author: DOWNEY, Judge. LETTS, Chief Judge,

text:
    STATE of Florida, Appellant, v. Pearl TOLMIE, Melodie Tolmie and Edwin Tolmie, Appellees.
    No. 81-1964.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 1982.
    Rehearing Denied Dec. 8, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Bennett S. Cohn of Law Offices of Bennett S. Cohn, Lake Worth, and Steve Gom-berg of Lubin & Hamill, P.A., West Palm Beach, for appellees.
   DOWNEY, Judge.

Appellees were indicted for second degree murder. A motion to suppress was filed by appellees upon the ground that the affidavit for search warrant was not subscribed by the alleged affiant. The affidavit contained a jurat signed by the magistrate but was not signed by the alleged affiant nor does it contain any seal of the court. The State filed an affidavit of the magistrate who issued the warrant, which stated that he had placed the affiant under oath and that affiant swore to the truth of his statements made in the affidavit. However, the trial court felt the statement of the magistrate was insufficient to meet the requirements of the statute and granted appellees’ motion to suppress.

We hold that the failure of an affi-ant to subscribe to an affidavit for search warrant as required by statute invalidates a warrant based thereon.

The statute in question, Section 933.06, Florida Statutes (1981), provides:

The judge or magistrate must, before issuing the warrant, have the application of some person for said warrant duly sworn to and subscribed, and may receive further testimony from witnesses or supporting affidavits, or depositions in writing, to support the application.

The application for, issuance of, and service of search warrants is serious business, which has been jealously controlled by statutes and Constitution. It is almost axiomatic that statutes and rules authorizing searches and seizures are strictly construed and affidavits and warrants issued pursuant to such authority must meticulously conform to statutory and constitutional provisions. State ex rel. Wilson v. Quigg, 154 Fla. 348, 17 So.2d 697 (1944); Hesselrode v. State, 369 So.2d 348 (Fla. 2d DCA 1979). Section 933.06, Florida Statutes (1981), mandates that, before the warrant issues, some person must subscribe and swear to the application therefor.

In the present case, the person seeking the warrant did not subscribe to the application — he was sworn but did not subscribe. Thus, the affiant omitted one of the two most important aspects of the procedure, the signing. In State v. McManus, 404 So.2d 757 (Fla. 4th DCA 1981), this court excused the magistrate’s failure to complete and seal the jurat on a wiretap application as “mere administrative oversight.” The magistrate later testified that the application had been signed and sworn to before him and that he simply failed to complete the jurat and place the seal of the court thereon. Here, the judge testified by affidavit that he recalled the application for search warrant, that the detective applying therefor did, in fact, swear to the application, and that he filled in the jurat. However, the judge could not rectify the oversight of no subscription because, in fact, it was never signed.

We are of the view that the law is better served by requiring strict compliance with the statute requiring issuance of a search warrant. Compliance should be required or the provision mandating subscription should be done away with in favor of simply swearing to the truth of the contents before the magistrate.

Accordingly, we affirm the order of suppression.

HURLEY, J., concurs.

LETTS, C.J., dissents, with opinion.

LETTS, Chief Judge,

dissenting:

Section 933.06, Florida Statutes (1979), provides:

The judge or magistrate must, before issuing the warrant, have the application of some person for said warrant duly sworn to and subscribed, and may receive further testimony from witnesses or supporting affidavits, or depositions in writing, to support the application ....

Appellees argue that this section mandates a subscription. It is true that statutes authorizing searches and seizures must be strictly construed, and affidavits and search warrants issued thereunder must strictly conform to the constitutional and statutory provisions authorizing their making and issuance. Hesselrod v. State, 369 So.2d 348 (Fla. 2d DCA 1979), Carter v. State, 199 So.2d 324 (Fla. 2d DCA 1967). In line with the foregoing the appellees claim that the later affidavit (given by the magistrate who signed the warrant) confirming that the person seeking the warrant had orally sworn to the truth of the contents of the original affidavit, at the time the warrant was issued, is irrelevant because the issue is not whether it was sworn to but whether the original affidavit was actually subscribed.

In State v. McManus, 404 So.2d 757, 758 (Fla. 4th DCA 1981), this court stated that “official oversights, if satisfactorily explained, will not constitute fatal defects, where the same are not proscribed by law, and .the defendant is not prejudiced.” There the trial judge, by an administrative oversight, failed to affix his signature, ju-rat and seal. Appellees are quick to distinguish McManus by pointing out that the omission of the signature here is “proscribed by law.” However, in McManus, the statute on oaths, affidavits and acknowledgments Section 92.50, Florida Statutes (1979), contain similar provisions:

(1) IN THIS STATE. — Oaths, affidavits, and acknowledgments required or authorized under the laws of this state (except oaths to jurors and witnesses in court and such other oaths, affidavits and acknowledgments as are required by law to be taken or administered by or before particular officers) may be taken or administered by or before any judge, clerk, or deputy clerk of any court of record within this state, including federal courts or before any United States commissioner or any notary public within this state. The jurat, or certificate of proof or acknowledgment, shall be authenticated by the signature and official seal of such officer or person taking or administering the same; however, when taken or administered before any judge, clerk, or deputy clerk of a court of record, the seal of such court may be affixed as the seal of such officer or person. (Emphasis added)

In spite of this statute specifically requiring a jurat or certificate of acknowledgment, the McManus case found.'that the affidavit and application were in all regards in compliance with the wiretap statutes, and that the omission would not destroy the otherwise lawful force and effect of the orders. There too, the trial court judge testified as to the occurrence of the application for the intercept. I think McManus and the case now before us are the same in principle. Moreover, there is nothing in the statute forbidding the judge’s testimony as proof aliunde. As stated in Hoffman v. State, 397 So.2d 288, 290 (Fla.1981):

We do not condone sloppy work by the State in preparing cases. We realize, however, that mistakes can happen.

This is nothing more than a sloppy clerical error which has been adequately explained away and cured. I would reverse.


source: Caselaw Access Project

author: GRIMES, Acting Chief Judge.

license: Public Domain

text:
    Leonard G. LONG, Appellant, v. STATE of Florida, Appellee. Alton Lynn GILLEN, Appellant, v. STATE of Florida, Appellee. James H. WHITEHEAD, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-938, 81-1008, 81-1069 and 81-1070.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1982.
    Rehearings Denied Oct. 27 and Nov. 17,1982.
    Gordon R. Duncan of Alderman & Gerald, P.A., Fort Myers, for appellants Long and Whitehead.

      Angus M. Stephens, Jr., Coral Gables, and Robert H. MacKenzie, Tampa, for appellant Gillen.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The state charged appellants Whitehead and Gillen with violation of the RICO statute and charged all three appellants with conspiracy to traffic in certain controlled substances. The appellants ultimately pled nolo contendere, reserving the right to appeal the denial of several motions.

Appellants Whitehead and Gillen argue that their RICO convictions must be reversed because the state’s information against them was identical to the one we deemed legally insufficient in Beatty v. State, 418 So.2d 271 (Fla. 2d DCA 1982). The state argues under the rationale of Dean v. State, 414 So.2d 1096 (Fla. 2d DCA 1982), that the stipulation of a factual basis in connection with the entry of their pleas of nolo contendere cured the deficiencies in the information. We decline to accept the state’s position. Our holding in Dean must be limited to the particular circumstances of that case. The deficiency in the Dean information was obviously a typographical error, and the point had never been argued to the trial court. Here, the deficiency in the RICO information was more than technical, and it was specifically pointed out to the trial court. The RICO information against Whitehead and Gillen was insufficient for the reasons expressed in Beatty and should have been dismissed.

Appellants’ remaining points have no merit.

Accordingly, we reverse the RICO convictions against appellants Whitehead and Gil-len, but we affirm all of the other judgments of guilt.

SCHEB and SCHOONOVER, JJ., concur.


author: HERSEY, Judge.

text:
    Percy Lee SPANN, Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS and Glades Correctional Institute, Appellees.
    No. 81-954.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 1982.
    Rehearing Denied Dec. 8, 1982.

      Raymond G. Ingalsbe and David Wiitala of Ingalsbe, McManus & Wiitala, P.A., North Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Joe Belitzky, Asst. Atty. Gen., Tallahassee, for appellees.
   HERSEY, Judge.

Percy Lee Spann, while an inmate at the Glades Correctional Institute, suffered burns when another inmate covered him with flammable liquid and ignited it. Spann filed suit against appellees based upon negligent failure to control the offending inmate. After a jury trial, the trial court directed a verdict for appellees. Spann appeals on the theory that the trial court utilized an improper test, more stringent than reasonable care, in concluding that as a matter of law no liability existed. We affirm.

The incident occurred shortly after 7:00 a.m. on the morning of July 8, 1976. At that time of day inmates are permitted to go to breakfast and to visit dormitories other than the one to which they may be assigned. A guard sits at the entrance to each dormitory in a structure somewhat like an iron cage. It was necessary for the inmate carrying a can of flammable liquid to pass within two or three feet of the guard, who was apparently inattentive at the time of the incident. The issue is whether the inattention of the guard is related to the ultimate injury in such a manner as to permit liability to attach.

A summary of the general law applicable in situations involving injury to an inmate is contained in 41 A.L.R.3d 1021 (1972) at 1025:

The prison environment has been a fertile ground for assaults, as it normally consists of confinement in close quarters and under unpleasant conditions of large numbers of persons, many of whom are predisposed to violence and frequently, to grudges, racial hatred, and homosexual jealousy. To these factors may be added the frequent impossibility of maintaining the desirable degree of isolation of the prisoners from each other, and the extreme difficulty of preventing them from fashioning weapons out of articles at hand, in which respect prisoners have demonstrated considerable ingenuity.
... A few principles have been universally applied or recognized as applicable in cases by injured prisoners against prison authorities or the like for injuries inflicted on them incident to assaults by fellow prisoners. Thus, many of the cases .. . recognize or imply, and none deny, that in the absence of a statute to the contrary, the duty of care owed by prison officials and governmental units to prisoners in their charge is the duty of reasonable care. Similarly, many of the cases recognize expressly or impliedly, and none deny, that there is no liability on the part of a prison official or governmental unit in the absence of knowledge of the danger of an assault, or at least of reason to anticipate such danger.

In the case relied upon by the trial court, Parker v. State, 282 So.2d 483, 486 (La.1973), cert. den., 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973), the court addressed the problem as follows:

The applicable rule has been frequently stated. A penal institution is not an insurer of an inmate against attacks by other inmates. The standard is that of reasonable or ordinary care. The majority rule is that in order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use reasonable care in preventing the harm. . . .
... Scores of reports of this kind are received weekly in the prison environment. For liability, the law requires at least adequate reason to anticipate harm and failure to take reasonable action to avert it.

Thus, “[a] jailer must exercise reasonable and ordinary care and diligence to prevent unlawful injury to a prisoner placed in his custody, but he cannot be charged with negligence in failing to prevent what he could not reasonably anticipate.” 60 Am. Jur.2d, Penal & Correctional Institutions, Section 23.

The final judgment specifies the basis for the directed verdict:

At the close of plaintiff’s case in chief the defendants motioned the court for a directed verdict relying on Parker v. State, 261 So.2d 364 (La.App.1972), affirmed, 282 So.2d 483 (La.1973), and its progeny. The court is unaware of any similar Florida cases that interpret the duty of reasonable care in a prison setting. The court therefore declines the test for ordinary negligence as reflected in Florida Standard Jury Instruction 4.1, and instead adopts the holding in Parker v. State, supra, which requires the plaintiff to prove that the prison authorities must have known or had reason to anticipate that a harm would ensue and failed to use reasonable care in preventing that harm. The court is of the opinion that plaintiff’s case was deficient only in that he failed to prove the defendants had reason to anticipate the conduct on the part of the assailant which resulted in the injuries complained of, i.e., there was no substantial competent evidence that any defendant knew or had reason to anticipate this particular course of conduct by this particular inmate.

Thus the trial court declined the test reflected in Florida Standard Jury Instruction 4.1 which provides:

Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.

Contrary to the trial court’s analysis, all of the authorities and the instruction consistently hold that the standard of care which is to be applied in these cases is reasonable care.

In most cases, as here, injuries sustained by an inmate as the result of an assault upon him by another inmate are indirect rather than direct results of any negligence by the custodian. The actual injuries (damages) are a direct result of an active and efficient cause which, has intervened between the custodian’s negligence and the intentionally inflicted injury. In order to find that the custodian’s negligence was a proximate cause of the injury it must be shown that the injury was a reasonably foreseeable consequence of that negligence.

We addressed this issue in Overby v. Wille, 411 So.2d 1331 (Fla. 4th DCA 1982). There we said:

It is conceded that where injury results from an active and efficient cause which intervenes between the negligent act of the tortfeasor and the injury, liability may well be a legal issue for determination by the court. Kwoka v. Campbell, 296 So.2d 629 (Fla. 3d DCA 1974). Appel-lees expect too much of that principle here, however, in as much as the question of whether the intervening cause was foreseeable is ordinarily one for the trier of fact. Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980). Only a total absence of evidence to support an inference that the intervening cause was foreseeable justifies the court in removing the question from the trier of fact. See Guice v. Enfinger, 389 So.2d 270 (Fla. 1st DCA 1980). The Guice case also arose out of a jail suicide but in that case there was no evidence of mental or emotional aberration. The Guice court laid down yet another principle which has application here. The court stated that as to a loss or injury which is not a direct result of the negligent act, recovery will not be allowed if the injury was only “possible” as opposed to “probable.” The opinion continues by defining the former term as: “those which happen so infrequently from the commission of a particular act, that in the field of human experience they are not expected as likely to happen again from the commission of the same act.” 389 So.2d at 272, quoting from Cone v. Inter-County Telephone & Telegraph Co., 40 So.2d 148, 149 (Fla.1949). Id. at 1332.

Two aspects of the Overby rationale have particular application here. When a guard is negligent it is possible but not probable that one inmate will set another on fire or otherwise intentionally injure him. On the other hand if the custodial authority is on notice that one inmate “has it in for” another inmate then such a possibility becomes less remote and approaches probability. The Parker analysis of the Louisiana courts recognizes this metamorphosis as do the other authorities although it is not always articulated as a function of proximate cause and foreseeability. The second aspect of Overby with direct application here is the observation that the question of foreseeability will be taken from the jury where there is a total absence of evidence to support an inference that the intervening cause was foreseeable.

If appellant had been able to introduce evidence that a flammable liquid was made available to inmates by the custodial authorities (as opposed to a showing that an inmate somehow came into possession of a quantity of flammable liquid) that would have been sufficient to avoid the directed verdict. Thus, in Shields v. State, 380 So.2d 123 (La.App.1979), cert. den., 382 So.2d 164 (La.1980), the court pointed out that the mere possession of acid by an inmate was not sufficient to establish a prima facie ease where no proof was offered of the method by which the acid was obtained. Or if he had been able to show that those authorities knew or should have known of a very recent altercation involving appellant and the inmate who injured him, this again would have raised the question of foreseeability necessitating a jury. There was no such evidence.

Under the circumstances present here there was no evidence to support an inference that inattention by a guard would “probably” indirectly result in injury to appellant. The trial court therefore correctly directed a verdict for appellees and we affirm the Final Judgment entered thereon.

LETTS, C.J., and DELL, J., concur.


text:
    In re the ESTATE OF Annie J. CARLSON, Deceased. Marie J. CARLSON, Appellant, v. William, Roger, Janet and Jeffrey HADGRAFT, minors and petitioners, Appellees.
    No. 81-2182.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 1982.
    Rehearing Denied Dec. 8, 1982.

      John M. Bernazzoli of DeTardo, Longo & Bernazzoli, Hollywood, for appellant.
    Jeff Tomberg of Law Offices of Tomberg & Tomberg, P.A., Boynton Beach, for appel-lees.
   HERSEY, Judge.

This is an appeal from a summary final judgment of the probate division of the circuit court determining the beneficiaries of the estate of Annie J. Carlson. At issue in the lower court was the language of a joint and reciprocal will executed by decedent and her husband, Herbert Carlson. The judgment in effect holds that the will contains no general residuary clause. The assets of the estate therefore pass to decedent’s heirs at law under the statutes of descent and distribution because the major dispositive provisions were held to be activated only if the joint and reciprocal testators, Herbert and Annie Carlson, died simultaneously “or approximately so.”

A summary final judgment is proper only when the pleadings and evidence fail to raise a genuine issue of material fact. This conclusion is justified if either of two conditions are satisfied. If the court found that the language of the will is clear and unambiguous, the parole evidence rule would exclude extrinsic evidence as to the testators’ actual intent. The court would then have had to conclude that the clear and unambiguous language of the will shows that the testators intended that the major disposi-tive provisions of the will contained in paragraph FOURTH were to apply only in the event that the two testators died simultaneously. This possibility will be addressed subsequently. Alternatively, the court could have found that the will was ambiguous. In that case, the court would have considered other evidence of the testators’ intentions in reaching the conclusion that the testators intended the major dispositive provisions to apply only in the event of simultaneous deaths.

To determine which, if either, of these two conditions was satisfied we first examine the pertinent language of the joint and reciprocal will:

FOURTH: In the event that our deaths should occur simultaneously, or approximately so, or in the same common accident or calamity, or under any circumstances, causing doubt as to which of us survived the other, or survivor should not make a new Will, then, I, ANNIE J. CARLSON, hereby give, devise and bequeath my diamond ring to JANET LYNN HADGRAFT, to be hers absolutely. In the event of our simultaneous deaths, as hereinabove referred to, then, in that event, it is our express will and desire that the entire remaining assets of our estate be liquidated to cash, and we hereby give, devise and bequeath one-half (V2) of our estate to MARIE JOSEPHINE CARLSON, to be hers absolutely, and one-half (V2) of our estate to ALFRED HADGRAFT and VIOLET HADGRAFT, his wife, to be theirs absolutely.
FIFTH: In the event that MARIE JOSEPHINE CARLSON should predecease us, then, in that event we hereby give, devise and bequeath one-half (V2) of our remaining estate to DOROTHY GUN-NELL TROSCHER. In the event that both ALFRED HADGRAFT and VIOLET HADGRAFT should predecease us, then, in that event we hereby give, devise and bequeath one-half (V2) of our remaining estate to WILLIAM DRYBURGH HADGRAFT.

On cursory reading, paragraph FOURTH appears to be merely a simultaneous death clause. Paragraph FIFTH ostensibly supplies alternative beneficiaries should the devisees named in paragraph FOURTH fail to survive the testators. The parties concede that the two signatories to the will did not die simultaneously.

If paragraph FOURTH was intended to be only a simultaneous death provision then the rather complete testamentary scheme represented by these dispositive provisions was intended to apply only if the testators died simultaneously. In the event of nonsi-multaneous deaths it must be supposed that the testators were content to have their property pass in whatever fashion the latest version of the descent and distribution laws of the state of Florida provide. The possibility that such an intention motivated these joint testators is very remote and strongly suggests that some other result was intended.

The fourth paragraph however contains the phrase “or survivor should not make a new Will ....” raising the possibility of construing that paragraph as a general residuary clause. Either that phrase modifies only the subsequent devise of the diamond ring or it is one of the alternative special conditions encompassed by the term “simultaneous deaths” and referred to in the following sentence by use of the term “simultaneous deaths, as hereinabove referred to.” If the latter interpretation is placed on this language, then the entire testamentary scheme is preserved. We think that the dual interpretations possible on the basis of the testamentary language and the legitimate concerns as to the intention of the testators preclude disposition of the issue by summary final judgment based upon the language of the will alone.

Having determined that the will is not clear and unambiguous on its face, we next consider whether the material facts properly before the trial court support a summary final judgment on some other basis.

Herbert and Annie Carlson executed the joint and reciprocal will in 1967. Herbert died on July 4, 1980. No probate proceedings were necessary in his estate because all significant assets owned by the Carlsons were held jointly. Annie died twelve days later, on July 16, 1980. The respective causes of death were natural and unrelated. It is conceivable that the phrase “In the event that our deaths should occur simultaneously, or approximately so” contemplated one death occurring so soon after the other that there was not a sufficient intervening period of time to permit the survivor to execute a new will. The intention of the testator on this point constitutes a genuine issue of material fact precluding summary final judgment.

The intended objects of the testators’ bounty constitute an additional issue for the finder of fact. The testamentary scheme embodied by paragraph FOURTH of the will results in one-half of the Carl-sons’ estate going to Herbert’s side of the family and one-half going to Annie’s side of the family. Intestacy, on the other hand, results in the entire estate going to Annie’s side of the family (simply because she survived Herbert) and even more extraordinarily, the estate descends to individuals not even named in the will. An affidavit given by a disinterested witness was properly filed in the trial court evidencing Annie’s intention that the will leave the estate in equal shares to the two sides of the family. Nothing was filed by appellees to contradict this affidavit. At the very least this creates a genuine issue of material fact foreclosing summary judgment.

The cases are legion which hold that where any doubt remains as to the existence of a genuine issue of material fact summary judgment is inappropriate. E.g., Snyder v. Cheezem Development Corp., 373 So.2d 719 (Fla.2d DCA 1979). See also Holl v. Talcott, 191 So.2d 40 (Fla.1966).

The summary final judgment is reversed and this cause is remanded with instructions that the trial court receive evidence in order to construe the will of the testator keeping in mind that “the polar star by which the court is guided is the intent of the testator .... ” In Re Estate of Parker, 110 So.2d 498, 501 (Fla. 1st DCA 1959).

REVERSED and REMANDED.

DOWNEY and ANSTEAD, JJ., concur.


text:
    SUNSHINE UTILITIES EQUIPMENT, INC., Appellant, v. TREASURE COAST UTILITIES, INC., Appellee.
    No. 82-71.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 1982.
    Rehearing Denied Dec. 9, 1982.
    Dennis J. Plews, Bradenton, for appellant.
    J. Randolph Lipscomb of Von Arx & Lipscomb, Miami, for appellee.
   HERSEY, Judge.

This is an appeal from a final judgment holding that the debt constituting the cause of action here had been merged into a judgment entered in earlier litigation.

The doctrine of merger operates to extinguish a cause of action on which a judgment is based and bars a subsequent action for the same cause. See Brinker v. Ludlow, 379 So.2d 999 (Fla. 3d DCA 1980). Thus, the debt or cause of action on which an adjudication is predicated is said to be merged into the final judgment.

In the instant case, the trial court determined that two checks at issue formed a portion of the debt upon which a previous judgment had been obtained and therefore were merged into that previous judgment. The record of the previous action, however, does not reflect that those checks constituted part of the cause of action. The complaint in that case specifically pled other debts and omitted any mention of the checks at issue here. Accordingly, the trial court’s adjudication of merger must have been predicated on extrinsic evidence.

The doctrine of merger is comparable to res judicata and estoppel by judgment. Res judicata applies only as to matters within the issues framed by the parties or tendered by the pleadings; that is, matters which were distinctly put in issue. Hay v. Salisbury, 92 Fla. 446, 109 So. 617 (1926). Likewise, it must appear that the points presented were determined in a prior action before the doctrine of estoppel by judgment can be applied. Youngblood v. Taylor, 89 So.2d 503 (Fla.1956). In identifying the issues previously adjudicated in order to apply the doctrine of either res judi-cata or estoppel by judgment, the court may consider only the record of that prior action. The same principle logically applies to the doctrine of merger. Therefore, the trial court here erred by considering extrinsic evidence concerning the prior judgment.

Appellant adequately preserved this point for review by his objection to the admission of certain documentary evidence because the best evidence of the issues adjudicated in the earlier litigation was the record. Because this issue results in a disposition in favor of appellant, his additional points on appeal regarding the admissibility of evidence, the weight of the evidence, and the denial of a motion for rehearing are not addressed.

We reverse and remand for entry of a judgment in favor of appellant.

REVERSE and REMAND.

LETTS, C.J., and DELL, J., concur.


author: PER CURIAM.

text:
    The PUBLIC HEALTH TRUST OF DADE COUNTY, Florida, an agency and instrumentality of Dade County, Florida, which operates Jackson Memorial Hospital, Appellant, v. John RUFFIN and Gulf Life Insurance Company, a Florida corporation, Appellees.
    No. 81-2363.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Rehearing Denied Dec. 8, 1982.
    Hayt, Hayt & Landau and Alan M. Fisher, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Gary Gerrard, Miami, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Guarantee Trust Life Insurance Co. v. Fundora, 343 So.2d 71 (Fla. 3d DCA 1977).


text:
    Angela CARR, Appellant, v. STATE of Florida, Appellee.
    No. 81-587.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 1982.
    Rehearing Denied Dec. 8, 1982.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON MOTION TO DISMISS APPEAL

PER CURIAM.

The trial court having concluded that its order on motion to compel was not disposi-tive of the case, the appeal is dismissed. Pursuant to the procedure suggested in Gray v. State, 379 So.2d 435 (Fla. 2d DCA 1980), the trial court shall allow appellant thirty days from the date of this order within which to file a motion to withdraw her plea. The trial court shall grant such motion unless the state is able to establish prejudice as a result of the delay engendered by this appeal. Should appellant not be allowed to withdraw her plea, she may seek review of the order denying withdrawal by filing a new appeal in this court.

ANSTEAD, BERANEK and GLICK-STEIN, JJ., concur.


text:
    Firdaush K. IRANI, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1208.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Dec. 8, 1982.

      Friedman & Friedman, Miami Beach, Walter, Costanzo, Miller & Russell and James G. Roth, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

We affirm the conviction for manslaughter but reverse the conviction for use of a firearm in the commission of second-degree murder, in light of the jury’s rejection of the state’s contention that defendant committed a second-degree murder. Redondo v. State, 403 So.2d 954 (Fla.1981).

Affirmed in part, reversed in part.


text:
    Sandra LORENZO, as Personal Representative of Kenneth Eugene Lorenzo, Deceased, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 82-55.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Dec. 9, 1982.
    Goethel & Garcia-Vidal and David A. Do-net, Coral Gables, for appellant.
    Robert A. Ginsburg, County Atty., and Jack M. Sobel, Asst. County Atty., for ap-pellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982); Ingham v. Department of Transportation, 419 So.2d 1081 (Fla.1982); City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); Ferla v. Metropolitan Dade Cty., 374 So.2d 64 (Fla. 3d DCA 1979), cert. denied 385 So.2d 759 (Fla.1980); State, Dept. of Transp. v. Vega, 414 So.2d 559 (Fla. 3d DCA 1982).


author: DANIEL S. PEARSON, Judge.

text:
    David Francis CERF, Appellant, v. Lana Wall CERF, Appellee.
    No. 82-603.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Dec. 9, 1982.
    Stephen Cahen, Miami, and Karen Salver, Miramar, for appellant.
    Lee H. Schillinger, Coral Gables, for ap-pellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The appellant, a member of the bar of the State of Florida, was served with process in this Dade County marriage-dissolution action in the hallway of the Broward County Courthouse. Service was effected upon him shortly after he emerged from the judge’s chambers where he had reviewed a pre-sentence investigation report on his client and shortly before he entered the courtroom where he was scheduled to represent the client in the death penalty phase of a murder prosecution. The appellant moved to quash service of process on the ground that he was immune from service of process while in attendance at the courthouse in connection with the conduct of the criminal action against his client. This appeal is taken from the trial court’s denial of the motion to quash.

The appellant argues that the rule at common law was that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit, are immune from service in another; that this rule has not been abrogated or modified by the legislature of this state; and that by virtue of Section 2.01, Florida Statutes (1981), declaring the common law to be of force in this state, the rule applies here.

The defect in the appellant’s argument lies not in misstatement, but in overstatement. The rule upon which he relies is “founded in the necessities of the judicial administration which would often be embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify,” Stewart v. Ramsay, 242 U.S. 128, 130, 37 S.Ct. 44, 61 L.Ed. 192 (1916), and is intended to accommodate the court, not the individual, Lamb v. Schmitt, 285 U.S. 222, 52 S.Ct. 317, 76 L.Ed. 720 (1932); Central Trust Co. of New York v. Milwaukee Street Ry. Co., 74 F. 442, 443 (E.D.Wis.1896). The privilege will not be enlarged beyond the reason upon which it is founded, Lamb v. Schmitt, supra, and since it inures to the benefit of the court, not the party served with process, it will be applied by the court to accomplish the court’s purpose. In re Fish & Neave, 519 F.2d 116 (8th Cir.1975).

Thus it is that the rule has at most afforded immunity to a witness, suitor or attorney only in instances where the process issues from a state or county foreign to the residence of the person served.

“The true rule, well founded in reason and sustained by the greater weight of authority is that suitors, as well as witnesses, coining from another state or jurisdiction, are exempt from the service of civil process while in attendance upon court, and during a reasonable time in coming and going.” Stewart v. Ramsay, 242 U.S. at 129, 37 S.Ct. at 47, 61 L.Ed. at 197 (emphasis supplied).

There simply is no reason to conclude that the appellant would be deterred from attending a court proceeding in Broward County or, for that matter, in any county in this state out of concern that while there he would be served with legal process emanating out of the very county in which he resides. That being so, the court’s purpose is adequately served without extending the rule to cover the appellant.

Affirmed.

      . To date Florida courts have not addressed the immunity claim of an attorney. They have, however, applied the rule to nonresident suitors and witnesses. Rorick v. Chancey, 130 Fla. 442, 178 So. 112 (1937); Crane v. Hayes, 253 So.2d 435 (Fla.1971); State ex rel. Cox v. Adams, 148 Fla. 426, 4 So.2d 457 (1941); Mullins v. Marks, 353 So.2d 942 (Fla. 3d DCA 1978); Murphy & Jordan, Inc. v. Insurance Co. of North America, 278 So.2d 296 (Fla. 3d DCA 1973); Bruner v. Robins, 191 So.2d 567 (Fla. 3d DCA 1966); see State ex rel. Ivey v. Circuit Court of Eleventh Judicial Circuit, 51 So.2d 792 (Fla.1951). We need not decide whether the rule should be construed to protect non-resident attorneys as well. Compare Schmitt v. Lamb, 43 F.2d 770 (5th Cir.1930), aff’d, Lamb v. Schmitt, 285 U.S. 222, 52 S.Ct. 317, 76 L.Ed. 720 (1932) (recognizing rule as covering attorneys); Durst v. Tautges, Wilder & McDonald, 44 F.2d 507 (7th Cir.1930); Read v. Neff, 207 F. 890 (S.D.Iowa 1913); Central Trust Co. of New York v. Milwaukee Street Ry. Co., supra; Hoffman v. Bay Circuit Judge, 113 Mich. 109, 71 N.W. 480 (1897); Whitman v. Sheets, 20 Ohio C.C. 1, 11 Ohio Cir. Dec. 179 (1899); Holmes v. Nelson, 1 Pa. 217 (1850); Williams v. Hatcher, 95 S.C. 49, 78 S.E. 615 (1913) (construing rule as covering attorneys) with Paul v. Stuckey, 126 Ark. 389, 189 S.W. 676 (1916); Nelson v. McNulty, 135 Minn. 317, 160 N.W. 795 (1917); Chicago B & Q Ry. Co. v. Davis, 111 Neb. 737, 197 N.W. 599 (1924); Kutner v. Hodnett, 59 Misc. 21, 109 N.Y.S. 1068 (1908); Greenleaf v. People’s Bank, 133 N.C. 292, 45 S.E. 638 (1903) (refusing to extend rule to cover attorneys).


text:
    Gerald J. ROBBINS, Appellant, v. Joan G. ROBBINS, Appellee.
    No. 81-2638.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Rehearing Denied Dec. 8, 1982.
    Lawrence A. France, North Miami Beach, Scherman & Zelonker and Regina Zelonker, Hialeah, for appellant.
    Genet & Milner and Sandor Genet, North Miami Beach, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Pusey v. Pusey, 386 So.2d 269 (Fla.3d DCA 1980); Fox v. Haislett, 388 So.2d 1261 (Fla.2d DCA 1980).


text:
    Pearl R. WEISSBERG, Appellant, v. FLORIDIAN ARMS CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 82-851.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Rehearing Denied Dec. 10, 1982.
    Pepe & Nemire and Thomas Pepe, Coral Gables, for appellant.
    Ress, Gomez, Rosenberg & Howland and Mark J. Mintz, North Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Pinal v. Ocean Ship Supply, Inc., 410 So.2d 1007 (Fla.3d DCA 1982).


text:
    Timothy Wayne HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-80, 82-81 and 82-83.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 1982.
    Jerry Hill, Public Defender, Bartow, and Bryan E. Hopkins, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm Hernandez’s convictions. The record, however, establishes that the lower court failed to state with particularity its justification for retaining jurisdiction over one third of his sentences. We remand to the lower court with directions to either relinquish the retention of jurisdiction over one third of Hernandez’s sentences or to state the justification with individual particularity as required by section 947.16(3)(a), Florida Statutes (1979).

GRIMES, A.C.J., and SCHEB and CAMPBELL, JJ., concur.


text:
    Timothy Wayne HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-82.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 1982.
    Jerry Hill, Public Defender, Bartow, and Bryan E. Hopkins, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm Hernandez’s conviction. The record, however, establishes that the lower court failed to state with particularity its justification for retaining jurisdiction over one third of his sentence. We remand to the lower court with directions to either relinquish the retention of jurisdiction over one third of Hernandez’s sentence or to state the justification with individual particularity as required by section 947.16(3)(a), Florida Statutes (1979).

GRIMES, A.C.J., and SCHEB and CAMPBELL, JJ., concur.


text:
    William PHILLIPS, et al., Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Appellees.
    Nos. 82-318 to 82-321 and 82-358.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Kurzban, Kurzban & Weinger, Miami, for appellants.
    Welbaum, Zook, Jones & Williams arid Alice L. (Betsy) Warwick, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

These are consolidated appeals from cost judgments entered for the defendants after summary judgments were entered in their behalf below. In Phillips v. Ostrer, 418 So.2d 1104 (Fla. 3d DCA 1982), we reversed the underlying judgments for all the defendant-appellees except Underwriters at Lloyds of London. Hence, the cost judgments for those defendants, which are before us in Case nos. 82-318, 82-320, 82-321, and 82-358, must likewise be reversed.

As to the costs awarded to Lloyds, we conclude that no abuse of discretion has been demonstrated, see International Patrol and Detective Agency Co. v. Aetna Casualty & Surety Co., 419 So.2d 323 (Fla.1982), and therefore affirm the order under review in Case no. 82-319.


author: SHARP, Judge.

text:
    Ralph FRANK, Appellant, v. STATE of Florida, Appellee.
    No. 81-1235.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1982.

      James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee. ■
   SHARP, Judge.

The appellant’s defense counsel requested a jury instruction on maximum and minimum penalties, which the trial court denied. In an abbreviated fashion, the trial court explained that the requested instruction would confuse the jury because of the additional instruction that they must not consider the consequences of their verdict. Defense counsel failed to formally object to the denial of his requested instruction, but it is apparent that the trial court understood the basis for the requested instruction, and that it ruled upon it. In a similar case, Thomas v. State, 419 So.2d 634 (Fla.1982) [1982 F.L.W. 397], the Florida Supreme Court held that it was not necessary for defense counsel to say “I object.”

Therefore, we reverse the judgment and conviction appealed and remand for a new trial. Tascano v. State, 393 So.2d 540 (Fla.1980).

COBB and COWART, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge. COWART, Judge,

text:
    BESTWAY REFRIGERATED SERVICES, INC., Appellant, v. Frederick John SIMMONS, et al., Appellees.
    No. 81-1327.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1982.
    Gerald S. Livingston and Timothy C. Laubach of Livingston & Laubach, P.A., Orlando, for appellant.
    Joseph McGuire of Parker Johnson, Owen & McGuire, Orlando, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final summary judgment in an action to recover under an insurance policy issued by appellees.

Appellant Bestway Refrigerated Services, Inc., a nationwide truck broker, obtained loads to be hauled by various truckers. It did not own trucks, nor did it employ drivers. Instead it hired third parties to transport its freight. One such company was Phil Hatfield Trucking.

In April, 1979, an individual identifying himself as Robert Walker telephoned the Bestway office using the company’s unlisted number reserved for this purpose. Walker stated that he worked for Hatfield and inquired if there were any shipments available. Bestway’s employee replied that they had a shipment of shrimp available and made arrangements for Walker to pick up the load. Walker picked up the load, but neither he nor the shrimp were ever heard from again.

Bestway sued to recover on an insurance policy issued by appellees. The court entered summary final judgment for appellees holding that the loss was excluded under the policy.

It is not uncommon to exclude employee related thefts in insurance policies covering liability for loss by theft. More specifically, it is not uncommon for the underwriter of cargo insurance to exclude losses which are the result of theft, conversion, etc., perpetrated by employees or agents of the insured. Such exclusions are generally given their plain meaning and upheld. See Sun Insurance Office Ltd. of London v. Be-Mac Transport Company, 132 F.2d 535, 536 (8th Cir.1942); Georgia Carpet Express, Inc. v. Travelers Indemnity Company, 148 Ga.App. 603, 252 S.E.2d 17 (1979); Hunter v. Pearl Assurance Company, 292 Mich. 543, 291 N.W. 58 (1949).

With regard to the instant facts, there are two important provisions in the insurance policy: the first sets out what losses are insured and the second sets out what losses are excluded. The first provision provided:

THIS POLICY INSURES The liability of the Assured, as truck broker, for loss or damage directly caused by:
* * * * * *
h. Theft of an entire shipping package, excluding pilferage.

Immediately below this list of covered losses, the policy set out exclusions from coverage:

THIS POLICY DOES NOT INSURE
Any liability of the Assured for loss or damage:
* * * * * *
K. caused by conversion, embezzlement, secretion, theft by the named assured, his driver or agent, (emphasis added)

In holding that the loss in the present case was covered by paragraph K, the court below impliedly found that Walker was an agent for Bestway. It is clear that Walker could not be considered Bestway’s driver.

As in the case of any other agreement, an agency agreement may be negated by fraud and an appointment induced by fraud will not constitute a valid agency. 2A C.J.S. Agency § 39 (1972); Restatement (Second) of Agency § 15, Comment c (1958). Here, it is undisputed that Walker falsely represented his relationship with Hatfield, thereby negating an agency agreement, if any, with Bestway. As no valid agency relationship existed, the loss is not excluded under paragraph K of the policy. We therefore reverse the final summary judgment and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

SHARP, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The named insured, Bestway, a truck broker, negligently mis-identified Walker as a driver or agent of Hatfield, a trucker, and negligently entrusted a load of shrimp to him. If Walker had in fact been Hatfield’s driver and agent, then Bestway would have been acting as a broker between two principals (Hatfield and the owner of the shrimp). But in fact Walker was not acting as Hatfield’s agent and, notwithstanding that Bestway did not subjectively intend the legal result, when Bestway authorized Walker to pick up and haul the shrimp and also authorized the owner of the shrimp to deliver it to Walker, Bestway impliedly established a agency relationship with Walker and Walker became Bestway’s agent and driver for the purpose of acquiring possession of the shrimp and hauling it. Walker’s subsequent embezzlement of the shrimp falls within the language and purpose of the policy exclusion as to theft by the insured’s agent or driver.

Certainly, fraud negates an agency agreement, as it does all agreements, but fraudulently induced agreements and relationships are not void but merely voidable. Bestway had the legal right, because of Walker’s misrepresentation, to rescind the authorization it gave Walker to pick up and haul the shrimp. That is not the point. The point is that Bestway authorized the owner to deliver possession of the shrimp to Walker and authorized Walker to receive possession of the shrimp and, pursuant to that authorization, Walker, effectively acting as Bestway’s driver and agent, obtained the load of shrimp and embezzled it. The loss occurred long before any rescission and before Bestway even knew it had grounds to rescind the implied agency agreement between it and Walker. The insurance company should win this one.

      . See generally Annot., 12 A.L.R.2d 236 (1950).

      . See generally Annot., 36 A.L.R.2d 506, § 14 at 529 (1954); J. Appleman, 5 Insurance Law and Practice § 3183 at 597 (1970).

      .As to third persons, the acts of the purported agent may bind the principal. See Restatement (Second) of Agency § 15, Comment b (1958). This situation, however, is not present here.


author: DAUKSCH, Judge.

text:
    FLORIDA AIR CONDITIONERS, INC., a Florida corporation, Appellant. v. COLONIAL SUPPLY COMPANY, a Florida corporation, Charles Buchanan and William F. Howard, jointly and severally, Appellees.
    No. 81-1335.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1982.
    James A. Sisserson, of Nance, Cacciatore & Sisserson, Melbourne, for appellant.
    Frank R. Pound, Jr., of Lovering, Pound & Lober, P.A., Cocoa, for appellees.
   DAUKSCH, Judge.

This is an appeal from a final judgment after the court directed a verdict in a jury trial. Upon review we have determined there was sufficient evidence and reasonable inferences from the evidence which could have supported a verdict for appellant. Thus we must reverse the judgment and remand this matter for a new trial. Black v. Teel and Nationwide Insurance Company, 405 So.2d 1068 (Fla. 5th DCA 1981); National Car Rental Systems, Inc. v. Bruce A. Ryals Enterprises, Inc., 380 So.2d 529 (Fla. 5th DCA 1980); Budgen v. Brady, 103 So.2d 672 (Fla. 1st DCA 1958). More particularly there was sufficient evidence at trial to sustain a verdict for appellant on its assertion that Charles Buchanan and William F. Howard were doing business as individuals even though they held themselves out to be doing business as Colonial Supply Company, which had never been legally incorporated. There is also evidence that Buchanan and Howard were not doing business as alleged but that Tropic Air Heating and Cooling, Inc., a de jure corporation, was the one acting as Colonial Supply Company. The question for the jury to decide is which is true, and who is responsible for the debts of Colonial Supply Company.

The judgment is reversed and a new trial is ordered.

REVERSED AND REMANDED.

ORFINGER, C.J., and COWART, J., concur.


author: COBB, Judge.

text:
    FLAGLER COUNTY SHERIFF'S DEPARTMENT, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, and Kathi Lee Parrish, Appellees.
    No. 81-1626.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1982.
    Stephen P. Sapienza, Palm Coast, for appellant.
    James R. Parks and Donna Erlich, Tallahassee, for appellee Unemployment Appeals Com’n.
    No Appearance for appellee Parrish.
   COBB, Judge.

This is an appeal by the employer, Flagler County Sheriff’s Office, from an adverse decision of the Unemployment Appeals Commission on a claim for benefits by Ka-thi Lee Parrish. The Commission reversed the decision of the referee, who had affirmed the determination of the claims examiner that the claimant was disqualified from benefits because of having voluntarily left her employment without good cause attributable to the employer. See § 443.-101(1), Fla.Stat. (1981).

On December 9, 1980, Parrish, because of pregnancy, requested a medical leave of absence from the outgoing sheriff of Fla-gler County. The leave was to commence on January 5, 1981 (the last day in office of the defeated administration), and continue until May, 1981. This request, as well as its approval, was oral and unknown to the incoming sheriff, who took office on January 6, 1981. Parrish had ample opportunity to advise the incoming sheriff of her request and proposed absence, but failed to do so. She also knew of the hostility and lack of communication between the outgoing and incoming administrations. Claimant’s husband, a deputy sheriff, was not reappointed by the new sheriff. He accepted a new job in an adjacent county, and he and claimant relocated there. The job held by Parrish was being paid out of a private grant and not from regular county funds, hence a leave of absence was not in order, as it was required that the job be kept filled. Moreover, the grant money expired in April, 1981.

The new sheriff directed the claimant’s supervisor to write a letter to claimant on January 22,1981, informing her of the expiration date of the grant in April and that it was assumed, in view of her relocation to another county, that she was not planning to return to her job. In February, there was a chance encounter between claimant and her supervisor, and from the “joking” conversation between them, claimant testified that she “could only assume that he (the supervisor) took it all as a light matter and knew that I intended to return.” She felt that she had “indicated” to him that she planned to return to her job, but she did not reply to the January 22nd letter. She also failed to respond to a subsequent letter dated March 9,1981, whereby the new sheriff again informed her that the grant expired in April, and that she was being replaced in order to continue the grant.

The referee’s factual determination that the claimant had voluntarily left her employment and had effectively abandoned her position is amply supported by competent evidence. Therefore, the Commission cannot substitute its findings of fact for those of the referee. David Clark & Assoc., Inc. v. Kennedy, 390 So.2d 149 (Fla. 1st DCA 1980); Perez v. State Dept. of Labor & Employment Security, Appeals Commission, 377 So.2d 806 (Fla. 3d DCA 1979).

Accordingly, we reverse the decision of the Unemployment Appeals Commission.

REVERSED.

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


author: ORFINGER, Chief Judge. COWART, Judge,

text:
    STATE of Florida, ex rel., Robert James ALTON, Petitioner, v. The Honorable Virgil B. CONKLING, etc., Respondent.
    No. 82-366.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1982.

      James Russo, Public Defender, and Steven Herman, Asst. Public Defender, Titus-ville, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   ORFINGER, Chief Judge.

Petitioner, a juvenile, seeks a writ of prohibition to prevent his being tried for a felony offense in the adult division of the circuit court.

Pursuant to section 39.04(2)(e)(4), Florida Statutes (1979), the State Attorney filed an information against him, charging him with shooting into an occupied residence in violation of section 790.19, Florida Statutes. The juvenile filed a motion to transfer the cause to the juvenile division, alleging that although he had twice before been adjudicated delinquent for acts which would be classified as misdemeanors, and three times adjudicated delinquent for acts which would be classified as felonies, he was nevertheless entitled to be transferred to the juvenile division because he had not been represented by counsel in any of the “felony” adjudications, and uncounseled adjudications could not be considered in determining his entitlement to transfer.

The State first challenges the use of the remedy of prohibition, contending that even if the court was in error for refusing to transfer the action to the juvenile division, there is no absence of jurisdiction such as would warrant prohibition. Other district courts have recognized prohibition as the proper remedy to determine the question of jurisdiction as between the juvenile division and the adult division of the circuit courts. State v. Dennis, 386 So.2d 24 (Fla. 2d DCA 1980); Robidoux v. Coker, 383 So.2d 719 (Fla. 4th DCA 1980); rev. denied, 389 So.2d 1108 (Fla.1980); State ex rel. Register v. Safer, 368 So.2d 620 (Fla. 1st DCA 1979). We agree.

The right to counsel in state criminal proceedings is a fundamental right and a conviction obtained where the defendant was neither represented by counsel nor knowingly and intelligently waived that right is invalid. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This right applies to misdemeanor as well as felony cases. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

Relying on Gideon, the courts have rejected the use of earlier uncounseled convictions as a means of enlarging or enhancing prosecution or penalties in a variety of situations. A prior uncounseled conviction may not be used to convert a subsequent conviction into a felony under an enhanced penalty statute. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). Previous convictions obtained without counsel or waiver of counsel may not be used to enhance punishment under a recidivist statute. Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Such prior convictions should not be considered by the trial court in determining the severity of a sentence. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Wolfe v. State, 323 So.2d 680 (Fla. 2d DCA 1975); Hicks v. State, 336 So.2d 1244 (Fla. 4th DCA 1976). Use of such uncounseled prior convictions to impeach a defendant at trial is a violation of due process. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). It has been held constitutionally impermissible to base an adjudication of ungovernability for the second time (thus converting dependency to delinquency under the statute) on a previously conducted hearing in which the child was not advised of his right to counsel or provided with counsel, if indigent. In Interest of Hutchins, 345 So.2d 703 (Fla.1977).

These principles apply here, and on the basis of the cited authorities, it seems clear that the motion to transfer the case to the juvenile division for an adjudicatory hearing should have been granted if, in fact, all three felony adjudications were uncoun-seled, because under the statute in force at the time, at least one delinquent act had to be a valid felony conviction if the ease was to remain in the adult division. § 39.-04(2)(e)4.

Section 39.071, Florida Statutes (1979), requires that a child be represented by counsel at all stages of proceedings under that chapter. Florida Rule of Juvenile Procedure 8.290(d), specifies the procedure for waiver of counsel in juvenile proceedings.

A child and his parents are entitled to representation by counsel, including a court appointed attorney if they are unable to afford one, in any proceeding to determine delinquency which may result in commitment to an institution. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In the Interest of Hutchins, 345 So.2d 703 (1977). They must be informed of this right and any waiver must be an “intentional relinquishment or abandonment” of a fully known right. Gault, 87 S.Ct. at 1451 (where juvenile’s mother knew that she could appear with counsel, but was not “confronted with the need for specific consideration of whether they did or did not choose to waive the right” and informed of right to court appointed counsel, no valid waiver.) Since it is unlikely that a child can understand the importance of counsel, a juvenile judge must make certain that the child or his parents understand the right to counsel and that any waiver is intelligently and validly made. The circumstances of the waiver should appear in the record. R.V.P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981). What we glean from the statute, the rules and the cases interpreting both is that a waiver cannot be implied, it must be specifically made, with a. clear and intelligent understanding, and it (the waiver) must be in writing with not less than two attesting witnesses, or else it must be made in open court and made a matter of record.

The petitioner has presented to us portions of the record of the adjudicatory proceedings in the three “felony” cases. In all three, petitioner pleaded guilty. In two cases, there is no discussion at all of the right to counsel, no offer of counsel and no waiver. In the third, the only reference to the right of counsel, as presented by the record before us, appears in this dialogue (after the court advised petitioner of the charges against him):

The Court: You have a right to enter a plea of guilty or not guilty as to one or both of the charges. If you enter a plea of guilty, you are hereby admitting the offenses alleged — also at a hearing, you’re entitled to be represented by an attorney of your choosing and your mother’s choosing, and in the event you did wish to be represented by an attorney and you and your mother were unable to afford one, the Court could appoint an attorney to represent you.
The Child: Yes, sir.
The Court: Do you understand what I’m telling you?
The Child: Yes, sir.
The Court: Understanding what I have told you, how would you plead to the allegations in the petition, guilty or not guilty?
The Child: Guilty.

Respondent asserts that we may not have the entire record, but we requested a response from the state and no further record was furnished to us with that response. We conclude that no further record exists.

Nowhere does it appear that petitioner was given the opportunity to decide that he wanted an attorney, nor is there a specific waiver of the right. Rule 8.290(d) requires more than just the advice that the juvenile is entitled to an attorney. He must specifically waive that right. The court must be satisfied that he has the ability to understand the significance of that advice. The fact that he does not specifically request an attorney is not, in itself, a waiver of that right. Rule 8.290(d)(1). Before accepting a waiver, the Court must ascertain that the choice has been intelligently and understandingly made. Rule 8.290(d)(2). The waiver of counsel should not be left to inference or conjecture. If not done in writing, the waiver must be made in open court and of record. Rule 8.290(d)(4). If done in open court, it should be explicit, either in the form of a direct statement by the juvenile, or in response to a direct question of the court, such as, “understanding your rights, do you waive the appointment of counsel?” No waiver of any kind exists here.

We are not, as the State suggests, belatedly reviewing the earlier juvenile adjudications. We must decide, however, whether those earlier uncounseled adjudications serve to prevent the transfer to juvenile court of the charges pending here, and based on the authorities cited, we hold that they cannot be counted for that purpose. The adult division had no jurisdiction here, and the motion to transfer should have been granted. Therefore, the writ of prohibition should issue.

Believing as we do that the trial court will comply with this opinion without the necessity of the issuance of a formal writ, the issuance of the writ of prohibition is withheld until further order of the court.

So ORDERED.

DAUKSCH, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I do not agree that prohibition should be used to provide review of an order denying a motion to transfer criminal charges from the criminal division of the circuit court to the juvenile division of the circuit court for adjudicatory proceedings and sanctions when such a non-final order is not reviewable by appeal under Florida Rule of Appellate Procedure 9.130(a)(3).

A writ of prohibition is to prevent a tribunal from exercising a jurisdiction it does not have. The fact that the circuit court may sit in specialized divisions (Art. V, § 7, Fla. Const.) constitutes no restriction or limitation on the jurisdiction of the circuit court (Art. V, § 5(b), Fla. Const.). The circuit court has jurisdiction over both cases filed in the “adult criminal division” and cases filed in the “juvenile division” of the circuit court. The respondent circuit judge has the authority to exercise both aspects of this jurisdiction. It is specious to speak of prohibiting the adult criminal division of the circuit court from exercising jurisdiction when the real objective is to review the legal question of whether, in a particular case, a defendant has the special legal right to be prosecuted and sanctioned under juvenile law rather than under usual criminal law. This becomes apparent when, as in Robidoux v. Coker, 383 So.2d 719 (Fla. 4th DCA 1980), the reviewing court does not prohibit the court from acting without jurisdiction, but directs the circuit court to dismiss counts in an indictment, while recognizing that the same court has jurisdiction over the same charges in the form of a delinquency petition. Neither Robi-doux nor any of the other cases cited in the majority opinion actually addresses the propriety of this misuse of the remedy of prohibition. All of the cases are concerned only with the substantive question of whether the juvenile is or is not entitled to be prosecuted as a juvenile rather than as an adult. That others are doing it is a bad argument for doing anything; even worse is to adopt the actions of others as precedent when the propriety of the action was not deliberated.

Article V, section 4(b)(1) of the Florida Constitution provides that the jurisdiction of the district courts of appeal to review interlocutory orders is as provided by rules adopted by the supreme court. The supreme court has provided for the review of a limited number of non-final orders in Florida Rule of Appellate Procedure 9.130(a)(3). Each decision of a district court of appeal to liberally use an extraordinary original remedy to -review a non-final, non-appealable order constitutes a policy decision by the district courts of appeal that such order needs speedy interlocutory review. For constitutional propriety and uniformity, such policy decisions should be made by the Florida Supreme Court by considering amendments to the rule authorizing appeals of non-final orders. This case is but another example of the greater problem. See the dissent in Bates v. Keating, 396 So.2d 1172 (Fla. 5th DCA 1981), and the special concurrence in Paine, Webber, Jackson & Curtis, Inc. v. Lucas, 411 So.2d 1369 (Fla. 5th DCA 1982). This court has dismissed appeals from juvenile waiver orders, holding that these are not final orders and, further, that the supreme court has not empowered district courts of appeal to consider these to be appealable non-final orders. E.g., R.J.B. v. State, 394 So.2d 126 (Fla. 5th DCA 1980); accord, Townsend v. State, 398 So.2d 829 (Fla. 5th DCA 1980). The supreme court specifically approved these holdings, R.J.B. v. State, 408 So.2d 1048 (Fla.1982), declaring that the supreme court had the sole authority to decide which non-final orders would be appealable. The supreme court recognized that it had not authorized such appeals and refused to do so. Allowing a litigant to raise the propriety of a waiver order through prohibition, or any other extraordinary writ, is effectually circumventing the supreme court’s clear position on the issue. The petition for prohibition should be denied.

      . Section 39.04(2)(e)(4), Florida Statutes (1979):
      (e) The State Attorney may:
      (4) With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of the child, the case shall be transferred for adjudicatory proceedings as a child pursuant to § 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony.
      The statute has since been amended to permit the juvenile to request transfer to the juvenile division only when he is charged with a misdemeanor, but the amended statute does not apply here.

      . § 39.071, Florida Statutes (1979):
      Right to counsel. — A child shall be entitled to representation by legal counsel at all stages of any proceedings under this part. If the child and his parents or other legal custodians are insolvent and are unable to employ counsel for the child, or if the parents of an insolvent child are solvent but refuse to employ counsel, the court shall appoint counsel for him pursuant to § 27.52 and § 27.56. If a child appears without counsel, the court shall advise him of his rights with respect to representation of court-appointed counsel.

      . Fla.R.Juv.P. 8.290(d) (1979):
      Waiver of Counsel.
      (1) The failure of a child to request appointment of counsel or his announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any stage of the proceedings.
      (2) A child shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the child’s comprehension of that offer and his capacity to make that choice intelligently and understanding^ has been made.
      (3) No waiver shall be accepted where it appears that the child is unable to make an intelligent and understanding choice because of his mental condition, age, education, experience, the nature or complexity of the case, or other factors.
      (4) A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than two attesting witnesses. Said witnesses shall attest the voluntary execution thereof.
      (5) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the child appears without counsel.


author: SHIVERS, Judge.

text:
    Thomas Brett HOUCK, Appellant, v. STATE of Florida, Appellee.
    No. YY-193.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.

      Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Houck appeals from his conviction for possession of more than twenty grams of marijuana with intent to sell. He questions several aspects of the pretrial hearing held on his motion to suppress certain of his extrajudicial statements as being obtained involuntarily. We reverse and remand for a new trial including a de novo determination of the voluntariness of appellant’s extrajudicial statements.

Franklin County Sheriff Jack Taylor, Jr. saw Houck at the Franklin County Courthouse on November 1, 1979, and knowing that appellant had failed to appear on an unrelated grand theft charge, arrested him. Sheriff Taylor took appellant to the sheriff’s department and began to discuss a recent marijuana shipment with him. It is disputed whether appellant was read his Miranda rights. Houck advised Sheriff Taylor that he knew all about the marijuana, which was brought in on the shrimp boat “Fancy Free”, since he had captained the boat and helped unload it. Furthermore, appellant told Sheriff Taylor he would cooperate in the investigation of the incident and help recover the marijuana.

The appellant and Sheriff Taylor offer differing versions of the discussion which transpired in Sheriff Taylor’s office. Houck testified that he was questioned by Sheriff Taylor in the presence of Mr. Elzie, an assistant state attorney in Franklin County, and that Taylor and Elzie threatened him with twenty-five years imprisonment on the grand theft charges if he did not admit involvement in the “Fancy Free” case. Appellant claims he was told that his fingerprints had been found on the “Fancy Free” but that he would not be charged in federal or state court with his involvement in the “Fancy Free” case if he cooperated. Houck believed at the time that Mr. Elzie, a lawyer, was operating in his behalf. Although he was later given a court-appointed attorney, Houck testified that the attorney did not advise him to seek immunity for his statements or formalize a plea agreement. A formal written statement given by Houck states that it would not be used against him at trial, but Houck testified that he believed the same to be true of all his statements. Sheriff Taylor, on the other hand, testified that he did not threaten, coerce or make any promises to appellant other than to speak with the prosecutors on appellant’s behalf.

Following the discussion in Sheriff Taylor’s office, the case was assigned to Sergeant Williams, a member of the Big Bend Task Force. Over the next several months appellant cooperated with law enforcement authorities in their attempt to recover the marijuana which had been transported on the “Fancy Free”. On one occasion, Houck acted as a confidential informant, wearing a body bug when he went to the house of one of his co-defendants about the marijuana. During this period of time when appellant was cooperating with authorities, he made many statements to law enforcement officers implicating himself in the “Fancy Free” marijuana shipment. Houck even initiated many of these statements, telephoning Sergeant Williams on several occasions to give him more details about the “Fancy Free”. At trial, however, Sergeant Williams admitted that when he first spoke to appellant concerning the “Fancy Free” he told him that he would see to it that appellant got maximum jail time on the grand theft charge unless he cooperated.

After being charged for possession of marijuana in connection with the “Fancy Free” incident, appellant moved to suppress his extrajudicial statements and a hearing was held. At that hearing, after listening to appellant’s testimony concerning his initial discussion with Sheriff Taylor and Mr. Elzie, the trial court recessed the proceeding and went off the record. Upon returning, the court announced that during the recess a telephone call had been placed to Assistant State Attorney Elzie in Carra-belle, Florida. The court then stated on the record the substance of the conversation with Mr. Elzie. Mr. Elzie had, apparently, denied ever being in an interrogation session with the appellant. Defense counsel promptly objected to the consideration of unsworn testimony by the court. Later in the hearing the court and defense counsel discussed the veracity of Mr. Elzie and whether he might have been hedging during the telephone conversation. This discussion concluded with the court stating on the record “I have no reason to doubt Mr. Elzie was telling the truth.”

The court eventually denied Houck’s motion to suppress. Appellant’s incriminating extrajudicial statements were admitted against him at trial, along with other evidence, and he was convicted and sentenced. Although Houck raises several points on appeal, only those relating to the trial court’s conduct of the suppression hearing merit discussion.

An unsworn witness is not competent to testify. Crockett v. Cassels, 95 Fla. 851, 116 So. 865 (1928). Section 90.605, Florida Statutes (1981), requires that “each witness shall declare that he will testify truthfully, by taking an oath or affirmation .... ” (emphasis added). The only exception made by this statute is for young children. Id. It is clear from the record that not only did the trial court solicit unsworn testimony by Assistant State Attorney El-zie, but also that this testimony was considered by the court. At one point the court stated. “The fact of the matter is Mr. Elzie can’t be telling the truth and Mr. Houck be telling the truth too.”

Furthermore, the trial court appeared to place the burden of proof on the issue of voluntariness on defendant. Before denying Houck’s motion to suppress the trial court stated, “I’m not persuaded that this statement was not freely and voluntarily given and I cannot say as a matter of law that it was not.” (emphasis added) This statement implies that the defendant had the burden to prove that his statements were not freely and voluntarily given, and this placement of the burden of proof is contrary to law. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Peterson v. State, 382 So.2d 701 (Fla.1980). The burden of proof must be on the prosecution to show that a defendant’s extrajudicial statements are voluntarily made, and a finding of voluntariness must be made by the trial court and appear on the record with unmistakable clarity. Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967).

In light of the foregoing, we find it unnecessary to reach appellant’s further contention that the trial court did not decide the voluntariness issue at all since the court stated that the issue would be left for the jury.

Appellant’s conviction and sentence are REVERSED, and this cause REMANDED for a new trial including proceedings for a de novo determination of the voluntariness of appellant’s extrajudicial statements.

ROBERT P. SMITH, Jr., C.J., and THOMPSON, J., concur.

      . Appellant contends that the trial court’s finding of voluntariness does not appear on this record with unmistakable clarity as required by McDole v. State, 283 So.2d 553 (Fla.1973). We note that the strict requirement of McDole that an express finding must appear on the record has been modified. Antone v. State, 382 So.2d 1205 (Fla.1980), holds that due process is not offended when the issue of voluntariness is specifically before the judge and he determines that the statements are admissible without using the magic word “voluntary”. Id. at 1213. It is still true, however, that “[ijdeally, the trial judge should specify his conclusions concerning the voluntariness of a disputed confession or inculpatory statement.” Id. at 1212-1213.

      . It is not error for a trial judge to rule on the voluntariness issue and then instruct the jury on voluntariness. A jury may still find a confession to be involuntary and disregard it, despite a judge’s finding that it was voluntary. Sims, supra; McDole, supra. If, however, a trial judge allowed the jury to make the primary determination of voluntariness, it would be reversible error. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).


text:
    Danny L. SOKOL, Appellant, v. STATE of Florida, Appellee.
    No. 81-2619.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1982.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Although appellant raised three points on appeal, only one has merit. The trial court incorrectly assessed court costs against appellant. That portion of the judgment ordering appellant to pay $1,987.00 is stricken because appellant was insolvent at the time of sentencing. Ortiz v. State, 420 So.2d 923 (Fla.2d DCA 1982); Brown v. State, 400 So.2d 510 (Fla.2d DCA 1981); Engle v. State, 407 So.2d 641 (Fla.2d DCA 1981). Otherwise, we affirm the judgment and sentence.

OTT, C.J., and HOBSON and SCHEB, JJ., concur.


text:
    Michael WOHL, Appellant, v. Lawrence MORTON, et al., Appellees.
    No. 81-1920.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Robert J. O’Toole, Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Robert L. Floyd, Sparber, She-vin, Rosen, Shapo & Heilbronner and Robert L. Shevin and Jeffrey M. Weissman, Miami, for appellees.
    Before BARKDULL and SCHWARTZ, JJ., and KAPNER, LEWIS, Associate Judge.
   PER CURIAM.

Affirmed. McAllister Hotel, Inc. v. Porte, 98 So.2d 781 (Fla.1957); Keyes Co. v. Moscarella, 223 So.2d 83 (Fla. 3d DCA 1969); cf. Royal Netherlands Realty, Inc. v. Ross, 421 So.2d 642 (Fla. 3d DCA 1982).


text:
    Thomas D. O’MALLEY, Mary O’Malley and Timothy P. O’Malley, Appellants, v. Monica WIREN and the Travelers Insurance Company, a foreign corporation; and Crawford and Company, a foreign corporation, Appellees.
    No. 82-789.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    John R. Sutton, Miami, for appellants.
    Adams, Ward, Hunter, Angones & Adams, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Cycle Dealers Insurance, Inc. v. Bankers Insurance Company, 394 So.2d 1123 (Fla. 5th DCA 1981).


text:
    Juan Carlos MOLINA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-887.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.

      Bennett H. Brummer, Public Defender and Frederick S. Robbins, Sp. Asst. Public Defender,' for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Norman v. State, 379 So.2d 643 (Fla.1980); Cavalluzzi v. State, 409 So.2d 1108 (Fla. 3d DCA 1982); State v. Mosier, 392 So.2d 602 (Fla.3d DCA 1981); State v. Goodley, 381 So.2d 1180 (Fla.3d DCA 1980).


text:
    FRIENDLY TREE SERVICE, INC., a Florida corporation, Appellant, v. MALVOLIO N.V., INC. d/b/a the Square at Key Biscayne, a Florida corporation, Appellee.
    No. 82-1311.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Rash, Katzen, Kay & Pintado and Howard Kay, South Miami, for appellant.
    Goethel and Garcia-Vidal and David A. Donet, Coral Gables, for appellee.
    Before BARKDULL and SCHWARTZ, JJ., and KAPNER, LEWIS, Associate Judge.
   PER CURIAM.

Affirmed. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Brandt v. Dolman, 421 So.2d 689 (Fla. 4th DCA 1982); Martin v. Pattison, 144 So.2d 66 (Fla.3d DCA 1962).


text:
    Willie Ray RICHARDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2250.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Willie Ray Richardson, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Claude SIMMONS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2256.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Claude Simmons, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The appellant seeks review of a summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850. We agree with the trial court’s determination that the allegations of the motion are legally insufficient to support the relief sought. Bohn v. State, 354 So.2d 1233, 1234 (Fla.3d DCA 1978), and cases cited.

Affirmed.


text:
    INTERNATIONAL STUDIO APARTMENT ASSOCIATION, INC., and Royal Coast Condominium Association, Inc., Florida corporations not for profit, Appellants, v. Robert E. LOCKWOOD, etc., et al., Appellees.
    No. 81-1998.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 1982.
    Rod Tennyson and David St. John of Powell, Tennyson & St. John, P.A., West Palm Beach, for appellants.
    Harry A. Stewart, Gen. Counsel, and Alexander Cocalis, Deputy Gen. Counsel, for Broward County, Fort Lauderdale, for ap-pellees.
    Charles F. Schoech, County Atty., and David M. Wolpin, Asst. Cotínty Atty., West Palm Beach, for Palm Beach County as amicus curiae.
   HERSEY, Judge.

Appellant non-profit corporations filed a class action suit against Broward County and the Clerk of the Circuit Court of the Seventeenth Judicial Circuit. The gravamen of their complaint was that litigants who had deposited money in the registry of the circuit court were entitled, upon prevailing in the litigation which occasioned that deposit, to be paid the interest which had accrued on the deposit while the litigation was pending. This appeal was brought from an order dismissing with prejudice an amended complaint requesting that relief.

The initial deposits in the registry of the court by members of the class were apparently made in accordance with Section 718.-401(4), Florida Statutes (1977), since the related litigation arose out of disputes involving condominium recreation area leases. The statute permitted members of the class to pay rent due under such leases into the registry of the court pending resolution of the dispute and prevented the lessor from taking action to dispossess or otherwise penalize defaulting tenant/class members provided rent payments were timely paid into the registry.

Another statute, Section 28.33, Florida Statutes (1977), authorized the clerk of the circuit court to invest funds deposited into the registry of the courts and provided that interest earned in this fashion would be deemed income of the office of the clerk of the circuit court. This latter statute was tested and declared constitutional by the Florida Supreme Court in Beckwith v. Webb’s Fabulous Pharmacies, Inc., 374 So.2d 951 (Fla.1979). Thereafter, however, in Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980), that aspect of the statute which permitted the clerk to retain the income earned on deposited funds was declared unconstitutional. On remand the Florida Supreme Court further declared unconstitutional the portion of the statute authorizing the clerk to invest deposited funds. Beckwith, 394 So.2d 1009 (Fla.1981).

The present suit was brought to test whether the holding of unconstitutionality in Webb’s, 449 U.S. at 164-65, 101 S.Ct. at 452, would be applied retrospectively, to permit appellants to recover interest accrued during the pendency of the recreation area lease litigation, or prospectively only. The trial court determined that the holding should have only prospective effect. We agree.

The general rule is that judicial decisions in the area of civil litigation have retrospective as well as prospective application, subject to a well established exception which our supreme court carefully analyzed in Florida Forest and Park Service v. Strickland, 154 Fla. 472, 18 So.2d 251 (1944).

[Wjhere a statute has received a given construction by a court of supreme jurisdiction and property or contract rights have been acquired under and in accordance with such construction, such rights should not be destroyed by giving to a subsequent overruling decision a retrospective operation. See 14 Am.Jur. p. 345, Sec. 130; 21 C.J.S., Courts, p. 329, § 194, subsec. b. Based upon a recognition of this commonsense exception to the rule, some of the courts have gone so far as to adopt the view that the rights, positions, and courses of action of parties who have acted in conformity with, and in reliance upon, the construction given by a court of final decision to a statute should not be impaired or abridged by reason of a change in judicial construction of the same statute made by a subsequent decision of the same court overruling its former decision. Accordingly, such courts have given to such overruling decisions a prospective operation only, in the same manner as though the new construction had been added to the statute by legislative amendment.

Id. at 253.

From 1973 until 1980 parties litigant deposited funds in the registry of Florida courts and the clerks invested those funds and disposed of investment income in reliance on the statute which, in 1979, was stamped with the imprimatur of the Supreme Court of Florida. Had the 1980 decision declaring the statute unconstitutional emanated from the Florida Supreme Court rather than the Supreme Court of the United States, it would have qualified as an “overruling decision” and the exception permitting prospective operation only would have applied. Certainly the public policy considerations which created the impetus for the establishment of the “prospective operation only” exception in the first instance apply with no less compelling force where the “court of supreme jurisdiction” takes its authority from the federal rather than a state constitution. In view of the fact that neither the Supreme Court of the United States nor the Florida Supreme Court specifically addressed the issue, we conclude that in the absence of a superior and compelling federal principle, the “prospective operation only” exception should be applied in situations such as those represented by the present case.

Further, there is at least a hint in the Florida Supreme Court’s earlier decision upholding the constitutionality of the statute that at least that court (Florida Supreme Court) would apply such a ruling only prospectively. The trial court in Webb’s invalidated the statute. Upon direct appeal the Florida Supreme Court reversed the trial court and upheld the statute. Interestingly, in doing so, the court specifically ruled that its decision would “apply in this ease and in all cases where deposits of funds are made after the effective date of this opinion.” In other words the ruling was given prospective effect only. Although no reasons were given for doing so, it seems apparent that the court was concerned that others may have relied on the trial court ruling invalidating the statute. Surely, if persons who have relied on the invalidity of a state statute are to be protected, it would make no sense to afford less protection to those who have acted in good faith reliance on the validity of the statute.

Turning then to an examination of the federal precedent, Chevron Oil Company v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971), promulgated a three phase test which is applied to determine whether a decision should have retroactive effect. Formulating that test the court stated:

First, the decision to be applied nonretro-actively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see e.g., Hanover Shoe, Inc. v. United Show Machinery Corp., supra, 392 U.S., [481] at 496, 88 S.Ct., [2224] at 2233, [20 L.Ed.2d 1231] or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, supra, 393 U.S., [544] at 572, 89 S.Ct., [817] at 835 [22 L.Ed.2d 1]. Second, it has been stressed that “we must * * * weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Linkletter v. Walker, supra, 381 U.S., [618] at 629, 85 S.Ct., [1731] at 1738 [14 L.Ed.2d 601], Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Cipriano v. City of Houma, supra, 395 U.S., [701] at 706, 89 S.Ct. [1897] at 1900 [23 L.Ed.2d 647].

Id. 404 U.S. at 106-07, 92 S.Ct. at 355-356. It is important to note that all three tests must be met. Valencia v. Anderson Brothers Ford, 617 F.2d 1278 (7th Cir.1980); N.L.R.B. v. Lyon & Ryan Ford, Inc., 647 F.2d 745 (7th Cir.1981). In refining the first factor, the supreme court noted the difficulty of reconciling the constitutional interests reflected in a new rule of law with reliance interests founded in the old. Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973). According to the court,

We have approved nonretroactive relief in civil litigation, relating, for example, to the validity of municipal financing founded upon electoral procedures later declared unconstitutional, Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), and City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); or to the validity of elections for local officials held under possibly discriminatory voting laws, Allen v. States Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). In each of these cases, the common request was that we should reach back to disturb or to attach legal consequence to patterns of conduct premised either on unlawful statutes or on a different understanding of the controlling [sic: effect?] of judge-made law from the rule that ultimately prevailed.

Id. 411 U.S. at 197-198, 93 S.Ct. at 1467-1468.

The court then stated, “statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct. This fact of legal life underpins our modern decisions recognizing the doctrine of nonretroactivity.” Id. at 199, 93 S.Ct. at 1468.

In the instant case, the litigants, particularly appellees, relied upon section 28.33 without question. Thus, the unconstitutionality of the statute was an issue of first impression (in Webb’s Fabulous Pharmacies ) whose resolution was not clearly foreshadowed. More specifically, the clerk of the circuit court in this case, pursuant to section 28.33, invested the funds deposited by litigants into the court registry and, in reliance on section 28.33, retained the interest earned, using it for the operation of his office and turning over any balance to the Board of County Commissioners.

In our view retrospective operation of Webb’s Fabulous Pharmacies will neither further nor retard the rule (constitutional protection against deprivation of property without due process), so that the second factor in the Chevron test is similarly satisfied. As stated in Lemon, 411 U.S. at 201-02, 93 S.Ct. at 1469-1470, which dealt with the question of retroactive application of a decision holding a statutory program to reimburse nonpublic sectarian schools for certain secular educational services unconstitutional:

The sensitive values of the Religion Clauses do not readily lend themselves to quantification but, despite the inescapable imprecision, we think it clear that the proposed distribution of state funds to Pennsylvania’s nonpublic sectarian schools will not substantially undermine the constitutional interests at stake in Lemon I.. ..
... Second, there is the question of impinging on the Religion Clauses from the fact of any payment that provides any state assistance or aid to sectarian schools — the issue we did not reach in Lemon I. Yet even assuming a cognizable constitutional interest in barring any state payments, under the District Court holding that interest is implicated only once under special circumstances that will not recur.

Here, as in Lemon, even if for the sake of argument a taking is assumed, the constitutional interest is implicated only once and under circumstances that will not recur, the statute having been effectively eliminated. In determining whether nonretroactive application of Webb’s will undermine the constitutional interest at stake, it is important to consider the exact nature of that constitutional interest in relation to the present case. First, appellants apparently never questioned the constitutionality of section 28.33 either at the time the funds were deposited in the court registry, during the pendency of the claim, or when they were ultimately determined to be the owners of the principal deposited. Thus, appellants did not evidence a belief that any constitutional rights were being violated, as did the parties in Webb’s. Further, had the clerk not invested the funds pursuant to the statute, there would have been no interest earned and therefore no “property” subject to a “taking.” Accordingly, appellants are in the same position they would have been in had the statute not been in existence— without interest on the deposited funds— thus retrospective operation of Webb’s has no measurable effect on the constitutional interest in question.

Lastly, if applied retroactively, Webb’s could preclude injustice and hardship on the clerk and county by mandating the return of monies long since expended. In this regard this case is strikingly similar to the circumstances present in Gulesian v. Dade County School Board, 281 So.2d 325 (Fla.1973), wherein the court refused to order a refund of taxes collected in good faith by the school board under a presumptively valid state statute which was subsequently judicially invalidated. Appellants, on the other hand, are now in the same position as if the statute had never been in operation. Thus, even though retention of the interest earned was characterized as a taking in Webb’s, appellants suffer no hardship or injustice since they have the principal, the amount to which they were entitled both before and after operation of the statute.

Concluding, we point out that neither the Florida Supreme Court nor the Supreme Court of the United States spoke to the issue of whether the unconstitutionality of section 28.33 was to be given retroactive effect. Application of the analagous Florida rule and the specific federal rule each produces the identical result. Based upon the principles derived from both federal and Florida precedent we affirm the order dismissing appellants’ amended complaint with prejudice.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.