author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. Dennis DUNLAP, Appellee.
    No. 79-2340.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.

      Janet Reno, State Atty. and Ira N. Loewy, Asst. State Atty., for appellant..
    Lister Witherspoon, IV, Miami, for appel-lee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Dunlap’s trouble began one morning in June 1979 when the police received a tip that a light aircraft would be landing that afternoon with a load of marijuana in a remote area on the edge of the Everglades in the south end of Dade County. The police set up a surveillance using two helicopters and two police cars. Positioned at a distance from the scene of the proposed drop, the police observed an old green Pontiac (Dunlap’s) and a Dodge pick-up truck driving aimlessly on a road descriptively called “The Road to Nowhere.” The Pontiac and truck met at the south end of this north-south road, turned to face north and parked next to each other. Ten minutes later, a light aircraft flew into the area, circled once and landed on the road. As soon as the plane passed over the area, the Pontiac and truck headed in the direction of its landing point. The Pontiac pulled up under the right rear of the aircraft.

Moments later, the as-yet unidentified occupant of the Pontiac was seen bending over duffel bags near the aircraft. With the approach of the police helicopter, the airplane, truck and Pontiac hurriedly left the scene. Five duffel bags were left on the side of the road where they were recovered by one group of police officers. The bags contained marijuana. Attached to one bag was a key ring with a couple of keys.

Meanwhile, another group of police officers had stopped the Pontiac driven by, it was then learned, Dunlap. Dunlap was placed under arrest, and the interior of his car was searched, revealing a small tin of marijuana in the glove compartment. The officers who located the duffel bags of marijuana and the keys arrived. They inserted one of the keys found with the duffel bag in the trunk lock. The key opened the Pontiac’s trunk.

Dunlap was charged with possession of marijuana. In an omnibus motion to suppress, he sought to exclude (a) the bags of marijuana, (b) the tin of marijuana, (c) the keys attached to a duffel bag, (d) evidence that the keys found with the marijuana fit the trunk lock of the Pontiac, (e) the Pontiac, and (f) his confession. From an order granting Dunlap’s motion in its entirety, the State took this appeal. We need address the exclusion of only items (a) through (d).

Dunlap neither asserted, nor had, any expectation of privacy in the duffel bags or keys, and the seizure of them and the search of the bags did not implicate any right of Dunlap under the Fourth Amendment. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Moreover, it is now settled that Dunlap has no alternative Fourth Amendment right by reason of the fact that he was charged with possession of the marijuana in the duffel bags. United States v. Salvucci, - U.S. -, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Norman v. State, 388 So.2d 613 (Fla.3d DCA 1980). We therefore reverse the trial court’s order suppressing the duffel bags, the marijuana found therein, and the keys.

The propriety of that part of the trial court’s order suppressing evidence that the keys found attached to one of the duffel bags fit the trunk lock of the Pontiac presents a more difficult question and one which has not, until now, been decided by any Florida appellate court.

* Where police have a well-founded and articulable suspicion that the occupant of a vehicle is involved in criminal activity, they have a right to stop the vehicle to conduct a reasonable investigation of the suspected activity. Mock v. State, 385 So.2d 665 (Fla.2d DCA 1980); Taylor v. State, 384 So.2d 1310 (Fla.2d DCA 1980); Franklin v. State, 374 So.2d 1151 (Fla.3d DCA 1979); State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977). Clearly, the stop of the Pontiac driven by Dunlap was justified.

Since it is equally clear that the key to the trunk of the Pontiac was not obtained in violation of any constitutional right of Dunlap, the only remaining question is whether placing a lawfully obtained key in the trunk lock of a lawfully stopped vehicle constitutes an unlawful search. We have no quarrel with the trial court’s conclusion that no probable cause existed to search the interior of the Pontiac or its trunk. That conclusion, however, as to the trunk, is inconsequential, since the search of the trunk was fruitless. What is being suppressed is testimony that the key fit the trunk lock. In our view, such testimony is not the product of a search at all.

In People v. Carroll, 12 Ill.App.3d 869, 299 N.E.2d 134 (1st Dist. 1973), cert. denied, 417 U.S. 972, 94 S.Ct. 3180, 41 L.Ed.2d 1144 (1974), police officers investigating a robbery and attempted rape found a jacket which, according to the victim, the attacker had dropped. In the jacket pocket they found a set of keys. Approximately fifteen minutes after the attack, other officers arrested Carroll, who was being chased by civilians who had responded to the victim’s cries for help. The police learned that Carroll resided at 4438 South Wells Street.

Approximately a month later, while Carroll was still in custody, officers took the set of keys found in the jacket pocket and went to the defendant’s address. The door to defendant’s apartment was in a common hallway. One of the officers inserted the key in the door; it turned the tumbler.

The court held that “no constitutional right, personal to the defendant, was violated when [the officer] merely inserted the key and learned that the tumbler could be turned by it.”

A like result was reached in People v. Trull, 64 Ill.App.3d 385, 20 Ill.Dec. 960, 380 N.E.2d 1169 (4th Dist. 1978). There, police officers received a report that an apartment was being burglarized. They proceeded to the address and discovered Trull on the balcony with a TV set. Trull identified himself, said that he lived there and had lost his keys. The police checked his story and found that he was, indeed, the resident of the apartment.

Later that evening, other officers responded to a reported burglary. At the scene, the officers found a key ring attached to a medallion which had the word “Pisces” inscribed upon it. An officer who had spoken to Trull earlier recalled that “Pisces” was the astrological sign fitting the birthdate Trull had given.

The police went to Trull’s apartment with the Pisces keys. They discovered the common entries locked. They tried a key on the Pisces ring and opened the lock. They proceeded to the defendant’s. apartment, and another key fit the apartment door.

The court held that testimony that the key fit the common entry lock was not subject to suppression, because no search took place when the key was inserted into that lock.

In the present case, the key was lawfully obtained, the vehicle was lawfully stopped, and the police had a right to be where they were, and a right to carry out a legitimate investigative function. In our view, to hold that a lock is inviolable under the Fourth Amendment would be apotheosize a mere symbol of privacy. It is not a lock, a door, or a gate, but rather what lies behind or within, which is the concern of our Constitution. See United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (the expectation of privacy is that the contents, rather than the footlocker, remain free from public examination). We hold, therefore, that no search occurred when the key was inserted into the trunk lock of Dunlap’s vehicle. See also Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (in which four members of the court, although finding probable cause existed for a search of the vehicle, stated in dictum that the removal of paint scrapings and tread markings from the exterior of a vehicle is not a search that implicates traditional considerations of the owner’s privacy interests). But see United States v. Portillo-Reyes, 529 F.2d 844 (9th Cir. 1976) (holding over a dissent which would follow People v. Carroll, supra, that the “insertion of the key in the door of the [car], to see if it fit, constituted the beginning of a search.”). The officers are free to testify that the key which they found with the duffel bags fit the lock of the Pontiac trunk.

In sum, we reverse the trial court’s suppression of the five duffel bags of marijuana, the keys found attached to one of the bags, and evidence that one of these keys was inserted into and opened the trunk lock of the Pontiac. In all other respects, the order appealed from is affirmed.

Reversed in part; affirmed in part.

      . It appears that the clasp on this duffel bag had broken and the key ring was used as a makeshift clasp.

      . The exclusion of the Pontiac is, needless to say, bewildering. We assume that the trial court meant that the Pontiac was unlawfully impounded, see Section 30.384, Code of Metropolitan Dade County, Florida (1979), and that no search of it could be justified on an inventory theory. With that we agree. We make clear, however, that the illegal impoundment of the vehicle does not affect the lawfulness of the stop of the vehicle, nor serve to exclude testimony concerning the activities of the vehicle, or testimony that, pursuant to the stop, the key was inserted in the trunk lock of the Pontiac. We note also that the State does not contest the exclusion of Dunlap’s confession.

      . The trial court’s stated reason for suppressing this evidence was a finding that there were “no facts shown sufficient to link” these items to Dunlap. That finding may constitute a reason to acquit Dunlap on an ultimate trial of this case, but it is not a reason to suppress the evidence. Moreover, that premature finding does not affect our conclusion that there were ample facts shown to create a well-founded and articulable suspicion that the occupant of the Pontiac was engaged in criminal activity so as to justify the stop of the vehicle.

      . The conclusion of no probable cause to search the vehicle is, however, consequential as to the container of marijuana found in the glove compartment, the suppression of which we affirm.

      . The court went on to hold that the subsequent entry into the common area was an invasion of a protected area and that evidence gathered as a result of that entry must be suppressed. The opinion does not state what evidence was to be suppressed. Presumably, testimony that the key fit the door to the apartment, learned after entry into the common hallway, was suppressible. The separate holdings in Trull point up that it is the entry, not the use of the key, which is the sine qua non of a search.


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    AMERICAN STATES INSURANCE COMPANY, Appellant, v. Edward PIASECKI, Appellee.
    No. 80-702.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1981.

      Keith H. Park of Albury, Park & Glenn, West Palm Beach, for appellant.
    Donald L. Gibson of Blackburn, Gibson & Gulden, Orlando, for appellee.
   DOWNEY, Judge.

This appeal was perfected pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), to review a non-final order which determined by summary judgment the issue of liability in favor of the plaintiff below, appellee here.

Appellee, Edward Piasecki, sued appellant, American States Insurance Company, to recover personal injury protection benefits on an insurance policy issued to Piasecki by American States. In support of the motion for summary judgment Piasecki offered proof that about 5:00 p. m. on December 10, 1978, Piasecki was driving his van across the Jensen Beach Causeway in Martin County. Traffic was heavy and moving slowly because of a rock concert in progress on the causeway grounds. In addition, the bridge was raised for boat traffic. While the bridge was up and Piasecki’s van was stopped, he heard a loud noise as a group of people passed to the rear of the van. Thinking someone may have fallen under his van, Piasecki got out of the van and went to the rear to investigate. The following car was so close Piasecki had to go around the van to the passenger’s side and then to the rear where he looked under the van. That is the last thing Piasecki remembers until approximately 7:00 p. m. when he awoke in a police car. He was taken home, but a week later he was admitted to the hospital in convulsions.

However, the record also contains the following evidence. The history given one of his treating physicians was that Piasecki had been involved in an altercation. A physical therapy technician’s affidavit stated Piasecki had told her that he was beaten up by a gang of kids. The treating physician’s affidavit indicated Piasecki had been physically beaten.

In our judgment there are many inferences which can be drawn from the evidence in the record; some of those inferences would not entitle Piasecki to recover Personal Injury Protection benefits. The burden of proof is on the insured to show that his injuries were proximately caused by an accident arising out of the ownership, maintenance, or use of a motor vehicle. The peculiar facts of this case lead us to believe that it does not lend itself to a summary decision.

Accordingly, the order appealed from is reversed and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED, with directions.

MOORE and HERSEY, JJ., concur.


author: SHIVERS, Judge. BOOTH, Judge,

text:
    Hugh B. C. FORRESTER, Petitioner, v. CAREER SERVICE COMMISSION of Florida, and the Florida Department of Health and Rehabilitative Services, Respondents.
    No. GG-189.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1979.
    Rehearing Denied Dec. 2, 1980.
    Jerry G. Traynham of Petterson & Traynham, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., David J. Baron and David K. Miller, Asst. Attys. Gen., Anthony N. DeLuccia, Jr., Fort Myers and Douglas E. Whitney, Orlando, for respondents.
   ORDER

SHIVERS, Judge.

Petitioner State employee is seeking review of administrative determination of Career Service Commission upholding the employee’s dismissal from the Department of Health and Rehabilitative Services.

Under F.S. 120.57, an employee whose substantial interests are determined by an agency has the right to a hearing, after notice, and the employee has an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, to submit proposed findings of facts and orders, to file exceptions to any order and to be represented by counsel.

Hearing was held, following which, petitioner filed with the respondent Commission “Request for Specific Findings of Fact and Conclusions of Law.” Thereafter, on May 6, 1977, the Commission entered its final order, upholding the action of the respondent HRS in dismissing petitioner from employment. Respondent Commission did not then rule on petitioner’s findings of fact and conclusions of law.

Thereafter, petitioner sought review, raising as error the Commission’s practice of rendering a final order without ruling on each pertinent proposed finding.

In our August 9, 1978, decision in this matter, Forrester v. Career Service Commission of Florida et al., 361 So.2d 220 (Fla. 1st DCA 1978) we held that pursuant to F.S. 120.57, a party has the right to raise pertinent factual issues for administrative determination, to submit proposed findings on those issues and to receive a ruling on each pertinent proposed finding.

In that earlier opinion this court relinquished jurisdiction:

“. . . for a short but reasonable period of time (but not in excess of thirty days) so that the Commission may comply with the statute and this opinion. .

Following entry of our August 1978 decision respondent Commission on September 14, 1978, notified petitioner’s attorney in Tallahassee that this court’s decision would be considered by the Commission on September 19, 1978, at a stated time and place in Orlando. On October 4, 1978, the respondent Commission filed with this Court “Rulings on Proposed Findings of Fact.”

On October 26, 1978, we acknowledged receipt of the “Rulings on Proposed Findings of Fact” and allowed the parties specified times within which to file any further documents, records or briefs.

No further document or amended order was filed to indicate the Commission’s May 6,1977, Order had been revisited or that the Commission’s post decision rulings on the petitioner’s proposed findings of fact had any bearing on or connection with its earlier order. This is confirmed by statements of the Commission in this order denying continuance:

“2. The Appellant’s Motion for Continuance was received in Tallahassee, Florida, September 19, 1978, and the Commission, being unaware of said Motion proceeded to consider the Proposed Findings of Fact herein.
3. The Commission proceeded without regard to the merit of Petitioner’s dismissal and merely complied with the order of the First District Court of Appeal in considering the Proposed Findings of Fact entered herein. In so doing, the Commission did not determine the substantial interests of any party, said interests having previously been determined by the Commission’s Order dated the 6th day of May, A.D., 1977.

F.S. 120.59(2) provides in part:

“If, in accordance with agency rules, a party submitted proposed findings of fact or filed any written application or other request in connection with the proceeding, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request.”

Petitioner has a right to assume his proposed findings of fact will be considered and he is entitled to receive a ruling on each pertinent proposed finding prior to or at least at the time the Commission makes its final decision. See Stuckey’s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976). Otherwise, the requirement that Petitioner be allowed to submit proposed findings and to receive a ruling on each pertinent proposed finding would be no requirement at all and would be meaningless.

Again, without regard to the merits of petitioner’s dismissal, this court relinquishes jurisdiction for a short but reasonable time so that the Commission, without further evidentiary hearing, may comply with the statutes, our order of August 9, 1978, and this order.

ERVIN, Acting C. J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I would affirm the order of the Career Service Commission upholding the employee’s dismissal from the Department of Health and Rehabilitative Services for the ample reasons stated in its order of May 6, 1977. No error was committed below which directly or indirectly affected the correctness of that determination and the further proceedings required by the majority are pro forma only.


author: PER CURIAM.

text:
    Curtis C. HAGINS, Appellant, v. STATE of Florida, Appellee.
    No. 80-261.
    District Court of Appeal of Florida, Second District.
    July 23, 1980.
    Rehearing Denied Feb. 4, 1981.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

REVERSED and REMANDED for new trial. See Hilty v. State (Fla.2d DCA 1980).

GRIMES, Acting C. J., and RYDER and CAMPBELL, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    John Arthur WARGO, Appellant, v. STATE of Florida, Appellee.
    No. PP-219.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1980.
    John Arthur Wargo, pro se.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

This is an appeal from the trial court’s denial of Wargo’s Rule 3.850 motion to correct a sentence. On his plea of nolo conten-dere to a charge of sale of marijuana, War-go was placed on probation for four years on condition, among others, that he spend the first nine months of probation in the Okaloosa County jail. Wargo’s probation was later revoked, and he was sentenced to a two and a half year term on the underlying charge. Wargo alleges that in imposing sentence the trial court failed to credit or otherwise take into consideration 89 days of jail time spent pursuant to the probation order against the sentence. Florida law requires that a court must give a defendant credit for any jail time served as a condition of probation. State v. Jones, 327 So.2d 18 (Fla.1976); Sims v. State, 369 So.2d 431 (Fla. 2d DCA 1979). It is not clear whether the sentencing court took that jail time into consideration. The judgment is AFFIRMED but the case is REMANDED to the trial court for reconsideration of War-go’s credit for time served. If the court finds that Wargo is entitled to credit for time served, the sentence shall be reduced accordingly. The appellant need not be present at the reconsideration proceeding.

BOOTH, J., and WOODIE A. LILES (Retired), Associate Judge, concur.


author: ERVIN, Judge. SHAW, Judge,

text:
    Carl Edward BIRD, Appellant, v. Barney WEINHARDT, Commercial Union Assurance Co., and Construction Southeast, Inc. and Aetna Casualty and Surety Company, Appellees.
    No. RR-7.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1980.
    Rehearing Denied Oct. 31, 1980.
    Dale L. Gross, Fort Lauderdale, for appellant.
    Robert M. Todd of Lyle & Skipper, P.A., for Barney Weinhardt and Commercial Union Assur. Co., appellees.
    Ted R. Manry, III, and James C. Delesie of MacFarlane, Ferguson, Allison & Kelly, Tampa, for Construction Southeast and Aetna Cas. & Sur. Co., appellees.
   ERVIN, Judge.

The appellant challenges the judge of industrial claims’ order of June 27,1979 denying compensation, and the judge’s order of April 11, 1978 assessing costs against claimant for unreasonably withdrawing his claim. We affirm on all points raised, including the order assessing costs. As to the latter, the judge of industrial claims found that claimant, through his lawyer, acted unreasonably in withdrawing his claim, and that the effect of the withdrawal, and the subsequent reinstatement was a continuance allowing the judge to assess'costs against a party who has unreasonably continued the proceedings. Nothing in the record shows claimant’s action was reasonable. The judge’s order recited that all attorneys had agreed to set the final hearing within 90 days. A little more than a week following the agreement, a notice was mailed to counsel advising them that the hearing had been set for February 9, 1978. It was also stated claimant’s counsel had 90 days in which to schedule the deposition of a Dr. Brown, but chose not to do so, then two days before the scheduled hearing, moved for a continuance, relying on a letter which he had just received from Dr. Brown, indicating to him that further tests of claimant were necessary. When counsel was unsuccessful in obtaining the continuance, he dismissed the claim, resulting in the order assessing costs. A second claim was later filed, essentially the same as the first.

Appellant, relying upon Orlando v. Exxon Company, U.S.A., IRC Order 2-3040 (September 22, 1976), and Hamman v. Churchman Tower Service, IRC Order 2-3083 (December 29, 1976), argues he has an absolute right to dismiss voluntarily and without penalty his claim at any time before he presents his case-in-chief. Those cases permit a party to dismiss a claim under such circumstances and subsequently refile it, but they do not involve an interpretation of Section 440.32, empowering a judge to assess costs against a party who has continued the proceeding “without reasonable ground.” It is one thing to say that a worker’s claim will not be jeopardized before he establishes his case; it is an altogether different one to say that the judge has no power to enforce his order when an attorney fails to offer reasonable grounds why a claim should be continued, and then finesses the denial by simply dismissing the claim, and later refiles it, thereby in effect achieving that which he was denied. The anomalous result urged by claimant cannot have been intended by the legislature’s enactment of Section 440.32. If we were to accept claimant’s argument, and construe the statute as he desires, the only instance costs could be imposed upon a party who seeks a continuance without offering reasonable grounds would occur if the judge granted the continuance. Paradoxically, if the judge refused to grant an unfounded request, and the party opted to dismiss the claim for the purpose of seeking further delay, the judge would be barred by the interpretation advanced from levying sanctions against the indolent party.

We refuse to accept a construction of the statute which in effect places control over the progress of worker’s claims not in the deputy commissioners, but at the whim of the litigants. We conclude that Section 440.32 may logically be interpreted as authorizing the assessment of costs against one who, without reasonable grounds, seeks a continuance of a hearing and, upon its denial, dismisses the claim only to refile it.

The orders are AFFIRMED.

WOODROW M. MELVIN (Retired), Associate Judge, concurs.

SHAW, J., concurring and dissenting with opinion.

SHAW, Judge,

concurring and dissenting.

I would reverse the order assessing costs against the claimant. Section 440.32, Florida Statutes (1978), provides:

If the judge of industrial claims, commission, or any court having jurisdiction of proceedings in respect of any claim or compensation order determines that the proceedings in respect of such claim or order have been instituted or continued without reasonable ground, the cost of such proceedings shall be assessed against the party who has so instituted or continued such proceedings.

I interpret the statute as saying that a judge of industrial claims may assess costs against a party upon a proper determination that said party has initiated or maintained a claim or order without reasonable grounds. There has been no such determination in this instance. In fact, the reasonableness of the claimant’s institution and continuance of the claim was never explored by the judge.

The majority opinion proceeds on the assumption that the judge assessed costs pursuant to § 440.32, Florida Statutes. A close reading of the judge’s order reveals that this is not the case. His inquiry was directed to the reasonableness of the motion for a continuance and the dismissal of the claim when a continuance was not granted. The judge, in Paragraph 4 of his April 11, 1978 order, appears to recognize the futility of attempting to assess costs under § 440.32 and, after expressing a need for legislative attention directed to the problem, he calls upon his authority in “equity” to sustain his actions. The following paragraph from his order more fully illuminates his reasoning:

4. Florida Statute 440.32 provides that a Judge of Industrial Claims may assess the cost of any proceedings that he finds have been instituted or continued without reasonable grounds against the party who has so instituted or continued such proceedings. This Judge of Industrial Claims is not certain that he can assess cost against claimant’s counsel under the circumstances of this case since it appears the Motions to Tax Costs are directed toward the claimant’s having requested a continuance two days before the scheduled final hearing and then withdrawing his claim after he (sic) request for a continuance had been denied. This is certainly a matter which deserves Legislative attention. However, in view of the fact that claimant’s counsel had the right to withdraw his claim after his Motion for Continuance was granted and there was no correlative right for the employers/carriers, this Judge of Industrial Claims finds that equity dictates I find that the cost reasonably incurred and referred to in paragraphs number one and number two be assessed against the claimant.

I fully appreciate the aggravation and frustration occasioned by withdrawal of a claim two days prior to the scheduled final hearing. It is, nevertheless, my opinion that in Florida the award of fees and costs in workers’ compensation cases is statutory and must be strictly construed. Sunbeam Enterprises v. Upthegrove, 316 So.2d 34 (Fla.1975); Parrot v. City of Fort Lauderdale, 190 So.2d 326 (Fla.1966). I am unable to find any case law supporting the proposition that a deputy commissioner has authority in equity to assess costs. I accordingly dissent as to the affirmance of the assessment of cost against the claimant.

I concur in the majority opinion relative to the remaining issues on appeal.

      . The order stated:
      3. The claimant through his counsel, acted unreasonably in withdrawing his claim two days before the scheduled hearing on February 9, 1978, in that said withdrawal was precipitated by the undersigned Judge of Industrial Claims’ refusal to grant a continuance requested by claimant’s counsel on February 7, 1978.


text:
    SPECIAL DISABILITY TRUST FUND, Appellants, v. METROPOLITAN DADE COUNTY and Kenneth Willis, Appellees.
    No. RR-109.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1980.
    Claire D. Dryfuss, Tallahassee, for appellants.
    Robert A. Ginsburg, Dade County Atty., Burt L. Saunders, Asst. County Atty., Miami, representing Dade County.
    Arthur Newman, Miami, representing Kenneth Willis.
   PER CURIAM.

AFFIRMED. The Fund’s objection to the joint petition did not divest the Judge of Industrial Claims of jurisdiction to enter a Joint Petition Order. See Special Disability Trust Fund v. Kemp & Guest Roofing and Risk Management Services, Inc., 379 So.2d 404 (Fla. 1st DCA 1980). As to the issue of whether the Judge properly found that the lump sum settlement was in the best interest of the claimant, the Fund is not bound by that finding, Kemp, 379 So.2d at 406, and thus has no standing to challenge that finding on this appeal. Additionally, the Fund’s rights to due process were not violated. See Goldberger v. Wolfie’s Restaurant, 8 FCR 210 (1973), cert. den. 291 So.2d 615 (Fla.1974).

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


author: PER CURIAM. ROBERT P. SMITH, Jr., Judge,

text:
    Davida D. BURNSED, Appellant, v. ABC LIQUORS, INC., Appellee.
    No. UU-438.
    District Court of Appeal of Florida, First District.
    Oct. 15, 1980.
    Rehearing Denied Jan. 8, 1981.
    Peter H. Ward of Ward & Ward, Gaines-ville, for appellant.
    John F. Bennett of Fishback, Davis, Dominick & Bennett, Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

BOOTH and SHAW, JJ., concur.

ROBERT P. SMITH, Jr., dissents with opinion.

ROBERT P. SMITH, Jr., Judge,

dissenting:

The court affirms a circuit court judgment dismissing with prejudice appellant’s second amended complaint which alleges in three counts the responsibility of appellee ABC Liquors for the battery of appellant by a third party while both were invitees on ABC’s cocktail lounge premises. While I agree with the trial judge and with the majority that counts I and II inadequately allege that ABC committed an intentional tort or contributed to appellant’s injury through design defects in the building, I dissent from their view that count III inadequately alleges a cause of action on account of ABC’s negligence.

Appellant alleges in count III that one John Kenneth Sparkman, a frequent and valued patron of ABC’s lounge, was known by ABC to be a person of violent temperament who previously damaged ABC’s premises and frightened its patrons and employees. Early one evening, the complaint alleges, Sparkman came into ABC’s lounge brandishing a loaded shotgun in a threatening manner, which frightened the patrons present. One of those patrons requested that ABC’s employee call the police, which the employee first agreed and then failed to do. It is alleged that when police nevertheless came to the premises, evidently in response to another’s call, ABC’s employees

intentionally frustrated police efforts to promptly identify, locate and take into custody a' person reported seen with a gun in or about Defendant’s property, such person being known by Defendant’s agents and employees in fact to be [Sparkman],

and

.. . Defendant through its agents and employees concealed and did not report, prosecute or give evidence of Sparkman’s felonious assault upon its employees and patrons ....

The complaint continues, alleging that ABC and its employees had actual knowledge that Sparkman was angry with appellant “and was actively searching for her” on that evening. Knowing this, and knowing or having the means of knowledge that Sparkman was already intoxicated, ABC’s employees sold to Sparkman, or to others for Sparkman’s consumption, more alcoholic beverages. As a result of all these circumstances, the complaint alleges, it was reasonably foreseeable that Sparkman would attack appellant while she was on ABC’s premises. By thus negligently permitting its premises to become disorderly and dangerous, by negligently permitting the intoxicated and violent patron Sparkman to remain on the premises, and by negligently failing to warn appellant of the danger of which ABC was aware and appellant was not, ABC allegedly contributed to appellant’s injury by Sparkman’s attack while appellant was on or leaving ABC’s premises.

The owner of premises owes to invitees a duty to use reasonable care to maintain the premises in a reasonably safe condition and a duty to use reasonable care to warn invitees of transient dangers arising on the premises of which the owner has knowledge superior to that of the invitee. See Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980); Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980); Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989 (Fla. 2d DCA 1980). In the case of premises devoted to the business of serving alcoholic beverages, a jury might well consider that an intoxicated, recently armed and apparently violent patron, known to be angry with and actively searching for another known patron, creates a dangerous condition on the premises for that other patron, so giving rise to a duty in the proprietor to use reasonable care, in the respects stated, for the other patron’s safety. See Hernandez v. Nortico, Inc., 370 So.2d 836 (Fla. 3d DCA 1979); Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969), cert. disch., 235 So.2d 294 (Fla.1970); Worth v. Stahl, 388 So.2d 340 (Fla. 4th DCA 1980). I think these allegations are sufficient and would reverse the judgment dismissing count III.


author: PER CURIAM. ROBERT P. SMITH, Jr., J.,

text:
    POINSETTA GIFTS and American States Insurance Co., Appellants, v. Madge EVANS, Appellee.
    No. SS-325.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1980.
    Rehearing Denied Dec. 15, 1980.

      Richard H. Gaunt, Jr., of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellants.
    Charles A. Sullivan, Jr., of Sullivan & Cobb, Vero Beach, for appellee.
   PER CURIAM.

AFFIRMED.

BOOTH and SHAW, JJ., concur.

ROBERT P. SMITH, Jr., J., dissents with opinion.

ROBERT P. SMITH, Jr., J.,

dissenting:

In this worker’s compensation appeal the court affirms an order awarding claimant benefits for a 20% permanent physical impairment of the body as a whole. An insect bit claimant at her work in a gift shop. That work did not involve any risk of insect bites other than that encountered by anyone anywhere else in Vero Beach on that October day. Claimant’s existing hypersensitivity to insect bites increased because she was bitten, and on that account the deputy commissioner has awarded permanent disability benefits. I do not agree that claimant’s increased hypersensitivity to future insect bites is a “permanent impairment” for which Chapter 440 provides “disability” benefits, Sections 440.02(21), 440.15, nor that a 20% disability rating is sustained by the record.

Claimant is one of those thousands who are extraordinarily sensitive to insect bites because of immunological bodily responses acquired genetically and by antigenic exposures during life. Like most others so conditioned, claimant did not know of her hypersensitivity until she suffered a reaction to a particular insect bite or sting. Claimant happened to sustain that particular bite while arranging a display in the gift shop where she was employed, and she suffered a fairly severe antigenic response. The employer/carrier do not now contest that the bite was an industrial accident arising out of and in the course of claimant’s employment, nor that the resulting medical bills were properly payable by them. Since the only apparent causal relationship between the insect bite and claimant’s employment was that this particular insect would not likely have bitten claimant had she not been at work when the insect was there, the sufficient causal nexus is apparently attributable to “positional risk” doctrine. See Murphy v. Peninsular Life Ins. Co., 299 So.2d 3 (Fla.1974); Pickens v. Sam L. Rudd Leasing, USA, IRC 2-3741 (1977); 1 A. Larson, Law of Workmen’s Compensation §§ 10.10, 10.12 text at nn. 32, 33 (1978).

Granting, therefore, that the employer/carrier were responsible for required medical treatment flowing from this insect bite, I think the benefits should have ended when claimant recovered and was able to return to work. But the deputy commissioner awarded and the court sustains benefits for a 20% permanent partial disability. The medical testimony on which this award is predicated was extracted from a reluctant treating physician who plainly recognized that his offhand testimony, “[M]aybe you’d say twenty, thirty percent[,], I don’t know,” was not a considered medical estimate of permanent physical disability or impairment but was instead a guess at a numerical factor combining claimant’s chances of being insect-bitten again and her chances of suffering, in that event, a severe or disabling antigenic reaction. The medical witness testified, at some urging by the deputy commissioner,

Well, you know, you just have to sort of pull something out of the hat and say, you know, her chance is — you’ve had to consider her chances of getting a bee sting, and then what her chances are of having something really severe if she gets it.

The unexplicated formula for calculating disability was made more problematic by the need to reduce the probability of a severe reaction to any future insect bite (“I mean, that’s a hundred percent, I think, or so near that you couldn’t really break that down”) by the degree of added permanent hypersensitivity contributed by the unsuccessful and counterproductive desensitization treatments for which the employer/carrier were ordered to pay and did pay. The deputy’s order states, I think somewhat too sanguinely, that the rating awarded “does not take into consideration any injuries sustained by the claimant as a result of the bee desensitization program.” The order does not say how that added hypersensitivity was quantified and subtracted, and there is no testimony which would furnish a basis for that calculation.

In my opinion these calculations and the consequent finding that claimant sustained a 20% permanent disability compensable under Chapter 440 are composed more of alchemy than of law, medicine, or any defensible theory of probabilities. Claimant has no “anatomic or functional abnormality or loss” as a result of this insect bite, Section 440.02(21). She is, instead, rendered by this bite more susceptible than previously, which was very susceptible indeed, to disability from an insect bite. Claimant has recovered from her disability caused by this particular bite, and her residual susceptibility to repeated disability by another insect bite is not, in my opinion, a present disability. Claimant is not unable to return to this work or any other work as a result of this industrial accident, though of course she should avoid both work and leisure which exposes her unnecessarily to insect attacks. Clerking in a gift shop is not particularly risky in that respect. There is no evidence, and no contention, that claimant sustained a diminution of wage earning capacity.

Not only is claimant not disabled by being more hypersensitive to insect bites; neither was her increased hypersensitivity caused by a risk of her employment. The “positional risk” doctrine may justifiably compensate an employee for disabilities caused by risks encountered in fact on the job, even if those risks would have been encountered elsewhere to the same degree; but absent a present disability I would not further attenuate the “positional risk” causation doctrine by supposing that it was a job hazard (the offending insect) rather than claimant’s body chemistry which caused her present vulnerability to future bites. If the nature or conditions of claimant’s employment had in any way increased the risk that claimant would be insect-bitten as she was, or if this job had exposed claimant, beekeeperlike, to an occupational disease of aggravated antibody response to insect serum, Section 440.151, or even if claimant’s present susceptibility were attributable to the insect she in fact encountered at work rather than to her progressive sensitivity to any insect’s bite, one could more readily recognize a causal relationship between the risks of claimant’s employment and her present vulnerability. But none of that is the case.

In my opinion this award is exactly equivalent to granting claimant in periodic payments the actuarially discounted benefits of a health insurance policy conditioned to pay claimant in proportion to her present wages and the severity of her probable illness if claimant is ever again bitten by an insect. Unlike other persons whose body chemistry makes them allergic to insect bites, and who would find similar comfort in such health insurance as this, claimant receives these benefits in futuro because she was insect-bitten at work, although she has recovered from the resulting disability and neither the insect in futuro nor claimant’s hypersensitivity to its bite was created by the occupational risks of clerking in this gift shop. I do not think worker’s compensation benefits can be stretched to such extraordinary lengths. See Southern Bell Tele. and Tele. Co. v. McCook, 355 So.2d 1166 (Fla.1978).

In Plantation Construction Co. v. Ayers, 385 So.2d 1138, 1139 (Fla. 1st DCA 1980), another panel of this court rejected a deputy commissioner’s “apparent conclusion that the likelihood of a further recurrence of bacteria-caused ear infections, if claimant continues to dive, may be classified as a ‘physical impairment.’ ” I think that case was well-decided and that, for what appear to me to be the similar but stronger reasons here, the chancy calculations indulged in this case do not make out a 20 percent permanent disability. I would reverse.

       See Larson, op. cit. § 10.00 at p. 3-65:
      An increasing number of courts are beginning to make awards whenever the injury occurred because the employment required the claimant to occupy what turned out to be a place of danger. A few frankly state that causal connection is sufficiently established whenever it brings claimant to the position where he is injured.

        Murphy sustained an IRC reversal of a JIC compensation order expressly predicated on the theory described by Larson, and said, 299 So.2d at 4:
      [T]he injury resulting to the claimant must be a reasonably foreseeable consequence of fulfilling the duties of the employment.


author: ORFINGER, Judge. ORFINGER, Judge.

text:
    Phyllis CAMERON, Appellant, v. Melton L. SCONIERS and Allstate Insurance Company, Appellees.
    No. 79-1241/T4-586.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 1980.
    Rehearing Denied Feb. 4, 1981.
    Kenneth R. Cate, of Maher, Overchuck & Langa, Orlando, for appellant.
    J. Russell Thacker, Orlando, for appellees.
   ORFINGER, Judge.

Appellant contends that the trial court erred when it approved the jury verdict of $1,500.00 in a personal injury case, and that she is entitled to a new trial because of obvious insufficiency of the verdict.

The evidence reflects that appellant suffered a soft tissue injury to her neck and low back as a result of a rear end collision in July 1975. She contended also that certain female difficulties arose as a result of the collision. From the record before us, it appears that the evidence was in dispute as to the extent and seriousness of her injury. There is evidence upon which the jury could have found that the female problems were not related to the accident. There is also evidence upon which the jury could have found, as it did, that her injuries were not permanent.

In a special verdict, the jury found that appellant’s medical bills as a result of the accident exceeded $1,000.00. There is a dispute however about the necessity of the treatment furnished to appellant by a Dr. Weaver. Prior to seeing Dr. Weaver, appellant had seen and been treated by a gynecologist, two orthopedic surgeons, and a neurologist. The medical bills filed in evidence for all these physicians plus the drug bills attributable to them total approximately $750.00. The record reflects that these physicians discharged the appellant from treatment with the advice that there were no objective findings they could correlate with her subjective symptoms. She was then treated by Dr. Weaver over a period of more than a year and his medical bill was $1,080.00. He prescribed drugs and medicines costing approximately $490.00. It was strenuously argued to the jury that none of Dr. Weaver’s bills were medically necessary, and that without his bills the appellant could not meet the threshold requirements. The jury had a right to conclude, based on the evidence before it, that some but not all of Dr. Weaver’s treatment was necessary because of the injuries.

Appellant relies on Hector v. Florida Farm Bureau Mutual Insurance Company, 364 So.2d 1253 (Fla. 2d DCA 1978), as support for her position that a new trial on damages is warranted. In Hector, citing Griffis v. Hill, 230 So.2d 143 (Fla.1970), the court said that the accepted test for determining the adequacy of a jury verdict is whether a jury of reasonable persons could have returned that verdict. Based on the record before us, and the approval of the verdict by the trial judge who heard all the evidence, the appellant has not demonstrated that a jury of reasonable persons could not have returned the verdict here.

Appellant also contends that a new trial is warranted because of an improper remark by defendant’s counsel in closing argument. The trial court sustained appellant’s objection to the remark, and complied with appellant’s request that the jury be instructed to disregard the comment. No other relief was requested. In this state of the record, a new trial based on the comment would be a “second bite at the apple” and inappropriate.

The final judgment based on the jury verdict is

AFFIRMED.

SHARP, J., and BAKER, JOSEPH, P., Associate Judge, concur.

ON PETITION FOR REHEARING

ORFINGER, Judge.

Appellant contends that we overlooked a stipulation between counsel to supplement the record which states that appellant’s counsel asked for a mistrial following the conclusion of closing argument by ap-pellees’ counsel, and that the trial court denied it. We did not overlook it, because it was not included in the record on appeal. It is the appellant’s obligation to ensure the correct preparation and transmittal of the record on appeal. Fla.R.App.P. 9.200(e).

Without commenting on the timeliness of the motion made at the conclusion of the argument, we find no abuse of discretion in the denial thereof by the trial judge. We adhere to our original opinion and the Petition for Rehearing is

DENIED.

SHARP, J., and BAKER, JOSEPH P„ Associate Judge, concur.

      . On date of the accident, the threshold requirements of § 627.737(2), Florida Statutes (1975), included among other things medical bills in excess of $1,000.00 or a permanent injury as a condition to maintaining a tort action.


author: WENTWORTH, Judge.

text:
    Dylon T. NICHOLS, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. WW-287.
    District Court of Appeal of Florida, First District.
    Nov. 13, 1980.
    Dylon T. Nichols, pro se.
   WENTWORTH, Judge.

This cause is before us upon petitioner’s pro se motion to be relieved of the filing fee otherwise required by § 35.22(3), Florida Statutes, and Rule 9.110(b), Fla.R.App.P. See Latisi v. Florida Parole and Probation Commission, 382 So.2d 1355 (Fla. 1st DCA 1980). Petitioner is incarcerated in Florida’s correctional system, and has filed an affidavit indicating that he is indigent and unable to pay the filing fee otherwise required.

Subsequent to our decision in Latisi, supra, the Florida Legislature enacted Chapter 80-348, amending § 57.081(1), Florida Statutes. The bill was signed by the Governor on July 3, 1980, and became law on August 6, 1980. This enactment, relating to judicial or administrative agency proceedings, effects a change in the law which applied in Latisi and provides that:

No prepayment of costs ... is required in any action when the party has obtained a certification of indigency from the clerk in each proceeding, based on an affidavit filed with him that the applicant is indigent and unable to pay the charges otherwise payable.

The statute further requires that the affidavit be accompanied by a written certificate from the party’s counsel when the party is represented by an attorney.

Section 57.081(1), Florida Statutes (1980), provides an exemption, in “any action,’’ from the filing fee which would otherwise be necessary, when the statutory requirements are satisfied. Where a person seeks review of an order of a lower tribunal, the motion to be relieved of costs shall be filed with the clerk of the lower tribunal. Fla.R. App.P. 9.430. Where, as in the present case, a person invokes this court’s original jurisdiction pursuant to Fla.R.App.P. 9.030(b)(3), the motion shall be filed with the clerk of this court.

We hereby direct the clerk of this court to consider petitioner’s motion to be relieved of costs.

En Banc. MILLS, C. J., and McCORD, ROBERT P. SMITH, Jr., ERVIN, BOOTH, LARRY G. SMITH, SHIVERS, SHAW, JOANOS and THOMPSON, JJ., concur.


text:
    J. D. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. WW-218.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.
    J. D. Miller, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See, State v. Jones, 327 So.2d 18 (Fla.1976).

WENTWORTH and JOANOS, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.


author: COWART, Judge.

text:
    In the Interest of G. J. S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-200.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    Rehearing Denied Feb. 2, 1981.
    James B. Gibson, Public Defender, and James R. Wulehak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

The inherent nature of a mobile automobile constitutes an exigent circumstance making its search upon probable cause but without a warrant constitutionally reasonable. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Francoeur, 387 So.2d 1063 (Fla. 5th DCA 1980); State v. Rapp, 389 So.2d 1100 (Fla. 1st DCA 1980) [1980 F.L.W. 2075], The trial court’s denial of a motion to suppress based on its finding of probable cause comes to this court with a presumption of correctness. McNamara v. State, 357 So.2d 410, 412 (Fla.1978). Appellant has failed to overcome that presumption in this case. The final judgment and sentence is

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


text:
    OUR SAVIOR EVANGELICAL LUTHERAN CHURCH, INC., a corporation not for profit, Appellant, v. Robert A. MALLARD, Property Appraiser of Duval County, Florida; Lynwood Roberts, Tax Collector of Duval County, Florida; the Board of Tax Adjustment of Duval County, Florida; and Randy Miller, Director, Department of Revenue, State of Florida, Appellees.
    No. VV-404.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1980.

      William G. Cooper, Jacksonville, for appellant.
    William Lee Allen, Jacksonville, Jim Smith, Atty. Gen., and Barbara S. Harmon, Asst. Atty. Gen., for appellees.
   PER CURIAM.

AFFIRMED.

ROBERT P. SMITH, Jr., and THOMPSON, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.


author: NESBITT, Judge.

text:
    CALDER RACE COURSE, INC., Appellant, v. Frank A. GAITAN, Appellee.
    No. 80-1899.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Rehearing Denied Feb. 17, 1981.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellant.
    Lee A. Schillinger, Coral Gables, for ap-pellee.
    Before HUBBART, C. J., and NESBITT, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   NESBITT, Judge.

Calder Race Course, Inc. (Calder) appeals from an order granting Frank A. Gaitan, a trainer, a temporary mandatory injunction requiring it to provide Gaitan with horse stalls.

Since it is conceded that Gaitan has no contractual right to the use of the horse stalls, the focus of our inquiry is to ascertain whether the State of Florida has so regulated this commercial activity, (promoting horse racing), so as to render it a public corporation thereby subjecting its actions to judicial review. Finding that it has not, we reverse the order appealed from with directions to dissolve the injunction and dismiss the complaint.

Gaitan, like all other trainers, was required to apply not later than July 14, 1980 in order to obtain horse stalls for the second session of Calder which operated between August 20, 1980 and November 8, 1980. Calder received 2,300 applications for horse stalls but was physically unable to supply more than 1,550 stalls. Although Gaitan was admittedly late in filing his application, it has been conceded that, even had he timely applied to the racing secretary for horse stalls, that request would have been denied.

It is also conceded by Calder that pari mutuel racing has been considerably regulated by the enactment of various portions of Chapter 550, Florida Statutes (1979). However, despite the existence of such regulations, it was held in Fulton v. Hecht, 545 F.2d 540 (5th Cir.), cert. denied, 430 U.S. 984, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977), that its regulation was not so excessive so as to make the state a “partner” in greyhound racing for the purposes of the Fourteenth Amendment. See also, Jackson v. Metropolitan Edison Company, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).

Admittedly, the State Board of Regulation promulgated Rule 7E-1.10(5), which provides that the racing secretary shall allocate horse stalls to trainers. This is the only area that can be pinpointed as a nexus between the regulation of commercial race tracks and the State of Florida so as to subject race tracks to regulation as public corporations; this nexus is insufficient. The common law rule is that courts will not make rulings which require private corporations to take affirmative action in areas traditionally reserved exclusively to internal managerial decisions in the operation of their business. West Coast Hospital Ass’n v. Hoare, 64 So.2d 293 (Fla.1953); Yarnall Warehouse & Transfer, Inc. v. Three Ivory Brothers Moving Company, 226 So.2d 887 (Fla.2d DCA 1969). See also, Galler v. Galler, 95 Ill.App.2d 340, 238 N.E.2d 274 (1968). In the context of the actual allocation of horse stalls to trainers, Rule 7E -1.10(5) is merely directory rather than mandatory.

The State of Florida, in the public interest, has undertaken to regulate and control pari mutuel wagering in racing establishments. This action, standing alone, does not make those commercial enterprises amenable to regulation by the court. Tropical Park, Inc. v. Jock, 374 So.2d 639 (Fla.3d DCA 1979), cert. denied, 383 So.2d 1196 (Fla.1980). Until the Florida Legislature acts or private racing establishments disparage constitutionally guaranteed rights, they continue to have the right to choose those persons with whom they wish to do business.

For the foregoing reasons, the temporary mandatory injunction is reversed with directions that it be dissolved and the complaint be dismissed.

      . We ordered this appeal expedited and heard oral argument on November 4, 1980. On the same date, we issued an order reversing the trial court’s imposition of an injunction. This opinion is to explain the reason for our ruling.


author: CAMPBELL, Judge. GRIMES, Judge,

text:
    STATE of Florida, Petitioner, v. Robert Emmett McINTYRE, Respondent.
    No. 80-934.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1980.
    Rehearing Denied Feb. 4, 1981.

      James T. Russell, State Atty., and Lawrence A. Jacobs, Asst. State Atty., St. Pe-tersburg, for petitioner.
    Steven C. Ruth of Piper, Esteva, Karvo-nen & Lewis, St. Petersburg, for respondent.
   CAMPBELL, Judge.

This cause is before the court on petition for certiorari to review the order of the circuit court reversing the county court’s judgment that respondent drove while under the influence of alcoholic beverages contrary to Section 316.193, Florida Statutes. Petitioner asserts that the order of the circuit court, acting in its appellate capacity, departed from the essential requirements of law. We agree and grant the petition.

At respondent’s nonjury trial three police officers testified that they observed respondent shortly after he was discovered sitting in his automobile. The evidence indicated, and the respondent admitted, that shortly before the first officer arrived at the scene, respondent had struck a light fixture with his automobile. All of the officers testified that respondent was unstable on his feet and there was an odor of alcoholic beverages about his person. The first officer on the scene, Officer Wolfe, testified further that respondent appeared to lose his train of thought, his speech was slurred and his eyes were glazed. In the opinion of all of the officers respondent was under the influence of intoxicating beverages.

Dr. Harry Wessel testified for respondent. He explained that a blow to the head could create symptoms similar to intoxication. However, we note, respondent did not at any time advise the officers investigating the incident that he had suffered any injuries.

Pat Jenson, an automobile mechanic, testified that he repaired respondent’s vehicle after the accident. He stated that the windshield of the automobile was cracked and that the steering wheel was bent.

Finally, respondent testified that he had struck his head on the windshield when the automobile collided with the light pole. He explained that this, rather than the alcoholic beverages, caused him to be stunned and dazed.

The circuit court in its order reversing respondent’s conviction appears to conclude that the petitioner’s failure to introduce the results of a blood alcohol test was fatal to its case. This finding, if approved, would entitle a defendant to a judgment of acquittal whenever a police officer, without regard to other evidence of intoxication, neglected to perform a blood alcohol test. The function of the trier of fact should not be so blindly usurped.

One of the most essential and settled requirements of this state’s law is that an appellate court may not substitute its opinion of the facts for that of the trier of the facts, or reweigh the evidence and reach a conclusion different from that of the trial court. In the instant case, the circuit court did exactly that. . Accordingly, we must reverse the decision of the circuit court and reinstate the judgment of the county court.

HOBSON, Acting C. J., concurs.

GRIMES, J., dissents with opinion.

GRIMES, Judge,

dissenting.

The circuit court did not hold that the results of a blood alcohol test were essential to a conviction for driving while under the influence of alcoholic beverages. The basis upon which the circuit court reversed was that in the absence of blood alcohol testimony when the respondent proved that he had suffered a blow on the head and testified that this, rather than the alcohol he had imbibed earlier in the day, caused him to appear intoxicated and furnished medical evidence in support of this theory, the state had failed to prove its case beyond a reasonable doubt. There is support for this position.

The testimony of how the accident happened and how the respondent acted at the scene was direct evidence of those facts. Yet, in order to prove the state’s case it was necessary to infer from those facts that respondent was driving under the influence of intoxicating beverages. Thus, the state was relying solely upon circumstantial evidence. McCormick on Evidence § 185 (2d ed. 1972). In the absence of anything further, this evidence would have been clearly sufficient to convict respondent of the charge against him. However, when respondent testified that he acted the way he did because he struck his head on the windshield and a doctor testified that this could cause him to appear intoxicated, the situation was changed. Where the state’s proof is entirely circumstantial, even if the evidence strongly suggests guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla.1977). In applying this standard, the version of events related by the defense must be believed if the circumstances do not show this version to be false. McArthur v. State; Mayo v. State, 71 So.2d 899 (Fla.1954). Can it be said that respondent’s justification for acting strange at the scene of the accident is inconsistent with any reasonable hypothesis of innocence?

I can also make an argument for the proposition that the county judge concluded that the respondent’s version of events was so dubious as to be unbelievable and that therefore the circuit court improperly reweighed the evidence. The point is, however, that the decision which faced the circuit court was a close one. Therefore, I must dissent because I believe this court is applying the wrong standard of review for granting certiorari.

In discussing the nature of certiorari review of a decision made by a lower court sitting in its appellate capacity, our sister court in Kennington v. Gillman, 284 So.2d 405 (Fla. 1st DCA 1973), stated:

The extraordinary writ of certiorari is highly discretionary on the part of a Superior Court. It cannot be used as a substitute for an appeal or to give a party a second appeal. Evidentiary questions are to be resolved by the trial court and its action was properly reviewable on direct appeal by the appellate court. The correctness of the appellate court’s decision is not reviewable in an attempted second appeal by a superior court in the name of certiorari. It is only when a judgment has been rendered in the absence of any competent evidence to support the judgment or material fundamental errors in applying the law that such a departure from the essential requirement of law will arise to justify a superior court to exercise its ancient power to issue the common law writ of certiorari.

284 So.2d at 406.

Several years later, the same court elaborated on this subject in Grandin Lake Shores Association, Inc. v. Underwood, 351 So.2d 1131 (Fla. 1st DCA 1977), when it said:

It is apparent from the foregoing authorities that a District Court of Appeal may not, on certiorari sought to a Circuit Court in the exercise of its appellate jurisdiction, re-evaluate or weigh the evidence. Indeed, the mere fact that a Circuit Court in its appellate capacity errs (should such be the fact) does not necessarily mean that it has either exceeded its jurisdiction or departed from the essential requirements of law.

351 So.2d at 1132.

Our court has also addressed itself to the appropriate standard of review under these circumstances. In Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977), we said:

We must, of course, before issuing a writ of common law certiorari, find a departure by the circuit court from the essential requirements of law and resultant irrevocable prejudice to petitioner. Ordinarily, for this test to be met when reviewing an order of a circuit court acting in its appellate capacity, we think legal error on the part of the lower [county] court must first be demonstrated and that such error must be of such magnitude that the aggrieved party has effectively been denied his day in court.

347 So.2d at 840-41. See also Robinson v. State, 310 So.2d 27 (Fla. 2d DCA 1975).

In essence, it seems to be a question of degree. To grant certiorari, the error committed by the court below in its appellate capacity must have been so egregious as to be equivalent to the denial of fundamental rights. In this case, the fact that I am uncertain over how I would have ruled had I been the circuit judge convinces me that the decision, if it was error at all, was not such as to constitute a departure from the essential requirements of law.

I would deny the petition for certiorari.


text:
    William H. BEAMAN, Appellant, v. Marilyn A. BEAMAN, Appellee.
    No. 80-946.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Rehearing Denied Feb. 17, 1981.

      Charles J. Crowder, South Miami, for appellant.
    Don R. Livingstone, South Miami, for ap-pellee.
    Before HUBBART, C. J., and HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN, Retired, Associate Judge.

William H. Beaman, the former husband, appeals a final judgment dissolving his marriage of 21 years to Marilyn A. Beaman. The husband was the petitioner in the trial court and the points on appeal claim error in the financial provisions of the judgment, except for one provision in the award to the husband of visitation rights with the minor children which is discussed below. We affirm the judgment except as to the provision requiring the husband to maintain a life insurance policy with the wife to be the irrevocable beneficiary, and except as to a limitation upon visitation rights.

The judgment provides:

“The husband shall maintain in full force and effect, and at his own expense, that certain Ten Thousand Dollars ($10,-000.00) life insurance policy presently in effect upon his own life, naming the wife irrevocable beneficiary thereon.”

We reverse that part of the judgment, as it would appear to be an attempt by the trial court to provide alimony after death without evidence of need by the wife. See Dutton v. Dutton, 379 So.2d 111 (Fla.3d DCA 1979) and cases cited therein at page 112.

The judgment grants the custody of the three minor children of the parties to the wife with: “.. . reasonable visitation granted to the husband, provided that no act of immorality shall occur during such visitation at the residence of the husband”. We hold that this limitation on visitation is overly broad and so uncertain as to be incapable of enforcement. The definition of “act of immorality” varies so greatly from culture to culture and from person to person that it could only be enforced upon the innate moral standards of the sitting judge. See Hackley, II v. Hackley, 380 So.3d 446 (Fla.5th DCA 1979).

There is no doubt that the limitation was placed in the judgment because of a commendable desire on the part of the trial judge to protect the children from a possible unwholesome and improper exposure to conditions which might be damaging to them. We reject the limitation because it might result in a prejudgment of the situation which the trial judge felt might develop. In addition, it is established law that custody and visitation rights may be changed whenever it is shown that children are exposed to situations which are potentially damaging to them. See Rosenberg v. Rosenberg, 365 So.2d 185 (Fla.3d DCA 1978), Young v. Young, 305 So.2d 92 (Fla.1st DCA 1974) and Niles v. Niles, 299 So.2d 162 (Fla.2d DCA 1974). As written the limitation would require such a hearing in order for it to be enforced.

Appellant’s remaining points on appeal do not present reversible error under the holdings in Shaw v. Shaw, 334 So.2d 13 (Fla.1976), and Storer v. Storer, 353 So.2d 152 (Fla.3d DCA 1978).

Accordingly, the final judgment is amended by striking therefrom the paragraph (above quoted) providing for the maintenance of a life insurance policy and by striking therefrom the limitation upon the husband’s visitation rights (above quoted). As amended, the final judgment is affirmed.

Affirmed.


text:
    Hilda BETANCOURT, as personal representative of the Estate of Guzman Betancourt, deceased, for the benefit of the estate and its lawful survivors, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 79-2149.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 1981.
    Rehearing Denied Feb. 20, 1981.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Ratiner & Glinn, Miami, for appellant.
    Robert A. Ginsburg, County Atty. and Thomas Goldstein, Asst. County Atty., for appellee.
    Before HUBBART, C. J., NESBITT, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   NESBITT, Judge.

The question before us is whether the Legislature has, by the adoption of Section 325.29, Florida Statutes (1977), withdrawn inspectors and inspection stations from the waiver of immunity effected by the adoption of Section 768.28, Florida Statutes (1977). Finding that it has, we affirm the order which dismissed the appellant’s plaintiff below, complaint with prejudice.

Plaintiff alleged that the decedent died from carbon monoxide poisoning resulting from a malfunctioning vehicle which had been negligently inspected by an inspection station maintained by Metropolitan Dade County. The vehicle inspection occurred on February 1, 1979 and on February 14, 1979 the decedent met his death as a result of breathing the lethal fumes emitted from the vehicle.

Appellant’s first contention is that Sections 768.28 and 325.29, Florida Statutes (1977) may not co-exist. She argues that Section 768.28, Florida Statutes (1977), which initially became effective January 1, 1975, impliedly repealed Section 325.29, Florida Statutes (1977) which was then in effect. We will not determine that question because, assuming arguendo that such implied repeal occurred, the revisor’s bill, Section 11.2421, Florida Statutes (1977), reenacted Section 325.29 and both statutes have continually been re-enacted through the present time.

Appellant’s next contention is that her complaint, which sought to set forth a cause of action in negligence, was improperly dismissed because Section 325.29 only purports to waive immunity of inspectors and inspection stations with respect to contractual immunity. Consequently, she reasons that Section 768.28, which waives sovereign immunity for the state and its agencies with respect to tort liability, would nonetheless control. We disagree. As we read the plain language of Section 325.29, inspectors or inspection stations engaged in inspecting motor vehicles are simply not “liable in damages for any defect in or failure or improper functioning of any item of equipment on such motor vehicle occurring subsequent to such inspection.” In Hensley v. Seminole County, 268 So.2d 452 (Fla.4th DCA 1972), that court, construing the predecessor waiver of immunity statute, likewise rejected the contention that Section 325.29 only bars breach of warranty actions rather than negligence actions.

We find no impediment to the simultaneous and harmonious co-existence of Sections 325.29 and 768.28, Florida Statutes (1977). Under Article X, Section 13 of the Florida Constitution, the Legislature may generally withdraw the sovereign immunity of the state and its agencies and then make exceptions from that waiver.

Affirmed.

      . Section 325.29 has been continually re-enacted without modification since its original enactment on July 1, 1967 by Chapter 67-307, Laws of Florida. Section 768.28 has been modified since its inception; however, those parts pertinent to this appeal remain essentially unchanged. See, Chs. 73-313 § 1; 74-235 § 1; 77-86 §§ 1-3; 79-139 § 9; 79-253 § 1; 79-400 § 284; 80-271 § 1, Laws of Fla.


text:
    Robert THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-519.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 1981.
    Rehearing Denied Feb. 20, 1981.
    Smith, Black & Peckins and Melvin S. Black, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. See, Parker v. State, 389 So.2d 336 (Fla. 4th DCA 1980); Williams v. State, 346 So.2d 67 (Fla.1977); Clark v. State, 378 So.2d 1315, 1316-17 (Fla. 3d DCA 1980); Whitted v. State, 362 So.2d 668 (Fla.1978); Taylor v. State, 386 So.2d 825, 827-28 (Fla. 3d DCA 1980); § 924.33, Fla.Stat. (1979); Ziegler v. State, 385 So.2d 1168 (Fla. 1st DCA 1980); Knight v. State, 374 So.2d 1065, 1067 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980).


author: DANAHY, Judge.

text:
    Vera June FLOYD, Appellant, v. Paul Brian FLOYD, Appellee.
    No. 80-953.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 1981.

      Gary W. Barrick, Lakeland, for appellant.
    No appearance for appellee.
   DANAHY, Judge.

The appellant/wife contends the trial judge abused his discretion in (1) reducing alimony and child support and (2) setting specific visitation rights. We reverse as to alimony and child support. We affirm as to the visitation rights.

The final judgment dissolving the marriage of the parties ratified and incorporated their property settlement and child custody agreement which included permanent periodic alimony for the wife, child support for the children, and reasonable rights of visitation with the children. Six and one-half months later the husband filed a petition to reduce child support, terminate alimony, and set specific visitation rights. The husband attempted to demonstrate changed circumstances by claiming his expenses had increased by virtue of his military reassignment from Korea — where he was stationed at the time of the original dissolution proceedings — to Fort Gordon, Georgia. He testified he had certain expenses at Fort Gordon which he did not have while stationed in Korea. However, the trial judge specifically found that the husband’s expenses in connection with his transfer to Fort Gordon either were contemplated or should have been contemplated at the time he signed the agreement.

We hold that the trial judge abused his discretion in reducing child support and alimony where the evidence showed that the current financial condition of the husband was contemplated by the parties at the time of the stipulation and agreement. Ashburn v. Ashburn, 350 So.2d 1158 (Fla.2d DCA 1977); Coe v. Coe, 352 So.2d 559 (Fla.2d DCA 1977). Furthermore, the needs of the children have not diminished and the husband did not demonstrate a substantial change in the circumstances of either party. Where, as here, the awards in the final judgment were based on an agreement of the parties, the obligor has a heavier burden in seeking a reduction of payments than is otherwise required. We find that the husband in this case failed to carry that burden. Burdack v. Burdack, 371 So.2d 528 (Fla.2d DCA 1979).

We do not find that the trial judge exceeded the permissible limits of his discretion when he modified the final judgment to grant the husband specific times of visitation with the children. A trial judge is vested with wide discretion in determining whether to modify visitation privileges, and the scope of appellate review is limited. Therefore, we affirm that part of the order concerning visitation. Purvis v. Carter, 326 So.2d 40 (Fla.4th DCA 1976).

AFFIRMED IN PART, REVERSED IN PART, and REMANDED to the trial court for entry of an order consistent with this opinion.

SCHEB, C. J., and RYDER, J., concur.


author: PER CURIAM. HUBBART, Chief Judge

text:
    Daniel BAILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-235.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.
    Rehearing Denied Feb. 20, 1981.
    Stephen Jay Kogan, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox and Paul Mendelson, Asst. Attys. Gen., for appellee.
    Before HUBBART, C. J., SCHWARTZ, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

The appellant’s challenge to the warrant-less electronic surveillance involved in this case is rejected on the authority of Franco v. State, 376 So.2d 1168 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 636 (Fla.1980). See, Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980); State v. Steinbrecher, 389 So.2d 1043 (Fla. 3d DCA 1980); State v. Shaktman, 389 So.2d 1045 (Fla. 3d DCA 1980); Trinidad v. State, 388 So.2d 1063 (Fla. 3d DCA 1980).

The claim that the trial court erroneously declined to instruct the jury as to the maximum sentences, see, Tascano v. State, 393 § So.2d 540 (Fla.1980), was not properly preserved for appellate review. In so holding, we follow Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980) which involved an identical procedural situation and which we believe to have been correctly decided. See also, e. g., Febre v. State, 158 Fla. 853, 30 So.2d 367 (1947); Smith v. State, 378 So.2d 117 (Fla. 4th DCA 1980); White v. State, 324 So.2d 115 (Fla. 3d DCA 1975), cert. dismissed, 339 So.2d 1173 (Fla.1976). The other points raised present no error and require no discussion.

Affirmed.

HUBBART, Chief Judge

(dissenting).

I must respectfully dissent. I would reverse the judgment of conviction and sentence under review and remand the cause to the trial court with directions to suppress the fruits of the state’s warrantless electronic interception of the defendant’s highly incriminating private conversations with a state agent conducted on January 31, 1979 and February 1, 1979. I rely for this position on the legal authorities and analysis contained and stated in State v. Shaktman, 389 So.2d 1045 (Fla. 3d DCA 1980) (Hubbart, C. J., dissenting); Franco v. State, 376 So.2d 1168, 1170-72 (Fla. 3d DCA 1979) (Hubbart, J., dissenting).

Beyond that, I think the case noteworthy because the state did obtain several warrants to intercept electronically certain other private conversations between the state agent herein and the appellant. These warrants were based on probable cause, were in all respects lawfully issued and executed, and the fruits thereof were, accordingly, admissible in evidence at trial based on the authority of Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966). This commendable practice illustrates how entirely practicable the warrant procedure is in cases of this nature and how utterly unnecessary it is to effective law enforcement for the police to engage in the war-rantless electronic eavesdropping which, unfortunately, was also conducted in this case. See Franco v. State, 376 So.2d at 1172.

In view of my conclusion on the electronic eavesdropping issue, I find it unnecessary to reach the penalty instruction point raised by the appellant. In all other respects, however, I agree with the court’s rejection of appellant’s remaining points on appeal.

I would reverse and remand for a new trial.


text:
    The STATE of Florida, Appellant, v. Richard ENGLISH, Appellee.
    No. 80-452.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.
    Rehearing Denied Feb. 18, 1981.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Roy E. Black, Robert C. Josefsberg, Miami, for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Pezzella v. State, 390 So.2d 97 (Fla. 3d DCA 1980); State v. Busbee, 344 So.2d 1300 (Fla. 3d DCA 1977).


author: BASKIN, Judge.

text:
    HOSPITAL AFFILIATES OF FLORIDA, INC., d/b/a Coral Reef General Hospital, As Assignee of M. D. Services, Inc., d/b/a Miami Dade General Hospital, the Interested Party, Appellant, v. Marion McELROY, Personal Representative, of the Estate of Alice Marion Baker, deceased, Appellee.
    No. 80-772.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.
    Rehearing Denied Feb. 13, 1981.

      David Block and Ira B. Price, Miami, for appellant.
    Simon, Schindler & Tripp and Judith A. Bass, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and PEARSON, JJ.
   BASKIN, Judge.

In this appeal from an order setting aside as homestead property owned by Alice Marion Baker at the time of her death, we are asked to decide whether her estate is entitled to exercise her homestead exemption. Because we hold that the homestead exemption was personal to Alice Baker as the spouse of Willie Baker, we reach a conclusion contrary to that reached by the trial court when it decided that the exemption applied to Alice Baker’s estate. We hold that the homestead character of Alice Baker’s property ceased upon her death, and we therefore reverse the order entered by the trial court.

The stipulated statement of facts discloses that Alice and Willis Baker were owners as tenants by the entireties of a residence in Dade County, Florida. Willis was head of the family until his death on May 2, 1976, when Alice Baker became sole owner of the property by survivorship. At that time, the Bakers’ two children were adults no longer living at the home. Alice lived alone in the home until her death on July 18, 1979.

On August 6,1976, appellee Marion McEl-roy, Alice’s daughter, brought Alice to appellant Coral Reef Hospital where, as agent for her mother, she executed a financial agreement obligating Alice to pay her hospital bill. Subsequently, the hospital filed a claim against Alice’s estate for the unpaid balance of its bill.

Alice’s estate petitioned successfully to have the residence set aside as homestead, under Section 222.19, Florida Statutes (Supp.1976), thereby rendering it exempt from creditors’ claims. The hospital has appealed, arguing that Alice was not a head of a family since she owned the property only as a surviving tenant by the entirety, and that any homestead exemption she may have had should not inure to her estate. The hospital also contends that application of section 222.19 would constitute impairment of contractual obligations in violation of Article I, § 10, Florida Constitution (1968).

The “homestead exemption” provision states:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family....

Art. X, § 4(a)(1), Fla.Const. (1968).

The purpose of the homestead exemption is to protect the family home from forced sale for debts of the owner and head of the family, Tullis v. Tullis, 360 So.2d 375 (Fla.1978); In re Noble’s Estate, 73 So.2d 873 (Fla.1954), and to protect surviving family members. In re Noble’s Estate, supra. Homestead property is not chargeable with the decedent’s debts or with the costs of administration, Estate of Murphy, 340 So.2d 107 (Fla.1976); In re Noble’s Estate, supra; Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (1938).

Formerly head-of-the-family status belonged only to a person legally or morally obligated to support other family members. Beck v. Wylie, 60 So.2d 190 (Fla.1952). In 1976, however, the Florida legislature adopted section 222.19, effective October 1, 1976, which provided head-of-family status for the surviving tenant by the entirety or spouse. It states:

(1) It is the declared intention of the Legislature that the purpose of the constitutional exemption of the homestead is to shelter the family and the surviving spouse, and such purpose should be carried out in a liberal spirit and in favor of those entitled to the exemption.
(2) The head-of-familyj status required to qualify the owner’s property for homestead exemption, permitting such property to be exempt from forced sale under process of any court as set forth in s. 4, Art. X of the State Constitution, shall inure to the benefit of the surviving tenant by the entirety or spouse of the owner. The acquisition of this status shall inure to the surviving spouse irrespective of the fact that there are not two persons living together as one family under the direction of one of them who is recognized as the head of the family.

§ 222.19(1), (2), Fla.Stat. (Supp.1976).

Under section 222.19, Alice Baker gained head-of-family status, when, as spouse of the owner and as a surviving tenant by the entirety, she benefited by the passage of the new law effective October 1, 1976.

Once property acquires homestead status, it remains homestead unless abandoned or alienated in a manner provided by law. Wilson v. Florida National Bank & Trust Co. at Miami, 64 So.2d 309 (Fla.1953). See also Clark v. Cox, 80 Fla. 63, 85 So. 173 (Fla.1920). How long does property retain its homestead character when the head of the family dies?

All homestead property loses forever its character as such when the head of the family dies unless it is reinvested with such character by virtue of some other person becoming the head of the, or a, family and residing thereon with other members of such family.

Wilson v. Florida National Bank & Trust Co., supra at 313.

Loss of the homestead character upon death of the family head is a natural consequence of the legislative purpose of section 222.19, to shelter the dependent family and surviving spouse. Although appellee argues that the exemption is claimed on behalf of Alice Baker for debts she incurred during her life rather than on behalf of her heirs, appellee presents no authority to authorize delaying the termination of the homestead property following Alice Baker’s death. Wilson v. Florida National Bank & Trust Co. at Miami, supra.

Notwithstanding the fact that debts may not be charged against homestead property, Estate of Murphy, supra, that homestead property is not subject to testamentary distribution, Brickell v. DiPietro, 145 Fla. 23, 198 So. 806 (1940), and is not an asset in the hands of executives, trustees, or administrators, Spitzer v. Branning, supra, this estate is not within the protection conferred by the legislature in section 222.19 upon dependent family members. The homestead character of Alice Baker’s property terminated upon her death.

Homestead provisions should be construed liberally to benefit the family, but may not be used as a means of escaping honest debts. Frase v. Branch, 362 So.2d 317 (Fla.2d DCA 1978).

In light of our disposition of this cause, we need not consider the other points raised on appeal.

For these reasons, we reverse the order setting aside as homestead Alice Marion Baker’s property.

      . The order appealed from states that the property was homestead within the meaning of Article X, Section 4 of the Florida Constitution. Alice Baker, however, did not possess the head of a family status required by the constitution, and defined by Florida courts, since she did not live with at least one other person in a family relationship. In re Wilder’s Estate, 240 So.2d 514 (Fla.1st DCA 1979). The issue, then, is whether the property has homestead status within the meaning of Section 222.19, Florida Statutes (Supp.1976) which provides head-of-the-family status for the surviving tenant by the entirety or spouse.


text:
    HERITAGE INSURANCE COMPANY OF AMERICA, Appellant, v. FOSTER ELECTRIC COMPANY, INC., Appellee.
    No. 80-945.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.
    Rehearing Denied Feb. 18, 1981.
    Chappell, Brandt & Gore and Alan C. Brandt, Jr., Fort Lauderdale, for appellant.
    Courshon & Berk and Ira F. Markowitz, Miami, for appellee.
    Before BARKDULL, BASKIN and PEARSON, JJ.
   BASKIN, Judge.

The issue presented by this appeal is a question of first impression in Florida state courts. We are asked to determine the legal effect upon the surety of a default judgment against its principal. We hold that a default judgment against the principal is not conclusive as to a co-defendant surety. We reverse.

Heritage Insurance Company of America furnished a performance and payment bond covering an agreement by Cammarata Constructions, Inc. to furnish and install electrical materials for Foster Electric Company in a store known as National Health Foods Central. Foster brought an action seeking to recover for labor and services involved in improvements at National Health Foods Central and other stores as well as to recover under the bond. When Cammarata failed to respond to the complaint, the court entered a final judgment against Cammara-ta. Before entry of the final judgment, Heritage filed an answer to the complaint. Foster maintained that it was entitled to summary judgment against Heritage by virtue of the final judgment against the principal on the bond, Cammarata. The trial court agreed and entered summary judgment for Foster for $6,366.51, plus attorney’s fees and costs, based on the $16,-583.06 judgment against the principal, Cam-marata.

A review of existing case law discloses that authorities are in conflict concerning the legal effect on a surety of a default-judgment against its principal. A default judgment has been considered conclusive: United States Fidelity & Guarantee Co. v. St. Mary's Hospital of Tucson, 10 Ariz.App. 346, 458 P.2d 966 (1969); Massachusetts Bonding & Insurance Co. v. Central Finance Corp., 124 Colo. 379, 237 P.2d 1079 (1951); the judgment has been held inadmissible: United States ex rel. Vigilanti v. Pfeiffer-Neumeyer Construction Corp., 25 F.Supp. 403 (E.D.N.Y.1938); and the judgment has been considered prima facie evidence that the surety is liable: Seaboard Surety v. Westwood Lake, Inc., supra; Escambia Chemical Corp. v. Rocker, 124 Ga.App. 434, 184 S.E.2d 31 (1971). Prima facie evidence may be contradicted by the surety. Escambia Chemical Corp. v. Rocker, supra.

Heritage argues that the judgment entered against its principal upon a default should not bind it as surety because it has no control over its principal and cannot defend on behalf of the principal. A defense in its own behalf would be inadequate to forestall an adverse judgment if the default judgment is held to be conclusive. On the other hand, Foster contends that when an indemnitor has notice of the suit against its indemnitee, a judgment rendered without fraud or collusion is conclusive against the indemnitor when it had an opportunity to appear and defend. MacArthur v. Gaines, 286 So.2d 608 (Fla. 3d DCA 1973).

The facts in the case before this court are distinguishable from those in Mac Arthur v. Gaines, supra. As co-defendant, Heritage was on notice of the existence of the law suit; nevertheless, it was unable to defend against the default judgment. More closely analogous is Dade County v. Lambert, 334 So.2d 844 (Fla. 3d DCA 1976). In Lambert, a ease concerned with vicarious liability of the county for an injury caused by its negligent bus driver, the court held that the driver could not deprive the county of its right to a jury determination of its defense even though that defense would be common to the driver.

The default of one defendant, although an admission by him of the allegations of the complaint, does not operate an an admission of such allegation as against a contesting co-defendant. Marc Bellaire, Inc. v. Fleischman, 185 Cal.App.2d 591, 8 Cal.Rptr. 650; Fawkes v. National Refining Co., 341 Mo. 630, 108 S.W.2d 7; Compare 98 A.L.R. 938-957. Thus, it was error to direct a verdict against the County based on Laster’s default.

Dade County v. Lambert, supra at 847. The prima facie rule, that is,

Where it is not made to appear that the surety knew of and had opportunity to defend the suit, then the judgment is prima facie evidence that the surety is liable, sufficient to support a verdict unless it is rebutted by proof on the part of the surety that it was obtained through fraud or collusion, or that the loss or liability created by the judgment arose from acts other than those indemnified against under the conditions of the bond.

Lake County for Use and Benefit of Baxley v. Massachusetts Bonding & Insurance Co., supra, is the appropriate rule to be applied against a co-defendant surety who had knowledge of the suit but lacked the opportunity to defend on behalf of its principal.

For these reasons, we reverse the summary judgment entered by the trial court and remand for further proceedings.

      . The issue has been addressed in federal courts. Seaboard Surety Co. v. Westwood Lake, Inc., 277 F.2d 397 (5th Cir.1960); Lake County ex rel. Baxley v. Massachusetts Bonding & Insurance Co., 75 F.2d 6 (5th Cir.1935).


author: GRIMES, Judge.

text:
    Tivi AHO, Appellant, v. STATE of Florida, Appellee.
    No. 80-61.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1981.
    Rehearing Denied Feb. 6, 1981.
    Jack 0. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from convictions on four counts of involuntary sexual battery and one count of burglary coupled with an assault upon the same person against whom the sexual batteries were perpetrated. Appellant admitted that he entered the prose-cutrix’ apartment without her permission, but he testified that he did all of the acts which comprised the sexual batteries and the assault with her consent.

Appellant’s most serious contention of error concerns the rebuttal testimony of Officer Pamela Horner of the Largo Police Department about a conversation with the prosecutrix ten days to two weeks after the alleged sexual batteries had taken place. Officer Horner testified that the prosecu-trix contacted her for transportation to Pi-nellas Horizons in order to obtain counsel-ling. She said that the prosecutrix was very upset and that she stated that as a result of the incident involving appellant, she had considered committing suicide. Appellant objected to this line of testimony as being irrelevant and hearsay, but the court overruled his objection.

To the extent that the disputed testimony was introduced to prove the fact that the prosecutrix contemplated suicide during the interim, it constituted hearsay. The state, however, endeavors to justify the admission of the testimony on the premise that it reflected the prosecutrix’ state of mind which was relevant to the issue of consent. We cannot agree. While the testimony concerning the prosecutrix’ conversation may have had some relevance to the question of consent it would still not be admissible if the danger of unfair prejudice or confusion substantially outweighed its probative value. Perper v. Edell, 44 So.2d 78 (Fla.1949); McCormick on Evidence § 185 (2d ed. 1972). This, we think, was the case.

The probative value of the prosecutrix’ statements and agitation cannot be said to have been very great, coming, as they did, ten days after the incident in question. Moreover, Officer Horner’s testimony was quite prejudicial. The state predicated its case against appellant upon the testimony of the prosecutrix and certain circumstantial evidence which supported her version of the events. Appellant’s sole defense was that she had consented to everything that occurred. In the final analysis, the jury had to decide between the truthfulness of the two. Evidence that the prosecutrix later told Officer Horner that she was considering suicide as a result of the occurrence was highly inflammatory and may well have tipped the scales. See People v. Egan, 331 Ill. 489, 163 N.E. 357 (1928); Bailey v. State, 30 S.W. 669 (Tex.Crim.App.1885). Cf. Bynum v. State, 76 Fla. 618, 80 So. 572 (1919), in which the court held that it was reversible error to admit testimony concerning the sufferings or impairment of health of the prosecuting witness in a rape case.

REVERSED and REMANDED for a new trial.

HOBSON, Acting C. J., and DANAHY, J., concur.

      . Permitting Officer Horner to state what the prosecutrix said had previously occurred would be analogous to the practice condemned in Roti v. State, 334 So.2d 146 (Fla. 2d DCA 1976), of allowing a policeman to testify about a prior consistent statement made by the complaining witness.


text:
    ALBERTSON’S SOUTHCO, Self-insured, Appellant, v. Camilla MILLER, Appellee.
    No. UU-170.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1981.
    J. Scott Brasfield of Williams, Earle, Brasfield & Wertz, P.A., St. Petersburg, for appellant.
    Peter N. Meros of Meros, Coit, Edman, Meros, Smith & Meros, P.A., St. Petersburg, for appellee.
   PER CURIAM.

The first paragraph in the decretal portion of the order is modified to read:

WHEREFORE, it is the ORDER of the undersigned Deputy Commissioner that the employer pay to the claimant temporary total disability compensation from January 19, 1979, until such time as the employee is no longer temporarily totally disabled, bringing said payments current in one lump sum with interest thereon calculated at the rate of 12 percent per annum.

The order is otherwise AFFIRMED.

ERVIN, SHAW and WENTWORTH, JJ., concur.