author: NESBITT, Judge.

text:
    O. H. OVERHOLSER and Nola Overholser, Appellants, v. Frances OVERSTREET, Trustee et al., Appellees.
    No. 80-18.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Charles B. Rich, Fort Lauderdale, for appellants.
    Daniel P. Tunick, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

The defendants appeal from an order denying their motion to set aside a default entered against them in a mortgage foreclosure proceeding. The plaintiffs had been unsuccessful in securing service of process upon the defendants personally through the Sheriff of Dade County. Upon sworn affidavit, plaintiffs obtained the appointment of an elisor. The elisor was also unsuccessful in serving the defendants personally and, based upon his affidavit of that fact, plaintiffs procured an order authorizing constructive service of process pursuant to Section 49.041(3)(c), Florida Statutes (1979). The notice of action published by the clerk required the defendants to file their answer on or before September 28, 1979. Default was entered by the clerk against the defendants on September 25, 1979.

Mr. Overholser discovered a copy of the notice of action in his mail during the second week of October 1979. The notice of action was placed in the hands of his attorney who filed a motion to set aside the default on October 25, 1979. The motion was denied on November 26, 1979 and this interlocutory appeal was perfected to review that order.

In the notice of action, the court was required to fix a date by which the defendants were to file their written defenses. Such date is to be not less than twenty-eight nor more than sixty days after the first publication of the notice of action. § 49.09, Fla.Stat. (1979). In this case, the premature default entered by the clerk was void and subject to collateral attack. Kroier v. Kroier, 95 Fla. 865, 116 So. 753 (1928).

The clerk’s authority is entirely statutory, and his official action, to be binding upon others, must be in conformity with the statutes. Security Finance Co. v. Gentry, 91 Fla. 1015, 109 So. 220 (1926). In Kroier v. Kroier, the court stated:

-But where a special statutory authority or jurisdiction, which is more of a ministerial than of a judicial nature, is conferred upon the clerk of the court to render judgments which when lawfully entered become the judgments of the court, the statutory conditions precedent to the exercise of such authority must exist in order to legalize its exercise.

116 So. at 756.

The clerk’s failure to track the requirements of the statute precluded the court from acquiring jurisdiction through constructive service of process. Under these circumstances, it was unnecessary for the defendants to demonstrate a meritorious defense as required by Florida Rule of Civil Procedure 1.540 in order to have the default vacated and set aside. Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla.3d DCA 1980); Mac Organization, Inc. v. Harry Rich Corp., 374 So.2d 81 (Fla.3d DCA 1979) and Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So.2d 744 (Fla. 4th DCA 1974).

For the foregoing reasons, the order denying the motion to set aside the default is reversed and the cause remanded for further proceedings.

      . Fla.R.App.P. 9.130(a)(3)(C)(iv).

      . Fla.R.Civ.P. 1.070(b).

      . We are cognizant of the fact that the clerk failed to note in the progress docket the date of mailing of the “notice of action” to the defendants as required under Section 49.12, Florida Statutes (1979). Additionally, the statute requires the “notice of action” to be mailed, postage prepaid, to the defendant within ten days after the making or posting of notice. This fact is supplied as a matter of information and is not deemed critical in the disposition of this case.


source: Caselaw Access Project

author: BROWNLEE, JACKSON 0., Associate Judge.

license: Public Domain

text:
    Kenneth HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. MM-381/T1-32.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.

      Michael J. Minerva, Public Defender and John D. C. Newton, II, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, ,for appellee.
   BROWNLEE, JACKSON 0., Associate Judge.

Kenneth Hudson appeals from his conviction for the grand theft of an automobile. At trial, the evidence showed that the automobile had disappeared between 8:00 and 11:00 p. m. and that Hudson was found in possession of the stolen vehicle the next morning, approximately one hundred and ninety miles from the scene of the vehicle’s disappearance. There was no evidence on whether he had ever attempted to explain his possession of the automobile. The trial court instructed the jury:

Proof of unexplained possession by the defendant of property recently stolen may justify a conviction of the taking of the property if the evidence of the taking and the circumstances of the possession, when considered in the light of all of the evidence in the case, convince you beyond a reasonable doubt that the defendant committed the crime.

The question before the court is not the constitutionality of the instruction, but whether or not there is any “evidence” of unexplained possession which would permit the instruction. Counsel for appellant candidly admits that he does not know how there can be “evidence that the possession is unexplained without said evidence being in violation of the defendant’s Miranda rights.” Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, appellant’s position is that Palmer v. State, 323 So.2d 612 (Fla. 1st DCA), cert. denied 336 So.2d 108 (1976), requires such showing. The question then arises as to whether or not that “evidence” refers to time of trial or time in which he was found in possession of the recently stolen goods. This must be answered as time of possession, rather than time of trial as it is that lack of explanation when there is a duty to speak which raises the inference, Ard v. State, 108 So.2d 38 (Fla.1959); McClain v. State, 185 So.2d 707 (Fla. 2d DCA 1966); Romanello v. State, 160 So.2d 529 (Fla. 1st DCA 1964).

The prosecutor is then placed in a Hob-son’s choice situation. Should he ask the arresting officer or person who found the defendant in possession of the stolen properties, “Did the defendant explain his possession?” Should he answer “no”, then this would be in violation of the defendant’s Miranda rights and reversible error. Clark v. State, 363 So.2d 331 (Fla.1978). If he fails to solicit that information, then the question arises, is he entitled to the instruction because there’s nothing in the record to indicate that the defendant failed to explain the possession, which appears to be the holding in Palmer, wherein the First District Court stated:

It is unnecessary for us to decide in this ease whether the State can prove, over a Miranda-based objection, that an accused apprehended in possession of recently stolen goods was given an opportunity to explain his possession, yet stood entirely silent. . . . Clearly the charge may be given if the accused voluntarily gave an explanation when apprehended or when evidence of his failure to explain is elicited on his cross-examination at trial.

323 So.2d at 618.

The Fourth District Court of Appeal addressed itself to this question in Young v. State, 203 So.2d 650 (Fla. 4th DCA 1967), and in essence held, based on Miranda, that

If the defendant desires to stand mute and not explain his possession of stolen property by invoking his Fifth Amendment privilege, he cannot become subject to an inference of guilt at the trial.

Id. at 650.

However, the supreme court, in a four-three decision, reversed the Fourth District Court of Appeal and stated:

Moreover, the inference of guilt that the jury may infer from the unexplained possession of recently stolen goods does not arise from the possessor’s failure to explain or demonstrate by evidence of exculpatory facts and circumstances that his possession of the recently stolen goods is innocent. It is the fact of possession that provides the basis for the inference of guilt.

217 So.2d 567, 570 (Fla.1968).

Perhaps a better solution would be to strike the word “unexplained” from the standard jury instruction. However, the case law does not require this and, although there appears to be at least some conflict with the First District Court case of Palmer and the supreme court case of Young, we are compelled as a matter of law to follow the supreme court decision in Young, which has recently been reaffirmed in Edwards v. State, 381 So.2d 696 (Fla.1980); Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980). The trial court is therefore

AFFIRMED.

CROSS and SHARP, JJ., concur.


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

text:
    DEPARTMENT OF TRANSPORTATION, DIVISION OF RISK MANAGEMENT, Appellant, v. James Lee LINDSEY, Appellee.
    No. QQ-164.
    District Court of Appeal of Florida, First District.
    May 21, 1980.

      Jon D. White, Pensacola, for appellant.
    Clayton J. M. Adkinson of Thompson, Ad-kinson & Beasley, DeFuniak Springs, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The State employer appeals from a compensation order conforming Lindsey’s permanent disability benefits to Section 440.-15(10), Florida Statutes (1979), which provides that those weekly benefits “shall be reduced” to the extent they and Social Security benefits aggregate more than 80 percent of claimant’s average weekly wage. Section 440.15(10)(a). The principal issue is whether the judge of industrial claims erred in denying the employer a further reduction of weekly benefits in order to recover a corresponding portion of the weekly compensation benefits paid Lindsey before the Social Security Administration determined Lindsey’s eligibility for benefits, paid him a lump sum to catch up monthly benefits previously due from the date of eligibility, and began paying him regular monthly benefits. We affirm the determination of the judge of industrial claims that an employer is not entitled to recoup any part of disability compensation benefits paid before claimant began receiving regular monthly Social Security payments, even though claimant also belatedly received a lump-sum Social Security payment covering benefits not paid earlier. Section 440.15(10)(c). We hold also that the reduction in the weekly compensation benefits contemplated by Section 440.15(10)(a) is to be timely accomplished on the initiative of the employer or carrier, and that current payments may not ordinarily be reduced to recover sums which should have been subtracted earlier, because of contemporaneous Social Security benefits, but were not.

Lindsey, having received weekly disability benefits under Chapter 440 continuously from January 14,1975, did not begin receiving Social Security benefits until December 2, 1976. He then received a Social Security check for $3,753.60 on account of benefits missed during the period his eligibility was not established, and he began receiving a regular monthly Social Security check for $267.20. Eighteen months later, on July 31, 1978, the employer appropriately reduced its current compensation payments so that those payments and contemporaneous Social Security payments did not exceed 80 percent of Lindsey’s average weekly wage; and the employer further reduced its periodic payments in order to recoup (a) that portion of its weekly payments made before December 2, 1976, which becáme “excess” on that date because Social Security then paid up monthly benefits previously unpaid, and (b) the “excess” portion of its payments made between December 2, 1976, when Lindsey’s Social Security benefits began, and July 31, 1978, when the employer first reduced its weekly payments to Lindsey on account of contemporaneous Social Security benefits.

Workers’ compensation disability benefits are periodic, granted in lieu of wages the worker is wholly or partially disabled to earn, and like wages those benefits are commonly spent, and are so intended, for needs during the period for which they are paid. See Sullivan v. Mayo, 121 So.2d 424 (Fla.1960); Schel v. City of Miami, 193 So.2d 170 (Fla.1966); Court of Flags v. Outland, 382 So.2d 443 (Fla. 1st DCA 1980). Though claimant may simultaneously be entitled to Social Security benefits, which when paid reduce and to that extent replace contemporaneous compensation benefits otherwise payable, the Administrator’s determination of claimant’s entitlement to Social Security may be long delayed, and in the meantime compensation benefits fully paid are wholly due, and they cannot be considered excessive under Section 440.15(10)(a) either then or later. Considering the purpose of periodic compensation benefits and their substitution for wages payable as a contemporary livelihood, we think, as did the judge of industrial claims, that a literal interpretation of Section 440.15(10)(c) is in order, and that contemporaneous compensation benefits cannot be reduced on account of similar benefits paid “until the Social Security Administration determines the amount otherwise payable to the employee under 42 U.S.C. ss. 423 and 402 and the employee has begun receiving such social security benefit payments.” Section 440.15(10)(c), Florida Statutes (1977) (emphasis added).

In this case Lindsey began receiving Social Security benefit payments on December 2, 1976. His weekly compensation benefits were then reducible under the statute. But they were reducible only prospectively, and compensation benefits previously paid by the employer did not then become recoverable either through a claim on the catch-up payment of Social Security benefits previously due but unpaid, or through reducing current compensation benefits. The judge of industrial claims correctly denied the employer recoupment of compensation benefits paid before Lindsey began receiving periodic Social Security benefit payments. Beulah Baptist Church v. Brantley, IRC Order 2-3907 (Sept. 11, 1979); Pensacola Buggy Works v. Jernigan, 377 So.2d 245 (Fla. 1st DCA 1979).

The same analysis of Section 440.-15(10)(c) disposes of the subsidiary contention raised here by the employer, that even if recoupment is properly denied for compensation benefits paid before Lindsey began receiving Social Security benefits on December 2, 1976, the employer is yet entitled to recover the “excess” of compensation payments made after that date and until July 31,1978, when the employer first began reducing current benefits- so that they and Social Security payments did not aggregate more than 80 percent of Lindsey’s average weekly wage. On that premise the employer urges that the judge of industrial claims erroneously calculated the amount now due by the employer to Lindsey on account of amounts excessively withheld from Lindsey’s compensation benefits payments after July 31,1978. We find that any error in the calculation was in the employer’s favor, not Lindsey’s, because Section 440.15(10)(c) does not authorize entry of an order for the recovery of “excess” compensation benefits paid during a period in which the employer or carrier should have reduced them, on account of contemporaneous Social Security payments, but did not. Beulah Baptist Church v. Brantley, supra; Florida Power & Light Co. v. Atkins, 377 So.2d 57 (Fla. 1st DCA 1979).

Chapter 440 generally and Section 440.15(10)(c) particularly are designed to be implemented and enforced, in the interest of both employee and employer, largely at the initiative of the employer or carrier. It is the responsibility of the employer or carrier to inform itself of Social Security payments made contemporaneously to a Chapter 440 compensation recipient; and, in the absence of some reporting duty imposed on the recipient by law (there is none) or by a prior order of a judge of industrial claims (there was none here), the claimant-recipient of disability compensation benefits and Social Security benefits is not charged by Section 440.15(10)(c) with responsibility to calculate and remit the amount by which the aggregate payments exceed 80 percent of his average weekly wage, nor with a duty to advise the employer or carrier of its opportunity to make that calculation and reduction. Other aspects of the Chapter 440 compensation system depend on the initiative of the employer or carrier, and on their having put themselves in possession of knowledge sufficient to determine the compensation benefits properly payable, without intervention of a judge of industrial claims and without the delay and expense inevitably attending litigation. We see no reason to depart from this statutory model in this case of employer neglect of its own interests, and we conclude that a judge of industrial claims should not undertake, by an order acting as a money judgment against the claimant, or as a lien on a fund in his hands, or as a set-off against other compensation benefits past due the claimant, or as a reduction of contemporary and future compensation benefits, to recoup for the employer and carrier compensation payments which might and should have been reduced in the past but were not.

We recognize the possibility that our construction of Section 440.15(10) will encourage a claimant to delay his application for Social Security benefits, or delay its progress, in order to postpone his ultimate receipt of periodic Social Security benefits and a lump-sum Social Security payment for benefits previously due. Such deliberate frauds upon the system can be dealt with appropriately as and if they arise.

In the case before us, there is no cross-appeal by claimant which would permit us to determine whether the order appealed errs in granting the. employer inappropriate credits. The order appealed is therefore

AFFIRMED.

BOOTH and SHAW, JJ., concur.


author: HERSEY, Judge.

text:
    Johnnie Mae SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 78-1809.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

This is an appeal from an order denying a motion to dismiss an Information charging appellant with a violation of Section 812.021 Florida- Statutes (1977). The basis for the motion is that appellant was inappropriately charged under the statute in question in that she should have been charged under Section 409.325 Florida Statutes (1977). The former statute is the general larceny statute and the latter statute pertains to welfare fraud. After denial of her motion to dismiss appellant changed her plea to nolo contendere, reserving the right to appeal the denial of the motion to dismiss. Adjudication was withheld and appellant was placed on probation for three years under certain conditions, one of which was that she “live honorably.” Appellant’s appeal of the order denying her motion to dismiss also attacks this condition as being too vague.

Appellant had been receiving state financial assistance for several years. She was also receiving benefits under the food stamp program. Under both of these programs appellant was required from time to time to report any changes in her financial position. She received unemployment compensation during three months in 1977 and failed to report that fact on reapplications for welfare.

Appellant contends that because the welfare fraud statute specifically proscribes the conduct of which she is accused, it was improper' to charge her under the more general larceny statute. This becomes important in some cases because of the different penalties involved. It is not clear on the facts of this case that appellant would have received a lesser penalty under the welfare fraud statute than she could have received under the larceny statute.

Appellant takes the position that where conduct is proscribed by a general criminal statute and at the same time by a more restrictive or specific criminal statute, a defendant may only be charged under the more specific statute.

Our Supreme Court has spoken to this general question in several recent cases. In Soverino v. State, 356 So.2d 269 (Fla.1978), it was held that a defendant who had committed an assault and battery upon a law enforcement officer could be charged under a statute making such an offense a misdemeanor or another statute making that offense a felony. The court specifically stated at page 272:

The prosecutor is often free to charge the accused under one of a number of statutes which overlap or duplicate one another.

The court held that such discretion did not do violence to appellant’s right to equal protection under the law.

In State v. Young, 371 So.2d 1029 (Fla.1979) the court held that a defendant accused of reckless operation of a motor vehicle resulting in death could be charged either under the general manslaughter statute or under the vehicular homicide statute, despite the fact that the latter statute imposed a less severe penalty.

This Court formerly, held that if conduct constituted a violation of a state criminal statute which was enacted before the State Credit Card Crime Act of 1967 and at the same time constituted a violation of that act, the penal provisions of the State Credit Card Crime Act should govern the sentence if such penal provisions are inconsistent with those which pertain to the offense defined by the earlier law. This was based upon a literal interpretation of the language of Section 817.68, Florida Statutes, which provides that the provisions of the State Credit Card Crime Act of 1967 are not exclusive “unless such provision [of another criminal statute] is inconsistent with the terms of this part.” Lore v. State, 267 So.2d 699 (Fla. 4th DCA 1972); Strada v. State, 267 So.2d 702 (Fla. 4th DCA 1972); and Pastoria v. State, 312 So.2d 808 (Fla. 4th DCA 1975). A different conclusion was reached by each of the First, Second, and Third District Courts of Appeal. In Fayerweather v. State, 332 So.2d 21 (Fla.1976), the Supreme Court resolved the conflict between district courts by holding that conduct which is violative of both the State Credit Card Crime Act and a criminal statute of more general applicability may be punished under either statute even though the general statute imposes a more severe punishment. [We note that the Supreme. Court, at page 22, refers to the case of Gordon v. State, 312 So.2d 809 (Fla.App. 4th 1975). This was undoubtedly intended to be a reference to Pastoria v. State, 312 So.2d 808 (Fla. 4th DCA 1975).]

In Fayerweather the Supreme Court summarized the policy considerations which lead to the conclusion "epitomized by that case in the following language:

It is not unusual for a course of criminal conduct to violate laws that overlap yet vary in .their penalties. Multiple sentences are even allowed for conduct arising from the same incident. See, e. g., Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Estevez v. State, 313 So.2d 692 (Fla.1975), and Steele v. Mayo, 72 So.2d 386 (Fla.1954). Traditionally, the legislature has left to the prosecutor’s discretion which violations to prosecute and hence which range of penalties to visit upon the offender.

We accordingly hold that appellant in the instant case was properly charged by the Information.

Appellant’s second point on appeal, which questions the propriety of the condition of probation that appellant “live honorably” was recently addressed by this Court. In Norris v. State, 383 So.2d 691 (Fla. 4th DCA 1980) such a condition was expressly disapproved.

We therefore affirm the order denying appellant’s motion to dismiss, reverse that portion of appellant’s probation order requiring that she live honorably and remand with directions that the offending condition be stricken.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED WITH INSTRUCTIONS.

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


author: MOORE, Judge.

text:
    STATE of Florida, Appellant, v. Otis JENKINS, Appellee.
    No. 79-74.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearing Denied June 18, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellant.
    Patrick C. Rastatter of Glass, Rastatter, Stark & Tarlowe, Fort Lauderdale, for ap-pellee.
   MOORE, Judge.

The State appeals the granting of a motion to suppress a statement given by the appellee after he had been advised of his constitutional rights three different times. We reverse.

At a lengthy hearing on the motion to suppress, the court stated that he didn’t “know whether it was good or bad”. He was apparently reflecting upon the circumstances surrounding the giving of the state-' ment. Thereafter, the court stated that he would “lean toward the defendant in order to avoid a possible reversal of the case”. Then, and for that purpose, he stated that it would be in the best interest of the court and the State for the court to grant the motion to suppress the statement given by the appellee.

Two weeks after granting the motion to suppress, the trial court conducted a hearing on appellee’s motion for release on his own recognizance. At that hearing the court further stated:

Now, as far as the suppression of the statement is concerned, I really question whether it should be suppressed. I told you my reason for suppressing it was I get tired of being reversed by the appellate court, which says I should have known better than to do something like this, or whatever, and then send the case back to be retried.
So rather than have a retrial of the case,. I granted the motion to suppress, and let the appellate court decide whether it can or cannot be admitted in the trial.
Notwithstanding that, we can still go to trial. I don’t care which way it goes. The State is put to a little more burden to prove its case. I think the State can prove it without the statements, and I think that the appellate court should reverse me and say that, “Yes, the statements that were made are admissible into evidence.”
I don’t know that they will, but I think they should.

The function of the trial court on a motion to suppress a statement is to determine whether the statement was given freely and voluntarily. This the court did not do. We are not aware that the fear of reversal is a ground to support suppression. Nor are we aware that it is the function of an appéllate court to initially determine the voluntary nature of a statement.

Accordingly, the order granting the motion to suppress is reversed and this cause remanded to the trial court to determine whether the statement was voluntarily given, and if so, to enter an order denying the motion to suppress.

REVERSED AND REMANDED.

ANSTEAD and BERANEK, JJ., concur.


author: DOWNEY, Judge.

text:
    E. T. LEGG AND COMPANY, Petitioner, v. The Honorable Arthur FRANZA, Judge of the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, Respondent. E. T. LEGG AND COMPANY, Petitioner, v. FLORIDA DEPARTMENT OF TRANSPORTATION, an Agency of the State of Florida, Respondent.
    Nos. 80-537, 80-538.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.

      Charles C. Papy, III of Papy, Poole, Weis-senborn & Papy, Coral Gables, for petitioner.
    Alan E. DeSerio, and Charles Gardner, Tallahassee, for respondents.
   DOWNEY, Judge.

E. T. Legg & Company has filed petitions for writs of certiorari and mandamus, which we have consolidated for consideration.

The petitions reflect that petitioner is a licensed outdoor advertiser pursuant to Chapter 479, Florida Statutes (1979). On December 21,1979, The Florida Department of Transportation, hereafter referred to as the D.O.T., filed a complaint with the State of Florida, Division of Administrative Hearings, seeking to have certain outdoor advertising signs owned by petitioner declared to be in violation of Chapter 479, Florida Statutes, and Section 14-10 of the Florida Advertising Code. In its answer the petitioner denied the signs were in violation of law and alleged the D.O.T. had no jurisdiction within an incorporated city to enforce any of the provisions of Chapter 479. Petitioner states that it became apparent that the constitutionality of the Chapter was the paramount issue involved and, since an administrative hearing officer could not pass on constitutional issues, petitioner filed suit in the circuit court for declaratory relief. Thereafter, in order to avoid a multiplicity of proceedings, petitioner requested the hearing officer to stay the administrative proceeding. When that request was denied petitioner sought review in this court by petitions for writs of prohibition and certio-rari. Both of these petitions were denied without prejudice to seek relief in the circuit court. Petitioner then sought a stay of the administrative proceeding by the circuit court. The circuit court denied the motion for stay and retained jurisdiction of the petition for declaratory relief, but ruled that the court would proceed with the cause “only if the Fourth District Court of Appeal declines to make a ruling upon or to hear the constitutional issues rained (sic) by the Plaintiff in its Complaint for Declaratory Relief subsequent to the hearing before the Division of Administrative Hearings”.

The D.O.T. contends that, since courts generally will not pass upon a constitutional question if the case can be decided upon other grounds, the petitioner should be required to proceed in the administrative tribunal and litigate all of the other defenses before resorting to the circuit court for adjudication of the constitutionality of the statute in question. This contention was answered adversely to the D.O.T. in Gulf Pines Memorial Park v. Oaklawn Memorial, 361 So.2d 695 (Fla.1978), wherein the court stated:

For one thing, the question of “need” for a cemetery would never be reached if, as Oaklawn claims, Chapter 76-251 is either unconstitutional or inapplicable. Since the administrative hearing officer lacks jurisdiction to consider constitutional issues, Department of Revenue v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976), it is pointless to require applicants to endure the time and expense of full administrative proceedings to demonstrate “need” before obtaining a judicial determination as to the validity of that statutory prerequisite. For another, the record here shows that Oaklawn did not attempt to avoid administrative remedies, but merely sought to have them delayed in a reasonable effort to seek a judicial declaration of rights that could not be obtained administratively. (Footnote omitted.) 361 So.2d at 699.

Thus, when a proper constitutional question has been raised the circuit court should proceed with the determination of that question and should stay the other issues pending beforé the hearing officer.

In view of the foregoing it appears to us that the petitions for writs of certiorari and mandamus should be granted, the circuit court case for declaratory relief should proceed, and the administrative proceeding should be stayed.

Accordingly, the petitions for writ of cer-tiorari and mandamus are granted. The order of February 26,1980, is quashed. The cause is remanded with directions that the trial court stay the administrative proceeding pending disposition of the suit for declaratory relief.

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


author: DANAHY, Judge.

text:
    Ozella ROBINSON, Appellant, v. Warrene H. BRUNSON as personal representative of the estate of John Thomas Brunson, Sr., a/k/a J. T. Brunson, Appellee.
    No. 79-1471.
    District Court of Appeal of Florida, Second District.
    May 21, 1980.
    Thomas A. McDonald of Law Offices of James D. Murray, Lakeland, for appellant.
    Warren H. Dawson, Tampa, for appellee.
   DANAHY, Judge.

Ozella Robinson, the plaintiff in the trial court, appeals from a judgment in favor of the defendant Warrene H. Brunson. Robinson contends that the trial court erred in finding that the defendant was not liable to the plaintiff on a promissory note. We agree and reverse.

Brunson is the personal representative of the estate of John Thomas Brunson, Sr., deceased. Robinson filed a complaint against the estate alleging that the deceased owed Robinson $4,500.00 plus interest under a promissory note executed on March 22, 1977. Brunson filed an answer and affirmative defense alleging payment of the note; Robinson filed an answer to the affirmative defense denying that pay-. ment had been made.

At trial it was established that the deceased had, simultaneously with the execution of the promissory note, given Robinson an undated check in the amount of $4,500.00. The check, however, was never presented to the bank for payment. Accordingly, we are faced with the question whether Robinson’s failure to present the check for payment discharges the underlying obligation. The Uniform Commercial Code clearly establishes that it does not, except in a very unusual situation which is not present in the case before us.

Section 673.802(l)(b), Florida Statutes (1977), provides that unless otherwise agreed, when a check is given for an underlying obligation, it suspends pro tanto the underlying obligation until the check is presented. Section 673.501(l)(c) provides that presentment is necessary to charge the drawer of the check, but this section apparently deals primarily with liability for the check itself and not the underlying obligation. Section 673.501(l)(c) specifically states that the “failure to make presentment discharges such drawer only as stated in § 673.3-502(l)(b).” That section provides that the drawer of the check is only discharged from the underlying obligation if presentment of the check is unreasonably delayed and the bank becomes insolvent during the delay; “but such drawer . . .is not otherwise discharged.”

The deceased was the drawer of the check. Assuming arguendo that Robinson delayed presentment of the check for an unreasonable time, the deceased’s estate is not discharged from the underlying liability because the bank did not become insolvent during the delay. Therefore, the trial court erred in not holding Brunson’s estate liable for the promissory note.

There was some evidence presented involving four relatively small payments of money from the deceased to Robinson. But since the uncontroverted evidence shows that these payments were not intended as payments on the promissory note, they cannot be offset against the note. Accordingly, the defense failed to prove the affirmative defense of payment by a preponderance of the evidence. The uncontroverted evidence' shows that the promissory note was given to Robinson by the deceased in consideration of a $4,500.00 loan. Although the deceased gave Robinson an undated check, Robinson’s failure to present that check for payment did not discharge the deceased from the underlying obligation.

The judgment for the defendant is reversed, and the case remanded to the trial court with instructions to enter judgment for the plaintiff on the amount of the note, plus interest as provided by its terms.

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


author: PER CURIAM. LARRY G. SMITH, J.,

text:
    Merri L. BURT and Randall T. Burt, Sr., Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellees. Alvin NOBLES, as Personal Representative of the Estate of David Nobles, Deceased, Appellant, v. Jimmy L. BOYETTE and State Farm Mutual Automobile Insurance Company, Appellees.
    Nos. PP-131, PP-132.
    District Court of Appeal of Florida, First District.
    May 22, 1980.
    Norton Bond, Pensacola, for appellant Nobles.
    Louis K. Rosenbloum of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P. A., Pensacola, for appellants Merri L. Burt and Randall Burt, Sr.
    C. Miner Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appel-lees State Far Mut. Auto. Ins. Co. and Jimmy L. Boyette.
   PER CURIAM.

The sole issue presented by this appeal is whether the last sentence of the “anti-stacking” statute, Section 627.4132, Florida Statutes (1977), permits an individual as an insured to combine uninsured motorist coverage, on a vehicle involved in an accident, with coverage under a policy issued to the father of the individual insured when the named insured in each policy is different. Section 627.4132 reads:

If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not • be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.

We hold that the injured insured may combine such coverage and agree with Kokay v. South Carolina Insurance Co., 380 So.2d 489 (Fla. 3d DCA 1980), insofar as it reasoned:

The entirely clear and totally unambiguous language of the concluding sentence of Section 627.4132 explicitly provides that under these facts, the preceding provisions of this section “shall not apply to reduce the coverage,” thus plainly leaving the availability of both policies intact. . Since the statute itself contains a term which explicitly excepts its effect upon the situation before us, reversal is required.
[I]f, . . . the legislature meant to provide that, under all circumstances, and even though, there are different named insureds, the injured person is entitled to the coverage provided by one, and only one, applicable policy, it could, should, and undoubtedly would have said so. But it specifically said otherwise, and we are bound to follow its command.

Contra, McLellan v. State Farm Mutual Automobile Insurance Co., 366 So.2d 811 (Fla. 4th DCA 1979).

Accordingly, because we find, as did Kokay, that the last sentence of the anti-stacking statute is clear and unambiguous, and permits “stacking” under the factual situation here, we hereby reverse the trial court’s order dismissing the complaints with prejudice for failure to state a cause of action and remand for further proceedings not inconsistent with this opinion.

Because we conclude the decision in this case directly conflicts with that in McLellan v. State Farm Mutual Automobile Insurance Co., 366 So.2d 811 (Fla. 4th DCA 1979), we so certify for the purpose of compliance with pertinent provisions of the rules should they be invoked.

Reversed and remanded.

McCORD and WENTWORTH, JJ., concur.

LARRY G. SMITH, J., dissents with opinion.

LARRY G. SMITH, J.,

Dissenting With Opinion.

The statute is not a model of clarity. I agree, however, with the reasoning and interpretation by the Fourth District in the McLellan case. I am further led to accept that court’s view by the particular choice of words used by the drafters of the statute.

Under the statute, if the injury occurs in a vehicle not covered by a policy insuring the injured party, he may select coverage “on any one” of the vehicles for which coverage in his behalf is provided. The next to last sentence of the statute provides that coverage on any other vehicles (other than the “any one” vehicle selected by the injured party under the foregoing sentence) “shall not be added to or stacked” upon that coverage. This language is plain enough. The coverage cannot be stacked. If the legislature had intended the result reached by the Third District in Kokay, I am of the opinion that the drafters would have repeated the use of the word “stacked,” so that the last sentence of Section 627.4132 would read:

This section shall not apply to prevent coverage from being stacked under policies insuring different named insureds.

This language, or something like it, would be necessary, in my opinion, to reach the result in Kokay. Obviously, the courts cannot rewrite the statute, and we should be able to assume that if one sentence provides that coverage cannot be “stacked,” a sentence making an exception would, to be consistent, tell us under what circumstances coverage can be “stacked.” I am therefore of the opinion that “reduce the coverage,” as used in the last sentence of the statute, is not the opposite of “shall not be . stacked,”- used in the sentence preceding it.

Furthermore, the view expressed by the McLellan court that the last sentence allows selection of coverage under the policy having the highest limits, is consistent with the provision allowing a choice by the -injured party under the coverage “on any one” provision, above mentioned. On this particular point, I obviously disagree with the observation contained in the last sentence of footnote 1, Kokay opinion at 491. The court there assumes that the choice of the largest coverage available under several policies is possible only when there are different named insureds. My view is that under the plain language of the statute that choice is also available to an injured party who himself is the named insured under several policies on different vehicles, if none of them is involved in the accident. It is true, however, that the choice would not be available to an insured injured in his own covered vehicle. Perhaps it is not too farfetched to assume that the legislature, if it gave any thought to the matter at all, thought there might be some reason to encourage the owner of several vehicles to provide equal amounts of uninsured motorist coverage on each vehicle. Or, perhaps more to the point, the owner has the opportunity to exercise his choice of coverage before, not after, the accident.

For the foregoing reasons I think the judgment appealed should be affirmed. I therefore respectfully dissent.

      . Petition for certiorari was filed March 12, 1980, (case no. 58,830).

      . Fla.R.App.P. 9.030(a)(2)(A)(ii).


author: PER CURIAM.

text:
    Carrie Mae COCHRAN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-530.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Weiner, Robbins, Tunkey & Ross, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-. son, Asst. Atty. Gen., for appellee.
    Before HUBBART, J., and CHAPPELL, BILL G., Associate Judge, PEARSON, TILLMAN, (Ret.), Associate Judge.
   PER CURIAM.

In a non-jury trial, Carrie Mae Cochran was found guilty of one of two counts of aggravated battery. She now brings this appeal on several grounds, the first of which is the denial of her motion to withdraw her waiver of a jury trial.

Upon the advice of counsel, Cochran appeared before the trial judge assigned to this case and waived her right to a trial by jury. This waiver was made June 17, 1978, but on August 4, 1978, because of illness, this particular judge tolled the time period for speedy trial to within three weeks after September 25, 1978, and again on September 29, 1978, he extended this time period through January 3, 1979.

Realizing that this trial judge might not be physically able to hear the case, Cochran, through her counsel, filed a motion to vacate her waiver of jury trial on October 25, 1978. This motion was heard by a different judge on November 6,1978. In denying her motion, the court ruled that, as a matter of law, a change of judges is no basis upon which a withdrawal of waiver may be granted. Still another judge commenced trial of this ease on January 3, 1979.

Thus, the issue is whether a trial judge must allow a defendant to withdraw his waiver of a jury trial if the judge who accepted the waiver is unable to conduct the trial. In resolving this issue, we first refer to the general rule that:

“. . . once validly made, a waiver of jury trial may be withdrawn only in the discretion of the trial court. But the discretion to be exercised by the court in granting or denying such withdrawal is not an unbridled one. It should, in all cases, be exercised liberally in favor of granting to an accused the right to trial by jury.” Floyd v. State, 90 So.2d 105 (Fla.1956)

Here, the motion for withdrawal of waiver was filed and ruled upon approximately two months before the scheduled trial date. There was nothing to indicate an attempt to delay nor was the good faith of the defendant questioned. Further, no inconvenience to the State or the court was suggested, however, the State indicates in its brief that it intended to object but did not do so because the trial court ruled so quickly.

At the motion hearing the trial court quickly terminated defendant’s argument unless authority was produced saying that a change of judges was a basis for withdrawal of the waiver. When defense counsel advised that he knew of no such specific authority, the motion was denied. '

If, in accordance with the general rule stated in Floyd, supra, the court’s discretion is to be exercised liberally, to say that the identity of the particular judge assigned to preside over a trial is immaterial to a defendant’s decision to waive his right to a jury trial is not realistic, and, contrary to jury trials, when an unexpected substitution of a judge takes place in a non-jury trial, the court should consider this fact along with the other facts and circumstances in ruling on a requested withdrawal of the waiver. We think that under the facts and circumstances of this case, Cochran’s motion for withdrawal of her waiver of jury trial should have been granted and that the denial was an abuse of discretion. In so ruling on this point, we need not consider the other issues raised on appeal.

The trial court’s ruling on defendant’s motion to withdraw her waiver of jury trial is reversed, and the case is remanded for a new trial by jury.

Reversed and remanded.


author: DANIEL PEARSON, Judge.

text:
    ACTION FIRE SAFETY EQUIPMENT, INC., et al., Appellants, v. BISCAYNE FIRE EQUIPMENT COMPANY, INC., Appellee.
    No. 79-946.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.

      Horton, Perse & Ginsberg and Arnold Ginsberg, Miami, Weinstein & Mandell, South Miami, for appellants.
    Headley & Headley, Daniels & Hicks and Sam Daniels, Miami, for appellee.
    Before SCHWARTZ and DANIEL PEARSON, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   DANIEL PEARSON, Judge.

Biscayne Fire Equipment Company (Biscayne) sued to enforce a written covenant not to compete which it alleged had been executed and breached by its former general manager, Frank Falsetti. The jury returned a verdict in favor of Biscayne. The trial court entered a judgment enjoining Falsetti and a company formed and owned by Falsetti, Action Fire Safety Equipment, Inc. (Action), from competing with Biscayne within a forty-five mile radius for a period of two years and ten months.

The dispute at trial centered on whether Falsetti had entered into an agreement not to compete with Biscayne in the event he left Biscayne’s employment. Fal-setti denied executing any such agreement, and no agreement between him and Biscayne could be found. However, Biscayne established through the testimony of its owner, Dallas Chrans, that: (a) for many years it experienced the problem of service personnel, trained at substantial cost by Biscayne, joining competing companies and making their new start in life with Biscayne’s customer lists; (b) to overcome this problem Biscayne, beginning in 1971, required every employee, including Falsetti, to sign an identical agreement containing this covenant not to compete; (c) he saw Falsetti sign this agreement; (d) these signed agreements were kept by Falsetti in his office, but after Falsetti left in May 1977 to form Action, the agreement could not be found despite an exhaustive search; (e) several months after Falsetti left one of these agreements (signed by an ex-employee named O’Neil and hereafter called the O’Neil agreement) was discovered lodged in the back of a file drawer.

The attorney who at Chrans’ request prepared the prototype employment agreement identified the O’Neil agreement as an exact copy of the one he prepared. Fred Blackwell, a Biscayne employee, corroborated Chrans’ testimony that there was only one agreement (identical to the O’Neil agreement) signed by all employees and testified that he witnessed Falsetti’s signature on this agreement.

Falsetti and Action contend that the O’Neil agreement was inadmissible to prove the contents of Falsetti’s agreement with Biscayne. We disagree. The testimony elicited by Biscayne adequately established that the original was under the control of Falsetti, the party against whom the secondary evidence was being offered. It also showed that an extensive but unsuccessful search for the Falsetti agreement was made. Lastly, Falsetti was on notice of Biscayne’s intention to use the O’Neil agreement to prove Falsetti’s agreement. Given these predicates, it was well within the trial court’s discretion to admit secondary evidence to prove the contents of the Falsetti agreement. See Pennsylvania National Mutual Casualty Insurance v. Burns, 375 So.2d 302 (Fla. 2d DCA 1979); Goldstein v. Klein, 287 So.2d 390 (Fla. 3d DCA 1974); Development Corporation of America v. United Bonding Insurance Company, 413 F.2d 823 (5th Cir. 1969); Western, Inc. v. United States, 234 F.2d 211 (8th Cir. 1956).

This conclusion does not, however, dispose of Falsetti’s further claim that even if a sufficient foundation for the admission of secondary evidence were laid, the best available secondary evidence was not the O’Neil agreement, but parol evidence of the contents of the Falsetti agreement. We cannot agree that a witness’s recollection of the words of a contract is better secondary evidence than an exact replica of the contract itself. Oral testimony purporting to relate the contents of a writing is the least trustworthy evidence of its contents. McCormick, Evidence § 241 (2d ed. 1972); 4 Wigmore, Evidence §§ 1266, 1268 (Chadbourn rev. 1972). Additionally, the admission of identical but other agreements as secondary evidence was specifically upheld in Fields v. Fields, 140 Fla. 269, 191 So. 512 (1939). In Fields, the plaintiff brought suit on a note which, she established, was previously destroyed by fire. To show the contents of the destroyed original and thus to prove that her note was under seal,

“ . . . the attorney who represented Mrs. Fields, claimant, in her divorce action testified as to the form of notes he used in his practice, such forms being the same as those prepared and used by the Ft. Pierce Bank and Trust Company. Two employees of that bank testified as to the form of the notes used, by the bank both saying the notes had ‘seal’ on them. A copy of each form of note was introduced into evidence as Plaintiff’s Exhibits ‘F’ and ‘G’.” 191 So. at 513.

We turn now to an examination of Falsetti’s second point on appeal. He contends that the trial court erred in failing to grant him a new trial grounded on newly discovered evidence. The new evidence which Falsetti suggests would have probably changed the result of the trial was the proposed testimony of Marion Einhorn, a Biscayne employee who was under Biscayne’s subpoena but was not called as a trial witness. Einhorn’s post-trial affidavit stated in pertinent part:

“ . . . Before trial Mr. Chrariz talked to me about my testimony. He told me to answer the questions yes or no and not to go into long explanations. He said:
“ ‘If you do not know the answer and if I am looking up the answer is yes, and if I am looking down the answer is no.’
“After the trial was over Fred Blackwell, my supervisor, told me that when he testified during the trial, he lied for Mr. Chranz. He told me he said to Mr. Chran z T testified, I lied for you in Court, and I don’t know why.’ ”

Biscayne countered Falsetti’s motion for new trial with an affidavit made by Fred Blackwell which denied the statements attributed to him by Einhorn and reaffirmed the truth of his trial testimony.

The trial court denied the motion, stating:

“I am going to first order that the State Attorney’s Office be given a. copy of the deposition, and to- give me a report on their conclusions. That is number one. I take unkindly to anybody that would come in and permit perjury in court. I think even for the person to come in and kid about it later, certainly would not be using good taste.
“However, I am not sure what the jury would do. I do not know what would have went on in the minds of the jurors had they known that this was true. Frankly, I looked at Mr. Blackwell, and frankly in listening to the case, did not put a whole lot of reliance on what he said. He is under the gun. He has a job and he is scared to death of his job, and I admire this lady who apparently does not have that kind of feeling. I did not put any reliance upon what Mr. Blackwell said, but I will tell you that I put the greatest reliance on the fact that I agreed with the jury’s verdict — that it was basic common sense — that here is a man who has got a business and who wants to protect his business by having all the employees sign a non-competitive agreement .
“I just cannot conceive that it would be true that they did have such an agreement and that they are all now missing all those agreements that were in the hands of the defendant. It does not speak well of the nature of the operation. It just defies imagination to say that they would not have such an important man not sign it. I did not hear any explanation that was satisfactory to the court, at least as to why it did not happen, and I am going to allow the injunction to stand.” (R. 349-351).

A motion for new trial is directed to the sound discretion of the trial court, and its decision will not be overturned in the absence of a showing that it abused its discretion. Cloud v. Fallis, 110 So.2d 669 (Fla.1949). We, however, cannot review the trial court’s exercise of discretion when the record before us fails to reflect that it was exercised within the law’s parameters. The parameters are these: Would the new evidence probably change the result if a new trial is granted? Has it been discovered since the trial? Could it have been discovered before the trial by the exercise of due diligence? Is it material to the issues? Is it merely cumulative or impeaching? See City of Winter Haven v. Tuttle/White Constructors, Inc., 370 So.2d 829 (Fla. 2d DCA 1979); Dade National Bank of Miami v. Kay, 131 So.2d 24 (Fla. 3d DCA 1961). We discern from the record before us that the trial court accepted Einhorn’s testimony as true. We cannot discern whether the trial court concluded that Einhorn’s testimony was not such as would probably have changed the jury’s verdict. All that the record shows is that the trial judge concluded that he agreed with the jury’s verdict and that he did not heavily rely on Blackwell’s testimony in coming to that conclusion. The trial court simply did not adj dress, which he must, the issue of whether Einhorn’s testimony if heard by the jury probably would have changed the jury’s verdict. For this reason we vacate the order of the trial court denying the defendant’s motion for new trial and remand the cause to the trial court to reconsider that motion in light of this opinion. If, after reconsideration, the trial court determines to deny the motion for new trial, then the judgment entered upon the jury’s verdict, because of our view that no reversible error was committed by the admission of the O’Neil agreement, shall remain unaffected.

Reversed and remanded.

      . Biscayne’s business was to sell and service both portable fire extinguishers and fixed installation fire protection systems.

      . The special verdict established that there was an agreement by Falsetti not to compete and that Falsetti breached this agreement.

      . The agreement containing the non-co'mpetition covenant called for no competition for three years. Before the final judgment Falsetti and his company, Action, had been temporarily enjoined for two months.

      . The single agreement prepared by the attorney left blanks for the insertion of the employee’s name and salary, the date, and signatures.

      . Biscayne’s amended complaint attached the O’Neil agreement as representing the exact agreement it contended Falsetti signed. The complaint itself may constitute a sufficient implied notice that the pleader is charging the adversary with possession of the original and that he considers its production essential. McCormick, Evidence § 239 (2d ed. 1972), at 573. At a .later stage of the pretrial proceedings, Biscayne advised Falsetti through answers to interrogatories that it did not have the signed Falsetti agreement, that it was last seen in Falsetti’s custody and that it disappeared when Falsetti left its employ.

      . In the present case secondary evidence was admissible on the alternative grounds that the original was lost or that it was last under the control of Falsetti.

      . The present case was tried in March 1979, prior to the effective date of the Florida Evidence Code, Section 90.101, Florida Statutes (1979) et seq. Under Section 90.103(2), the Florida Evidence Code applies to civil actions accruing after the effective date. The Code adopts the better view that once a predicate for secondary evidence is laid, no distinction should be made between forms of secondary evidence. Significantly, the term other evidence, not secondary evidence, is used in the Florida Evidence Code. See § 90.954, Fla.Stat.

      . Biscayne’s argument is simply that the new evidence probably would not have changed the jury’s verdict and was merely cumulative.

      . The trial court may have also concluded that Einhorn’s testimony was merely cumulative or impeaching. Falsetti had testified at trial that Blackwell had told him that everybody, including Blackwell, who was going to testify for Biscayne, was going to lie and that Blackwell was specifically going to lie by stating Falsetti had a contract with Biscayne. Another former Biscayne employee testifying for Falsetti related that Chrans said he would do “whatever it takes” and spend “whatever amount of money it takes” to put Falsetti out of business. Indeed, Blackwell admitted receiving from Chrans a $15,000 bonus and an additional bonus after the lawsuit had begun.


author: BARKDULL, Judge.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. William EADES and Cheryl Eades, his wife, Appellees.
    No. 79-1046.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Vernis & Bowling and Richard N. Blank, Miami, for appellant.
    Headley & Headley, Daniels & Hicks and Sam Daniels, Miami, for appellees.

      Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., JR., (Ret.), Associate Judge.
   BARKDULL, Judge.

We affirm a final judgment rendered on a jury verdict for a police officer, who was injured when he fell through a drainage grading on the shoulder of a public roadway owned by the State of Florida, Department of Transportation, while writing an accident report.

A review of authorities in Florida pertaining to governmental liability for injuries to persons on a public right-of-way reveals none pertaining to liability of the State. It would appear the dearth of cases is due to the State’s sovereign immunity, which has just recently been waived. However, those cases involving municipal liability can now be used as an analogy. Therefore, this case will be affirmed on the following authorities: City of Tallahassee v. Coles, 148 Fla. 606, 4 So.2d 874 (1941); Leialoha v. City of Jacksonville, 64 So.2d 924 (Fla.1953); Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975); 16 Fla.Jur., Highways, Streets, and Bridges, § 111; 39 Am.Jur.2d, Highways, Streets, and Bridges, § 488.

Therefore, the final judgment under review be and the same is hereby affirmed.

Affirmed.


author: SCHWARTZ, Judge.

text:
    Teresita FERNANDEZ, Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellee.
    No. 80-53.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Richard Kanner and Carl M. Lambert, Miami, for appellant.
    Joe N. Unger, Kopplow & Ramirez, Miami, for appellee.
    Before SCHWARTZ and DANIEL PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The plaintiff-appellant, Teresita Fernandez, was injured in an automobile accident caused by the negligence of Eddy Ruiz who was insured by a $10,000 policy issued by Manchester Insurance and Indemnity Company. When Manchester became defunct, it was succeeded as a party-defendant in Ms. Fernandez’s law suit by the Florida Insurance Guaranty Association (FIGA). After FIGA rejected an offer to settle the claim for the $10,000 limits, the plaintiff recovered a $54,000 jury verdict against Ruiz, which was limited to a $10,000 judgment as against FIGA. Fernandez then brought a separate action against FIGA to recover the $44,000 excess, alleging that FIGA had itself been guilty of a bad faith refusal to settle the claim within the policy limits. The trial judge dismissed the complaint with prejudice on the sole ground that, as a matter of law, no such action may be maintained against FIGA. We agree and affirm.

As the supreme court explained in O’Malley v. Florida Insurance Guaranty Association, 257 So.2d 9, 10 (Fla.1971), FIGA is a statutory creature which is designed to serve solely as “the mechanism for the payment of covered claims under certain classes of insurance policies of insurers which have become insolvent.” § 631.51, Fla.Stat. (1979). In establishing the institution, however, the legislature was careful to restrict its potential liability not only concerning its vicarious responsibility for the acts of the companies it succeeds, § 631.-57(1)(a) Fla.Stat. (1979); Rivera v. Southern American Fire Ins. Co., 361 So.2d 193 (Fla. 3d DCA 1978) (FIGA not liable for excess judgment caused by bad faith of predecessor insurer), but also as to its own allegedly wrongful activities. Concerning the latter issue, which is the one before us, Section 631.66, Florida Statutes (1979) provides:

“631.66 Immunity
There shall be no liability on the part of, and no cause of action of any nature shall arise against, any member insurer, the association or its agents or employees, the board of directors, or the department or its representatives for any action taken by them in the performance of their powers and duties under this part, [emphasis supplied]

This provision clearly, unambiguously, and directly applies to the present situation. It is obvious that the present claim arises from FIGA’s refusal to accept the $10,000 settlement offer which was an “action” it took “in the performance of [its] powers and duties” under the statute to dispose of the covered claim in question. An application of the plain terms of § 631.66, which neither require nor permit judicial construction, therefore compels the conclusion that no bad faith action lies against FIGA. Heredia v. Allstate Ins. Co., 358 So.2d 1353 (Fla.1978); Ross v. Gore, 48 So.2d 412 (Fla.1950); Kokay v. South Carolina Ins. Co., 380 So.2d 489 (Fla. 3d DCA 1980), and cases cited.

None of the decisions cited by the appellant are contrary to this conclusion. As we pointed out in the Rivera case, Zinke-Smith, Inc. v. Florida Insurance Guaranty Association, Inc., 304 So.2d 507 (Fla. 4th DCA 1974), cert. denied, 315 So.2d 469 (Fla.1975), which held FIGA liable for the payment of attorneys’ fees, involved another statute, Section 627.428, Florida Statutes (1979); there is no equivalent statutory impediment to the application of § 631.66 to the situation before us. Moreover, Zinke-Smith, as well as Carrazana v. Florida Insurance Guaranty Association, 374 So.2d 581 (Fla. 3d DCA 1979), and Martino v. Florida Insurance Guaranty Association, 383 So.2d 942 (Fla. 3d DCA 1980) all involved questions relating only to the liability of FIGA in its capacity as the entity deemed by Section 631.57(l)(b) Florida Statutes (1979) to be the “insurer” of the covered claims of its insolvent predecessor. § 631.66 was therefore not even in issue in those cases. See also Kuvin, Klingensmith & Lewis, P.A. v. Florida Insurance Guaranty Association, Inc., 371 So.2d 214 (Fla. 3d DCA 1979).

Finally, we find no merit at all in the contention that the preclusion of a bad-faith case against FIGA as required by § 631.66 involves a violation of Article I, Section 21, the “access to courts” clause of the Florida Constitution. This provision applies only to forbid the abolition of pre-ex-isting common law or statutory rights. See Kluger v. White, 281 So.2d 1 (Fla.1973). Since, absent Chapter 631, FIGA would not exist and there would be no effective remedy to recover on any claims whatever against insolvent insurers, there can be no constitutional infirmity in the legislature’s decision to limit those newly-created rights and, in effect, not to establish an additional one. See Kirkpatrick v. Parker, 136 Fla. 689, 187 So. 620 (1939); McPhail v. Jenkins, 382 So.2d 1329 (Fla. 1st DCA 1980); Harrell v. State, Department of Health and Rehabilitative Services, 361 So.2d 715, 717-18 (Fla. 4th DCA 1978).

Affirmed.

      . In Ruiz v. Fernandez, 370 So.2d 410 (Fla. 3d DCA 1979), we affirmed this judgment over both FIGA’s appeal on the merits, and the plaintiffs cross-appeal from the $10,000 limitation of the judgment against FIGA. Because of our ruling on the merits, we do not consider whether the prior ruling was res judicata or established the law of the case concerning the present issue.

      . Thompson v. Commercial Union Ins. Co. of New York, 250 So.2d 259 (Fla.1971); Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938).

      . There is no question that the allegations of the complaint were otherwise sufficient to state a bad faith-excess cause of action.

      . § 631.54(4), Fla.Stat. (1979) provides:
      (4) ‘Covered claim’ means an unpaid claim . which arises out of, and is within the coverage, and not in excess of, the applicable limits of an insurance policy to which this part applies .

      . The Kuvin case held only that FIGA was not a governmental entity for venue purposes. The decision did not consider its liability for attorney’s fees claimed in that case by Manchester’s former counsel.


author: BASKIN, Judge.

text:
    James I. TILDEN, Appellant, v. Diane Tilden LOCKE, Appellee.
    No. 80-65.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.

      Marsha B. Elser, Melvyn B. Frumkes, Miami, for appellant.
    No Appearance, for appellee.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

The father seeks review of an order temporarily allowing the mother to retain custody of the minor child of the parties. The matter was heard on the father’s petition for writ of habeas corpus, and the trial judge entered an order stating in part:

ORDERED AND ADJUDGED that the minor, Jimmy Tilden shall visit the father, James Tilden and wife until 5 P.M. Sunday, December 9, 1979, at which time the child shall be returned to the mother.
This order has been ¿greed to by all parties.
A further hearing on custody shall take place at a future date before this court.

The father contends that the trial judge erred in failing to enforce the New York decree and that the order permitting visitation by the father actually modified custody from the father to the mother without pleadings or notice. We agree and reverse.

After contested custody proceedings in New York, the father was awarded custody of Jimmy, age seven. The mother then ran off with'the child. The Supreme Court of New York then directed the mother to surrender the child to the custody of the father. The mother was found in Florida where the father filed a petition for writ of habeas corpus. At the conclusion of the hearing, the trial court entered the order in contention and indicated that it would conduct a further hearing on the question of custody, but would not be inclined to change custody from the father to the mother without a showing of circumstances requiring such a change. We believe the trial court erred when it required the child to be returned to the mother at the conclusion of his visit with the father, contrary to the New York order. The effect of the trial court’s order was to modify custody from the father to the mother without appropriate notice, pleadings, or factual predicate. Barreiro v. Barreiro, 377 So.2d 999 (Fla. 3d DCA 1979); Matthews v. Matthews, 376 So.2d 484 (Fla. 3d DCA 1979).

Florida courts are required to recognize and enforce out-of-state custody decrees. Trujillo v. Trujillo, 378 So.2d 812 (Fla. 3d DCA 1979); Uniform Child Custody Jurisdiction Act, § 61.1328, Fla.Stat. (1977).

Reversed and remanded for further proceedings in accordance with this opinion.

      . The mother has not responded to the father’s appellate proceedings.


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Richard Joseph PACITTI, Jr., Appellee.
    No. 78-1657.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.

      Robert L. Shevin, Atty. Gen., Tallahassee, Max Rudmann and Charles W. Musgrove, Asst. Attys. Gen., West Palm Beach, for appellant.
    J. David Bogenschutz, of Varón & Stahl, P. A., Hollywood, for appellee. •
   BERANEK, Judge.

This is an appeal by the State from an order granting in part defendant’s motion to suppress. Defendant was charged with the crimes of sexual battery involving the use of a firearm and with kidnapping. Defendant moved to suppress various items seized from the defendant’s home and from his automobile. The trial court denied the motion as to the items obtained from the house but suppressed a gun seized from the defendant’s car. We reverse.

Police officers of the City of Miramar were advised by a high school girl from Dade County that she had been picked up by a man in an automobile at her high school, threatened with a gun, and transported to the home of the man where he committed sexual assault upon her. The man then transported her back to her high school in the same automobile. The victim described the individual who committed the battery upon her, the automobile in which she was transported and the home in which the act took place. On the basis of this information, the police located what they thought to be the home and were watching it when the defendant came out, entered a car and drove away. The color and other specific identifying marks on the automobile matched the description given by victim. The house was as described by the victim, as was the appearance of the defendant. The police followed the vehicle. The defendant stopped at a gas station and while there, a police officer approached him and told him they were investigating an alleged sexual battery. The defendant was asked to accompany the police back to the police station. The defendant apparently did so voluntarily.

While at the police station, the defendant initially denied any ' involvement in the crime but later stated that he had in fact picked up a girl, driven her to his home; and had sexual relations with her. Defendant stated that the girl consented.

When the defendant admitted having sexual relations with a girl on the day in question, the police arrested him for the crime of sexual battery. Defendant’s car had been driven to the police station by a police officer with the defendant as a passenger. The police officer had locked the car and given' the defendant the keys. Upon being advised of his arrest, the defendant asked the police what would become of his car. The officer advised him that it would be impounded and in reply to this, defendant told the police that there was a loaded gun in the locked console of the car between the seats. The defendant gave the police the keys to the car and told them to remove the gun from the car. The officers did so.

The trial court suppressed the gun finding that the police should have sought a warrant before seizing the gun. Defendant had also moved to suppress his oral statements made during the police interview and other items of tangible evidence seized from his home on the following day pursuant to a search warrant. The trial court denied the motion to suppress as to the oral statements and the items taken from the home.

Under the circumstances of this case, we conclude the trial court erred in holding a warrant was necessary. Here the defendant had just been arrested on clear probable cause for the crime of sexual battery. The automobile in which the victim was transported and threatened was an instrumentality of the crime. This was not a situation as presented in State v. Jenkins, 319 So.2d 91 (Fla. 4th DCA 1975), where the defendant should have been advised of available alternatives for the disposition of his automobile. State v. Jenkins, supra, and cases such as Jones v. State, 345 So.2d 809 (Fla. 4th DCA 1977), and Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976), are inapplicable.

When advised that his car was to be impounded, defendant told the police of the gun and told them to remove it. The presence of the gun was consistent with statements of the victim about defendant’s use of a gun, and the immediate retrieval of the gun from the automobile was not improper. Indeed, we believe the defendant’s conduct invited seizure of the gun. Of application is Roush v. State, 203 So.2d 632 (Fla. 3d DCA 1967), where the defendant was arrested for driving under the influence of intoxicants and upon his arrest informed the police that there was $1200 in cash in his automobile. The police searched the ear without a warrant and found certain unlawful drugs later introduced into evidence. On appeal the Third District held the car properly impounded and that the seizure was impliedly invited by defendant’s statements.

In State v. Jenkins, 319 So.2d 91 (Fla. 4th DCA 1975), this Court stated at page 94:

Absent . . . circumstances of a search incident to a lawful arrest or a search based upon probable cause and absent the impounding of the vehicle as evidence or pursuant to a forfeiture, the impounding and towing of an automobile and its concomitant inventory search is of questionable validity where the location of the automobile does not create a traffic hazard or nuisance and the owner or operator chooses not to have his car impounded.

Although seizure of the gun might well be sustained on one or more of the circumstances mentioned in Jenkins, it is unnecessary to so hold. Here defendant’s statements must be interpreted as consent to the seizure. We conclude the trial court erred in granting the motion to suppress. The order appealed from is vacated and the case remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD, J., and SIMONS, STUART M., Associate Judge, concur.

      . The victim who reported the alleged sexual battery was a female high school student of oriental extraction. When the defendant admitted he picked up a girl, he stated that she was an Oriental.

      . Although the motion itself does not mention the defendant’s oral statements, it appears that the suppression of these statements was argued and ruled upon during the motion.

      . The ruling of the trial court would have required that a warrant be obtained first. If police had here advised defendant that his car was being impounded pending an application for a search warrant there can be little doubt that his reply to them would have been the same.


author: LETTS, Chief Judge.

text:
    EDWARD L. NEZELEK, INC., Appellant, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellee.
    No. 78-2561.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.

      Wayne A. Cypen of Cypen & Nevins, Miami Beach, for appellant.
    Eugene L. Heinrich and G. Ware Cornell, Jr. of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Lauderdale, for appel-lee.
   LETTS, Chief Judge.

A contractor here appeals a directed-verdict by a trial court because it failed to adequately establish its lost profits under a construction contract which its customer allegedly breached. We reverse.

The contractor found out it was successful on a bid of $989,760. for a building when Southern Bell wrote the following letter:

November 20, 1974-
E. L. Nezelek, Inc.
P.O. Box 23490
Fort Lauderdale, Florida
Gentlemen:
We are pleased to inform you that your bid for the new Boca Raton — Sandalfoot ESS building is low and has been accepted. Alternate Number One is also accepted.
Three sets of signed and sealed'plans and specifications and septic tank, approval are being forwarded to you by Baker and Associates for your use in obtaining the required building permits.
Please do not proceed with any work at the site until a contract has been properly executed and you have received official notice to proceed from this office.
Yours truly,

The contractor responded to this letter immediately by forwarding a standard form building contract duly signed by it. This contract was neither signed nor returned by Southern Bell.

Thereafter on January Third, some 45 days after the letter accepting the bid, the contractor wrote a letter claiming that the concluding paragraph of the letter set forth above constituted an illegal stop order and that Southern Bell had “wrongfully failed to give . . . notice to proceed.”

We commence by disagreeing with the trial judge who ruled that the loss of prospective profits testimony did not meet the reasonable certainty test enunciated in Adams v. Dreyfus, 352 So.2d 76 (Fla. 4th DCA 1977). At trial, the contractor introduced its bid sheet containing forty-one line items showing a cost including variable overhead of $914,180. From this, a profit of $75,580 was calculated (V/2%). The chief estimator for the contractor testified as to how he had prepared the bid sheet and how he had calculated the variable overhead costs for the job, without objection as to his calculations. Moreover, other evidence introduced set forth a summary of profits made from nine other contract jobs with Southern Bell including a profit in excess of 10% for a very similar building.

Southern Bell argues that these introduced pieces of evidence did not tend to prove or disprove lost profits, but were simply estimates based on bid prices from subcontractors. However, we believe the evidence was sufficient to go to the jury under Adams v. Dreyfus, supra, especially when one considers that the chief estimator also testified that his line items were actual quotations from qualified subcontractors upon which he could normally rely.

The Telephone Company also argues that the calculated profit is fatally defective because it excludes the fixed overhead costs of the contractor’s home office. There is a dearth of Florida law on this subject but we are of the opinion that we need not examine this issue because in the case at bar the lack of inclusion of any such fixed overhead was not objected to at trial.

We turn next to the question of whether a contract ever came into existence in the light of the failure of the Telephone Company to execute a copy. As to this question, we are of the opinion that there was sufficient evidence in the record to make this a jury question. Quite apart from the letter accepting the bid, several other documents pertaining to the construction were forwarded to the contractor by Southern Bell or its agents and in sum we believe them sufficient to raise issues of fact which would preclude a directed verdict on this issue.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

HERSEY and GLICKSTEIN, JJ., concur.

      . See also Mori v. Matsushita Electric Corp. of America, 380 So.2d 461 (Fla.3d DCA 1980).

      . We note that the letter merely postpones work at the site rather than suggesting the acceptance is dependent upon an independent contract being signed. See 11 Fla.Jur.2d, Contracts § 78.


text:
    Carl Louis HOLBROOK, Appellant, v. Laverne T. HOLBROOK, Appellee.
    No. 79-107.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.

      F. Shields McManus of McManus, Stewart & Ferraro, P.A., Stuart, for appellant.
    William R. Scott, Stuart, for appellee.
   DOWNEY, Judge.

This case involves an appeal by the husband from a final judgment of dissolution in which the trial court granted the wife a special equity in several parcels of jointly held realty. The appellant contends the trial court erred in finding the wife had a special equity in the several parcels of property, or alternatively in not finding the wife had made a gift to the husband of her contribution to the purchase of said properties.

The parties were married for fourteen years and both worked throughout the marriage. The husband was a grove foreman with an income which ranged from $6,800 in 1964 to $14,418 in 1977. In the earlier years of the marriage the wife held a variety of jobs. However, in 1968 she became a real estate broker. In 1968 she earned approximately $17,000 and in 1977 her earnings reached approximately $23,500.

Throughout the marriage the wife handled the finances of the parties. The husband’s salary and the wife’s income from her brokerage business all went into a joint account from which the parties jointly acquired numerous pieces of property for investment purposes. The wife testified that the bulk of the money used to purchase these properties came from her income as a real estate broker.

In.the final judgment of dissolution the court awarded the wife, as a special equity, the full title to four parcels of property, which had been jointly owned by the parties. In addition, the wife was awarded a special equity of $1,950 in the 20 acres of jointly held property.

There does not appear any genuine dispute that the wife’s contribution to the family commonweal was greater than the husband’s. Furthermore, it appears that it was her business acumen which enabled them to accumulate their joint estate. However, during the marriage both worked; both contributed their income to their living expenses and the purchase of the properties in question. Clearly the wife’s contribution to the purchase of these properties was not from a source unconnected with the marital relationship. Nor can the wife’s contribution be characterized as extraordinary in terms of services performed beyond the normal marital duties and obligations. The Florida Supreme Court recently reaffirmed this principle in Duncan v. Duncan, 379 So.2d 949 (1980) wherein it was stated:

A special equity in property held as tenants by the entirety will not arise when the property is acquired from funds generated by a working spouse while the other spouse performed normal household and child-rearing responsibilities. 379 So.2d at 952.

Thus, the fact that the husband and wife’s earnings were not in parity does not mean that the higher wage earner has made an extraordinary contribution toward the purchase of the property. Therefore, under the rule laid down in Ball v. Ball, 335 So.2d 5 (Fla.1976), and Duncan v. Duncan, supra, the wife was not entitled to a special equity in those properties. In Fiedler v. Fiedler, 375 So.2d 1119 (Fla. 2d DCA 1979), the Second District Court of Appeal, applying the Ball rule said:

On the other hand, we think the court erred in awarding the wife a special equity in the husband’s interest in the Vero Beach lot. It is true that the wife paid for the lot, but this was from income she had earned during the marriage. In Ball v. Ball, 335 So.2d 5 (Fla.1976), the supreme court noted that a spouse could obtain a special equity in real estate held as tenants by the entireties by making an unrebutted showing that all the consideration for the property had been supplied by that spouse from a source clearly unconnected with the marital relationship. By way of footnote the court said that ordinarily a special equity would not arise where the property was acquired with funds generated by a working spouse while the other spouse performed normal household and child-rearing responsibilities. We do not read this footnote to mean that where both husband and wife work and the wife pays for the. property while the husband’s earnings go to the support of the family, the wife’s contribution should be deemed unconnected with the marital relationship. Thus, we hold that in this case even though the wife paid for the lot, her contribution was not so extraordinary when viewed in light of all the evidence as to meet the traditional criteria for the award of a special equity. 375 So.2d at 1120.

Assuming for the sake of argument that the wife’s share of the properties’ purchase price was derived from either an extraordinary contribution or from a source unconnected with the marital relationship, the evidence demonstrates she made a gift thereof to the husband. The following colloquy we believe shows the parties intended everything to be joint, as. the wife put it, “till death we do part”:

“Q. I noticed that this is titled jointly in both your name and your husband’s. Can you tell the Court why that was done?
A. Well, all property that we bought that was put in jointly. And you figure when you get married it’s going to be till death we do part, but it didn’t happen this way. So, it would save a lot — wouldn’t have to probate any of the real estate if I’d have died first or he would have died. Would have saved a lot of probate there on the property.
# ;)e * * % *
Q. And when these properties were purchased, you meant them to be yours and Mr. Holbrook’s; isn’t that correct?
A. That’s what I said before. I thought this thing, would never happen.
Q. And if you had stayed together, the house would continue.to be both of yours; is that true?
A. As long as we was together till death do we part, it would still be that way.”

In view of the foregoing the final judgment appealed from is reversed and the cause is remanded with directions to vacate the provisions of ¶ 2(a) and (b) of the judgment and in place thereof to provide that the properties represented by Exhibits 1 through 6 shall be held by the parties as tenants in common. In all other respects the final judgment shall remain in full force and effect.

REVERSED IN PART; AFFIRMED IN PART, with directions.

LETTS, C. J., and MOORE, J., concur.


text:
    STATE of Florida, Appellant, v. James Stewart CHAMPION, Appellee.
    No. 79-112.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillias, and Ondina Felipe, Asst. Attys. Gen., West Palm Beach, for appellant.
    William B. Seidel, Fort Lauderdale, and Thomas G. Murray, Miami, for appellee.
   BERANEK, Judge.

This is an appeal by the State from an order granting defendant’s motion to suppress. The evidence was obtained in a pat-down search of the defendant when he was approached by police officers in an airport. The initial approach was pursuant to the so-called Markonni drug profile described in United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979). We reverse.

The search occurred in the Fort Lauder-dale airport. Cocaine was found hidden on the defendant’s person. Defendant moved to suppress and a hearing on the motion occurred in which three police officers testified on behalf of the State. Appellee did not testify.

A close reading of the transcript indicates much argument concerning the validity of the Markonni drug profile and whether this profile could form the basis of a defendant’s being stopped and searched. We do not reach this issue because we conclude that the evidence presented at the hearing on motion to suppress clearly showed that defendant consented to the pat-down search.

The transcript on the motion to suppress indicates a great deal of argument and colloquy between counsel and the court and only limited actual testimony. The actual evidence was simply that two police officers approached defendant and identified themselves. They told the defendant they were involved in an investigation of drug trafficking and explained that their job was based only on general public cooperation. They explained that the defendant would have to consent to the search before it would be performed and that he did not have to give his consent. The testimony was that the defendant readily and spontaneously consented to the request to search by the officers. Both officers stated defendant was free to go at any time. There was no evidence of coercion.

We conclude that the trial court erred in suppressing this evidence. The State had the burden of demonstrating voluntary consent because the search was without a warrant. Here, the State met that burden by introducing clear and convincing evidence of defendant’s consent. In Husted v. State, 370 So.2d 853, 854 (Fla.3d DCA 1979), the court considered a similar situation and stated:

As the court said in Bretti v. Wainwright, 439 F.2d 1042, 1045, 1046 (5th Cir. 1971), cert. denied, 404 U.S. 943, 92 S.Ct. 293, 30 L.Ed.2d 257 (1971):
“We need not here decide whether the arrest of appellant was legal or not, for, even if illegal, we think that the subsequent consent was untainted
* * * * * *
While warnings prior to a consensual search may not have the same indispensability as those required prior to a confession . . . they do help ensure that the consent is free, voluntary and untainted by the arrest’s possible illegality. In the instant case the presence of these warnings leads us to conclude that any coercion flowing from the possible illegality of appellant’s arrest was dissipated. We therefore hold that the evidence supports the conclusion that appellant voluntarily consented to the search of his apartment.”

We believe this case to be governed by the same rationale. The order suppressing the evidence is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ., concur.


text:
    HATTERAS OF LAUDERDALE, INC., Appellant, v. Louis W. ERISMAN and S. N. McKenzie, Appellees.
    No. 79-207.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.
    Patrick Gent of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Lauderdale, for appellant.
    Dixon Thomas of Walden & Walden, Da-nia, for appellee McKenzie.
   LETTS, Chief Judge.

This case involves a yacht broker’s suit for a commission dismissed by the trial court with prejudice because of failure to comply with Section 537.05(2), Florida Statute (1977) which legislation (since repealed) required the broker to secure written authorization before he could “act” for his principal. We reverse in part and affirm in part.

The result in this case is governed by the recent Supreme Court decision in United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668 (Fla.1979) which mandates that we reverse the trial court on the question of the count in the complaint predicated upon intentional interference with a contractual relationship despite failure to comply with the statute.

It is true that in the Gillespie case, supra, the brokers oral contract was with the purchaser whereas in the instant case the oral agreement was with the seller. Nevertheless we are unable to place any significance on this distinction. Gillespie stands for the proposition that “a tort action can be validly brought against a third party who interferes . . . .” despite violation of the applicable statute. From this we conclude that an intentional interference with a contractual relationship allegation will lie against the eventual purchaser of the yacht here in question, but not against the seller with whom the oral agreement was made. We are not necessarily happy with the thought that a tortious interference count is applicable to either the seller or the purchaser in Gillespie or in the case at bar, but mindful of the admonitions in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), it is so ordered.

We are of the opinion that the trial court ruled correctly on the counts alleging breach of contract and conspiracy and find no reversible error.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED IN ACCORDANCE HEREWITH.

ANSTEAD and HURLEY, JJ., concur.


text:
    In the Interest of J. L. H., a child.
    No. 79-1063.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant, State of Florida.
    No appearance, for appellee.
   DOWNEY, Judge.

On January 23, 1979, the State filed a Petition for Adjudication of Delinquency against J. L. H., a child. On January 29, 1979, the State filed a Motion for Waiver of Jurisdiction and a Motion to Compile Report pursuant to Motion to Waive Jurisdiction. On February 1, 1979, the trial court, pursuant to the State’s motion, ordered the Department of Health and Rehabilitative Services to conduct a study and compile a report with respect to appellee in accordance with Section 39.09(2)(b), Florida Statutes (1978 Supp.).

Thereafter, the trial court granted the motion of J. L. H. to dismiss the State’s petition • for waiver of jurisdiction. The State thereupon filed a notice of appeal which we have treated as a petition for writ of certiorari.

The trial court granted the motion to dismiss the State’s motion for waiver of jurisdiction on the ground that the State Attorney had failed to comply with Florida Rule of Juvenile Procedure 8.160(a) and Section 39.09(2)(a), Florida Statutes (1978 Supp.) by failing to consult with the appropriate intake officer prior to filing the motion to waive jurisdiction.

Section 39.09(2)(a), Florida Statutes (1978 Supp.) and Florida Rule of Jevenile Procedure 8.160(a), generally provide that after a delinquency petition has been filed and before an adjudicatory hearing on the petition, and after consulting with an intake officer, the State Attorney may file a motion requesting the court to waive its jurisdiction and transfer the child to the appropriate court for prosecution as an adult. After the State Attorney consults with the intake officer the decision to request a transfer of the child to an adult court is solely that of the State Attorney. He may totally disagree with the intake officer’s recommendation. Therefore, to suggest that the omission of the State Attorney to consult with an intake officer is a sufficient ground for dismissing or denying the petition for transfer seems to us to miss the mark. The provisions of the statute or rule are directory only. They recommend a procedure to assist the State Attorney in arriving at an informed judgment as to whether to proceed to juvenile court or adult court. However, since he may disregard the intake officer’s recommendation after receiving it, we fail to see why omitting that consultation should result in denial or dismissal of the petition.

When the State Attorney in the case moved for waiver of jurisdiction, the trial court entered an order pursuant to Section 39.09(2)(d), Florida Statutes (1978 Supp.), directing the Department of Health and Rehabilitative Services to study and complete a report with respect to the child so that the court would be better advised in granting or denying the motion for waiver of jurisdiction.

On this record absolutely no prejudice has been shown which might accrue to the child involved because the State Attorney did not consult with the intake officer prior to filing the waiver motion. Accordingly, the order being reviewed is quashed and the cause is remanded with directions that the court reconsider the motion for waiver of jurisdiction and the report from the Department of Health and Rehabilitative Services and any other pertinent factors relevant to the issue raised by the waiver motion.

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

      . “Within 7 days, . . ., of the date a delinquency petition has been filed and before an adjudicatory hearing, and after considering the recommendation of the intake officer, the state attorney may file a motion requesting the court to transfer the child for criminal prosecution

      . “The state attorney may, within five (5) days of the date a delinquency petition has been filed, or later with the approval of the court, and before a hearing [of] a petition on its merits, and following consultation with the intake office, file a motion requesting the court to waive its jurisdiction and certify the case to the appropriate court for trial as if the child were an adult as provided by law.”