermore, there can be little dispute that there is a high probability of irreparable injury which is irremediable if the stay is not granted.

Under these circumstances, we cannot join with the majority in reaching the conclusion that Sullivan’s appeal has no legal merit. The judicial process has evolved over the centuries. It is calculated to be a deliberative process. Courts must have sufficient time to consider matters timely presented. Absent evidence that Sullivan has abused the judicial process, this Court should accord his appeal the same deliberative review to which all litigants are constitutionally entitled. In our opinion, a stay should be granted to permit the degree of orderly and thorough consideration that would otherwise have been afforded in this case had a death warrant not been signed at the time that it was.

      . The points rejected by the trial court without an evidentiary hearing were these:
      (1) Witherspoon issues.
      (2) Exclusion of jurors for cause who, while voicing objection to the death penalty, nevertheless would make a fair and impartial determination of guilt or innocence.
      (3) The prosecutor’s knowing, calculated, and intentional introduction of testimony that a critical State’s witness, Reid McLaughlin, had taken a polygraph test before he was allowed to testify violated fourteenth amendment due process, and sixth and fourteenth amendment rights to confront and cross-examine witnesses.
      (4) Defendant was denied his sixth amendment right to cross-examine Frank Barden, a State’s witness.
      (5) The defendant was denied his right of self-representation guaranteed by the sixth and fourteenth amendments to the United States Constitution and article I, section 16 of the Florida Constitution.
      (6) Defendant was denied due process of law due to improper prosecutorial argument at the penalty hearing.
      (7) Defendant was sentenced to death arbitrarily, in violation of the eighth and fourteenth amendments to the Constitution of the United States and article I, sections 2, 9, and 17 of the Constitution of Florida.
      (8) The trial judge’s instructions to the sentencing jury improperly limited the mitigating circumstances which the jury could consider thereby rendering the sentencing procedure unreliable in violation of the eighth and fourteenth amendments to the Constitution of the United States and article I, sections 17 and 22 of the Constitution of the State of Florida.
      (9) Defendant was denied due process of law because the penalty jury was instructed that defendant had the burden of proving any mitigating circumstances.
      (10) A statement by defendant and physical evidence seized from his car were the products of unconstitutional actions by the police in violation of the fourth, fifth, sixth, and fourteenth amendments to the United States Constitution and article 1, sections 9 and 12 of the Florida Constitution.
      (11) The indictment charging first-degree murder was fatally defective in violation of the sixth and fourteenth amendments to the United States Constitution.

      . § 922.06, Fla. Stat. (1977).

      . McCall v. State, 136 Fla. 343, 186 So. 667 (1939).

      . R-68.

      . The following colloquy occurred at the evi-dentiary hearing:
      THE COURT: I think I do not believe that it’s necessary to return Mr. Sullivan for that purpose, because 1 think his statements contained in his motions are sufficient to set forth that of which he is complaining.
      MR. BLACK: Well, I would disagree with the Court on that since I believe he has a right to be present and to assist counsel and also to testify, so I would disagree with the Court on that point.
      THE COURT: The State’s position on that point.
      MR. LOEWY: Ira Loewy, Assistant State Attorney. We are apt to agree with defense counsel that if an evidentiary hearing would be warranted in light of his allegations — we are not conceding in any way any of these allegations are true — we do feel an evidentia-ry hearing would be . appropriate and Mr. Sullivan would have to be present for the evidentiary hearing.
      THE COURT: He would have to be?
      MR. LOEWY: Yes, Your Honor.
      R-3-L


source: Caselaw Access Project

author: DOWNEY, Chief Judge. PER CURIAM.

license: Public Domain

text:
    Rosa Lee FLUELLEN, Petitioner, v. Honorable Robert A. BUTTERWORTH, as Judge of the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, Respondent.
    No. 78-2227.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    Rehearing Denied July 11, 1979.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for respondent.
   DOWNEY, Chief Judge.

Petitioner seeks to prohibit the trial court from exercising further jurisdiction over her on the grounds that the speedy trial time has expired.

The speedy trial period commenced running October 23, 1977, when Petitioner was taken into custody. On March 9, 1978, Petitioner was granted a continuance. On May 30, 1978, the State was granted a continuance. Thereafter, the Petitioner filed no motion to delay the trial date though the State obtained two further continuances. On September 5, 1978, Petitioner filed a motion for discharge which was denied October 18, 1978.

This court held in State v. Reese, 359 So.2d 33 (Fla. 4th DCA 1978) cert. denied, 365 So.2d 715 (Fla.1978):

“ . .in the event of a State continuance, whether or not it follows an earlier defense continuance, the basic constitutional time limit, for the commencement of trial, is no more than 90 days after any State continuance, which is uninterrupted by any further defense motions for continuance or waivers, PROVIDING that the requisite 180 days has also run under Fla.R.Crim.P. 3.191(a)(1).” (359 So.2d at 34)

This holding was based upon the decision of the Supreme Court in Negron v. State, 306 So.2d 104 (Fla.1974). See also Johnson v. State, 366 So.2d 525 (Fla. 3rd DCA 1979).

In the case at bar when Petitioner moved for discharge more than 90 days had expired since a State continuance without interruption by any defense motions for continuance or waivers, and more than 180 days had expired since Petitioner was taken into custody.

Thus, it appears the trial court was without jurisdiction to proceed further and Petitioner is entitled to discharge for failure to bring her to trial within the time provided in Fla.R.Crim.P. 3.191(d)(3).

Prohibition is granted and the trial court is directed to discharge Petitioner.

ANSTEAD and LETTS, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Respondent has filed a petition for rehearing directed to our Opinion filed March 7, 1979, in which we granted a writ of prohibition and directed petitioner’s discharge.

We have considered the supplemental briefs of the parties and had the benefit of oral argument and find that the petition for rehearing should be denied. However, it does appear to us that the issue involved in this case is one of great public interest. Accordingly, we certify the following two questions to the Supreme Court of Florida:

1. What is the applicability of Fla.R. Crim.P. 3.191(d)(3) in a situation where (a) a defendant is granted a continuance, (b) the State is then granted a continuance, (c) the original Speedy Trial Rule time (180 days) passes, and (d) ninety days elapse from the State’s continuance without any intervening defense continuances or delays?
2. When the Speedy Trial Rule time limitations are waived by virtue of a defense continuance, under what circumstances, if any, are any specific time periods of the Speedy Trial Rule, Fla.R. Crim.P. 3.191, reactivated absent any demand by the defendant?

The petition for rehearing is denied.

DENIED.

DOWNEY, C. J., and ANSTEAD.and LETTS, JJ., concur.


author: SIMONS, STUART M., Associate Judge.

text:
    CITY OF MELBOURNE, a municipality formed and existing under the laws of the State of Florida, Appellant, v. Robert J. COTRON, Appellee.
    Nos. 78-1152, 78-1715.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1979.
    Rehearing Denied July 27, 1979.

      William C. Owen, Jr., and Hugh MacMil-lan, Jr., of Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., Tequesta, and James L. Reinman, Jr., of Reinman, Harrell & Silberhorn, and Harvey C. Poe, Jr., P. A., Melbourne, for appellant.
    Sammy Cacciatore of Nance, Cacciatore & Sisserson, Melbourne, for appellee.
   SIMONS, STUART M., Associate Judge.

This is an appeal from a final judgment in which the trial court entered its order enjoining the appellant from taking certain action in regard to the appellee, who was the Chief of Police of the City of Melbourne, and who had been purportedly threatened with loss of his position by the City Council by means of certain processes which the appellee deemed to be violative of due process rights, and which would deprive him of due process. The trial judge further sought to outline the manner which any hearing should be conducted in regard to any firing of the appellee. The law is now well settled that judicial intervention in the administrative process by either declaring rules of procedure to be followed or monitoring the process as it goes forward is improper. The courts should not assume that administrative agencies will hold hearings which, upon review, will be ultimately found to be lacking requisite due process standards. Duval County School Board v. Armstrong, 336 So.2d 1219 (Fla. 1st DCA 1976).

In order to render injunctive relief there must be a showing of irreparable injury. A1A Mobile Home Park, Inc. v. Brevard County, 246 So.2d 126 (Fla. 4th DCA 1971). In the instant case, failure to subsequently afford the appellee due process is cognizable and may be remedied by further proceedings, after the hearing.

The judgments appealed from are reversed.

REVERSED.

ANSTEAD and BERANEK, JJ., concur.


author: PER CURIAM.

text:
    FRATERNAL ORDER OF POLICE LODGE 92 and Tom Warwick, and all others similarly situated, Appellants, v. William A. FREEMAN, Sheriff of Monroe County, Appellee.
    No. 78-2058.
    District Court of Appeal of Florida, Third District.
    May 16, 1979.
    Rehearing Denied July 2, 1979.

      Weinsoff & Weinsoff and Robert D. Klausner, Miami, for appellants.
    Madigan, Parker, Gatlin, Swedmark & Skelding and Ronald A. Labasky, Tallahassee, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

This appeal is from a final declaratory judgment in an action brought by the plaintiff-appellants against William Freeman, Sheriff of Monroe County. The complaint purported to be in a class action and was brought by the Fraternal Order of Police, Lodge 92, Tom Warwick and all others similarly situated.

The complaint alleged that new employment practices were announced by the Sheriff including (1) polygraph examinations to be administered to all deputy sheriffs, (2) psychiatric examinations to be administered to all deputy sheriffs, employees and applicants for employment, (3) financial disclosure to be required on a yearly basis. It was further alleged that the results of the examination of the financial disclosure will be made a matter of public record and that the questions to be asked upon all the éxaminations are “highly personal questions relating to sexual habits, family relationships and similar matters.’’

After trial, the court found:

“The Sheriff admits that he has announced a policy of requiring financial disclosure, psychological examinations, (by amendment presented at this hearing) to in fact mean psychological objective examination conducted by duly licensed clinical psychologist touching on factors affecting the person being tested as to fitness to serve as a deputy sheriff, and polygraph examinations.
“The first question to be answered is whether or not the sheriff has the authority to appoint and terminate appointment of deputies without restriction.
“The sheriffs of the State of Florida are constitutional officers. (Article VIII Constitution of the State of Florida 1968.) The duties and responsibilities pursuant to that constitutional mandate have been legislatively set forth in Chapter 30 of the Florida Statutes 1977. § 30.07 F.S. 1977 relates specifically to the sheriff's authority to appoint deputies.
“Efficient law enforcement is one of the highest priorities that a government can afford its citizens. In order that the citizens of this State may have confidence that the police power of the government will be exercised diligently, efficiently and without favor, they have delegated to the sheriffs of the counties by the constitution, and the statutes promulgated thereunder absolute authority for the enforcement of laws within each County. The sheriffs are placed in this office of trust by the election of the people.
“It has been uniformly held by the Courts of this State and other jurisdictions that deputy sheriffs are not employees of the sheriff but officers. That they are not hired but they are appointed and that they are public officials. Blackburn v. Brorein 70 So.2d [298] (S.Ct.1964); 70 AmJur.2d, Sheriffs, Police and Constables, § 2.
"A situation exists in Monroe County that was addressed by the court in the Blackburn case supra as shown by the following quote:
‘The deputy sheriffs who are parties to this cause were deputies under a former sheriff. The present sheriff was elected as a result of a heated and vigorous campaign in which he pledged to the people of Hillsborough County a ‘change in policy.’ How could the sheriff keep his promise to the people if he must accept the same deputies selected by a former sheriff . . .? Under such a scheme the hands of the sheriff could very well be tied and he could not keep any promise he might have made.’
The question of whether deputy sheriffs are officers or employees was last addressed by a court of this State in Murphy v. Mack 358 So.2d 822 (S.Ct.1978). While this case relates to the classification of deputies as employees relative to Chapter 447 Florida Statutes (1975) it is very instructive that even under this collective bargaining statute since the legislature refused to define deputies as employees, the Supreme Court of this State has refused to step in and to change the long existing law that deputies are officers appointed by the sheriff and not employees. The other interesting point of law to be gleaned from this opinion by the Supreme Court is that they exercise jurisdiction because opinions of the District Court affect a class of constitutional officers.
“The law as stated in Johnson v. Wilson 336 So.2d 651 (D.C.A. 1 1976) holds that a sheriff may withdraw the appointment of a deputy without notice and without a specific reason being cited, the deputy being an officer and not an employee.
“In summary the following are inescapable to this court:
“(a) Sheriffs in the State of Florida are constitutional officers.
“(b) They have a right to appoint deputies.
“(c) Deputies are officers and not employees.
“(d) They have the right to withdraw the appointment of deputies without stating a specific reason.
“The above being true the courts can then only interfere with the requirement the sheriffs may place on the deputies if the same is unreasonable, arbitrary, capricious or without the constitutional grant of authority, to the sheriff or stating in another way if the requirement sought to be imposed would be violative of the deputies’ individual constitutional rights.
“In this era of the citizens questioning the institutions of government they have created and the exercise of the authority given by them to their elected officials, various legislative bodies have required of elected and appointed officials the revealing of certain information that may indicate matters that would be detrimental to the public welfare in the officials’ exercise of the authority granted them. Any democratic government and any facet of any democratic government must have the confidence and respect of the people in order to insure tranquility and to maintain the respect of the people. This is so in a democratic society so that their laws will tend to become self enforcing. With these precepts in mind this court finds that the requirements sought to be imposed by the sheriff upon his existing deputies are within this authority and do not exceed the authority vested in this constitutional officer. The specific requirements in this case are:
“1. Financial disclosure substantially shown as on Defendant’s Exhibit 1 in evidence.
“2. Psychological examinations administered by a duly licensed psychologist as to job related matters, and
“3. A polygraph examination.”

I.

The appellants present two points on appeal. The first urges that deputy sheriffs have tenure on the same terms and conditions as their principal. It is, thereupon, urged that deputy sheriffs have an office and that such property right cannot be removed without due process. It is argued that the trial judge’s determination that the Sheriff of Monroe County had the authority to impose any test or qualification is erroneous. As an incident to this argument, it is urged that Section 943.01 et seq., Florida Statutes (1977), provides minimum standards which must be met before a person may be certified as a “police officer” and that, accordingly, the legislature has preempted the task to itself of setting standards for police officers. It is argued, therefore, that the court improperly determined that the sheriff had the right to hire and fire his own deputies.

We reject these arguments and affirm that portion of the final judgment which holds that the Sheriff of Monroe County has the authority of prescribing tests and regulations pertaining to the appointment and termination of deputy sheriffs. The courts of Florida have clearly stated that a deputy sheriff is an appointed officer and not an employee. See Blackburn v. Brorein, 70 So.2d 293, 298-299 (Fla.1954); and Evans v. Hardcastle, 339 So.2d 1150 (Fla. 2d DCA 1976). See also Ison v. Zimmerman, as Sheriff of Brevard County, 372 So.2d 431 (Fla.1979), opinion filed 5/3/79, which finds no merit in a contention that Chapter 447, Florida Statutes (1976), extends relief to a discharged deputy sheriff, but which upholds a special act creating a civil service commission for employees of the office of the Sheriff of Brevard County. Thus, the question is not whether the sheriff has unfettered power but whether he has the power to adopt reasonable requirements for the deputies he wishes to appoint or retain. As will be pointed out later in this opinion, this does not suggest that the power of the sheriff is beyond any check with regard to constitutionality and reasonableness.

The appellants’ second point urges that the present practice of the Sheriff of Monroe County, as revealed by the record in this case, shows that the practices which the circuit court refused to enjoin violate rights protected by the Constitutions of the United States and State of Florida. While we cannot agree that the present record shows such a violation, we do agree that the potentialities for such violations exist in the alleged scope of the examinations, particularly with regard to their publication. It is not at all' unreasonable that a sheriff, by the use of tests and examinations and the requirement of financial disclosure, ought to be able to determine the fitness of deputies he proposes to appoint or retain. See Conte v. Horcher, 50 Ill.App.3d 151, 8 Ill. Dec. 329, 365 N.E.2d 567 (Ill. 1st Dist. 1977). It is quite another matter to hold such individuals up to public ridicule or disparagement by the revelation to the public of the contents of these examinations and disclosures. See the considerations of law and legal principles expressed in Byron, Harless, Schaffer, Reid and Associates, Inc. v. State ex rel. Shellenberg, 360 So.2d 83 (Fla. 1st DCA 1978). See also Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 35 L.Ed.2d 147, 176-177 (1973). Accordingly, our affirmance of the declaratory judgment of the trial court is not intended by us to pass upon the necessity for, or the extent of, the controls that must be exercised by the sheriff or, in his failure to act, by the court, with regard to the methods for the administration and maintenance of the various examination and test results. The judgment of this court is without prejudice to the determination by the circuit court that any procedure put into effect amounts to a violation of an individual’s constitutional right to privacy.

II.

One additional matter before this court must also be dealt with. A notice of appeal in this cause was filed on November 2,1978. Thereafter, the appellants filed with us a motion for emergency hearing and stay of execution. Pursuant to that motion, this court entered an order on November 7, 1978, providing that the motion was considered as an application for constitutional stay writ and, thereupon, we “ordered that the effect of the final judgment is hereby stayed pending the disposition of this appeal.” The appellee sheriff filed herein a motion to dissolve the constitutional stay writ and alternatively to clarify the writ’s application. Thereafter, the appellants filed a motion for the imposition of sanctions alleging (but not under oath) that the appellee sheriff had violated this court’s order and in contempt thereof had proceeded to administer polygraph examinations and had “reassigned” four persons and threatened to fire them for their failure to take these examinations. The appellee filed a response to the appellants’ petition for sanctions denying the alleged violation and urging that the polygraph examinations had been used, but only in the course of internal investigations of the sheriff’s personnel upon disciplinary procedures. We are concerned that the petition for sanctions and appellee sheriff’s response thereto show a possibility that the sheriff has acted in contempt of this court’s order.

It should be pointed out that when the constitutional stay order was entered by this court, the effect of our order was to render the trial judge’s judgment inoperative and the sheriff’s action in proceeding as though the trial judge’s order was still in effect may have been in contempt of our stay order.

We will, therefore, retain jurisdiction of this cause after the issuance of the decision and mandate for the purpose of determining whether the Sheriff of Monroe County has acted in contempt of this court’s constitutional stay order. We will, by separate order, appoint a circuit judge of the Sixteenth Judicial Circuit as a commissioner to determine whether the Sheriff of Monroe County has acted in contempt of this court’s constitutional stay order. Upon the report of the commissioner to this court, we will take such further proceedings herein as appear meet and proper.

III.

Accordingly, we affirm the declaratory judgment of the trial court as written; we amend the judgment by reserving to the circuit court the right to determine the constitutional questions presented; and we reserve to this court the jurisdiction set forth above.

Affirmed.

      . The judgment finds without challenge:
      “The parties have stipulated that the plaintiff has standing to bring this action; that William A. Freeman is the duly elected and qualified sheriff of Monroe County, Florida; that Monroe County, Florida, has no special legislation that would make the deputies of the sheriff subject to any civil service commission or requirements and/or career service employment; that the deputy sheriffs of Monroe County, Florida are not municipal law officers.”

      . See State ex rel. Martarano v. Robles, 109 Fla. 528, 147 So. 910 (1933); Strickland v. Knight, 46 Fla. 467, 35 So. 868 (1904); and 4 Am.Jur.2d Appeal & Error § 371 at p. 846.


author: OTT, Judge.

text:
    Jerry Joe NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-2086.
    District Court of Appeal of Florida, Second District.
    May 18, 1979.
    Rehearing Denied June 25, 1979.

      John D. Fernandez, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., and Charles C. Corees, Asst. Attys. Gen., Tampa, for appel-lee.
   OTT, Judge.

Appellant was charged with receiving stolen property in violation of § 812.031, Fla.Stat. (Supp.1978). Appellant moved to dismiss the charge on a stipulated set of facts. The trial court denied appellant’s motion to dismiss whereupon appellant entered a plea of nolo contendere specifically reserving his right to appeal the denial of his motion to dismiss. We affirm.

The essence of appellant’s appeal is that under the stipulated facts the state could not establish the corpus delicti of the charge.

Under the stipulation of facts there were certain admissions or statements made by appellant to Carl (owner of the stolen goods) and Eden. Appellant contends that these admissions or statements were not admissible for the reason that they constitute “confessions” of the crime which cannot be utilized to establish the corpus de-licti. We disagree.

The victim — Carl—had certain electronic fishing equipment, stolen from his commercial fishing boat. After the theft, the appellant called Eden — a friend of Carl and fellow commercial fisherman — and inter alia, (1) stated that he wanted to sell specific electronic fishing equipment for a price approximately one-half the value of the stolen property; (2) gave such a detailed description of the equipment that Eden identified it as Carl’s stolen property; and, (3) gave Eden his phone number which Eden passed along to Carl. Eden was personally acquainted with appellant and identified him as the caller. Carl was not acquainted with appellant. Using the name and telephone number supplied by his friend, Carl had two telephone conversations with appellant. During the course of these conversations appellant told Carl, inter alia, (1) that he could arrange delivery.of the property; (2) that the delivery would be made at a particular place at a particular time. Carl found his equipment at the time and place designated by the appellant.

The extrajudicial inculpatory statements, supra, made to Eden and Carl were not in the nature of a true “confession” of the crime; rather, they were in the nature of admissions against interest from which it could be inferred that the crime had been committed. In Parrish v. State, 90 Fla. 25, 105 So. 130 (1925) the accused made extrajudicial statements to two laymen. The court stated:

The statements were made extrajudicially. The statements of the defendant testified to by the witnesses were not “confessions of crime,” in the sense of an acknowledgment of the criminal act charged or of the facts that constitute the crime. At most they were but admissions of facts or circumstances from which guilt might be inferred. Such statements were therefore “admissions” and not “confessions.” Statements other than confessions of guilt of a crime are in general admissible in evidence against the party making them as other admissions against interest.

90 Fla. at 82, 105 So. at 188.

Generally speaking, Florida courts — like the courts of almost every other jurisdiction in the United States — have interchangeably used the words “confession” and “admission” in referring to extrajudicial inculpatory statements. This imprecise use of language has caused difficulties. The clearest type of case is where a statement is made to police that is clearly a “confession.” See, e. g, Hutton v. State, 332 So.2d 686 (Fla. 1st DCA 1976); Kirsner v. State, 308 So.2d 567 (Fla. 3d DCA 1975). A more difficult group of cases are those in which the extrajudicial statement is clearly in the nature of a “confession,” but is made to a layman as opposed to a policeman. See, e. g., Gantling v. State, 41 Fla. 587, 26 So. 737 (1899); Holland v. State, 39 Fla. 178, 22 So. 298 (1897); Williams v. State, 117 So.2d 548 (Fla. 2d DCA 1960). In each of these cases, the so-called “confession” was in literal terms just that, i. e., an accused directly “confessed” the commission of a crime. In the instant case, the accused (1) did confess a crime to the police; and, (2) did make various statements in the nature of “confessions” to both Carl and Eden. These true confessions are not necessary to establish the corpus delicti. However, once the corpus delicti is established from other independent evidence (admissions) they may be receivéd in evidence if otherwise admissible. A necessary predicate for the introduction of the inculpatory statements (confessions) of a defendant is prima facie proof of the corpus delicti. Jefferson v. State, 128 So.2d 132 (Fla.1961).

The term “corpus delicti” has been defined as follows:

This term, as applied to any particular offense, means that the state must establish that the specific crime charged has actually been committed. The corpus de-licti is made up of two elements:
(1) that a crime has been committed, as for example, a man has been killed or a building has been burned; and
(2) that some person is criminally responsible for the act. It is not sufficient merely to prove the fact that the person died or the building burned, but there must be proof of criminal agency of another as the cause thereof.

Sciortino v. State, 115 So.2d 93, 96 (Fla. 2d DCA 1959).

The applicable statute provides:

Receiving stolen property. (1) Whoever intentionally receives, retains, disposes of, or aids in concealment of any stolen property of another without consent of the owner or person entitled to possession, knowing that it has been stolen, or under such circumstances as would induce a reasonable man to believe that the property was stolen, commits an offense.

The language of the statute makes it clear that actual knowledge is not required. In Hutton, supra, the court affirmed the conviction for receiving stolen property:

There can be no doubt that an essential element of the crime of receiving stolen property knowing the same to have been stolen, is knowledge by the accused that at the time he received the property it was stolen, or knowledge of such fact as would put a person of ordinary intelligence and caution in inquiry. [Emphasis supplied.]

332 So.2d at 687. The facts in the instant case indicate strongly that the defendant knew or should have known that the property was stolen. Thus, the requisite guilty knowledge was present.

We find it particularly significant that the appellant had the equipment in his control and was willing to sell the goods for less than half their true value. In State v. Graham, 238 So.2d 618 (Fla.1970) it was noted that the fact that goods were being sold for less than their value was a strong piece of incriminating circumstantial evidence.

It should also be borne in mind that pri-ma facie proof of the corpus delicti is not subject to the stringent proof required to establish guilt. Sciortino v. State, supra.

We hold that the corpus delicti was established and accordingly affirm.

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

      . In his conversation with Eden, the accused also admitted that (1) he had the equipment, and (2) that the equipment was stolen. In his conversation with Carl, the accused admitted that (1) he had access to the equipment, and (2) that he knew it was the victim’s property. He also indicated that he did not steal it but he knew who did. In his confession to two police officers, the appellant admitted that he knew the property was stolen and that it had been in his possession. He denied, however, that he had stolen it.

      . Several recent cases have dealt with the question whether the state has succeeded in its burden of proving guilty knowledge of stolen property. See, e. g„ Barket v. State, 342 So.2d 526 (Fla. 1st DCA 1977) aff'd 356 So.2d 263 (Fla.1977), cert. denied 439 U.S. 843, 99 S.Ct. 136, 58 L.Ed.2d 142 (1978); O'Sullivan v. State, 335 So.2d 869 (Fla. 3d DCA 1976); Aboy v. State, 334 So.2d 270 (Fla. 3d DCA 1976) [where the state succeeded in its burden]; Ward v. State, 347 So.2d 784 (Fla. 1st DCA 1977) [where the state succeeded as to one of two defendants and failed as to the other]; and Riggs v. State, 340 So.2d 130 (Fla. 1st DCA 1976) [where the state failed to prove guilty knowledge].


author: PEARSON, Judge. SCHWARTZ, Judge

text:
    WINN-DIXIE STORES, INC., Appellant, v. Lillian CODOMO et al., Appellees.
    No. 79-608.
    District Court of Appeal of Florida, Third District.
    June 11, 1979.
    Vernis & Bowling and Andrew J. Anthony, Miami, for appellant.
    Brumer, Cohen, Logan, Kandell & Redlus, Horton, Perse & Ginsberg and Edward A. Perse, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   OPINION ON MOTION TO DISMISS

PEARSON, Judge.

This appeal came before the court on the plaintiff-appellees’ motion to dismiss the appeal as untimely. Because the motion affects our jurisdiction and the area dealt with is without clear precedent, we have determined to file this opinion. The question presented is whether a notice of appeal filed the day before an order denying post-trial motions is a timely notice when more than thirty days have expired from the date of the final judgment. The important dates are as follows: (1) December 20, 1978 —jury verdict for the plaintiff entered; (2) December 27, 1978 — defendant’s post-trial motions filed, including motion for new trial, motion for remittitur and motion for judgment notwithstanding the verdict; (3) January 2, 1979 — final judgment on jury verdict entered; (4) March 26, 1979 — hearing on post-trial motions held and court orally announces denial thereof; (5) March 26,1979 — defendant’s notice of appeal filed; and (6) March 27, 1979 — court signs and files order denying post-trial motions.

The plaintiff-appellees contend that upon filing the notice of appeal, the defendant-appellant abandoned its post-trial motions and that such abandonment was not affected by the subsequent order denying the post-trial motions. The appellant contends that such an overly technical view of the circumstances and of this court’s jurisdiction is not warranted by the more liberal view taken by the Supreme Court of Florida in Altman v. State, 328 So.2d 14 (Fla.1976); and Williams v, State, 324 So.2d 74 (Fla.1975). It appears that the rule on timeliness of appeal that applies in criminal cases is no different from the rule that applies in civil cases. We, therefore, follow the reasoning of the Supreme Court of Florida in Williams v. State, supra, where the court said with regard to a notice of appeal filed prior to judgment:

“Prior to the judgment, the notice of appeal shall not be effective to vest jurisdiction in the appellate court, but will allow the defendant to obtain supersedeas bond. At the time when the judgment and/or sentence is rendered (filed for recording) the notice of appeal shall be effective to vest jurisdiction in the appellate court. It must be noted that notice of appeal so filed (to obtain supersedeas before judgment is rendered) shall not be subject to dismissal either by motion of the parties or of the Court.”

Accordingly, the motion to dismiss is denied.

SCHWARTZ, Judge

(dissenting).

In my view, Altman v. State, 328 So.2d 14 (Fla.1976) and Williams v. State, 324 So.2d 74 (Fla.1975), which hold only that the premature filing of an appeal is not fatal, are not applicable because the notice of appeal in this case was filed after, rather than before the entry of the final judgment. While Fla.R.App.P. 9.020(g) provides that an order is not deemed rendered until the disposition of a timely filed post-trial motion, the defendant-appellant made that “disposition” impossible by abandoning its post-trial motions. It did so by filing, before the trial judge had reduced his ruling on the motions to writing, a notice of appeal which had the effect of ousting the lower court of jurisdiction to proceed. Bannister v. Hart, 144 So.2d 853 (Fla. 2d DCA 1962) squarely so holds. See also Frank v. Pioneer Metals, Inc., 114 So.2d 329 (Fla. 3d DCA 1959); 3 Fla.Jur.2d, Appellate Review, § 130 (1978), and cases cited. Thus the final judgment must be deemed rendered merely upon “the filing of the signed, written order with the clerk . Fla.R. App.P. 9.020(g), without reference to the post-trial motions. Since that occurred on January 2, 1979 and the notice of appeal was filed more than 30 days thereafter, on March 26, 1979, I think we have no choice but to dismiss the appeal as untimely filed. Conceptually, the case is no different than if the defendant had filed timely post-trial motions, but abandoned them without a hearing by filing an appeal more than 30 days after a final judgment had been entered.

It is true that, certainly as applied to the facts of this case, this analysis would result in the dismissal of the appeal without a showing of any prejudice whatever to the opposing side. These considerations, however, are irrelevant to the issue of timeliness which, now alone of all questions of appellate procedure, see Fla.R.App.P. 9.040(h), involves the jurisdiction of the court. I would grant the motion to dismiss.

      . See Bannister v. Hart, 144 So.2d 853 (Fla. 2d DCA 1962); and Frank v. Pioneer Metals, Inc., 114 So.2d 329 (Fla. 3d DCA 1959).

      , * * *
      “Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. At the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court.” [emphasis added] Williams v. State, 324 So.2d 74, 79 (Fla.1975).

      . The Advisory Committee and Court’s Commentary to this rule states
      “Section (h) is intended to implement the decision in Williams v. State, 324 So.2d 74 (Fla. 1975), where it was held that only the timely filing of the notice of appeal is jurisdictional.”


author: ERVIN, Judge.

text:
    Bobby Joe PROFFITT, Appellant, v. Marsha Lynn PROFFITT, Appellee.
    No. MM-217.
    District Court of Appeal of Florida, First District.
    June 13, 1979.
    Clayton J. M. Adkinson of Thompson, Ad-kinson & Beasley, De Funiak Springs, for appellant.
    E. Allan Ramey, De Funiak Springs, for appellee.
   ERVIN, Judge.

The parties agree, as do we, that there was no evidence supporting the trial court’s finding that the home in which the parties lived during marriage was owned jointly. The court’s conclusion that upon dissolution the home was owned by each as tenants in common was error, and the case is remanded to the trial court for a determination whether the wife had an interest in the home which would otherwise justify an award of the home to her.

ROBERT P. SMITH, Jr., Acting C. J., and LARRY G. SMITH, J., concur.


text:
    BEVERAGE CANNERS, INC., Appellant, v. COTT CORPORATION, Appellee.
    Nos. 78-615, 78-653.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Rehearing Denied July 26, 1979.

      Heller & Kaplan and Daniel Neal Heller, Miami, for appellant.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   PER CURIAM.

The major issue raised by this appeal is whether the trial court, as the trier of both law and fact, properly awarded nominal damages to appellant/plaintiff subsequent to rendering a decision against the appel-lee/defendant on the issue of liability in a breach of contract action.

The pertinent allegations of the complaint reflect that the appellant, Beverage Canners, Inc., sought damages for the breach of a franchise agreement entered into during November 1971 with the appel-lee, Cott Corporation, whereby it was agreed that appellant was to have the exclusive right, license and authority to produce, distribute and sell certain Cott trademarked carbonated beverages throughout the State of Florida; that the appellee unilaterally breached the agreement, refused to honor its commitment; that appellee failed to provide and perform all the acts and deeds it had agreed to perform; that appellant was ready, willing and able to perform; that as a direct and proximate result of the breach, appellant suffered damages, to-wit: loss of profits.

As gleaned from the record and briefs in this cause, the trial court awarded nominal damages on the basis that the proof of loss of profits was too speculative and conjectural and it, therefore, determined that the legal predicate had not been made for the establishment of an award of substantial damages. We must agree.

Beverage Canners, Inc. presented a plethora of testimonial and documentary evidence to the court in its attempt to establish the applicability of certain methods to compute the alleged loss of profits. These methods included: (1) computing an estimated figure by applying appellant’s overhead costs and expenses (which were vastly different from those of the other producer) to the total sales of the franchisee/other producer during the period of the subject franchise agreement; (2) computing an estimate by using the same rationale as in (1) above for a period prior to the franchise agreement (the other producer had been manufacturing the Cott products prior to the time covered by the subject agreement); (3) testimony of an expert witness in the soft drink industry with respect to the profit appellant might have earned from the volume of sales standpoint, the marketing profit that appellant might have gained, and the estimate of profit appellant might have earned — based upon the projected increase in sales, according to industry surveys. The estimated loss of profits, according to the various methods used by appellant, ranged from hundreds of thousands to over 3.5 million dollars.

Our courts cannot acquiesce under such circumstances to award lost profits awards where the amount of the alleged damages is not clearly shown to any reasonable degree of certainty. See, Belcher v. Import Cars, Ltd., 246 So.2d 584 (Fla. 3d DCA 1971), cert. denied, 252 So.2d 801 (Fla.1971); Florida Outdoor, Inc. v. Stewart, 318 So.2d 414 (Fla. 2d DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976).

In attempting to prove its damages, appellant was unable to accurately ascertain an estimate due to the inherently speculative nature of such an endeavor; it cannot justify utilizing figures in its calculations which encompass too many variables and unforeseeable expenditures. For example, since appellant had had no prior experience with production of Cott beverages, the question is raised as to whether appellant’s overhead costs would have remained the same with the advent of the sizable expansion of its business. Additionally, there is no accurate equation stated by which the other producer’s sales could be converted into meaningful data for application to appellant’s accounting data, for appellant conceded that it had no knowledge of the other producer’s accounting policies or the factors used to calculate its net sales (one of the “yardsticks” upon which appellant had based its loss of profit estimate). The record reveals that the expert witness testimony was patently conjectural, remote and contingent on changing conditions and circumstances, and, thus, could not warrant serious consideration as proof of damages here.

We also note that the franchise agreement contained a number of contingencies which could plausibly have caused termination of the agreement; certain of the contingencies could have made the future of the franchise doubtful. Under such circumstances where contingencies could affect the duration of the business, lost profits estimates have been found too speculative to support a substantial recovery. . Florida Outdoor, Inc. v. Stewart, supra.

Nominal damages may be awarded when the breach of an agreement or invasion of a right is established, since the law infers some damage to the injured party; where there is insufficient evidence presented to ascertain the particular amount of loss, the award of nominal damages is proper. Price v. Southern Home Ins. Co. of Carolinas, 100 Fla. 338, 129 So. 748 (1930). See 9A Fla.Jur., Damages §§ 7-8. Accordingly, we hereby affirm the order awarding nominal damages for the breach involved in the cause sub judice.

We have also considered the cross-appeal on the issue of liability filed by Cott Corporation, and find that no reversible error has been demonstrated.

Affirmed in all respects.

      . A corporation in the business of producing carbonated beverages and related functions.

      . The complaint contained a count for specific performance as well as for compensatory damages. However, the former count was dismissed by the trial court upon the defendant’s motion.

      . See holding in Alderson v. Miami Beach Kennel Club, 336 So.2d 477 (Fla. 3d DCA 1976). Compare, Bluevack, Inc. v. Walter E. Heller & Co. of Florida, 331 So.2d 359 (Fla. 3d DCA 1976).

      . The “other producer” is, in fact, a subsidiary corporation of the appellee corporation.

      . Much of the documentation relied upon by this expert witness was never properly admitted into evidence.

      . E. g., costs for establishment of outlets throughout the state—including personnel and sufficient storage accommodations.

      .See New Amsterdam Casualty Co. v. Utility Battery Manufacturing Co., 122 Fla. 718, 166 So. 856 (1935); Autrey v. Carroll, 240 So.2d 474 (Fla. 1970); Aldon Industries, Inc. v. Don Myers & Associates, Inc., 517 F.2d 188 (5th Cir. 1975).


text:
    George G. LEVIN, Appellant, v. Terrence E. ROSENBERG and Gerald Pomerantz, Appellees.
    No. 78-1617.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Rehearing Denied July 23, 1979.

      Weiner & Rubin and Irwin J. Weiner, Miami, for appellant.
    Penzell & Diamond, Miami, Proby & Adkins and Lucien C. Proby, Jr., Coral Gables, for appellees.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellees were employed as counsel for the appellant pursuant to a letter agreement, which reads as follows:

“Re: Del-Florida Corporation vs. Larry C. Griggs, Inc., et a 1.
“Pursuant to our oral conversations, we will agree to represent you in the above-styled matter, and any further law suits originating from that matter of other related persons- or interests, for the following compensation:
“$10,000.00 fee to be paid as follows: $5,000.00 upon acceptance of this agreement, $2,500.00 (30) days thereafter or upon any settlement reached, $2,500.00 (60) days thereafter or upon any settlement reached, plus a contingent fee to be as follows:
“50% of all monies, debt, stock or compensation recovered over the sum of $600,-000.00. (To be paid upon disbursement).
“It is agreed and understood that should there be an exchange of lands, stock, security or other property, or consideration of any kind, the percentages above would apply.
“Costs are to be reimbursed as billed, monthly.”

Before the litigation was terminated, the appellees were discharged. The client then settled the matter for a total recovery to him of $500,000.00.

The appellees subsequently sued for fees based on a quantum meruit evaluation of their services. The client defended on the ground that no fees were owed because the attorneys were discharged for cause. The trial court found that there was no justification for the discharge and, therefore, the client was liable for fees. Goodkind v. Wolkowsky, 132 Fla. 63, 180 So. 538 (1938); Osius v. Hastings, 97 So.2d 623 (Fla. 3d DCA 1957), vacated on other grounds Hastings v. Osius, 104 So.2d 21 (Fla.1958); Rosenkrantz v. Hall, 161 So.2d 673 (Fla. 3d DCA 1964). The trial court then [notwithstanding the fact that after the attorneys were discharged the client settled the matter for a total recovery to him of $500,-000.00] awarded a total recovery of $55,-000.00. We affirm the former and reverse the latter.

The appellees contended that after they were discharged they could ignore the terms of the written agreement, and the trial court was free to award them a fee based on a quantum meruit claim in light of the recovery made by the client, notwithstanding the contract. The trial court agreed with this theory, ignored the written terms of the contract, and awarded the $55,000.00 above referred to.

A client has a right at all times to discharge counsel. Goodkind v. Wolkowsky, supra; Diem v. Diem, 136 Fla. 824, 187 So. 569 (1939); Harvey v. Rowe, 141 Fla. 287, 192 So. 878 (1940); Osius v. Hastings, supra. The ultimate question is whether he will have to compensate the discharged attorney and, if so, the amount of any such compensation. Because the attorneys had been [upon finding of the trial court] discharged without cause, they are entitled to recovery of a fee, leaving only the question of the amount of said fee.

The letter agreement of employment [the validity thereof not being questioned] provided for the attorneys to receive no more than $10,000.00 if the client recovered less than $600,000.00. Under the existing law, where an attorney is discharged without cause when he was employed for a specified purpose and for a definite fee, he is entitled to the fee agreed upon after there has been substantial performance. Goodkind v. Wolkowsky, supra; Rosen-krantz v. Hall, supra. In the alternative, he can seek to recover a fee on the basis of quantum meruit for services rendered up to the date of discharge. Goodkind v. Wol-kowsky, supra. However, in no event can he recover more for his services than the maximum amount he himself has set on those services by contract. See: Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928); Solutec Corporation v. Young & Lawrence Associates, Inc., 243 So.2d 605 (Fla. 4th DCA 1971); Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971).

The appellees rely on Klarish v. Cypen, 343 So.2d 1288 (Fla. 3d DCA 1977) as authority for awarding an amount in excess of the figure contracted for by the parties. However, as that case clearly shows, no valid fee agreement existed between the parties, thereby permitting award of a fee strictly on the basis of quantum meruit. Therefore, we interpret Klarish v. Cypen, supra, as permitting a quantum meruit recovery for an attorney wrongfully discharged to be limited to an amount not to exceed the original contract sum where the validity of that contract is not challenged. Thus, under the facts of the instant case, the appellees’ recovery should be limited to a maximum of $10,000.00.

We reverse the final judgment under review and return the matter to the trial court to determine the measure of damages due the attorneys, based upon quantum meruit for the portion of the services they may have rendered in the ultimate settlement, keeping in mind that the fee fixed must bear a just relation to the prevailing philosophy with reference to the value of the lawyers’ services and must bear some relation to the results secured. Baruch v. Giblen, 122 Fla. 59, 164 So. 831 (1936). However, in no event can the amount awarded exceed the contract price of $10,000.00.

Reversed and remanded, with directions.


author: KEHOE, Judge.

text:
    The STATE of Florida, Appellant, v. Kenneth THURSTON, Appellee.
    No. 78-1838.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Rehearing Denied July 26, 1979.
    Janet Reno, State’s Atty., and Steven V. Rosin, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, State of Florida, brings this appeal from an order entered by the trial court granting appellee’s, defendant below, motion to dismiss the cause and discharge him due to a violation of the speedy trial rule. We affirm.

On February 9, 1978, appellee was taken into custody as a result of the conduct or criminal episode giving rise to the crime charged. Appellant filed an information in this cause on March 1,1978. Thereafter, on March 3, 1978, appellee was brought to arraignment. At the arraignment, the public defender was appointed to represent appel-lee. After the appointment, appellee’s counsel requested and obtained a fifteen day extension of time within which to file motions attacking the information. On March 3, 1978, the trial date was set for March 27, 1978. On the date set for trial, appellant requested a continuance. Subsequently, on August 11,1978, appellee filed a motion to discharge in this cause based on the fact that more than 180 days had elapsed since he was arrested. At the hearing on the motion to discharge, appellant argued that the motion should be denied based on appellee’s having sought and obtained the fifteen day extension of time on March 3, 1978. At the conclusion of the hearing, the trial court, rejecting appellant’s argument, granted appellee’s motion and entered an order dismissing the cause and discharging defendant. From this order, appellant appeals.

Appellant contends that the trial court erred as follows: (1) by granting appellee’s motion to discharge where the record revealed a continuance or delay attributable to appellee; and (2) by granting the motion to discharge where at the time the motion was filed the speedy trial rule period had not expired by virtue of the fifteen day extension granted appellee to file motions attacking the sufficiency of the information.

The basic contentions of appellant in this cause are that appellee’s fifteen day extension, which was granted early in the speedy trial period, constituted an “unexcused continuance” or, alternatively, his “unavailability” for trial under Florida Rule of Criminal Procedure 3.191 (the speedy trial rule). We disagree with these contentions.

In Tucker v. State, 357 So.2d 719 (Fla.1978), the Supreme Court of Florida stated as follows:

“We reject the notion that criminal defendants are to be penalized for moving to dismiss an indictment. The position urged by the state would place an accused on the horns of a dilemma by requiring him to jeopardize his speedy trial rights in order to challenge the state’s right to prosecute. The right to test the legality of the state’s procedure and the right to a speedy trial are independently guaranteed and we cannot accept a construction of our rules that would force a defendant to risk one to obtain the other.” Id. at 720-21.

We believe that the rationale expressed in Tucker, set forth above, requires a different result from that in State v. Beckett, 357 So.2d 448 (Fla. 2d DCA 1978), relied upon by appellant to support its position. (We note that Beckett was decided on March 31, 1978, and Tucker on April 5, 1978.) In Beckett, the defendant was arraigned and then waited until the 171st day of the speedy trial period to move for a 10 day extension within which to attack the information. The trial court in Beckett granted the 10 day extension, but denied the State’s concomitant motion to extend the speedy trial period for the same period. In this case, appellee was arraigned 22 days after his arrest which commenced the running of the speedy trial period, i. e., 180 days. Thus, in this case, at the end of the 15 day extension period, appellant still had 143 days within which to try appellee; however, it failed to do so. In fact, the record shows that on March 3, 1978, a trial date was set for March 27, 1978, but on the trial date appellant requested a continuance. The record further shows no continuances thereafter or any other conduct by appellee which prevented appellant from bringing him to trial.

In the light of the rationale set forth above in Tucker, i. e., a defendant should not be penalized for seeking to attack an indictment, in our opinion, under the facts of this case, the trial court properly granted appellee’s motion to dismiss the case and discharge him. We do not believe that where, under circumstances such as here, defendant’s act timely and in good faith to protect one important right, i. e., the right to attack the information with the aid of counsel, they should have to forfeit another important right, i. e., the right to a speedy trial. Under other circumstances, e. g., as in Beckett, we might reach a different result. See generally Jones v. State, 289 So.2d 725 (Fla.1974); State v. Edwards, 233 So.2d 393 (Fla.1970); Mulryan v. Judge, Division “C” Circuit Court of Okaloosa County, 350 So.2d 784 (Fla. 1st DCA 1977); State v. Yawn, 320 So.2d 880 (Fla. 1st DCA 1975); Sumbry v. State, 310 So.2d 445 (Fla. 2d DCA 1975); and Saviano v. State, 287 So.2d 102 (Fla. 3d DCA 1973).

Affirmed.


author: BARKDULL, Judge.

text:
    ARGONAUT INSURANCE COMPANY, Appellant, v. MARYLAND CASUALTY COMPANY, Yosemite Insurance Company, and Foremost Insurance Company, Appellees.
    Nos. 78-1849, 78-2242.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Rehearing Denied July 23, 1979.

      Howard E. Barwick and James V. John-stone, Miami Shores, for appellant.
    Dixon, Dixon, Hurst, Nicklaus & Webb and Mitchell L. Lundeen, Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, Knecht & Holland, Coral Gables, for appel-lees.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   BARKDULL, Judge.

Appellant seeks to recover attorney’s fees from the appellees and other costs which it incurred in defense of its insured, Watsco, Inc., in a prior law suit.

Appellant alleges that it can subrogate against the appellees because they also had liability insurance covering Watsco with pro rata other insurance clauses. In the complaint, the appellant specifically alleged that appellees and appellant, under their respective policies with Watsco, each had an independent duty to defend Watsco for property damage and liability. Watsco is not a party in the case at bar.

Appellant’s policy of insurance with Wat-sco provides, in part, as follows:

“I. LIABILITY COVERAGE . . .
The company shall have the right and duty to defend any suit against the insured seeking damages . . . and make such investigation and settlement of any claim or suit as it deems expedient
“HI. SUPPLEMENTARY PAYMENTS
—The company will pay, in addition to the applicable limits of liability: all expenses incurred by the company, all costs taxed against the insured in any suit defended by the company and all interest on the entire amount of any judgment . . .

In the recent case of Lehman-Eastern v. Brooks, 370 So.2d 14 (Fla.3d DCA 1979), this court said:

. If an automobile liability insurer assumes the defense of an insured and enters into settlement agreement with knowledge of facts taking the accident or injury outside the coverage of the policy and without disclaiming liability or reserving its right to deny liability or coverage, such insurer is thereafter precluded from denying liability. See U. S. Fidelity & Guar. Co. v. Snite, 106 Fla. 702, 143 So. 615 (1932), 18 A Fla.Jur. Insurance § 815 (1971), and cf. Pacific Indem. Co. v. California State Auto. Ass’n, 190 Cal.App.2d 293, 12 Cal.Rptr. 20 (1961). The record in the instant case is unclear as to whether the insurance carriers made any agreement (oral or written) between themselves with respect to the preservation of the liability issue upon contributing to the settlement with the plaintiff. This material issue being unresolved, summary judgment is precluded thereby.”

There is no allegation that, when contributing to settlement of the case, the appellees agreed to let appellant file suit against them for attorney’s fees and costs.

The appellees filed motions to dismiss, which are paraphrased as follows:

1. Plaintiff (Appellant) fails to state a cause of action against the Defendant (Appellee) in that plaintiff specifically states in paragraph 6 of its Complaint that plaintiff had an independent duty to defend Watsco.
2. Plaintiff fails to state a cause of action against the defendant in that plaintiff fails to attach any subrogation or indemnification agreement between defendant and Watsco, and further plaintiff fails to sufficiently allege subrogation or indemnification rights herein.
3. Plaintiff fails to state a cause of action against defendant in that plaintiff fails to allege any costs, fees, or damages in fact incurred by Watsco as the basis for plaintiff’s alleged subrogation rights against all defendants.

The trial court granted the motions to dismiss and entered a final judgment against the appellant and in favor of the appellees. As a matter of law, the trial court found that appellant was not entitled to recover contribution and subrogation from the ap-pellee-insurers, pursuant to the allegations in the complaint. From this final judgment, appellant has filed this appeal. We affirm.

The trial court correctly found that appellant did not state a valid cause of action for subrogation against the appellees for attorney’s fees and other costs. These expenses were incurred by appellant in defense of its insured (Watsco) pursuant to its policy of insurance. There is no relationship between appellant and appellees, other than the fact that appellant and appellees had separate contracts of liability insurance with Watsco, with pro rata other insurance clauses and standard defense obligations in each policy. There is no contractual relationship between appellant and appellees.

The appellant and appellees each have a standard defense clause in their respective policies of insurance with Watsco:

“The company shall have the right and duty to defend any suit against its insured seeking damages . . . and make any investigation and settlement of any claim or suit as it deems expedient.”

Pursuant to this contractual obligation, appellant incurred attorney’s fees and other costs while fulfilling its contractual duty to defend its insured (Watsco).

The duty of each insurer to defend its insured is personal and cannot inure to the benefit of another insurer. Thurston National Insurance Company v. Zurich Insurance Company, 296 F.Supp. 619 (W.D.Okl.1968). Contribution is not allowed between insurers for expenses incurred in defense of a mutual insured. United States Fidelity & Guaranty Company v. Tri-State Ins. Company, 285 F.2d 579 (10th Cir. 1960); Fidelity & Casualty Company of New York v. Ohio Casualty Insurance Company, 482 P.2d 924 (Okl.1971); Westchester Fire Insurance Company v. Rhoades, 405 S.W.2d 812 (Tex.Civ.App.1966).

“While the fact that here both companies in their policies agree to defend the assured bears some analogy to the situation where both companies have agreed to indemnify the assured against a total loss, nevertheless the agreement to defend is not only completely independent of and severable from the indemnity provision of the policy, but is completely different. Indemnity contemplates merely the payment of money. The agreement to defend contemplates the rendering of services. The insurer must investigate, and conduct defense, and may if it deems it expedient, negotiate and make a settlement of the suit. These matters each insurer is required to do regardless of what the other insurer is doing. While both may join together in the services and share expenses, there is no requirement that they do so. Conceivably, one might disagree with the other as to the strategy of the investigation and defense. It could act independently of the other. Thus the relationship is more that of co-insurer than cosurety. As to the assured, neither one is excused to any extent from its full duty to defend, no matter what the other does. The duty to defend is personal to the particular insurer. It is not entitled to divide that duty with or require contribution from the other.”

Financial Indemnity Company v. Colonial Insurance Company, 132 Cal.App.2d 207, 281 P.2d 883 (Cal.lst DCA 1955).

In Brayman v. Northwestern Mutual Insurance Company, 381 F.Supp. 362 (D.C.Colo.1974), one insurance carrier sued another for contribution for attorney’s fees and other costs, incurred when it provided the sole defense for their mutual insured. The court held that the duty to defend the mutual insured as personal to each insurer and the contractual obligation was several. Therefore, the court did not require contribution or indemnification between the insurers, absent a specific and contractual right.

An insurer’s obligation to defend its insured is contractual and does not arise from common law. Allstar Insurance Corp. v. Steel Bar, Inc., 324 F.Supp. 160 (N.D.Ind.1971); Grain Dealers Mutual Insurance Company v. Hardware Dealers Mutual Fire Insurance Company, 196 So.2d 650 (La.App.1967).

This court has recognized the personal nature of the duty to defend between an insured and an insurer. In Aetna Casualty & Surety Company v. Market Insurance Company, 296 So.2d 555 (Fla.3d DCA 1974), the driver of a rental vehicle struck a pedestrian. The driver’s insurance carrier (Aetna) refused to defend its insured by claiming that it had excess coverage over the rental car owner’s insurance coverage (Market). Market settled with the pedestrian and then sued Aetna for contribution to the settlement. Market lost its claim on a primary-excess issue. In this cited case, it is important to note that this court, on ruling on the coverage issue, stated:

“The fact that Aetna did not provide legal services for its insured, Mrs. Morse, is an issue between Aetna and Mrs. Morse

The appellant urges that as a matter of public policy it should have a cause of action. It reasons that subrogation should be allowed between insurers to discourage defaults on contractual agreements to defend. This argument must fail. If an insurance company refuses to defend or provide contractual coverage to its insured, then it may expose its policy limits to a third party and faces a breach of contract suit with other statutory remedies (e. g., Section 627.421(1), Florida Statutes) by the insured. An insured is adequately protected when its insurer breaches its contract. Further, third parties are protected for required liability coverage by public policy pursuant to established law. All necessary remedies and protection to the proper parties are available to enforce all necessary rights.

Watsco did not incur attorney’s fees and other costs; the appellant did. Although Section 627.428(1), Florida Statutes (1971) deals with recovery of attorney’s fees in a direct action, it was held, in Central Mutual Insurance Company v. Michigan Mutual Liability Company, 285 So.2d 684 (Fla.3d DCA 1973), that contribution between two insurance carriers was not allowed since Section 627.428(1), Florida Statutes (1971) did not specifically provide for it. Furthermore, it would be against the public policy and legislative intent of the State of Florida to allow Argonaut to collect contribution on these costs. Section 627.428(1), Florida Statutes (1971) provides for the award of attorney’s fees upon rendition of a judgment against an insurer and in favor of the insured. This statute was promulgated to protect an insured from an insurer’s non-compliance with the duty to defend, American National Insurance Company v. de Cardenas, 181 So.2d 359 (Fla.3d DCA 1965), and is to be strictly construed. Main v. Benjamin Foster Co., 141 Fla. 91, 192 So. 602 (1939). The Legislature has not seen fit to allow contribution for costs or attorney’s fees between insurance companies. If contribution for costs were allowed between insurance companies, there would be multiple claims and law suits. The insurance companies would have no incentive to settle and protect the interest of the insured, since another law suit would be forthcoming to resolve the coverage dispute between the insurance companies. This is contrary to public policy, particularly since the insured has been afforded legal protection and has not had to personally pay any attorney’s fees.

In Fireman’s Fund Insurance Co. v. North Carolina Farm Bureau Mutual Insurance Co., 269 N.C. 358, 152 S.E.2d 513 (1967), the court held:

“The attorneys employed to defend such suit were selected by the. company and looked to it for their compensation. At no time did Jerry Denning have any liability to the attorneys. He made no payment to them. He, therefore, never had a right of recovery, against any person or organization, because of fees paid to these attorneys. Consequently, the sub-rogation provisions of the policies issued to him by the plaintiffs have no application, since they provide only that the issuing company will be subrogated ‘to all the insured’s right of recovery’ for any payment made by the company.”

Even if the appellant were subrogated to the insured’s rights, under Section 627.428, Florida Statutes (1971) appellant still may not collect contribution. The earlier case was settled and no judgment was entered. In American Home Assurance Company v. Keller Industries, Inc., 347 So.2d 767 (Fla.3d DCA 1977), cert. denied 360 So.2d 1249 (Fla.1978), this court held that because the statute is to be strictly construed a judgment is required, and not even the insured may collect attorney’s fees.

The appellant has no right of sub-rogation, as the subrogation clause in its policy only allows the appellant rights to recover payments made by appellant on behalf of the insured.

“This company may require from the insured an assignment of all rights of recovery against any party for loss to the extent that payment therefor is made by this company.”

No obligation was incurred by the appellant in the prior litigation to make any payment on behalf of its insured (Watsco) to any other party for attorney’s fees and costs. Equity should not provide a subrogation remedy to appellant in the absence of any other rights of recovery. The appellant merely acted pursuant to its contractual relationship to Watsco. Appellant’s duty, pursuant to that relationship, would defeat equitable subrogation in this cause. See: Travelers Insurance Company v. Tallahassee Bank and Trust Company, 133 So.2d 463 (Fla.1st DCA 1961).

This case fails to compel the application of subrogation on a contractual, quasi-contractual, or equitable basis. Appellant has not paid a loss on behalf of Watsco; it has merely incurred attorney’s fees and costs in fulfilling its contractual duty.

The judgment under review is affirmed.

Affirmed.

      . The main case was settled with the appellees making nominal contributions to the settlement.

      . Generally, when there are multiple insurers, if either the plaintiff or an insurance company thinks more than one policy applies, it will bring the other carriers into the suit. In the original suit, Argonaut was representing Wat-sco and filing pleadings in the name of Watsco, and could have filed a third-party complaint for declaratory judgment against the other insurers to determine the duty to defend and/or coverage.

      .One ruling on motion to dismiss was appealed by Case No. 78-1849, but was consolidated with the appeal from the final judgment.


text:
    CARTER HAWLEY HALE STORES, INC., Appellant, v. Joseph J. CONLEY, Appellee.
    No. 78-2237.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Bleeke, Miami, for appellant.
    Zisser, Robison & Spohrer, P. A., and Norwood S. Wilner, Jacksonville, for appel-lee.
    Before HAVERPIELD, C. J., and BARK-DULL and KEHOE, JJ.
   PER CURIAM.

The appellant, d/b/a Neiman-Marcus, appeals a judgment awarding Conley $24,-000.00 in damages as a difference in value of a diamond as warranted at the time of sale and what it was actually worth at that time.

The cause was tried non-jury. The trial court made findings of fact as follows:

“. . . After hearing and inspecting the evidence presented, and being fully advised in the premises, the court does find and conclude as follows:
“1. On February 6, 1973, the plaintiff, Joseph J. Conley, bought one pear-shaped diamond of approximately 10.33 carats from defendant, Broadway-Hale Stores, Inc., a/k/a Carter Hawley Hale Stores, Inc., who operated a retail establishment known as Neiman-Marcus, Inc., in Bal Harbour, Florida.
“2. Plaintiff paid $120,000.00 for the 10 carat diamond and a ring setting including two smaller diamonds. By far the bulk of the purchase price went toward the 10 carat diamond. There was ample evidence presented that $120,000.00 was a reasonable price for like 10 carat diamonds as of February, 1973.
“3. Accompanying the diamond as sold by defendant was a report from the GIA bearing date September 8, 1969 and serial number NY 44474. The report, admitted into evidence without objection, described a ‘pear-shaped brilliant cut’ diamond of 10.38 carats, which was the diamond sold to plaintiff. Along with certain measurements that do not concern this case, the report stated under ‘clarity grade’: ‘Flawless’, and under ‘color grade’ : ‘D’. In a scale of color and clarity grade found near the bottom of the report, the ‘D’ color grade was located at the extreme end of the ‘colorless’ section of the scale, and the clarity grade ‘Flawless’ was located at the extreme end of that scale.
“4. Also accompanying the sale, and bearing date February 6, 1973, was a document titled ‘Jewelry Appraisal for Insurance Purposes’ authored by defendant Neiman-Marcus Company of Bal Harbour, Florida. Under item # ‘OR9847’ an item was described as ‘one pear-shaped diamond weighing 10.38 cts. GIA # NY 4447 ‘D’ Flawless . . . ’.
A replacement value of $120,000.00 was given.
“5. I find that the GIA report of September 8, 1969 and the jewelry appraisal, constituted an express warranty under Section 2-312 of the Uniform Commercial Code [Chapter 672.312, Florida Statutes]. In this connection, I find there to be no conflict in the evidence that the report was presented to plaintiff along with the sale, and that there were no representations made at the time of the sale to dissuade plaintiff from relying on the accompanying report. I further find the report to state facts and not mere opinions. Certainly to an unsophisticated buyer a diamond’s rating of color and clarity appear to be objective enough to be relied upon. In this regard, I find that, in accordance with plaintiff’s testimony, the specification in the initial GIA report that the purchased diamond was a color grade ‘D’ and clarity grade ‘Flawless’ was the basis on which the purchase was made.
“6. Mr. George Crowningsheild testified that the report of the GIA was universally used and universally accepted as a ‘pedigree’ when it accompanied a diamond. He testified that their reports are often used as a ‘selling tool’ and that frequently they accompany a stone at the point of sale.
“7. Mr. Crowingsheild further testified that the color grade of ‘D’ was the highest color grade awarded by the GIA and the highest and most valuable color grade recognized. He testified further that the clarity grade of ‘Flawless’ was similarly the highest clarity grade recognized for any diamond. The combination of ‘D-Flawless’ was thus the most perfect and most colorless of all stones, and was recognized as being the most desirable rating.
“8. The opinions of Mr. Crowningsheild in this regard were reiterated by plaintiff’s expert, Lawrence Messick, the owner of Jason Lord’s Jewelers in Palm Beach, Florida.
“9. Plaintiff testified that, some two years after the sale, at the request of an interested buyer, he had taken the diamond to New York for a re-examination by the GIA. A report was issued at that time, bearing date of October 22, 1975 and serial # NY 695948, which was offered into evidence without objection. This second report stated under clarity grade: ‘internally flawless’, and under color grade: ‘E’. Plaintiff testified that after the second report was obtained, he notified defendant’s agents of the discrepancy. This constitutes notice under Section 2-714 of the Uniform Commercial Code [Section 672.714, Florida Statutes].
“10. Plaintiff’s damages are properly measured by difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted. Section 672.714(2), Florida Statutes.
“11. As to the difference in 1973 for the diamond in question, plaintiff’s expert gave a lower figure of $24,000.00 and upper figure of $47,000.00. Defendant’s expert, Mr. Leon, estimated the difference at 20 per cent of the value of the diamond in 1973, or some $24,000.00.
“12. I therefore conclude that the difference in value between the diamond as accepted and the diamond as warranted amounts to $24,000.00.
“Upon the foregoing findings of fact and conclusion of law, it is ORDERED and ADJUDGED as follows:
“1. Plaintiff shall recover from defendant the sum of $24,000.00, plus taxable costs, for which sums let execution issue.”

We affirm. Express warranties in the sale of goods are governed by Section 2-313 of the Uniform Commercial Code [Section 672.313, Florida Statutes (1971)]:

“1. Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes a part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.’’ [emphasis added]

Inclusion of the description of all phases of the sale, especially when coupled with justifiable reliance by the buyer, leaves no doubt that the description is part of the basis for the bargain. In fact, as shown by the Official Comments to Section 2-313, all affirmations made by the seller are presumed a part of the basis for the bargain unless proven otherwise:

“In view of the principle that the whole purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell, the policy is adopted of those cases which refuse except in unusual circumstances to recognize a material deletion of the seller’s obligation. Thus, a contract is normally a contract for a sale of something describable and described. .
“■ ■ . [Consideration should be given to the fact that the probability is small that a real price is intended to be exchanged for a pseudo-obligation." (Official Comment 4, § 2-313)
“ • . . [N]o particular reliance on such statements need to be shown in order to weave them into the fabric of the agreement. Rather, any fact which is to take such affirmations, once made, out of the agreement requires clear affirmative proof. The issue normally is one of fact.” (Official Comment 3, § 2-313) [emphases added]

The trial judge found, as a matter of fact, that the 1969 GIA certification and the bill of sale were descriptions of the goods that were part of the basis of the bargain and, therefore, created an express warranty by Neiman-Marcus that the Conley stone conformed to them.

Notably, the intent of the seller is not controlling on whether a warranty arises:

“It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, . . . ”

Section 672.2-313, Florida Statutes (1971). On the contrary, a warranty arises by action of law if, as earlier argued, a description of the goods is made the basis of the bargain. In Miles v. Kavanaugh, 350 So.2d 1090 (Fla.3d DCA 1977), the court held that a log book showing repairs supposedly made on an airplane created an express warranty of description that the repairs were done. The seller claimed ignorance of the falsity of the log book, and further denied any attempt to extend a warranty. The court held, however, that:

“. . . [A]n express warranty need not be by words, but can be by conduct as well, such as, the showing of a blueprint or other description of the goods sold to the buyer. . . . It is sufficient that the warranty was made which formed part of the basis for the bargain. . [emphasis added]

Appellant’s entire argument is based on an exculpatory provision of Section 2-313(2), which reads as follows:

“. . [A]n affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”

Appellant’s argument is, in essence, that the GIA report of September 1969 is really not a “fact” but an “opinion” and, therefore, under the last sentence of subsection (2) above it cannot create an express warranty. Subsection (2) mentions only those statements purporting to be merely the “seller’s opinion”; “opinions” of third parties are not precluded from being express warranties. See: Miles v. Kavanaugh, supra. In the instant case, the “opinion” was that of the GIA and not of Neiman-Marcus.

Of course, certain affirmations of the seller amount only to “puffing” and do not give rise to warranties, e. g., the “nicest car in town”. These would be “affirmation[s] merely of the value of the goods” or the seller’s commendations under the exculpatory provision of Section 2-313(2), relied on by the appellant. However, the GIA certificate makes no mention of value and can hardly be considered “puffing”.

What statements are “merely the seller’s opinion or commendation”? Official Comment 8 to Section 2-313 indicates that they are statements which in “objective judgment” do not become part of the basis for the bargain:

“Concerning affirmations of value or a seller’s opinion or commendation under subsection (2), the basic question remains the same: What statements of the seller have in the circumstances and in objection judgment become part of the basis of the bargain? As indicated above, all of the statements of the seller do so unless good reason is shown to the contrary. The provisions of subsection (2) are included, however, since common experience discloses that some statements or predictions cannot fairly be viewed as entering into the bargain. . . . ” [emphasis added]

Statements falling into this category would be statements upon which the buyer had no right to rely, as when buyer and author of the “opinion” were equally knowledgeable.

As the evidence supported the correctness of the post-sale reports, the trial judge ruled that the diamond is, was on the sale date, and always was color grade “E”, which was not the color grade it was warranted to be; thus a breach on the date of sale was established.

Therefore, for the reasons above stated, the judgment under review be and the same is hereby affirmed. See: Section 672.714, Florida Statutes (1971), the section under which this action was brought. The text of 2-714 is set out as follows:

“(1) Where the buyer has accepted goods and given notification (§ 672.2-607(3)) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
“(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
“(3) In a proper case any incidental and consequential damages under the next section may also be recovered.” [emphasis added]

■ The statutory scheme leaves no doubt that, when non-conforming tender is delivered, it is the buyer’s choice whether to reject the goods and cause a recission of the contract, suing for their purchase price, or whether to accept the goods and receive as damages for breach of warranty the “difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted”.

Affirmed.

      . The seller admitted that because of the GIA certificate it bargained for and got an increased price for the diamond.


text:
    Louise TOBIN, Appellant, v. B. V. DANNHEISSER, Jr., Appellee.
    No. MM-279.
    District Court of Appeal of Florida, First District.
    June 22, 1979.
    James M. Wilson of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellee.
   PER CURIAM.

A final summary judgment was entered by the trial court finding that appellant’s action against appellee, a dentist, for alleged medical malpractice was barred by the statute of limitations, Section 95.-U(4)(b), Florida Statutes (1975). We reverse.

Appellant’s contention that the action was timely commenced because a claim was submitted pursuant to the medical liability mediation procedures set forth in Section 768.44, Florida Statutes (1977) within two years of the allegedly negligent treatment by appellee is without merit. Young v. Bramlett, 369 So.2d 652 (Fla. 1st DCA 1979).

However, we agree with'appellant’s contention that a genuine issue of material fact existed which precluded entry of summary judgment with respect to when appellant discovered or, with the exercise of due diligence, should have discovered the incident giving rise to the cause of action. Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA 1978), cert. den. 361 So.2d 831 (Fla.1978); Salvaggio v. Austin, 336 So.2d 1282 (Fla. 2d DCA 1976). Accordingly, the final summary judgment is reversed and the cause is remanded for further proceedings.

MILLS, Acting C. J. and LARRY G. SMITH, J., concur.

BOOTH, J., dissents.


text:
    FORT WALTON ROOFING AND MAINTENANCE COMPANY, INC., Appellant, v. The SHELBY MUTUAL INSURANCE COMPANY, Appellee.
    No. MM-65.
    District Court of Appeal of Florida, First District.
    June 26, 1979.
    Michael Jones of Selby, Chesser, Wingard & Barr, Fort Walton Beach, for appellant.
    Richard M. Denney of Timmel & Simpson, Fort Walton Beach, for appellee.
   PER CURIAM.

The debtor, Fort Walton Roofing and Maintenance Company, Inc., argues that funds held by the garnishee which were designated “trustee special fund in trust for U.S. under Sec. 7512 IRC”, and which represented proper amounts of social security and withholding taxes, were not garnisha-ble. We agree. The fund was properly established and managed by the debtor pursuant to Title 26 U.S.C. § 7512, which specifically provides that the fund is a special fund in trust for the United States, payable to the United States by the depositor as trustee. REVERSED.

McCORD, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.