text:
    NORTHWESTERN NATIONAL INSURANCE CO., a Wisconsin Corporation, Appellant, v. GENERAL ELECTRIC CREDIT CORP., a New York Corporation, Eugene J. Cella and Shirley A. Cella, Appellees.
    Nos. 77-829, 77-1920.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Rehearing Denied Sept. 29, 1978.

      Smathers & Thompson and Linwood Anderson and William 0. Mehrtens, Jr., Miami, for appellant.
    Burns & Arnovitz and Jerold H. Reichler, Miami Beach, Reginald M. Hayden, Jr. and F. Lawrence Matthews, Miami, for appel-lees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant/defendant-cross-defendant, Northwestern National Insurance Co. (Northwestern), takes this consolidated appeal from a final judgment rendered in favor of appellee/plaintiff, General Electric Credit Corp. (General Electric), and appel-lees/ defendants-cross-plaintiffs, Eugene and Shirley Celia (Celias); and from a post final judgment order on attorney’s fees. The Celias have cross-appealed from the final judgment.

In sum, the final judgment ordered that Northwestern, the insurers of a boat owned by the Celias, pay General Electric, as assignees of a first preferred ship mortgage on said boat, the sum of THIRTY-ONE THOUSAND, THREE HUNDRED and SEVENTY-SEVEN DOLLARS and EIGHTY-ONE CENTS ($31,377.81) plus interest, costs and attorney’s fees, as a result of the boat’s destruction. The final judgment further ordered that Northwestern pay the Celias, as the insureds-owners-mortgagors of the boat, the amount of FORTY-FOUR THOUSAND, ONE HUNDRED DOLLARS ($44,100.00) less the recovery of General Electric, plus interest, costs and attorney’s fees.

The post final judgment order on attorney’s fees awarded General Electric the sum of TWELVE THOUSAND, FIVE HUNDRED DOLLARS ($12,500.00) against the Celias as attorney’s fees and further ordered that the Celias be indemnified by Northwestern in like amount. Additionally, the court ordered that the Celias could recover from Northwestern their own reasonable attorney’s fees in the amount of SEVENTEEN THOUSAND, FIVE HUNDRED DOLLARS ($17,500.00).

From the judgment, the Celias have taken a cross-appeal wherein they claim that the amount of coverage on their boat, vis a vis the policy of insurance issued to them by Northwestern, was SEVENTY-FIVE THOUSAND DOLLARS ($75,000.00), and not FORTY-FOUR THOUSAND, ONE HUNDRED DOLLARS ($44,100.00), as determined by the trial judge, and being the actual purchase price of the boat. As we surmise from the findings of fact and conclusions of law, the trial judge determined that it was the intent of the Celias to insure the boat for the purchase price only, notwithstanding the fact that premiums were actually paid by them and accepted by Northwestern for the increased coverage, and further determined that to rule that coverage was available in the amount of SEVENTY-FIVE THOUSAND DOLLARS ($75,000.00) would “in good conscience and good faith” be tantamount to awarding the Celias a “windfall.”

As for the final judgment, it is Northwestern’s position that any boat insurance that it had issued to the Celias was void in that (1) Eugene Celia had intentionally concealed and/or misrepresented material facts concerning his background when applying for the boat insurance that were relevant to the risk sought to be insured; (2) the insureds had participated in a conspiracy to import illicit drugs into this country, utilizing the boat in a smuggling operation, in contravention of the “pleasure boat” condition of the issued policy; and (3) the boat was intentionally destroyed by one of the co-conspirators during an unsuccessful drug run.

As for the post-final judgment order on attorney’s fees, Northwestern contends that even if coverage is available to appellees, the trial judge erred in (1) awarding excessive fees to the Celias and (2) awarding any fees to General Electric in that it was but a plain law loss payee, and not an insured or named beneficiary under a policy of insurance pursuant to Section 627.428, Florida Statutes (1977) and General Electric Credit Corporation v. Fidelity & Casualty Company of New York, 344 So.2d 1284 (Fla. 4th DCA 1977).

After carefully reviewing the record, briefs and counsel’s arguments, it is our opinion that the acts of the Celias voided any coverage afforded them by virtue of the policy of insurance issued by Northwestern. Accordingly, the final judgment is reversed. Our decision moots the cross-appeal of the Celias. Additionally, in that we hold that no coverage existed, it was error to award attorney’s fees to appellees. Accordingly, the post-final judgment order is likewise reversed.

As succinctly as possible, the facts of the case as shown by the record are as follows. On June 19, 1974, the yacht “Tempest” was sold by Allied Marine Corporation to the Celias. The purchase was arranged by a Mr. Ben Farrow, a yacht salesman, who procured the transfer of the then existing insurance on the yacht from its former owner to the Celias. The transfer of the insurance was effected by telephone conversation between Farrow and a Mr. Kenneth A. Smith, an insurance agent. During the conversation, various questions were asked by Smith directly to Eugene Celia concerning the “risk” involved. Celia never advised Smith that he had a prior criminal record.

As part of the financing of the yacht, a ship’s mortgage was taken out between the buyers, the Celias, and the sellers, Allied Marine Corporation. The mortgage was later assigned to General Electric. The whole transaction, including the sale, financing and transfer of insurance was effectuated with great dispatch at the urging of Eugene Celia.

The purchase price of vessel was approximately FORTY-FOUR THOUSAND DOLLARS ($44,000.00) with a TWENTY THOUSAND DOLLAR ($20,000.00) payment having been made in cash by Shirley Celia. Both the Celias had been unemployed during the year previous to the purchase of the yacht. In order to obtain the ship’s mortgage, Eugene Celia had to complete a personal financial statement. Said statement revealed that Eugene Celia had cash on hand in the approximate amount of SIXTY-FOUR THOUSAND DOLLARS ($64,000.00), notes receivable in the amount of ONE HUNDRED TWENTY-FOUR THOUSAND DOLLARS ($124,000.00), assets of over TWO HUNDRED THOUSAND DOLLARS ($200,000.00), a salary of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) and income of TWENTY-FOUR THOUSAND, SIX HUNDRED FIFTY DOLLARS ($24,650.00). None of this information given by Eugene Celia was, in fact, correct. In addition, a withholding tax slip (W — 2 form) submitted by Celia in connection with the financial information was admittedly falsified in order to obtain the credit to finance the yacht.

When delivery was finally taken on the yacht, Mr. Celia was met at the yacht by Richard Cravero, Bobby Miller and Ronald Paterno. Cravero had- inspected the yacht on three or four occasions prior to the closing of the sale, and Paterno had been designated as the yacht’s “captain” in that the Celias had no experience in operating such a vessel.

Two days after the closing, on June 21, 1974, the yacht was spotted in Bahamian waters by the crew of a Bahamian gun boat. Although the yacht was not searched, the persons aboard were instructed to proceed to the Island of Bimini where the passengers filled out immigration cards. The cards reflected that the passengers aboard the yacht were Ronald Clifford Chandler, Phil Siegal, Miller and Paterno, all alleged members of a group frequently referred to as the Cravero gang. The Cel-ias were not on the yacht.

During this time, Cravero and a government undercover agent were aboard the vessel “Yankee Clipper,” which had been rented from Pier 66, Fort Lauderdale, Florida. Apparently, the two vessels were supposed to rendezvous off the coast of the Bahama Islands for the purpose of transporting cocaine and marijuana into the United States. For some reason, contact was not made and the “Yankee Clipper” returned to the United States without meeting the “Tempest.” The Celias’ yacht returned to the United States with its illicit cargo of drugs.

In the latter part of June, 1974, Cravero, fearing that he was under surveillance boarded the “Tempest” in Jupiter, Florida, and proceeded down the Intercoastal Waterway. Off Jupiter, the yacht ran aground and Cravero and others set the “Tempest” on fire. Prior to the yacht’s destruction, part of the marijuana was unloaded on an adjacent island, the rest burned with the ship.

As previously stated, Northwestern urges reversal on three grounds: first, Northwestern contends the insurance coverage is void by reason of misrepresentation and concealment on the part of Eugene Celia which were material to the risk sought to be covered; second, Northwestern contends that the intentional destruction of the “Tempest” voided the coverage; third, Northwestern argues that the terms of the policy of insurance were violated when the Celias participated in an illegal conspiracy to import drugs.

Needless to say, appellees have responded to all of Northwestern’s contentions. Specifically, as to the point regarding the issue of conspiracy, appellees rely on the trial judge’s findings of fact which, in part, reads that Northwestern “failed to establish a conspiracy involving Eugene J. Celia and/or Shirley A. Celia.” We have specifically set forth the above facts in detail because we reject the learned judge’s finding.

We are fully aware of the weight that must be given to a trial judge’s findings of fact on appeal. Though findings arrive at this court with a presumption of correctness, it is the duty of an appellate court to reverse where a decision is based upon a finding that represents a misapplication of the law governing the facts disclosed. Dixson v. Kattel, 311 So.2d 827 (Fla. 3d DCA 1975); Goldstein v. Goldstein, 310 So.2d 361 (Fla. 3d DCA 1975). It is our opinion that, sub judiee, the trial judge misapplied the law as it governs conspiracy.

While there may have been a dearth of direct testimony linking the Cel-ias to a conspiracy to import illicit drugs into this country, it is well-settled that a conspiracy may be proven by circumstantial evidence. Resnick v. State, 287 So.2d 24 (Fla.1973). Based upon the law, there is little doubt in our minds that it was the intent of the Celias to conspire with the Cravero gang in the purchase of the insured vessel for use in an illegal drug smuggling operation. Obviously, the use of the yacht for such illegal purpose clearly violated the “pleasure boat” provision of the policy of insurance.

Based upon the above, we need not discuss Northwestern’s remaining contentions.

Accordingly, the final judgment and post final judgment order are reversed and remanded for further proceedings consistent herewith.

Reversed and remanded for further proceedings consistent herewith.


source: Caselaw Access Project

author: HUBBART, Judge.

license: Public Domain

text:
    Fred COWELL, Executive Director, Dade County Public Health Trust, Appellant, v. Gloria FULLER, Appellee.
    No. 77-1278.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Rehearing Denied Sept. 29, 1978.
    Stuart L. Simon, County Atty. and R. A. Cuevas, Jr., Asst. County Atty., for appellant.
    Long & Smith and Harold Long, Jr., Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

The central question involved in this appeal is whether the First Amendment to the United States Constitution precludes a governmental agency as an employer from disciplining one of its employees for making offensive, anti-semitic remarks on the job to a Jewish co-employee. We hold that no such constitutional prohibition exists under these circumstances and that a governmental agency as an employer may, in the interest of promoting employee harmony, discipline one of its employees for making such offensive remarks on the job to such a co-employee.

A

The critical facts of this ease are undisputed. Fred Cowell, is the Executive Director of the Dade County Public Health Trust which operates Jackson Memorial Hospital in Miami, Dade County, Florida. The Dade County Public Health Trust in turn is governmentally owned and operated by Dade County, Florida. §§ 154.07 et seq. Fla.Stat. (1977).

On September 13,1976, Mr. Cowell, in his capacity as Executive Director of the Dade County Public Health Trust operating Jackson Memorial Hospital, acted to impose disciplinary sanctions on one Gloria Fuller as an employee of such hospital. Approximately five months prior thereto, Mrs. Fuller had been demoted by her immediate supervisor to the position of Dietician I at the hospital. Mr. Cowell reinstated Mrs. Fuller to the position of Dietician III, but imposed two disciplinary sanctions as a condition thereto: (1) he disallowed her any back pay for the time she was temporarily demoted, and (2) he required her to write a letter of apology to her supervisor and to a co-employee to whom she had made certain insulting remarks. Mr. Cowell accepted the findings and recommendations which had been made in the case by a hearing examiner subsequent to Mrs. Fuller’s demotion.

The basis for this limited disciplinary action by Mr. Cowell was a charge that Mrs. Fuller had made certain offensive anti-se-mitic remarks to a Jewish co-employee and thus had violated Ch. 10, § 6(b), (h) of the personnel rules of the Dade County Public Health Trust. The record without dispute before the hearing examiner reflects that Mrs. Fuller in her supervisory capacity as a Dietician III at Jackson Memorial Hospital did in fact make certain offensive, anti-se-mitic remarks to a Jewish subordinate employee at the hospital, Mrs. Allen Korschun. These ethnic slurs took place over a period of time on the job at staff meetings and at other locations in the hospital in the presence of other hospital employees. Examples of these anti-semitic remarks were:

“You know about Jews, Mrs. Korschun, they are pushy and aggressive;”
“All Jews have money. Look at you Mrs. Korschun, your husband is a millionaire;” “Did you ever see all those little old Jews on Miami Beach. They are so shriveled up, Mrs. Korschun, why is it that all Jews shrink like that.”

On one occasion Mrs. Korschun asked for permission to leave work 15-30 minutes early and make it up the next day so that she could arrive home in time to celebrate Hanukkah. Mrs. Fuller denied the request and ridiculed Mrs. Korschun by saying:

“Mrs. Korschun, anyone who eats pork doesn’t have to light Hanukkah candles on time.”

Mrs. Korschun was known not to observe the orthodox Jewish dietary laws.

The above remarks greatly upset Mrs. Korschun who eventually complained to Mrs. Fuller’s supervisors. Appropriate steps were taken to investigate Mrs. Kor-schun’s complaints, and when found to be true, Mrs. Fuller was demoted to Dietician I. Mrs. Fuller thereafter requested a hearing on the charges which was promptly held and at which she was represented by counsel. The hearing examiner after a full evi-dentiary hearing sustained the charge that offensive anti-semitic remarks were made to Mrs. Korschun on the job, but recommended less drastic disciplinary action. On the basis of the hearing examiner’s findings and recommendations as well as the entire record, Mr. Cowell offered to restore Mrs. Fuller to the grade of Dietician III subject to two conditions: (1) that Mrs. Fuller make a written apology to Mrs. Korschun and Mr. John Butterworth, her immediate supervisor, for the bigoted remarks which she made to an employee under her supervision, and (2) that the reduction in salary caused by Mrs. Fuller’s demotion to Dietician I, to the date of her reinstatement to Dietician III, be forfeited.

Mrs. Fuller accepted her reinstatement to Dietician III and wrote the required letters of apology. She resisted, however, the disciplinary sanction imposed by Mr. Cowell as to the loss of back pay during her period of demotion. She filed a petition for writ of certiorari to the Circuit Court for the Eleventh Judicial Circuit of Florida and contended in effect that Dade County was. barred by the First Amendment to the United States Constitution from disciplining her in any way for making the offensive anti-semitic slurs on the ground that she had a free speech right to make those remarks in the employment context.

The circuit court granted the petition for writ of certiorari, struck the disciplinary sanctions imposed upon Mrs. Fuller, and ordered that she recover any reduction in salary and loss of emoluments of office occasioned by her demotion. The basis for this decision was that Mrs. Fuller had not been found guilty of any actionable misconduct upon which disciplinary sanctions could be imposed. Dade County appeals.

B

The leading and most relevant First Amendment case on the power of the government as an employer to discipline one of its employees for uttering certain speech is Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In that case, a school teacher employed by a township board of education was dismissed from his employment for writing a letter to the editor of the local newspaper which was critical of the school board and the superintendent of schools in their handling of certain proposals to raise new revenue for the schools. The Court struck down the dismissal and articulated the applicable constitutional principles of law governing its decision as follows:

“To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court, (citations omitted). ‘[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.’ (citation omitted). At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” [Emphasis added].
* * * * * *
“Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.
“An examination of the statements in appellant’s letter objected to by the Board reveals that they, like the letter as a whole, consist essentially of criticism of the Board’s allocation of school funds between educational and athletic programs, and of both the Board’s and the superintendent’s methods of informing, or preventing the informing of, the district’s taxpayers of the real reasons why additional tax revenues were being sought for the schools. The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among co-workers is presented here. Appellant’s employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can be persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning. [Emphasis added].
“More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.
* * * * * *
“The public interest in having free and unhindered debate on matters of public importance — the core value of the Free Speech Clause of the First Amendment— is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity.
He sfc H« * * H<
“In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” Id. at 568, 569-70, 571— 72, 573, 574, 88 S.Ct. at 1734, 20 L.Ed.2d at 817, 818, 819, 820, 821.

First Amendment free speech deci-sional law since Pickering has consistently upheld disciplinary actions by the government as an employer against a public employee for making disparaging remarks on the job which threaten proper supervisory discipline or employee harmony. Although the freedom of speech is a cherished civil liberty in our constitutional system, it is by no means an absolute right. The question in each case is to set a fair balance between the competing individual and governmental interests involved, keeping in mind the core value of the Free Speech Clause of the First Amendment: the promotion of unhindered debate on matters of public importance. Cohen v. California, 403 U.S. 15, 19, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284, 290 (1971); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); New York Times Co. v. Sullivan, 376 U.S. 254, 269-70, 84 S.Ct. 710, 720, 11 L.Ed.2d 686, 700-701 (1964); Konigsberg v. State Bar of California, 366 U.S. 36, 49-51, 81 S.Ct. 997, 1005-1007, 6 L.Ed.2d 105, 116 (1961).

C

In the instant case, we deal with a governmental entity, Dade County, which has acted in its capacity as an employer to regulate the speech of one of its employees. As such, Dade County has interests in such regulation that differ significantly from those it possesses when it acts to regulate the speech of the citizenry in general. One of those interests relevant here is the promotion of employee harmony on the job.

Unlike Pickering’s letter to the editor of the local newspaper criticizing the township’s school board and superintendent of schools with whom he had no regular work contact, Mrs. Fuller’s anti-semitic remarks herein were addressed on the job over a sustained period of time to a subordinate Jewish employee with whom Mrs. Fuller had almost daily work contact and with whom it was important that Mrs. Fuller maintain a good working relationship. These comments were insulting to the subordinate employee who became upset and eventually complained to Mrs. Fuller’s superiors. As harmonious relationships between Dade County’s employees at the hospital were threatened if such insulting speech were to be tolerated, it is our view that Dade County acted well within its authority to promote harmony among its employees when it disciplined Mrs. Fuller for her antisemitic remarks.

It is true, as the hearing examiner found, that Mrs. Fuller’s ethnic slurs did not disrupt the work of the dieticians or reduce the efficiency of the dietary staff in connection with the therapeutic patients at the hospital. In other words, work routine of the entire dietician unit at Jackson Memorial Hospital did not break down to the point where patients were not getting their proper food on time. Nonetheless, we believe that Dade County as an employer was not required to wait until things deteriorated to that state before it could take any disciplinary action against Mrs. Fuller. The government has an interest in promoting harmonious employee relationships by prohibiting bickering and petty insults among its employees. No efficient working unit, whether in government or private industry, can tolerate such kind of inexcusable speech among its employees without eventually suffering an impairment in employee morale and in the ultimate quality of its service or product.

It is also true that the hearing examiner expressly declined to determine whether Mrs. Fuller made the insulting, anti-semitic remarks to Mrs. Korschun in jest. Whether made in jest or not, the hearing examiner considered the remarks to be insulting as did Mr. Cowell. In his letter to Mrs. Fuller, Mr. Cowell specifically noted the inappropriateness of the ethnic remarks herein while on the job. While we agree that certain good-humored ethnic comments and jokes are endemic to our culture and should not be regarded as insulting by any reasonable person, it is clear that the remarks herein do not fall in that category. Even so-called jokes of an ethnic nature can have a cutting edge and be most insulting. A delicate question of taste is obviously involved whenever one undertakes to poke fun at another’s ethnic origin or religion, which boundary of good taste Mrs. Fuller greatly overstepped.

Nor is it any excuse that Mrs. Fuller may have also been the brunt of similar tasteless and insulting jokes uttered by co-employees concerning her race. As Mrs. Fuller alluded to in her letter of apology, such racist jokes on the job, if any, are equally inappropriate and may also be prohibited by Dade County through the imposition of disciplinary sanctions.

D

Apart from the presence of strong governmental interests in this case, we must also examine the other side of the scale to determine whatever individual interests may be involved in Mrs. Fuller’s speech herein which might tip the balance in her favor. We find no such interests in this case. Unlike Pickering’s letter to the editor of the local newspaper commenting on the public issue of school financing, Mrs. Fuller’s anti-semitic remarks involve an admittedly private matter in which one public employee engaged in ridiculing a co-employee on the job through insulting speech. Such remarks were in no sense directed to any issue of public concern, and accordingly, do not invoke the core value of the Free Speech Clause of the First Amendment as to unhindered debate on issues of public importance. Indeed, Mrs. Fuller makes no contention to the contrary.

As to the individual interest of Mrs. Fuller in expressing her personality as a human being through speech, Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), her anti-semitic insults in this case hardly fall in that category either. No person who utters anti-semitic remarks at the expense of another human being can reasonably claim that it vindicates some distorted notion of individual dignity. On the contrary, such ethnic insults degrade the dignity of both the speaker and the victim of the speech. Sartre, Anti-Semite and Jew (1946).

We agree with Mrs. Fuller that her remarks in this case involved pure speech— which in itself is a form of conduct—and prima facie raise an issue of First Amendment protection. Tinker v. DeMoines Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). That alone, however, is insufficient to sustain a free speech claim. It is still necessary,to examine the nature of the speech involved and the context in which it was uttered in order to strike a fair balance between the competing governmental and individual interests involved therein. In this case, we conclude that Mrs. Fuller’s anti-semitic remarks were not constitutionally protected by the First Amendment because the applicable governmental interests in limiting the speech greatly outweigh whatever minimal individual interests may be involved in allowing the speech.

In all fairness to the trial court, it should be noted that the hearing examiner made certain broad statements of law in his findings which could reasonably be interpreted to mean that Mrs. Fuller’s anti-se-mitic comments were fully protected by the First Amendment. The trial court reasoned quite correctly that if Mrs. Fuller’s comments were so protected by the First Amendment, Dade County could not discipline her in any way for the remarks which she made. The trial court, however, was not bound by the conclusion of constitutional law reached by the hearing examiner. Whether the anti-semitic comments herein constituted an expression of free speech guaranteed by the First Amendment is obviously a question of law which could only be determined by the court itself.

In sum, we cannot agree that any of the interests underlying the First Amendment were served by Mrs. Fuller’s anti-se-mitic comments uttered in the employment context against a subordinate employee with whom she had daily work contact, or that Dade County was disabled by those interests from imposing and enforcing the very limited discipline emerging from this record. The applicable decisional law demonstrates that although a public employee has a First Amendment right of free speech, the right is not an absolute one. The government as an employer has a legitimate interest in limiting certain employee speech on the job for the purpose of promoting harmonious relationships between its employees. Mr. Cowell’s decision to impose limited disciplinary sanctions against Mrs. Fuller for her anti-semitic remarks was clearly aimed at promoting such harmonious relationships among employees at Jackson Memorial Hospital. In such action, we can find no violation of Mrs. Fuller’s First Amendment rights.

The order under review is reversed and the cause is remanded to the trial court with directions to deny Mrs. Fuller’s petition for a writ of certiorari and to reinstate Mr. Cowell’s disciplinary action against Mrs. Fuller.

      . “Chapter X, Sec. 6 — Personnel Rules for the Public Health Trust of Dade County, Florida:

        Section 6. Cause for Disciplinary Action: While charges may also be based on causes other than those here enumerated, the following are declared to be cause for reprimand, suspension without pay, demotion or dismissal:
      * * * * * *
      (B) Rude, antagonistic or offensive conduct towards supervisors, fellow employees, patients or to the public.
      s(e sfs s(: if: *
      (H) Conduct unbecoming an employee of the Trust whether on or off duty.”

      . Byrd v. Gain, 558 F.2d 553 (9th Cir. 1977) (written reprimand to personnel files of two police officers for publicly hectoring their department and superior officers was upheld); Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir. 1976) (dismissal of an assistant district attorney with administrative responsibilities in a prosecutor’s office for making a public statement that his immediate supervisor had not told the truth on a certain matter was upheld); Kannisto v. City and County of San Francisco, 541 F.2d 841 (9th Cir. 1976) (15 day suspension of a police lieutenant for making disrespectful and disparaging remarks about a superior officer while addressing his subordinates during a morning inspection was upheld); Rosemon v.

        Indiana University of Pennsylvania, 520 F.2d 1364 (3d Cir. 1975) (refusal of a university to renew a non-tenured associate professor’s teaching contract for attacking the integrity of the chairman of her department at a departmental staff meeting was upheld).


author: NATHAN, Judge.

text:
    C. W. KEITH, Director, Division of Driver Licenses, Department of Highway Safety and Motor Vehicles, Appellant, v. Hosea CAPERS, Appellee.
    No. 77-2508.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Rehearing Denied Sept. 29, 1978.
    Edwin E. Strickland and Enoch J. Whitney, Tallahassee, for appellant.

      Robert L. Moore, Miami, for appellee.
    Before NATHAN, HUBBART and KE-HOE, JJ.
   NATHAN, Judge.

The appellant, C. W. Keith, Director, Division of Driver Licenses, Department of Highway Safety and Motor Vehicles, respondent in the circuit court, seeks review of the following order vacating revocation of the driver license of Hosea Capers, petitioner:

“. . . upon petitioner’s petition for Writ of Certiorari seeking review of respondent’s order of driver license revocation dated May 15,1977, effective June 4, 1977 ... it is,
ORDERED AND ADJUDGED that Florida Statute § 322.25(4), which provides as follows:
‘(4) For the purpose of this chapter, a forfeiture of bail or collateral deposited to secure a defendant’s appearance in court, which forfeiture has not been vacated, shall be equivalent to a conviction.’
is not applicable to a forfeiture of bail or collateral which occurs outside of the State of Florida. Respondent is not authorized to utilize and may not consider an out of state bond estreature as a ‘conviction’ within the meaning of Florida Statute § 322.25(4), supra. Accordingly, respondent is ORDERED to remove all out of state bond estreatures from petitioner’s driving record which respondent has heretofore considered a ‘conviction’ within the meaning of Florida Statute § 322.25. Therefore, it is
ORDERED AND ADJUDGED that respondent’s order of driver license revocation dated May 15, 1977, is vacated with instructions that respondent return petitioner’s driver license to him.”

Petitioner’s driving record demonstrates that within a period of five years, petitioner accumulated fifteen convictions for moving traffic violations for which points are assessed under Section 322.27(2), Florida Statutes (1977). His record contains three convictions for unlawful speed in the state of South Carolina, dated December 5, 1974, July 2,1975 and January 10,1977, for which estreatures of bond were entered in South Carolina. The record on appeal reflects that the Division of Drivers’ Licenses included these three convictions and the points assessed therefor, in revoking petitioner’s driving privilege in Florida for a period of five years as an habitual traffic offender under Sections 322.27(5) and 322.-264(2), Florida Statutes (1977).

The effect of the order of the trial court herein appealed, is to remove from petitioner’s driving record, the three South Carolina convictions, leaving an insufficient number of pointable convictions to sustain the revocation of petitioner’s driving privilege in Florida as an habitual offender.

In our opinion, the trial court was correct in its interpretation of Section 322.-25(4), Florida Statutes (1977), to the extent that standing alone, it does not provide that forfeiture of an appearance bond in another state automatically would be equivalent to a conviction under Florida law. However, the pertinent provisions of the Florida driver license law, Chapter 322, Florida Statutes (1977), are in pari materia and must be construed as an entity. Thus, it was error for the trial court to rely on this single provision in ordering that all out of state bond estreatures which the Division of Driver Licenses had considered as convictions, be removed from petitioner’s driving record, without first determining whether a South Carolina bond estreature, if a conviction in South Carolina, would qualify as a conviction in Florida.

Section 322.263, Florida Statutes (1977), expresses the legislative intent of the driver license laws: to provide maximum safety for all persons who travel or otherwise use Florida’s public highways; to deny the driving privilege to persons who, by conduct and record, demonstrate indifference for the safety and welfare of others and disrespect for the laws of the state and orders of its courts and administrative agencies; and to deny the driving privilege to habitual offenders who have been convicted repeatedly of violations of traffic laws.

Section 322.24, Florida Statutes (1977), provides that the department is authorized to suspend or revoke the license of any Florida resident, upon receipt of notice of the conviction of that person in another state of an offense therein which, if committed in Florida would be grounds for the suspension or revocation of his license.

Section 322.264, Florida Statutes (1977), defines habitual traffic offender, in pertinent part, as a person whose driving record contains, within a five year period, fifteen convictions for moving traffic offenses for which points may be assessed. It includes as offenses for which such assessment of points may be made, offenses under any law of another state substantially conforming to these statutory provisions.

Section 322.27(5), Florida Statutes (1977), mandates that the department “shall revoke the license of any person designated a habitual offender” under Section 322.264, supra.

In making a determination of whether a bond estreature in South Carolina can result in a valid conviction in Florida, for purposes of Florida’s driver license laws and its system of recording traffic offense convictions and assessing points, it is necessary to examine the laws of South Carolina. Section 56-1-10(11), Code of Laws of South Carolina (Annot.), 1976, Vol. 18 (1977), general provisions of the drivers’ license chapter of the motor vehicle laws, provides that,

‘Conviction :’ Shall include the entry of any plea of guilty, the entry of any plea of nolo contendere and the forfeiture of any bail or collateral deposited to secure a defendant’s appearance in court.”

Therefore, since South Carolina law includes forfeiture of an appearance bond as a conviction; and since under Florida law, assessment of points may be made for offenses in another state substantially conforming to Florida statutory provisions, the South Carolina convictions resulting from bond estreatures are pointable offenses in Florida, and may be considered in determining that petitioner is an habitual traffic offender.

Reversed.


author: PER CURIAM.

text:
    CONSOLIDATED CITY OF JACKSONVILLE, Appellant, v. Miriam M. DUSENBERRY, Appellee.
    No. JJ-28.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1978.
    Dawson A. McQuaig, Gen. Counsel, William Lee Allen and Eve D. Peck, Asst. Counsel, Jacksonville, for appellant.
    John J. Sulik and David M. Wiesenfeld of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellee.
   PER CURIAM.

At issue here is the validity of Section 804.311 of the Jacksonville City Ordinance Code requiring a $1,000.00 occupational license fee for fortune tellers, clairvoyants, astrologists, etc. The trial court found that the ordinance, asserted by the city to be solely a revenue raising device, was . . unreasonable and thus illegal and void . . We agree that the ordinance is not valid as a revenue raising device and affirm the trial court’s judgment. We do not in this opinion consider the power of the city to control this type of activity through regulatory ordinances.

AFFIRMED.

SMITH, Acting C. J., and MELVIN and BOOTH, JJ., concur.


text:
    AAACON AUTO TRANSPORT, INC., Petitioner, v. Emma LAMPIONE, Respondent.
    No. 78-583.
    District Court of Appeal of Florida, Fourth District.
    Aug. 30, 1978.
    Rehearing Denied Oct. 2, 1978.
    Barry R. Shapiro, Fort Lauderdale, for petitioner.
    Charles S. Dale of Dale & Stevens, Fort Lauderdale, for respondent.
   Petition for Writ of Certiorari- to the Circuit Court for Broward County; Arthur J. Franza, Judge.

Petition for Writ of Certiorari is hereby DENIED.

DAUKSCH, LETTS and MOORE, JJ., concur.


author: McCORD, Chief Judge.

text:
    HOMESTEAD TITLE SERVICE, INC., etc., Appellant, v. TODD EQUIPMENT LEASING COMPANY, Appellee.
    No. HH-276.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1978.
    Barry L. Zisser of Zisser & Robison, Jacksonville, for appellant.
    Kevin V. Canipelli of Schwartz & Bolinger, and John B. Macdonald, Jacksonville, for appellee.
   McCORD, Chief Judge.

Appellant appeals the trial court’s final judgment in the amount of $2,637.18 against Jacksonville National Bank, as garnishee. Appellee had instituted the garnishment proceedings against Jacksonville National Bank in an attempt to collect on a judgment recovered against appellant. After a writ of garnishment was served on Jacksonville National Bank, the Bank filed an answer to the writ stating that an account in the name of appellant “was and is presently maintained at Jacksonville National Bank, in which the defendant Homestead Title Service, Inc., has or appears to have an ownership interest, and in which there is a balance of $2,637.18.” A hearing was held on appellee’s motion for final judgment against garnishee. The hearing was not reported. Appellant did not file a pleading or affidavit-denying that it had an ownership interest in the account listed in the garnishee’s answer. Appellant argues on this appeal that the trial court erred in allowing the account to be garnished because the trial court was informed that the account in question was an escrow account. There is no evidence that the account was an escrow account and no evidence that the trial court was so informed. If the trial judge was so informed, it should have been by evidence presented in the case.

AFFIRMED.

SMITH and MELVIN, JJ„ concur.


author: ANSTEAD, Judge.

text:
    Donald Lee PITTS, Appellant, v. Robert V. TURNER, Appellee.
    No. 78-911.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1978.
    Rehearing Denied Oct. 4, 1978.
    Donald Lee Pitts, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, Robert L. Bogen, Asst. Atty. Gen. and Kenneth G. Spillias, Legal Intern, West Palm Beach, for appellee.
   ANSTEAD, Judge.

By way of a petition for writ of habeas corpus the appellant, Donald Lee Pitts, is seeking delayed appellate review of the trial court’s ruling on a motion for post-conviction relief.

Pitts filed a motion for post-conviction relief on May 31, 1977 alleging that during his trial in 1975 the prosecutor elicited an impermissible comment upon his Fifth Amendment right to remain silent. The comment as alleged is:

Q. This fellow didn’t give you any confession or anything like that after you advised him of his rights did he?
A. No sir, he did not.

Appellant’s motion was denied by the trial court in an order of June 1, 1977 which stated:

The Defendant having on May 31, 1977 filed a Motion for Relief under RCrP 3.850, and the Court having carefully examined the file finds that the Defendant previously filed three similar Motions for the same relief, one or more of which has been denied by this Court on its merits, and the Court further finding that under the rule, it is not required to entertain and determine a second or successive Motion, it is upon consideration thereof, ORDERED AND ADJUDGED that the Court refuses to entertain the Defendant’s Motion.

Subsequently when the appellant filed a notice of appeal the trial court directed a letter to the court clerk as follows:

You have handed to me the Notice of Appeal, Directions to the Clerk, Assignments of Error and Affidavit of Insolvency signed by Donald Lee Pitts. I am not aware as to what disposition I am to make of these items so I re-enclosed them to you for whatever disposition you see fit to make. This Court will enter no orders in this proceeding in as much as I do not believe there is any authority for any further proceedings in this case either lower court or appellate.

The clerk informed the court in writing that no action would be taken pursuant to the court’s instructions and no notice of appeal was lodged in this court. The appellant ultimately filed the pending petition for writ of habeas corpus.

It is true that a hearing need not be granted on a motion for post-conviction relief which states the same grounds as a previous motion already decided by the court. However, the proper procedure in such a case is to deny the motion. The petitioner is entitled to have the motion determined and to appellate review of the determination. Neither were granted in this case. However, since it is clear that the trial court intended to deny the motion, we will treat the order as a denial and grant delayed appellate review.

The appellant alleged in his motion that he had never previously raised the issue of the alleged impermissible comment. In a recent decision the Florida Supreme Court has held that such error is waived if not properly preserved. State v. Bostic, 363 So.2d 331, Fla. Supreme Court Case (1978). Preservation of the error, in our opinion, would include raising the issue on appeal. The error cannot be raised for the first time in a motion for post-conviction relief.

Accordingly, the order of the trial court denying the motion for post-conviction relief is hereby affirmed.

DOWNEY, C. J., and DAUKSCH, J., concur.


author: DANAHY, Judge.

text:
    GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., Appellant, v. Frances D. MEANS, Individually and as Executrix and Personal Representative of the Estate of Henry L. Means, Deceased, Appellee.
    No. 78-230.
    District Court of Appeal of Florida, Second District.
    Sept. 6, 1978.

      Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellant.
    J. Michael Rooney of Safron & Rooney, Punta Gorda, for appellee.
   DANAHY, Judge.

Appellee was injured and her husband killed when their automobile collided with an automobile driven by Henry Greenberg and owned by Carl Gorr. Greenberg, whose negligence was the sole cause of the accident, had no liability insurance. Gorr, however, had liability insurance covering his automobile issued by Hartford Accident and Indemnity Company with liability limits of $10,000/$20,000. Appellee and her husband were insured under a policy issued by appellant which provided uninsured motorist coverage to the extent of $10,000/$20,000 limits of liability. The issue is whether the Gorr automobile was an uninsured motor vehicle within the meaning of the applicable Florida statute requiring uninsured motorist coverage or within the meaning of the uninsured motorist provisions of appel-lee’s policy. The parties agree that the applicable Florida statute is Section 627.727 (1972), prior to amendments in 1973 which added the concept of underinsured motorist coverage.

Appellant brought this declaratory judgment action seeking a determination that there was no uninsured motorist coverage available to appellee and her husband under their policy as a result of the accident in question. After a nonjury trial, the trial judge entered a declaratory judgment for appellee. This appeal followed; we reverse.

Prior to this suit, appellee had filed a negligence suit against Greenberg, Gorr and Hartford seeking damages resulting from the accident. Appellant intervened in that action for the sole purpose of securing its lien for personal injury protection (PIP) benefits paid. The negligence suit was settled by appellee and the defendants named in that suit for the sum of $9,000 and, pursuant to that settlement, appellee executed general releases to all defendants in the suit. Thereafter appellant joined with all the parties to the negligence suit in executing a stipulation for dismissal which recited that “all matters at issue herein have been amicably settled except for . the issue of uninsured motorist coverage between [appellee] and [appellant].”

Thereafter, appellee filed a demand for arbitration under her policy issued by appellant, asserting a claim under the uninsured motorist coverage. The present suit resulted.

The parties put forth competing arguments based upon their interpretations of the legal effect of the settlement with Greenberg, Gorr and Hartford. Appellee contends that the settlement did not determine the issue of coverage under Gorr’s policy with Hartford. That is the meaning ascribed by appellee to the exception in the stipulation for dismissal as to “the issue of uninsured motorist coverage between [ap-pellee] and [appellant].” We gather that there was some question raised in the negligence suit as to whether the driver, Green-berg, had permission from the owner, Gorr, to operate the vehicle. Appellee seems to feel that this issue, which would negate coverage under the Hartford policy issued to Gorr, was not determined in the negligence suit and is present in this suit.

There is no issue here as to coverage under Gorr’s policy with Hartford. Appellant’s complaint in this action alleged that there was liability insurance coverage available to Greenberg and Gorr with respect to the accident in question. Appellee’s answer expressly admitted that allegation. Thus this case is distinguishable from McInnis v. State Farm Mutual Automobile Ins. Co., 208 So.2d 481 (Fla. 4th DCA 1968), cited by appellee. In Melnnis, suit was brought against an uninsured driver, the owner of the vehicle, and the owner’s liability insurer. The owner’s insurer denied coverage because of the nonconsented to use of the vehicle by the driver. Notwithstanding, but maintaining its position, the insurer settled with the plaintiffs in that suit for a sum of money which it paid to them. The Melnnis court expressed doubt whether that settlement conclusively established as a matter of law that there was liability insurance coverage of the vehicle, for purposes of determining an uninsured motorist claim. In this case, appellee has simply foreclosed herself from the benefit of that argument by admitting coverage in her pleadings.

Appellant, for its part, argues that appel-lee’s settlement with Greenberg, Gorr and Hartford bars appellee’s claim for uninsured motorist benefits because appellee’s policy expressly excludes coverage when “any person entitled to payment under this coverage shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor.”

Appellee counters with two arguments. First, appellee asserts that appellant’s execution of the stipulation for dismissal of the negligence suit constituted a consent by appellant to the settlement with Greenberg, Gorr and Hartford. Secondly, appellee argues that appellant was not in fact prejudiced by that settlement.

It is unnecessary for us to reach these issues concerning the applicability of the exclusionary clause. We hold that there is no coverage available to appellee under the uninsured motorist provisions of her policy because the Gorr automobile was not an uninsured motor vehicle.

Appellee insists upon use of the words “uninsured motorist,” reasoning that since the driver, Greenberg, was admittedly uninsured, this is a clear case of an uninsured motorist and the uninsured motorist coverage under appellee’s policy applies. We recognize that there is common use of the words “uninsured motorist” in describing the statutorily mandated coverage. Indeed, the statute uses the words “uninsured motorist coverage” to describe the protection which the statute requires an automobile liability insurance policy to provide. However, the statute describes that coverage as “provisions . . . for the protection of persons insured [under automobile liability insurance] who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.” (Emphasis ours). We interpret this language to mean that if either the owner or the operator of a motor vehicle has liability insurance covering the accident, the vehicle is not uninsured.

The automobile liability policy issued by appellant uses the expression “uninsured automobile” and states that those words include “an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amount specified by the Financial Responsibility Law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile.” We think it is clear that the Gorr vehicle was not an uninsured automobile within the meaning of the policy.

We have found only two cases from any jurisdiction touching on the issue presented here. Both are Florida cases, one from the Fourth District Court of Appeal and one from the Third District Court of Appeal. In McInnis v. State Farm Mutual Automobile Ins. Co., supra, the Fourth District Court of Appeal expressed alternative reasons for its decision that the insureds in the case before it had no claim under their uninsured motorist coverage. The court said that if there was coverage under the owner’s liability insurance, then the offending vehicle was not uninsured despite the fact that the driver had no liability insurance.

The same issue was essential to the holding of the Third District Court of Appeal in Castaneda v. State Farm Mut. Auto. Ins. Co., 348 So.2d 1231 (Fla. 3d DCA 1977) and was resolved in like manner. There, as in this case, the motor vehicle operator had no liability insurance, but the owner had liability insurance covering the accident. The court expressly held that while the vehicle may have been driven at the time of the accident by an uninsured motorist, it was not an uninsured motor vehicle since the owner had liability insurance affording coverage to the insured parties.

We agree with these decisions of our sister courts.

The converse situation, where the operator of a motor vehicle has liability coverage but the owner does not, has been the subject of several decisions holding that in such a case, the motor vehicle is not an uninsured motor vehicle. The leading case so holding is from our First District Court of Appeal. Gordon v. Phoenix Insurance Company, 242 So.2d 45 (Fla. 1st DCA 1970). The Gordon decision was followed in Stordahl v. Government Emp. Ins. Co., 564 P.2d 63 (Alaska 1977) and Fielder v. Amica Mut. Ins. Co., 378 A.2d 1386 (R.I.1977). Accord, Application of Allstate Ins. Co., 26 Misc.2d 859, 207 N.Y.S.2d 645 (Sup.Ct.1960). Allstate Insurance Company v. Chastain, 251 So.2d 354 (Fla. 3d DCA 1971), sometimes cited as arriving at a different result, has been found not to be in conflict with Gordon. Allstate Insurance Company v. Chastain, 263 So.2d 578 (Fla.1972).

Parenthetically, we note that in the Gordon case, the injured plaintiff entered into a settlement with the operator of the motor vehicle and the operator’s liability insurance carrier, though not with the uninsured owner. The court found that the effect of that settlement was yet another reason why the plaintiff was precluded from recovery under his uninsured motorist coverage. The court reasoned that the release of one joint tort-feasor operated as a release of both (that is, both the owner and operator of the offending motor vehicle) and, therefore, the plaintiff was no longer legally entitled to recover damages from an owner or operator of an uninsured motor vehicle. As noted above, the uninsured motorist coverage required by the Florida statute is “for the protection of persons insured [under an automobile liability insurance policy] who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.” Appellee’s policy also speaks of sums which the insured is “legally entitled to recover as damages.” In the case before us, of course, appellee settled with and released both the owner and the operator and thus ended her legal entitlement to damages. Appellant, however, has not asserted the position on this point as set forth in the Gordon case. Therefore, we do not find it necessary to consider that position here.

Reversed with directions to enter judgment for appellant.

BOARDMAN, Acting C. J., and SCHEB, J., concur.


author: MILLS, Judge. BOYER, Judge,

text:
    Leveral “Sparky” RAFFIELD, Appellant, v. STATE of Florida, Appellee.
    No. W-412.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1978.

      Guillermon A. Ruiz and Philip J. Padova-no, of Ruiz & Padovano, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

The facts of this case are sufficiently set forth in prior opinions entered in this cause. Pursuant to the mandate of the Supreme Court, the sole issue for our determination is whether Raffield consented to the warrantless search of his barn.

Where consent is relied upon to justify a warrantless search, the State has the burden of proving that the consent was freely and voluntarily given and was not mere acquiescence to apparent authority. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Such consent must be established by clear and convincing evidence. Talavera v. State, 186 So.2d 811 (Fla. 2d DCA 1966).

The transcript of the suppression hearing reveals that the State was not relying on consent to justify the warrantless search. What was said and done at Raf-field’s farm immediately prior to the search was not even mentioned in the State’s presentation. After the State rested, John Van Tronk, an agent of the Florida Department of Law Enforcement, was called by the defense. He stated that nine law enforcement officers from various state, local and federal agencies in four or five vehicles went to Raffield’s farm after receiving instructions to search the barn. Raffield was in front of his house when the officers arrived. Van Tronk told Raffield that the officers were going to search the barn and asked Raffield if he wanted to go down to the barn with them. Raffield got in the car with Van Tronk. When they arrived at the barn Van Tronk said, “We’re going to search the barn now”, and Raffield replied, “Well, it’s in there” or “I’m guilty” or words to that effect.

“Acquiescence which is resignation — a mere submission in an orderly way to the actions of arresting agents — is not that consent which constitutes an unequivocal, free and intelligent waiver of a fundamental right.” United States v. Gregory, 204 F.Supp. 884 (S.D.N.Y.1962).

Clearly, there was no consent to the war-rantless search at Raffield’s barn. The trial court erred in denying Raffield’s motion to suppress the evidence, and therefore the judgments of conviction and sentences are reversed.

McCORD, C. J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

In my view Raffield’s words coupled with his actions constituted consent rather than mere acquiescence, submission or resignation. I would affirm.

      . Raffield v. State, 333 So.2d 534 (Fla. 1st DCA 1976), quashed in part and remanded, 351 So.2d 945 (Fla.1977).


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. Charlie WILSON, Appellee.
    No. 78-305.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Denis M. de Vlaming, Clearwater, for appellee.
   SCHEB, Judge.

The state appeals from an order granting defendant Wilson’s motion for discharge under Fla.R.Crim.P. 3.191, the Speedy Trial Rule. We agree with the state’s position and reverse.

On October 17, 1977, the state filed an information charging defendant Wilson and another man with robbery. On November 22 the public defender, who was representing both Wilson and his co-defendant, filed a demand for speedy trial on behalf of Wilson under Rule 3.191(a)(2). This subsection of the Rule requires the state to bring a defendant to trial within 60 days after demand.

Four days before the scheduled trial date of December 19, the trial court granted the state’s motion to sever Wilson’s case from that of his codefendant. The following day, December 16, the public defender was allowed to withdraw as Wilson’s counsel, and private counsel was appointed in his stead.

On the day of trial the new defense counsel represented to the court that he had been unable to adequately prepare for trial on such short notice. Defense counsel then requested, in open court, that the state should move for a continuance, or alternatively the trial court should grant a continuance on its own motion. The state declined to so move, so the court agreed to grant the continuance on its own motion. The court then asked defense counsel on what date he would like to have the trial reset. Counsel replied “[W]hatever date the Court would deem reasonable would be agreeable to us.” The court then reset trial for January 23, 1978, to the apparent satisfaction of defense counsel.

On January 19, four days before the rescheduled trial date, defense counsel and the state attorney entered into a written stipulation continuing the trial until February 6. However, defense counsel penciled in the following notation at the end of the stipulation: “Defendant does not waive his right to speedy trial.”

On January 24 defense counsel filed a motion for discharge alleging the state had failed to try Wilson within 60 days of his demand, i. e., by January 23,1978. After a hearing the trial court granted the motion and discharged Wilson. This appeal by the state ensued.

Once an accused demands to be tried within 60 days, the state bears the responsibility of scheduling his trial within that period. Fla.R.Crim.P. 3.191(a)(2). Likewise, when an accused makes such a demand he incurs the responsibility of going to trial on the date set by the state. An accused can be relieved of this responsibility only in the manner prescribed in Rule 3.191(c), which states:

Demand for Speedy Trial; Accused is Bound. A demand for speedy trial binds the accused and the State. No demand for speedy trial shall be filed or served unless the accused has a bona fide desire to obtain trial sooner than otherwise might be provided. A demand for speedy trial shall be deemed a pleading by the accused that he is available for trial, has diligently investigated his case, and that he is prepared or will be prepared for trial. Such demand may not thereafter be waived or withdrawn by the accused, except on order of the court, with consent of the State or on good cause shown. Good cause for continuances or delay on behalf of the accused shall not thereafter include lack of preparation, failure to obtain evidence or presence of witnesses, failure to have counsel, or other nonreadiness for trial, except as to matters which may arise after the demand for trial is filed and which could not reasonably have been anticipated by the accused or his counsel. A person who has demanded speedy trial, who thereafter is not prepared for trial, is not entitled to continuance or delay except as provided in this Rule. (Emphasis added.)

The final sentence of subsection (c) makes subsection (d)(2) of the Rule, entitled “When Time May be Extended,” applicable to continuances or extensions of the 60-day period. See generally State v. Embry, 322 So.2d 515, 518 (Fla.1975).

Subsection (d)(2) provides for extensions of time periods under the Rule “ . (ii) on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined . . . .” These “exceptional circumstances” are defined in subsection (f).

So our odyssey through the Speedy Trial Rule next takes us to subsection (f), where it is said that exceptional circumstances include “ . . . (iv) a showing by the accused or the State of necessity for delay grounded on developments which could not have been anticipated and which will materially affect the trial . . . .”

We think the trial court properly found that defense counsel’s request for additional time to prepare was an “exceptional circumstance” as mentioned in (d)(2) and defined in (f). Therefore, the trial court properly relieved defendant Wilson of the obligation imposed upon him by subsection (c) of going to trial on the date set by the state, i. e., December 19.

Once an extension has been granted under (d)(2) the speedy trial period is tolled during the extension. Swanson v. Love, 290 So.2d 112 (Fla.2d DCA 1974). When the court on December 19 reset the trial date it implicitly extended the speedy trial period under (d)(2) until the new trial date, January 23. Therefore, the 35 days which elapsed between these two dates should not have been counted in the 60 days allowed the state to try defendant. See State v. Embry, supra. This being so, the rescheduled trial date of January 23 did not violate defendant’s right to be tried within 60 days under subsection (a)(2).

In view of our decision we do not reach the further question of whether the written stipulation continuing Wilson’s trial from January 23 to February 6 was intended to preserve Wilson’s right to a trial within 60 days after his demand under Rule 3.191(a)(2). Irrespective of the construction placed on the language added to the stipulation, the trial date of February 6 was well within the 60-day period as tolled by the 35-day extension.

Accordingly, we vacate the order of discharge and remand this cause for further proceedings.

GRIMES, C. J., and RYDER, J., concur.

      . The 60th day was actually January 21, a Saturday. Therefore, the state had until the following Monday, January 23, to try the defendant. Fla.R.Crim.P. 3.040.


author: ERVIN, Judge.

text:
    Samuel Shaun TAYLOR, a minor by and through his father and next friend William Taylor and William Taylor, Individually, Petitioners, v. MUNROE MEMORIAL HOSPITAL, a Florida Corporation, and Steven H. Gilman, M.D., Respondents.
    Nos. HH-174, HH-252.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1978.

      Edward A. Perse of Horton, Perse & Ginsberg, Miami, and Papy, Duval, Poole & Usich, Coral Gables, for petitioners.
    Charles Cook Howell, Jr., Jacksonville Beach, Young J. Simmons of Green, Simmons, Green & Hightower, Ocala, for respondents.
   ERVIN, Judge.

Petitioners for writ of certiorari contend that the judicial referee of a medical liability mediation panel was without jurisdiction to enter an order granting respondents’ motion for a judgment of default.

On November 3,1976, petitioners, Samuel Shaun Taylor, a minor, and his father, filed their complaint alleging medical malpractice against respondents Dr. Gilman and Munroe Memorial Hospital. Respondents answered. On November 30, 1976, the hospital mailed petitioners’ counsel interrogatories. Dr. Gilman also sent interrogatories on December 17, 1976. Within two months petitioners answered the two sets of interrogatories except for questions, in both, about expert witnesses whom petitioners expected to use. One month after the answers were returned incomplete, respondents filed a motion to compel answers. Hearing on the motion was in April, but no written order was entered after petitioners’ attorney stated he hoped the answers could be furnished to respondents within 30 days. The answers still were not filed, and in June the judicial referee granted the motion to compel complete answers to the interrogatories. Petitioners still did not answer.

On August 2, 1977, one month before the ten month jurisdictional deadline of Section 768.44(3), Florida Statutes (1977), respondents’ motion for judgment of default was heard before the judicial referee who granted the motion, finding petitioners’ failure to answer the interrogatories was “an intentional attempt to evade the statutory jurisdiction of the medical mediation panel.” Petitioners moved to strike the motion, contending they had received inadequate notice, then filed incomplete answers to the interrogatories alleging they did not yet have an expert witness. At the August 17 hearing, treated as a hearing on a motion to vacate the default, the judicial referee reconsidered the merits of respondents’ motion for judgment of default and denied petitioners’ motion, stating he would probably set aside the judgment of default if the time within which the panel had jurisdiction could be extended.

The Transition Rule, in effect when this complaint was before the panel, states that “[t]o the extent applicable, the rules of civil procedure shall apply to all proceedings before the Medical Liability Mediation Panels.” In re: Transition Rule 21, 316 So.2d 38, 39 (Fla.1975). Moreover, Section 768.-44(5), Florida Statutes (1977), states:

All parties shall be allowed to utilize any discovery procedure provided by the Florida Rules of Civil Procedure. Any motion for relief arising out of the use of such discovery procedure shall be decided by the judicial referee. The judicial referee may in his discretion make reasonable limitations on the extent of discovery.

No other provision in that rule makes inapplicable the sanction provided by Fla.R. Civ.P. 1.380(b) 2(C), allowing dismissal of a case for a party’s failure to make discovery after a court order. Further, the Transition Rule is to be construed “to secure the just, speedy and inexpensive determination of every matter presented to [medical liability mediation panels].” In re: Transition Rule 21, supra, at 39. Petitioners do not argue that their failure to complete discovery was not an effort to allow the ten month jurisdiction of the panel to pass without a hearing. Under these circumstances the referee was well within his power to dismiss the case without causing the parties further expense and time.

The judicial referee’s order did not pretend to determine the parties’ legal rights absolutely, and petitioners may still complain in circuit court. See Simmons v. Faust, 358 So.2d 1358 (Fla.1978) and Floyd v. Goss, 352 So.2d 1189 (Fla. 4th DCA 1977).

The petition for certiorari is DENIED.

MILLS, Acting C. J., and BOOTH, J., concur.

      . Transition Rule 21 was replaced by the Florida Rules of Medical Mediation Procedure, effective September 1, 1977. Fla.R.Med.P. 20.-140(b), while allowing orders compelling discovery, specifically provides: “The provisions of Florida Rules of Civil Procedure, Rule 1.380 shall not apply to proceedings under these rules.”


text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SERVICES, Respondent.
    No. II-370.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1978.
    James G. Mahorner, Tallahassee, for petitioner.
    Alex D. Littlefield, Jr. and Dan F. Turn-bull, Jr., Tallahassee, for respondent.
   PER CURIAM.

The Department of Health and Rehabilitative Services (HRS) seeks review of an order of Department of Commerce which dismissed HRS’s protest to respondent’s request that HRS reimburse it for unemployment compensation benefits paid to a former employee of HRS. We affirm.

It appears from the record that on May 1, 1974, an invoice for the quarter ending March 31, 1974, was mailed to HRS at its office in Jacksonville, Florida, advising HRS that its former employee, Hubert McGriff, had received benefits which it was required to reimburse the Department of Commerce and that any protest to the invoice must be filed within 15 days of the date of the invoice, as required by Section 443.08(4)(b)4, Florida Statutes (1975). HRS did not file its protest until May 31, 1974. We conclude that the director of the Division of Employment Security of the Department of Commerce properly dismissed the protest on jurisdictional grounds. See Department of Health and Rehabilitative Services v. Parrimon, 339 So.2d 1175 (Fla. 1st DCA 1976).

The petition for review is DENIED.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.

      . Section 443.08(4)(b)4 states in part:
      The amount due specified in any bill from the division shall be conclusive on the organization unless, not later than 15 days after the bill was mailed to its last known address or otherwise delivered to it, the organization files an application for redetermination by the division, setting forth the grounds for such application.


text:
    MONTGOMERY INDUSTRIES INTERNATIONAL, INC. and Jacksonville Blow Pipe Company, Appellants, v. SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., a Florida Corporation not for profit, Appellee.
    No. JJ-150.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1978.
    Peter J. Kellogg of Grissett, Humphries & Neder, Jacksonville, for appellants.

      Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Carl D. Dawson, Jacksonville, for appellee.
   ERVIN, Judge.

Appellants appeal the dismissal with prejudice of their third party complaint. Appellants, defendants and third party plaintiffs below, were subcontractors who contracted with the general contractor, defendant Auchter, to install a waste disposal system in Southern Baptist’s hospital. The waste disposal system was installed after extensive modifications. Southern Baptist accepted the job on August 15, 1973, although the subcontractors modified the system after that date. On February 20,1974, a fire in the waste control system damaged part of the system and required reconstruction. When appellants refused to repair the system according to alleged warranties and guaranties, Southern Baptist filed suit, seeking damages from the general contractor, subcontractors and appellee architects. The subcontractors filed a third party complaint against the architects alleging negligent preparation of the plans and specifications, negligent supervision of installation of the system and negligent refusal to authorize necessary changes or advise Southern Baptist about changes which appellants recommended. It was specifically alleged that the subcontractors advised third party defendant architects in November, 1972, following the subcontractors’ agreement to install the system in accordance with the plans prepared by the architects, that the system would require a different filter from that specified in the plans, and it would also require additional space over that allotted. Yet the third party defendants refused to inform Southern Baptist of the design changes insisted upon by the subcontractors, refused to change the plans to permit the subcontractors to extend the system through the roof and refused to advise Southern Baptist to direct those changes. Finally subcontractors alleged that because of the architects’ refusal, the subcontractors were required to alter the system from the components specified in the plans, and, but for the refusal, Southern Baptist would not have suffered the alleged damages arising from the operation of the altered disposal system installed by the subcontractors.

The subcontractors urge that we extend the theory stated in A. R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973) to this case, and if so extended, we hold the trial court erred in dismissing the third party complaint. The Supreme Court stated in Moyer that even absent privity with the architect, the general contractor may have a cause of action for negligence against the architect, provided the contractor has sustained a foreseeable injury proximately caused by the negligent performance of a contractual duty by an architect.

We would have no difficulty in applying the Moyer doctrine to this cause if appellants had alleged ultimate facts showing it was foreseeable that injury might result to Southern Baptist which was proximately caused by the negligent performance of the architect’s duty. Yet the essential ingredient of negligence, proximate causation, is lacking here. The subcontractors alleged that due to the refusal of the architects to change the plans, they themselves altered the waste disposal system from the components specified in the plans and specifications. There is nothing in Moyer, or for that matter any of the cases relied upon by appellants, which holds a subcontractor may unilaterally alter an architect’s plans and sue the architect when the resulting construction becomes deficient. The subcontractors failed to comply with the terms of the contract requiring that they build the system as designed. Had the subcontractors alleged they built the system in accordance with the plans prepared by the architects, their complaint might withstand a motion to dismiss. This was not the case here.

AFFIRMED.

MILLS, Acting C. J. and MASON, Ernest E., Associate Judge, concur.


text:
    Charles BLAKELY, Appellant, v. STATE of Florida, Appellee.
    No. KK-89.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1978.
    Charles Blakely, in pro. per.
   PER CURIAM.

This is an appeal from the denial of appellant’s motion to vacate, set aside, or correct a sentence pursuant to Florida Rule of Criminal Procedure 3.850 on the basis that the motion was not in compliance with the rule. Pursuant to Swain v. State, 355 So.2d 865 (Fla. 1st D.C.A. 1978), the denial of the motion was, in essence, a refusal to entertain the motion and we treat it as such.

We, therefore, affirm without prejudice to appellant’s right to file a proper motion and obtain a ruling on the merits.

AFFIRMED.

SMITH, Acting C. J., and MELVIN and BOOTH, JJ., concur.


text:
    Henry PITTS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-680.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendant, Henry Pitts, appeals his convictions for involuntary sexual battery and aggravated battery.

Defendant primarily argues as reversible error the refusal of the trial court to require the prosecution to disclose “favorable” evidence to the defense thereby denying him due process of law.

Prior to trial, defendant filed a motion demanding that the prosecution disclose sworn statements made to the prosecutor by prosecution witnesses Wright and Brant which allegedly contained “favorable” evidence. Except for the victim, Wright and Brant were the only witnesses who placed the defendant in the area at the time of the criminal episode. The trial court held an in camera inspection of these statements and then denied defendant’s request for production thereof.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the U.S. Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request results in a violation of due process where the evidence is material either to guilt or punishment. Brady imposes an affirmative duty on the prosecution to produce at the appropriate time requested evidence which is materially favorable to the accused either as direct or impeaching evidence. Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968); State v. Drayton, 226 So.2d 469 (Fla. 2d DCA 1969). With respect to what constitutes “favorable” evidence, the court in State v. Gillespie, 227 So.2d 550 (Fla. 2d DCA 1969) explained:

“But such duty to disclose does not require the prosecution, on demand, to meticulously ‘comb its files for bits and pieces of evidence which conceivably could be favorable to the defense.’ It does require however, that the prosecution be ever alert to its true responsibility in the premises. The bounds of this responsibility are difficult to accurately presence, but the best guidelines we have found were laid down by the Maryland court in State v. Giles, and were subsequently cited with approval by Mr. Justice Brennan in Giles v. Maryland:
‘As we see it, the prosecution should disclose to the defense such information as it has that may reasonably be considered admissible and useful to the defense in the sense that it is probably material and exculpatory, and where there is doubt as to what is admissible and useful for that purpose, the trial court should decide whether or not a duty to disclose exists.’
Thus, given the initial duty to disclose, the ‘favorable evidence’ we are talking about is really that evidence which a reasonably skilled prosecutor should know could be fairly and probably used to advantage by the accused on the issues of guilt or punishment.” 227 So.2d at 556.

Thus, the production of police reports, statements given by witnesses to the prosecution and other documents are required only where such information may reasonably be considered admissible and useful to the defense in the sense that it is probably material and exculpatory. See State v. Johnson, 284 So.2d 198 (Fla.1973).

Defendant specifically lists four instances with respect to Wright and three instances with respect to Brant where their statements to the prosecutor were inconsistent with their testimony at trial. After reviewing the trial transcript and the statements of Wright and Brant to the prosecutor, we find no material inconsistencies. To say that such inconsistencies would tend to substantially impeach the credibility of Wright and/or Brant or lend credibility to defendant’s version of events would be highly speculative at best. The information sought by defendant not being probably material and exculpatory, we find no abuse of discretion on the part of the trial court in denying defense request for production. Thus, this point must fail.

We also considered defendant’s second point on appeal and conclude no reversible error has been made to appear.

Affirmed.


text:
    Keith M. JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2279.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Appellee brings this motion to dismiss, pursuant to Florida Rule of Appellate Procedure 9.300, seeking to have this court dismiss appellant’s appeal filed on October 20, 1977. The appeal was from an order dated September 20, 1977, revoking appellant’s probation and immediately sentencing him to three years in the state penitentiary. Subsequent to the filing of his appeal, appellant escaped from custody of the Opa Locka Community Correctional Center on May 1, 1978, during the pendency of his appeal. Appellant’s present whereabouts are unknown to the Department of Offender Rehabilitation.

Appellee urges as grounds for its motion to dismiss that, because appellant is a fugitive from justice while his appeal is pending, the appeal should be dismissed. As authority, appellee cites Bretti v. Wainwright, 225 So.2d 516 (Fla.1969); Woodson v. State, 19 Fla. 549 (1882); Mitchell v. State, 294 So.2d 395 (Fla. 1st DCA 1974); Bretti v. State, 210 So.2d 472 (Fla.3d DCA 1968); and Decree v. State, 180 So.2d 667 (Fla.lst DCA 1965). Compare Marshall v. State, 344 So.2d 646 (Fla.3d DCA 1977). Neither appellant nor his counsel have responded to the instant motion.

We agree with appellee’s argument set forth in its motion to dismiss this appeal; accordingly, the motion to dismiss is granted.

Granted.


text:
    Lesley WINSTON, Appellant, v. Andrea Jill WINSTON, Appellee.
    No. 78-109.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.

      Krongold & Bass, P.A. and Paul H. Bass, Coral Gables, for appellant.
    Leo Greenfield and John M. Greenfield, North Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Lesley Winston, the former husband, appeals the final judgment of dissolution of his marriage to Andrea Jill Winston. Two points are presented: (1) that the trial judge abused his discretion in requiring the father to pay $175 per week for the support of a child with learning disabilities; (2) that the court erred in requiring the husband to pay the wife’s attorney’s fees.

Appellant’s contention that the record did not support the need for $175 per week for the disabled child required us to examine the record carefully. This is especially true because appellant argued that the wife had requested only $125.00 per week for this child. We hold that the record supports the award. Appellant has misread or misinterpreted the record. The wife sought $225.00 per week for the disabled child and $25.00 per week for the second child. Both the need of the mother and the ability of the father are established for the child support award. Cf. Bordman v. Bordman, 231 So.2d 543, 544 (Fla. 3d DCA 1970).

Appellant’s second point urges that the award to the wife of an attorney’s fee of $2,500 must be reversed because of the financial positions of the parties. We are compelled to agree upon the basis of the holding of the Supreme Court of Florida in Cummings v. Cummings, 330 So.2d 134, 136 (Fla.1976). The record is uncontroverted that the appellee wife is better off financially than the husband and her prospects for future earnings are better. We think that the wife’s need for a shifting of this burden to the husband has not been shown.

The judgment is affirmed in all respects except for the requirement that the appellant pay the appellee’s attorney the sum of $2,500.00, which provision is reversed.

Affirmed in part, reversed in part.

      . “We think Petitioner [husband] is justified in his protest [regarding the order requiring him to pay the Respondent-wife’s attorney’s fees]. As stated in Mertz v. Mertz [287 So.2d 691 (Fla. 2d DCA 1973)]:
      ‘ . . . the purpose of awarding attorney fees under the new dissolution of marriage law has not changed, in our view, from the purposes contemplated by its predecessors; that purpose is to insure that both parties will have reasonably the same ability to secure competent legal counsel. Here, the wife is clearly on equal if not superior footing with the husband to secure such counsel.
      We find it was an abuse of the court’s discretion to require Petitioner to pay Respondent’s attorney’s fees.”