author: HERSEY, Judge. DOWNEY, Judge,

text:
    Jaime CORDOBA, Appellant, v. Sandra CORDOBA, Appellee.
    No. 79-162.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    Rehearing Denied Feb. 25, 1981.

      Nancy Little Hoffman, Fort Lauderdale, and Jeffrey P. Wasserman, of Litman, Mu-chnick & Wasserman, Hollywood, for appellant.
    Tobias Simon, Miami, for appellee.
   HERSEY, Judge.

This is an interlocutory appeal by the defendant from an order denying a motion to quash and dismiss for lack of jurisdiction.

The parties were formerly married and in March of 1977 the wife filed a four-count complaint against the husband in Circuit Court in Broward County, Florida.

Count I complained of the husband’s removal of the minor child from the State of Wyoming contrary to a Wyoming custody order and demanded compensatory and punitive damages for an intentional tort; to-wit, the intentional infliction of emotional distress. This count required in personam jurisdiction.

The remaining counts were in the nature of in rem or quasi in rem jurisdiction. Count II sought to invalidate a mortgage on real property in Broward County which was owned by the parties as tenants in common and the mortgagee was joined as a party defendant. Count III claimed a special equity in the husband’s share in the Broward County property and in the alternative sought to obtain the husband’s share as lump sum alimony. Count IV requested partition of the property as an alternative to the relief requested under Count III.

Jurisdiction was acquired by constructive service by publication against the husband who was not a resident of the State of Florida. Husband who was not personally served moved to dismiss the complaint for lack of jurisdiction of the parties and the subject matter.

The trial court granted the motion as to Count I and denied it as to Counts II, III, and IV. In a prior interlocutory appeal this Court affirmed without opinion. Cordoba v. Cordoba, 356 So.2d 393 (Fla. 4th DCA 1978).

The trial court subsequently granted a motion for summary final judgment in favor of the wife on Count II and proceeded to trial on the remaining Counts III and IV. After trial on the merits in which the defendant appeared, judgment was rendered in favor of wife. A separate consolidated appeal from the summary final judgment (as to Count II) and the final judgment (as to Counts III and IV) is presently pending before this Court.

While in attendance at the trial of Counts III and IV, the husband was served with an alias summons, attached to which was a photostatic copy of the initial complaint containing the previously dismissed Count I. The husband moved to quash and to dismiss for lack of jurisdiction over the subject matter and person and to quash service of process. The trial court denied the motion to quash and to dismiss for lack of jurisdiction and the husband seeks review of the jurisdictional finding by interlocutory appeal. The issue is whether husband was immune from personal service of process regarding Count I (tortious infliction of mental distress) while attending the trial of the in rem counts. We hold the husband was immune and reverse.

Formerly, a question of jurisdiction over the person would have been raised by a special appearance. Modernization of the rules of civil procedure has resulted in elimination of such appearances and a party may now assert lack of jurisdiction in a responsive pleading or by motion. Rule 1.140, Florida Rules of Civil Procedure.

The case of Rorick v. Chancey, 130 Fla. 442, 178 So. 112 (1937), established the rule that non-residents who voluntarily come into the jurisdiction to attend court as parties or witnesses, or in some other capacity related to the necessities of pending litigation, are immune from service of process during the period of their attendance. An exception to this rule exists where the process is issued in litigation incidental to or correlated with the subject matter of the proceeding during attendance upon which the non-resident is served. In such situations immunity from service has been denied. State ex rel. Ivey v. Circuit Court of the Eleventh Judicial Circuit, 51 So.2d 792 (Fla.1951). Our Supreme Court refined this concept in Lienard v. DeWitt, 153 So.2d 302 (Fla.1963), holding that the exception to the immunity rule would be applied where there is an identity of parties and subject matter. The Court rejected an additional requirement of substantial identity of result.

The history and rationale of the rule granting immunity from service of process are considered at length at 72 C.J.S. Process § 80. Suffice it to say that the basic reason for the rule is to aid in the orderly administration of justice. It is important to that process that any person having knowledge of the facts in issue before the court be motivated to appear and to make those facts known. The possibility of being served with process while so involved might well deter witnesses or parties from coming forward.

The possibility of conflict looms whenever it is alleged that the court has in rem or quasi in rem jurisdiction and a party appears to protect his interests and is then served with process in an attempt to establish in personam jurisdiction. Here we hold there was no subject matter identity between Count I and the remaining counts. Thus the rule of immunity applied and the exception noted in Lienard v. DeWitt, supra, was not called into play.

There would appear to be two points of departure between the majority opinion and Judge Downey’s well-written and thoughtful dissent which we here note.

First the dissent concludes that we have here identity of parties and of legal issues. The identity of parties element is undeniably present. Identity of legal issues is not. Count I raises legal issues sounding in tort involving the intentional infliction of emotional distress. The remaining counts pertain to an encumbrance upon and appellee’s entitlement to an interest in real property. There are simply no points of similarity between the respective legal issues. The mere fact that all of the causes of action arose out of the shambles of a marital relationship does not, in the opinion of the majority, supply the identity which is essential to the point-of-view taken by the dissent. This lack of identity, alone, would seem to be sufficient to refute the contention that the exception to the immunity rule applies.

The dissent, however, goes one step further and announces an additional distinguishing feature: The immunity rule does not apply, maintains the dissent, to suitors in the very cause for which they have entered the jurisdiction. If this were the sum and substance of the rule then the dissent would become the majority opinion. We suggest, however, that a more correct statement is that the immunity rule does not apply to suitors in the very cause for which they have entered the jurisdiction where there exists identity of parties and legal issues. The dissent disposes of appellants’ reliance on Murphy & Jordan, Inc. v. Insurance Company of North America, 278 So.2d 296 (Fla.3d DCA 1973), by pointing out that in that case there was no identity of parties. So perhaps the dissent concedes that even where process issues in the same cause there must be identity of the parties to invoke the exception. What remains, then, is whether there must also be identity of legal issues. We read Lienard v. DeWitt (supra) as answering this question in the affirmative. If the rule were different then a party finding a non-resident defendant’s vacant lot in Florida could commence litigation here joining as many causes of action as he might have against that defendant in a multi-count complaint and eventually perfect service as the appellee attempted to do in this case. The other side of the coin would be that if the dissent became the law of Florida the non-resident defendant might well decide that he could not afford to subject himself to liability on the other counts or the expense of litigating in a foreign state so that he would not make himself available to litigate the in rem count. Thus the fact-finding process would be stalled, the judicial process would not be well-served and, in fact, the plaintiff might well pirate the vacant lot by summary final judgment against his absent and silent adversary.

For these reasons we think that the rule of immunity rather than the exception is more appropriate under these circumstances.

Applying this rule to the case at bar, we reverse and remand with instructions to grant the motion to quash service of process and to dismiss Count I for lack of jurisdiction over the person of appellant.

REVERSED AND REMANDED.

BERANEK, J., concurs.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting:

Jaime Cordoba appeared as a witness in his own behalf in the Circuit Court of Bro-ward County to defend against his erstwhile wife’s claims, which arose out of their marital relationship. Specifically, the claims were for: alimony, special equity in jointly held property, and removal of an encumbrance placed on the property by the ex-husband. Jurisdiction to adjudicate those claims (contained in Counts II, III, and IV of the wife’s complaint) was acquired by constructive service of process. The cause of action contained in Count I being an in personam cause of action required personal service of process upon the defendant. However, the claim contained therein arose out of the domestic relationship between the parties, i. e., the custody of one of their children. Therefore, it appears to me the claim contained in Count I was incidental to or correlated with the subject matter of the remainder of the proceeding and thus the exception applies rather than the rule relied upon by the majority-

Some background is helpful to an understanding of the problem presented. Jaime is a resident of Colombia, South America. The parties resided for a time in Broward County, where they purchased some property and commenced building a home thereon. Marital difficulties occurred and Sandra returned to her former home in Wyoming, where she instituted divorce proceedings. Jaime never appeared nor was he personally served in that proceeding which resulted in Sandra’s obtaining a divorce and custody of Amanda, the youngest child of the parties. No alimony or support questions were adjudicated in the Wyoming proceeding, because of lack of jurisdiction. The Wyoming court had given Sandra temporary custody of Amanda and enjoined her removal from Wyoming. The complaint in question alleges that Jaime “abducted the child Amanda from her place of residence in Wyoming, and where she was in the custody of her mother, and carried her off to Cali, Colombia.” The complaint further alleges that the day before Jaime “abducted” Amanda in Wyoming without Sandra’s signature or permission a mortgage for $300,000 was placed upon the home property in Broward County.

In view of the foregoing, Sandra instituted this litigation in Broward County seeking in Count I damages for Jaime’s tortious infliction of emotional distress on Sandra by abducting the child in her custody; in Count II a removal of the above mentioned mortgage on the home property; in Count III a special equity or lump sum alimony in the home property; and Count IV alternatively, partition.

Jaime’s motion to dismiss the complaint for lack of jurisdiction was granted as to Count I and denied as to the other Counts. On appeal by Jaime this court affirmed that order as to Counts II, III, and IV. Cordoba v. Cordoba, 356 So.2d 393 (Fla. 4th DCA 1978). The matter then proceeded in the trial court and Jaime appeared personally to defend against Sandra’s claims to clear the title to their property and for alimony. Whereupon, Sandra had Jaime served with a summons and copy of the complaint so as to obtain personal jurisdiction over him visa-vis Count I of the complaint.

There is no question that the rule discussed in the majority opinion precludes serving process upon a nonresident witness or party who enters the jurisdiction to attend pending litigation. However, the exception, just as fixed in our jurisprudence, provides that: “where the process was issued in litigation incidental to or correlated with the subject matter of the proceedings during attendance upon which the non-resident suitor was served” immunity from service is denied. State ex rel. Ivey v. Circuit Court of Eleventh Judicial Circuit, 51 So.2d 792, 793-794 (Fla.1951).

In the Ivey case the pending litigation involved the probate of the estate of Mary Adams Canfield. Ivey, a nonresident, was the executor and a beneficiary. Jan and William Simpson filed a petition in the probate proceedings to set aside the will being offered for probate upon the ground that it had been procured by undue influence practiced by Ivey. Ivey appeared and testified at the hearing upon said petition to set aside the will. Immediately after the hearing Ivey and his wife were served with process issued out of the Circuit Court of Dade County in a suit filed by the Simpsons for declaratory decree against Ivey and others. This suit alleged that Mary Adams Canfield and her husband had agreed to and did execute reciprocal wills devising their respective estates to the survivor and further agreeing that the surviving spouse would devise his or her remaining estate in trust for the Simpsons. Ivey’s motion to dismiss the Simpsons’ suit for declaratory decree as to Ivey on the ground Ivey was immune from process under the aforementioned rule was denied. In reviewing that order the supreme court held that this case fell within the exception to the rule immunizing nonresident suitors and witnesses from service of process. In justifying application of the exception the court said:

The correlation between the two proceedings here involved is immediately apparent, from what has been said before. The parties are the same, and they both involve the testamentary disposition of her estate by Mrs. Canfield. We think that the facts in the instant case bring it well within the exception to the rule.
Moreover, it is admitted that Richard B. Ivey is actively defending both suits in his capacity as Executor; and we do not think he can be heard to say that he is immune from the process of our courts while he is, at the same time, invoking the service of our courts. 51 So.2d at 794.

The difference between the majority and me is whether the exception applies. Application of the exception requires identity of parties and of legal issues, both of which we have in this case. In fact, the summons involved issued out of the very same litigation at which Jaime was in attendance.

The rule as to immunity from service of process does not apply to process issued to suitors or witnesses in the very cause for which they have entered the jurisdiction. 72 C.J.S. Process, § 80a(S), p. 1115. In an apparent attempt to avoid the foregoing principle appellant asserts that: “Even where the second process is issued in the same lawsuit, the exception to the immunity rule does not apply unless there is complete identity of parties and issues.” Appellant cites Murphy & Jordan, Inc. v. Insurance Company of North America, 278 So.2d 296 (Fla.3d DCA 1973), to support that position. I believe appellant’s argument is unavailing for the following reason.

In the Murphy & Jordan case, INA had filed suit against three Murphy & Jordan corporations and against Messrs. Murphy and Jordan personally. Two of the corporations and the two individuals were nonresidents. The plaintiff noticed Mr. Murphy, as president of the Florida corporation, and Mr. Jordan, as secretary of the Florida corporation, for deposition. When they appeared, pursuant to the notices of depositions, INA had each man served personally. In addition it served the two foreign corporations by serving Mr. Murphy in his capacity as secretary of the foreign corporations. The two individuals and the two corporations filed a single motion to quash all process and service of process on the ground of immunity, and the trial court denied the motion. The district court of appeal reversed the order upon a holding that there were insufficient grounds to invoke the exception to the immunity rule. Specifically, the court held the identity of parties element was missing, since Messrs. Murphy and Jordan were to be deposed as officers of the Florida corporation. At no point in the opinion did the court hold that the identity of issues element was not present, since it is clear that that element was present.

I conclude that the Murphy & Jordan case does not support appellant’s attempt to avoid the principle that suitors or witnesses are not immune to process in the cause for which they have entered the jurisdiction. Further, it seems to me that when, as is the case here, a nonresident party is served during the trial of one or more facets of a multi-faceted lawsuit involving that party, he should not, because of the public policy reasons underlying the grant of immunity, obtain immunity from service of process.

The Supreme Court of the United States set forth those public policy reasons in Lamb v. Schmitt, 285 U.S. 222, 225, 52 S.Ct. 317, 318, 76 L.Ed. 720 (1932), as follows:

The general rule that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit, are immune from service of process in another, is founded, not upon the convenience of the individuals, but of the court itself.
* * * # * *
As commonly stated and applied, it proceeds upon the ground that the due administration of justice requires that a court shall not permit interference with the progress of a cause pending before, by the service of process in other suits, which would prevent, or the fear of which might tend to discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation.
* * * * * *
It follows that the privilege should not be enlarged beyond the reason upon which it is founded, and that it should be extended or withheld only as judicial necessities require. (Emphasis added; citations omitted.)

The present case involves the service of process on a party to a single lawsuit. Therefore, that service of process could not interfere with the administration of justice; and the circuit court, by denying appellant’s motion to quash service of process, properly refused to enlarge the privilege beyond the reason upon which it is founded.

For the foregoing reasons, I would affirm the order under review.


source: Caselaw Access Project

author: HERSEY, Judge.

license: Public Domain

text:
    MARYLAND CASUALTY COMPANY, a Maryland Corporation, and United States Fidelity and Guaranty Company, Appellants, v. HANSON DREDGING, INC., a Florida Corporation, Appellee. WESTINGHOUSE CREDIT CORPORATION, Appellant, v. HANSON DREDGING, INC., a Florida Corporation, and Maryland Casualty Company, a Maryland Corporation, Appellees.
    Nos. 79-1543, 79-1544.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    Rehearing Denied March 3, 1981.
    James E. Foster of Fishback, Davis, Dominick & Bennett, Orlando, for appellant-Westinghouse Credit Corporation.
    Wynne M. Casteel, Jr., of Cabot, Wenkst-ern & Casteel, Fort Lauderdale, for appel-lee-Hanson Dredging, Inc.

      Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appel-lee/appellant-Maryland Casualty Company and appellant-United States Fidelity and Guaranty Company.
   HERSEY, Judge.

Hanson Dredging, Inc. purchased a bulldozer which ultimately was financed by Appellant, Westinghouse Credit Corporation, the latter acquiring a security interest in the chattel. The equipment was stolen and Appellee, Hanson, filed suit against its insurer, Maryland Casualty Company, another appellant here, to recover for the loss. Westinghouse was not a party to the action. Judgment was entered against Maryland Casualty Company and in favor of Hanson. On appeal, we affirmed that judgment. Maryland Casualty Co. v. Hanson Dredging, Inc., 367 So.2d 1141 (Fla. 4th DCA 1979). Maryland Casualty Company tendered a check in the appropriate amount in payment of the judgment rendered against it and in favor of appellee. Appellee rejected the tender as inappropriate because the tendered check was payable jointly to appellee and Appellant, Westinghouse, pursuant to a loss payable provision in the insurance policy. Appellee then filed a motion, which was granted by the trial court, to recover the amount of the judgment from United States Fidelity & Guaranty Company, the surety on the supersedeas bond which Maryland Casualty Company had filed in connection with its original appeal. Maryland Casualty Company then unsuccessfully attempted, by filing a motion for rehearing, to have the interest of Westinghouse included in the judgment.

At this point, Appellant, Westinghouse, moved to intervene to protect the interests which it claimed to have by virtue of the loss payable clause.

The trial court’s refusal to determine Westinghouse’s interest forms the basis for these consolidated appeals.

First, we conclude that the final judgment on the supersedeas bond correctly requires payment in accordance with the original final judgment, that is, to appellee only. A tender, to be effective, must be made to the proper person. 32 Fla.Jur., Tender §§ 4, 7 (1960 & Supp.1980); 86 C.J.S. Tender § 39 (1954 & Supp.1979). The check tendered to Hanson was worthless without the endorsement of Westinghouse. The judgment did not recognize any interest of Westinghouse. Therefore the tender was not sufficient to satisfy the terms of the judgment. It was nugatory. Thus, denial of the motion for rehearing was proper.

As to denial of the motion to intervene filed by Westinghouse, we begin our consideration with the following statement of law.

[Intervention involves an exercise of the chancellor’s discretion and his determination will not be disturbed unless error is clearly made to appear. (Citations omitted.)

Wogisch v. Tiger, 193 So.2d 187 (Fla. 4th DCA 1966). With particular reference to attempts to intervene in the latter stages of litigation, the Supreme Court of Florida has adopted the almost universal rule that intervention will not be allowed after final judgment. Dickinson v. Segal, 219 So.2d 435 (Fla.1969). The court referred to Wags Transportation System v. City of Miami Beach, 88 So.2d 751 (Fla.1956), a case establishing an exception where intervention was “in the interests of justice,” but declined “to extend it beyond the facts involved there.” Dickinson v. Segal, supra at 438.

More recently the Third District Court of Appeal has applied the general rule and refused to extend the exception. Wong v. von Wersebe, 365 So.2d 429 (Fla. 3rd DCA 1978).

We are strongly inclined to the view that adherence to the rule rather than the exception will produce the best result in the great majority of cases.

The record before us does not demonstrate an abuse of discretion nor is it demonstrated that injustice will result from denial of the motion to intervene.

Appellant, Maryland Casualty Company, had ample opportunity at earlier stages of the litigation to raise the issue of its possible liability to Appellant, Westinghouse, on the loss payable clause. It failed to do so. It could not then require appellee to accept a check in payment that did not comply with the final judgment. The argument that appellee will be unjustly enriched if this appellant is required to pay twice has some merit. For the reasons previously stated, however, this is not a sufficient basis for reversal, particularly where the unjust result postulated is due, at least in part, to appellant’s own inaction.

Appellant, Westinghouse, had a security interest in the chattel and in the proceeds from the sale of the chattel. It now has a security interest in the insurance proceeds. Insurance Management Corporation v. Cable Services of Florida, Inc., 359 So.2d 572 (Fla. 2d DCA 1978). It also has a security interest in other chattels of appellee as well as a cause of action on the underlying promissory note or other evidence of indebtedness. Under these circumstances it cannot be said that the ends of justice require that we find an abuse of the trial court’s discretion in denying the motion to intervene.

We therefore affirm.

AFFIRMED.

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


author: DANIEL S. PEARSON, Judge. HUBBART, Chief Judge

text:
    Clement Lemmon EDWARDS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1991.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 1981.

      Hersh & Bernstein, David F. Cerf, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   REVISED OPINION

DANIEL S. PEARSON, Judge.

We granted Edwards’ motion for rehearing. We withdraw our per curiam opinion filed August 12, 1980, and issue this revised opinion reversing the trial court’s summary denial of Edwards’ motion to vacate his 1977 convictions.

Edwards made two claims for relief below: first, that his plea of guilty to the charges of selling and possessing marijuana was involuntary in that the trial court failed to advise him at the plea proceeding of the possible collateral consequence of deportation; and second, that the failure of his retained counsel to advise him of this consequence rendered his counsel ineffective. Either failure, said Edwards, entitled him to the vacation of his conviction and underlying plea.

We first hold that it is not the responsibility of the trial court to advise a defendant of federal deportation consequences at the time of taking a guilty plea, and the trial court’s omission of this advice does not render the plea involuntary. Fruchtman v. Kenton, 531 F.2d 946 (9th Cir.1976); Michel v. United States, 507 F.2d 461 (2d Cir. 1974). Deportation is a collateral consequence of a plea, Fruchtman v. Kenton, supra, and it is consistently held that courts are not required to advise pleading defendants of collateral consequences. Michel v. United States, supra; Tindall v. United States, 469 F.2d 92 (5th Cir. 1972); Hutchison v. United States, 450 F.2d 930 (10th Cir. 1971); Ladner v. Henderson, 438 F.2d 638 (5th Cir. 1971).

But labelling the consequence as collateral does not diminish its significance. Indeed, the penalty of deportation has been recognized as often far more extreme than the direct consequences which may flow from a plea of guilty to an offense. Deportation has been said to be “the equivalent of banishment,” Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1947); “a savage penalty,” “a life sentence of exile,” Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (Jackson, J., dissenting); an event that results in “loss of property or life; or of all that makes life worthwhile,” Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed.2d 938 (1922). Because of “the grave nature of deportation,” the vagueness doctrine, against which the constitutionality of criminal statutes is tested, has been applied to deportation statutes. Jordan v. DeGeorge, supra. Thus, the consequence of deportation, collateral or not, can be matched in severity only by the prison sentence meted out. Our decision today is limited to the unique collateral consequence of deportation.

It is a lawyer’s duty to ascertain that his client’s plea of guilty is entered voluntarily and knowingly, that is, upon advice which enables the accused to make an informed, intelligent, and conscious choice to plead guilty or not. Edwards v. Estelle, 541 F.2d 1162 (5th Cir.), cert. denied, 430 U.S. 973, 97 S.Ct. 1662, 52 L.Ed.2d 367 (1976); Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). A waiver of constitutional rights to be acceptable must be made with sufficient awareness of the relevant circumstances and likely results. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Ignorance of the potential consequences of deportation cannot, in our view, make for an intelligent waiver. See United States v. Shapiro, 222 F.2d 836 (7th Cir. 1955) (where defendant entered a plea of guilty under the belief that he was a United States citizen and not subject to deportation, conviction would be set aside to prevent manifest injustice); People v. Giron, 11 Cal.3d 793, 114 Cal.Rptr. 596, 523 P.2d 636 (1974) (defendant’s lack of awareness of deportation consequences constituted good cause for vacating a plea); People v. Wiedersperg, 44 Cal.App.3d 550, 118 Cal.Rptr. 755 (1st Ct.App.1975) (where defendant was not apprised of deportation consequences, petition to set aside conviction on that ground stated a claim for relief). See also United States v. Briscoe, 432 F.2d 1351 (D.C.Cir.1970) (“Under appropriate circumstances the fact that a defendant has been misled as to consequences of deportability may render his guilty plea subject to attack ... ”). While we may not impose upon the trial court the obligation to advise the accused of this consequence because “collateral,” its “collateralness” is immaterial in measuring the effective assistance of counsel.

“Defense counsel is in a much better position to ascertain the personal circumstances of his client so as to determine what indirect consequences the guilty plea may trigger. Rule 11, in our view, was not intended to relieve counsel of his responsibilities to his client.” Michel v. United States, supra, 507 F.2d at 466.

The dissent sees some inconsistency in our holding on the one hand that the trial court’s failure to advise the defendant of possible deportation consequences does not render the plea involuntary, and on the other hand that counsel’s failure may. We do not see that placing the burden of advising the defendant on that person in the system most familiar with the background and status of the defendant, and the possibility or not of deportation, makes for inconsistency. Compare, e. g., Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (holding that the trial court is under no duty to inquire concerning conflicts in representation, notwithstanding that such conflicts might give rise to a claim of ineffective assistance of counsel). Even as Federal Rule of Criminal Procedure 11 was not intended to relieve counsel of his responsibilities to his client, Michel v. United States, supra, Florida Rule of Criminal Procedure 3.172 provides no immunity to counsel for his derelictions. Cf. Hall v. State, 316 So.2d 279 (Fla.1975) (holding that counsel are ethically bound to see that proper procedural steps are followed in accepting a guilty plea).

This brings us to the dissenter’s comment that it must be obvious to any alien defendant that deportation is a possible consequence, and therefore, advice to that effect is, as a matter of law, unnecessary. We think it could as well be said that it must be obvious to every American citizen that he has a right to plead not guilty and maintain his innocence, that he has a right to trial by jury, a right to confront witnesses against him — and yet our rules require, see, e. g., Florida Rule of Criminal Procedure 3.172, that these and other equally fundamental rights be diligently explained to every defendant before a plea of guilty waiving such rights is accepted. We simply do not indulge assumptions that even the most basic rights are known or understood, see, e. g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (“We will not pause to inquire in individual cases whether the defendant was aware of his rights, without a warning being given”); Montoya v. United States, 392 F.2d 731 (5th Cir. 1968) (“No amount of circumstantial evidence that the person may have been aware [of his rights] will suffice [in lieu of a warning].”), and we see no reason to indulge one in the present context. If upon remand it be shown that Edwards knew of the possible deportation consequence without advice, then so be it. We should not, however, assume the obviousness of this fact.

Thus, to the extent that the trial court summarily denied Edwards’ motion on the basis that the consequence of deportation could not, as a matter of law, affect the voluntariness of Edwards’ plea, or that such consequence was one which he is presumed to know, or that the failure to advise of this consequence could not give rise to a claim of ineffective counsel, the trial court was in error.

Lastly, since the trial court may have based its summary denial on the proposition that Edwards had no legal right to attack the competence of retained counsel, see, e. g., Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967), we point out that the fact that Edwards’ counsel was of his own choosing is no longer an impediment to relief. Cuyler v. Sullivan, supra; Blatch v. State, 389 So.2d 669 (Fla. 3d DCA 1980); Spencer v. State, 389 So.2d 652 (Fla. 1st DCA 1980); Presley v. State, 388 So.2d 1385 (Fla. 2d DCA 1980); Chambers v. State, 388 So.2d 1259 (Fla. 2d DCA 1980); State v. Dukes, 388 So.2d 651 (Fla. 2d DCA 1980).

Accordingly, we hold that Edwards’ motion to vacate his conviction and set aside his plea of guilty, insofar as it attacked the ineffectiveness of his retained counsel for failure to advise Edwards of the consequences of deportation, stated a legal ground for relief upon which Edwards is entitled to an evidentiary hearing. At that hearing it will, of course, be incumbent upon Edwards to establish that he was not advised by his counsel and was otherwise unaware of the consequence of deportation; that had he known of this consequence, he would not have entered the plea of guilty; and that such a consequence will actually flow from the conviction. The ineffectiveness of Edwards’ counsel is to be judged by the test announced in Meeks v. State, 382 So.2d 673 (Fla.1980), that is, “whether counsel was reasonably likely to render reasonably effective counsel based on the totality of circumstances.” 382 So.2d at 675. Notwithstanding that the Meeks test, only recently announced, is to be applied in the hearing to be hereafter held, we make clear that the trial court is to decide whether counsel’s performance would have been reasonably effective in 1977 when Edwards’ plea was entered. See Blatch v. State, supra.

Reversed and remanded.

HUBBART, Chief Judge

(dissenting).

I must respectfully dissent. I would affirm the order under review in all respects, as, in my view, the defendant Edwards’ motion to vacate fails to state a valid ground for collateral attack of his criminal conviction under Fla.R.Crim.P. 3.850.

A

At the outset, I entirely agree with the court that the failure of the trial court to advise the defendant concerning possible deportation consequences attendant upon a guilty plea does not render the defendant’s guilty plea involuntary. As the court correctly holds, the trial court has no responsibility to so advise an alien defendant as a predicate to accepting an otherwise voluntary guilty plea because deportation consequences are entirely collateral to the entry of an otherwise voluntary guilty plea. Fla. R.Crim.P. 3.172(c); Michel v. United States, 507 F.2d 461 (2d Cir. 1974). Neither the trial court nor any agency in this state is authorized to deport a defendant upon the entry of a guilty plea in our courts; only the federal government, through its agencies and courts, has such authority. Moreover, it is entirely discretionary with the federal government, as defense counsel herein concedes, as to whether any deportation proceedings will be brought against a given alien.

The practical effect of this holding, however, is canceled out by the court’s second holding herein. If the trial court, as here, fails to advise an alien defendant of possible deportation consequences attendant upon a guilty plea, the court holds that the conviction is nonetheless subject to collateral attack if defense counsel does not advise the defendant concerning the collateral consequences of a possible deportation. I fail to understand how these two holdings can stand together with any degree of consistency. Indeed, trial judges, notwithstanding the court’s technical holding to the contrary, would be well-advised by today’s decision to include in their standard guilty plea colloquy an inquiry as to whether the defendant is an alien, and if so, whether he has discussed with his counsel possible deportation consequences which may flow from the guilty plea. Failure to do so runs the risk that the conviction based on an otherwise voluntary guilty plea may be subject to collateral attack based on an ineffective assistance of counsel claim. I cannot agree with this result.

Admittedly, deportation consequences which may flow from the entry of a guilty plea are serious in nature, but then so are other collateral consequences attendant upon a guilty plea, such as loss of present employment, loss of a vast array of future employment opportunities, and loss of a host of civil rights. Actual knowledge of these collateral consequences by a defendant is simply not a prerequisite to the entry of an otherwise voluntary guilty plea. See Fla.R.Crim.P. 3.172(c). I fail, therefore, to understand why defense counsel is constitutionally compelled to advise the defendant as to any such collateral consequences, be it deportation or otherwise, when the defendant’s knowledge thereof cannot, in any event, affect the voluntariness of the guilty plea. It may be good lawyering, as the court suggests, for counsel to review such collateral consequences with his client, but not all preferred practice techniques rise to the level of a constitutional mandate. The defendant is only entitled to effective, not flawless assistance of counsel under our constitution. Meeks v. State, 382 So.2d 673, 675-76 (Fla.1980).

Moreover, it seems clear to me as a matter of common sense that a visitor in this country must be held to understand that he may be deported from the country if he commits a crime here. Surely, any reasonable person who is here by our sufferance understands this and cannot be heard to complain, as the defendant herein does, that he was ignorant of this simple truth. We follow the same rule of presumed knowledge as to all other collateral consequences attendant upon a guilty plea, and I frankly see no basis for invoking a special exception as to deportation consequences. The fact remains that an alien defendant may enter a voluntary guilty plea with effective assistance of counsel without advice by court or counsel concerning any collateral consequences which may be attendant upon the plea. United States v. Parrino, 212 F.2d 919 (2d Cir.), cert. denied, 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954).

B

Beyond that, I cannot agree that this defendant can be heard to attack the competency of his privately retained counsel, even if he had a valid complaint, as the court herein allows him to do. Such a holding is contrary to a long line of Florida decisions which have held that a criminal defendant is precluded from attacking the competency of his privately retained counsel as a ground for collateral attack of his criminal conviction under Fla.R.Crim.P. 3.850. Douglas v. State, 373 So.2d 895, 896 (Fla.1979); Cappetta v. Wainwright, 203 So. 609, 610 n.5 (Fla.1967), citing with approval, Everett v. State, 161 So.2d 714 (Fla. 3d DCA 1964); State v. Garmise, 382 So.2d 769, 772 (Fla. 3d DCA 1980); Farmer v. State, 366 So.2d 1271 (Fla. 4th DCA), cert. denied, 378 So.2d 344 (Fla.1979); O’Quinn v. State, 364 So.2d 775 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979); Capo v. State, 363 So.2d 410 (Fla. 1st DCA 1978); Crespo v. State, 339 So.2d 697 (Fla. 3d DCA 1976); Suarez v. State, 338 So.2d 546 (Fla. 3d DCA 1976); Belsky v. State, 231 So.2d 256 (Fla. 3d DCA 1970); Brown v. State, 223 So.2d 337 (Fla. 3d DCA), cert. denied, 229 So.2d 866 (Fla.1969), cert. denied, 397 U.S. 969, 90 S.Ct. 1009, 25 L.Ed.2d 262 (1970); Frizzell v. State, 213 So.2d 293 (Fla. 2d DCA 1968); Ford v. State, 210 So.2d 33 (Fla. 2d DCA 1968); Simpson v. State, 164 So.2d 224, 226 (Fla. 3d DCA), appeal dismissed, 169 So.2d 383 (Fla.1964). Until overruled by the Florida Supreme Court, I am not disposed to walk away from all these decisions as we do in this case. To the extent that Blatch v. State, 389 So.2d 669 (Fla. 3d DCA 1980); Spencer v. State, 389 So.2d 652 (Fla. 1st DCA 1980); Chambers v. State, 388 So.2d 1259 (Fla. 2d DCA 1980), reach a contrary conclusion, I would recede from Blatch and decline to follow Spencer and Chambers.

1

I am frank to acknowledge that Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), puts in doubt the continued validity of the above line of Florida decisions. Without question, the sweeping language of the Cuyler opinion appears to end all distinctions between court-appointed and privately retained counsel when the defendant seeks to collaterally attack his criminal conviction on the ground of ineffective assistance of counsel. Still, this language may very well be dicta as the issue involved and necessarily decided by the Court was a much narrower one. Indeed, the Court itself in Cuyler framed the issue before it in these restricted terms:

“The question in this case is whether a state prisoner may obtain a federal writ of habeas corpus by showing that his retained defense counsel represented potentially conflicting interests.” Cuyler v. Sullivan, 446 U.S. at 337, 100 S.Ct. at 1712, 64 L.Ed.2d at 339.

The Court ultimately answered the question in the affirmative, finding in this context the necessary degree of state action to render the defendant’s trial fundamentally unfair under the Fourteenth Amendment. This result is the narrow holding of the Cuyler decision, K. Llewellyn, The Bramble Bush 66-68 (1930), which has no application to this case.

The narrow holding of Cuyler, however, does alter the above line of Florida cases to permit a criminal defendant to collaterally attack his criminal conviction upon a showing, unlike this case, that his retained counsel represented potentially conflicting interests. To accept the court’s broad construction of Cuyler, on the other hand, requires us to overrule an entire line of Florida decisions, including two Florida Supreme Court decisions, and under the circumstances I am not inclined to do so. It is my view that where a district court has an option to give a reasonable, but narrow construction to an applicable United States Supreme Court decision, which will alter a Florida Supreme Court decision but not overrule it, as a broad construction would do, the district court should give the narrow rather than the broad construction to the said United States Supreme Court decision. This result, it seems to me, is more consonant with our dual constitutional responsibility to adhere to Florida Supreme Court decisions, Hoffman v. Jones, 280 So.2d 431 (Fla.1973), while at the same time applying the United States Constitution as the supreme law of the land. U.S.Const. Art. VI, cl. 2.

2

I am equally frank to acknowledge that the above narrow, but reasonable construction of Cuyler is to some extent influenced by my apprehension as to where an expansive reading of Cuyler will ultimately lead us. In this connection, I share many of the concerns expressed by Judge Ott of the Second District Court of Appeal as to the wisdom of a wide open rule which allows a criminal defendant, as here, to collaterally attack his criminal conviction on the ground that his privately retained counsel was ineffective. State v. Dukes, 388 So.2d 651 (Fla. 2d DCA 1980) (Ott, J., concurring). Rather than rush to judgment to dismantle, rather than alter, 16 years of unbroken Florida decisions — including two Florida Supreme court decisions — in favor of a rule of dubious value based on a United States Supreme Court decision in which reasonable people may differ as to its holding, I think it best to pause and let the Florida Supreme Court do the dismantling, if that be deemed appropriate, rather than this court.

I would affirm.

      . Edwards is a citizen of Jamaica and, therefore, an alien. Any alien in the United States who has been convicted of a violation of any law or regulation relating to the illicit possession of or traffic in marijuana shall, upon order of the Attorney General, be deported. 8 U.S.C. § 1251(a)(11) (1956). This statute applies to a state court conviction where the alien is placed on probation, as was Edwards. Gonzalez de Lara v. United States, 439 F.2d 1316 (5th Cir. 1971).

      . In the present case, deportation far outweighs the probation received by Edwards. The consequence of deportation is exacerbated by the fact that Edwards, according to the record before us, is married to an American citizen.

      . Fed.R.Crim.P. 11. Its counterpart is Florida Rule of Criminal Procedure 3.172.

      . Judge Hubbart’s dissent is, in our view, a far too restrictive reading of Cuyler v. Sullivan. Moreover, as was implicit in Blatch, we do not see that Hoffman v. Jones, 280 So.2d 431 (Fla.1973), was intended to prevent us from following a decision of the United States Supreme Court, which, in good conscience, we believe nullifies a decision of the Florida Supreme Court. We would add that Witt v. State, 387 So.2d 922 (Fla.1980), appears to relieve District Courts of the perceived bonds of Hoffman v. Jones, supra, in a matter such as this. Hoffman held that a District Court does not have the authority to overrule a decision of the Supreme Court. Witt, in the context of a Rule 3.850 case, held that a change of law emanating from the United States Supreme Court, constitutional in nature and of fundamental significance, could be considered and acted upon by the lower Florida courts. Cuyler v. Sullivan represents such a change.

      . In Meeks, the new standard was made applicable to Meeks himself, who was attacking a 1975 conviction.


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

text:
    Troy HEWITT, Appellant, v. STATE of Florida, Appellee.
    No. VV-459.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1981.
    Selig Goldin, Robert P. Cates, Goldin & Cates, Gainesville, for appellant.
    Jim Smith, Atty. Gen., Carolyn Snurkow-ski, Asst. Atty. Gen., Tallahassee, for appel-lee.
   ROBERT P. SMITH, Jr., Judge.

We affirm appellant’s conviction for possession and delivery of cannabis, Sections 893.13(l)(a)2 and 893.13(l)(e), Florida Statutes (1979), and in doing so reject appellant’s claim that the State’s proof of a growing stand of marijuana 100 feet from appellant’s mobile home, where he allegedly delivered small quantities to undercover agents, was irrelevant and wrongfully prejudicial as character-disparaging or propensity evidence, excluded by Williams v. State, 110 So.2d 654 (Fla.1959). The evidence had some marginal relevance in showing a likely source of the marijuana delivered, or in showing appellant’s constructive possession, at the time of delivery, of that source. The evidence tended also to disprove the (correctly) anticipated defense that the agents improperly solicited the delivery from one who was not disposed to possess marijuana for any purpose other than personal use. The distance of the marijuana stand from the mobile home attenuated its relevance but also correspondingly lessened any undue prejudice from the implication that appellant may have been guilty of serious crimes not charged. Being somewhat relevant, and not being unduly prejudicial under all the circumstances, the evidence was admissible. The trial judge did not abuse his discretion in permitting the proof during the State’s case in chief rather than in rebuttal.

AFFIRMED.

MILLS, C. J., and WENTWORTH, J., concur.


author: NESBITT, Judge.

text:
    O. A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2065.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Rehearing Denied Feb. 23, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and PEARSON, JJ.
   NESBITT, Judge.

This is an appeal from an order entered by the Family Division of the Circuit Court of the Eleventh Judicial Circuit, which withheld an adjudication of delinquency.

The juvenile was charged with burglary and grand theft of a Woolco Store. The evidence adduced indicated that on May 15, 1978, at approximately 2:00 A.M., police officers responded to an automatic burglar alarm system at a Woolco store. Upon arrival, the officers observed a broken window. The area was cordoned off to prevent the getaway of the perpetrators who the officers believed were still inside the building. Shortly thereafter, two juveniles rushed from behind a garbage bin on the east side of the store some fifty feet from a door near which merchandise from the store had been stacked. One of the juveniles carried a C.B. radio. Both juveniles ran when they saw the approaching officers. Upon being apprehended, the juveniles “explained” their presence at the scene by stating that they were “looking for stuff in the garbage bin.” No other suspects were discovered or apprehended at the premises.

The state opened its evidentiary presentation by calling the manager of the victimized Woolco store. In an attempt to limit the issues for trial, both sides stipulated to his testimony, the effect of which was to establish the elements of the offenses leaving the identity of the perpetrator as the sole remaining issue.

The hour of the incident, the broken window, the merchandise stacked by the door, the C.B. radio carried by one of the juveniles, coupled with the evidence of flight, was sufficient to support the finding of delinquency. Daniels v. State, 108 So.2d 755 (Fla.1959); Martinez v. State, 346 So.2d 1209 (Fla. 3d DCA), cert. denied, 354 So.2d 983 (Fla.1977). Cf. Perry v. State, 117 So.2d 892 (Fla. 3d DCA 1965) (circumstantial evidence sufficient to support conviction of aiding and abetting in an assault with intent to commit robbery).

Like the trial judge below, we find the evidence was sufficient to show that the juvenile was the perpetrator and affirm.

PEARSON, J., concurs in result only.

      . Since the questioned order “affected” the juvenile defendant, it has been made expressly appealable by Section 39.413(1), Florida Statutes (Supp.1978) [formerly numbered 39.411], which became effective October 1, 1978. Ch. 78^14, § 20, Laws of Fla.


author: PER CURIAM.

text:
    Angel Alberto RIVERA, etc., et al., Appellants, v. RANDLE EASTERN AMBULANCE SERVICE, INC., etc., et al., Appellees.
    No. 80-1017.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Albert P. Rosillo, Miami, for appellants.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Claudia B. Greenberg, Miami, for appellees.

      Before HUBBART, C. J., and HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Appellants’ deceased was a bystander struck by an ambulance rendered out of control by an immediately preceding collision with another vehicle. Apparently, the ambulance driver refrained from rendering any assistance to appellants’ deceased, and appellants charge the driver, his employer, and its insurers with responsibility for the ensuing death.

Granting defendants’ motion for summary judgment, the trial court found, as a matter of law, that no duty “to render medical care and attention” was owed by the driver to the now deceased.

We reverse.
The driver of any vehicle involved in an accident ... shall render to any person injured in the accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary, or if such carrying is requested by the injured person.

§ 316.062(1), Fla.Stat. (1977) (e.s.) See Fuentes v. Reilly, 590 F.2d 509 (3d Cir. 1979); Brooks v. E. J. Willig Truck Transp. Co., 40 Cal.2d 669, 255 P.2d 802, 808 (1953); Restatement (Second) of Torts § 322 (1965).

Reversed and remanded for further disposition not inconsistent with this opinion.


author: MOORE, Judge.

text:
    C. B. ARBOGAST, Jr., C. B. Arbogast Real Estate, Inc., and C. B. Arbogast, Jr., Patrick J. Ryan, Robert F. McRoberts, Jr., Eva Arbogast and Mary Ann Ryan, as trustees of the said corporation, Appellants, v. Gerald E. BRYAN, Appellee.
    No. 79-303.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1981.
    Rehearing Denied March 3, 1981.

      Martha C. Warner, Warner, Fox & See-ley, Chartered, Stuart, for appellants.
    J. Stockton Bryan, Stuart, for appellee.
   MOORE, Judge.

The appellee, Bryan, successfully sued the appellants for recovery of portions of real estate commissions allegedly withheld from him. Appellants seek reversal of the final judgment entered in favor of the appellee after a non-jury trial. We find that the appellee waived his right to payment and we reverse.

Bryan was employed as a real estate salesman from 1969 to January, 1975 by the broker, C. B. Arbogast Real Estate, Inc. The broker corporation was dissolved in July, 1975, approximately six months after the appellee had terminated his employment, and suit was not commenced until December, 1975. In his suit, the appellee contended that the broker wrongfully withheld portions of several real estate commissions which were due him. All of the commissions involved large real estate transactions between four sets of buyers and sellers.

Bryan’s arrangement with the broker was apparently an oral one in which they agreed that all commissions earned through the procuring efforts of Bryan would be divided equally. The broker’s ordinary business expenses were to be paid from its share of the commissions. During Bryan’s employment, the broker retained the services of Patrick J. Ryan, a market analyst and consultant, whose function was to provide advice on techniques of getting sellers and buyers together on large real estate transactions. Ryan was paid a fee of 1% of the gross sales price of all consummated transactions. This fee was deducted from the total commission and the remainder was then divided equally. The trial court held that the payments to Ryan were corporate business expenses which were not the responsibility of Bryan and he entered the final judgment for those amounts. This appeal followed.

We find it unnecessary to determine whether portions of Ryan’s fees were wrongfully withheld from Bryan’s commissions because we find that the trial court erred in failing to determine that Bryan had waived his right to payment. At the time of, or shortly after, the closing of each transaction, Bryan received his share of the commissions. Because some of the transactions involved deferred payments, some of Bryan’s commissions were deferred until actual payment was made. Nevertheless, Bryan was aware that the fees paid to Ryan caused a reduction in his commissions and he voiced no objection for over six years.

The doctrine of waiver is aptly defined in 22 Fla.Jur.2d, Estoppel & Waiver, §§ 86-97 and 89, as follows:

§ 86 Waiver is the intentional relinquishment of a known right, or the voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right. It may be express or implied; and when a party waives a right under a contract he cannot, without the consent of his adversary, reclaim it....
Waiver is distinguishable from estoppel. Waiver operates to “estop” one from asserting that which he might otherwise have relied upon, but it is not a true estoppel. That kind of waiver which consists merely in renouncing some right, or in ratifying what one might repudiate is not estoppel, though it has been called such. Nevertheless, waiver, although it is not technically speaking an estoppel, may be affected by various acts and different courses of conduct which operate in the final analysis as an estoppel or at least a quasi-estoppel.
§ 87 A party may waive any rights to which he is legally entitled, whether guaranteed by the Constitution, conferred by statute, or secured by contract
§ 89 The following are essential to a waiver: The existence at the time of the waiver of a right, privilege, advantage or benefit which may be waived; the actual or constructive knowledge thereof; and an intention to relinquish such right, privilege, advantage, or benefit.
Waiver may be express or implied. Although waiver does not arise from forbearance for a reasonable time, it may be inferred from conduct or acts putting one off his guard and leading him to believe that a right has been waived....
(Footnotes omitted; emphasis added)

Applying the foregoing criteria to the instant case, it is readily apparent that Bryan waived strict compliance with what he contends was the contractual agreement between himself and the broker. The evidence indicates that he knew of the arrangement with Ryan as early as the latter part of 1969. When questioned about Ryan, Bryan stated that he had made no comment because he didn’t want to start “rocking the boat”. He further stated that he didn’t object to Ryan because he didn’t desire to jeopardize his employment with the broker. Thus, Bryan accepted less than what he considered to be the full commissions due him for a period of approximately six years without voicing any objection whatsoever. Having received approximately $250,000 during this period of time on the transactions involved in this litigation, it was not until after the corporate broker was dissolved that Bryan attempted to enforce his alleged rights under his agreement with the broker. By failing to object to the receipt of less than one-half of all commissions with full knowledge that he was allegedly entitled to one-half, Bryan relinquished his right to full payment of his full share of the commissions.

Had Bryan complained of the fee arrangement with Ryan in a timely manner, the broker would have had several available options. For example, the broker could have elected not to retain Ryan’s services, or to discharge Bryan and hire a salesman amenable to the arrangement with Ryan, or it could have negotiated other arrangements between Bryan and Ryan. Instead, the broker continued to pay, and Bryan continued to accept, substantial commissions for real estate transactions, the consummation of which were partially brought about by Ryan’s consultations and expert advice. Moreover, if Bryan had informed the broker of his demand for full payment of the commissions prior to the dissolution of the corporation, adequate provisions could have been made to satisfy those demands from the assets of the corporation. By not requesting additional payment until after the corporate dissolution, no corporate funds remained available to pay Bryan’s claims. Thus, his dilatory demand for payment, if allowed to stand, would expose the former directors of the corporate broker to personal liability which they would not have had otherwise.

Where a party intentionally relinquishes a known right by failing to timely demand performance of the obligations appurtenant to that right, that party cannot expect to subsequently enforce his claim. Davis v. Davis, 123 So.2d 377 (Fla. 1st DCA 1960). The acts or conduct giving rise to the defense of waiver need not be affirmative in nature. Rather, a waiver of one’s rights can occur by failing to speak out in vindication of a claim when there is a duty to do so. Richards v. Dodge, 150 So.2d 477 (Fla. 2nd DCA 1963). Accordingly, we find that the failure of Bryan to timely speak out and voice his objection to the arrangement with Ryan constitutes a waiver of any rights he may have had against the corporate broker regarding his commissions on transactions in which Ryan was involved.

Bryan also contends that the payments to Ryan were against public policy because they amounted to splitting fees with a person not licensed to sell real estate, contrary to Section 475.41, Florida Statutes (1975). He argues that waiver cannot apply to transactions which are against public policy. This argument misses the mark for several reasons and we reject it.

In the first place, the issue was never properly raised in, or addressed by, the trial court. Secondly, Ryan never had personal contact, either directly or indirectly, with any buyer or seller. Furthermore, Bryan was a party to the transactions with Ryan and knew, or should have known, whether Ryan was a registered real estate salesman. Even assuming the payments to Ryan to be contrary to public policy, Bryan participated in them and deliberately failed to object in order to protect his own position. He now argues that he cannot be held to have waived his right to payment from Arbogast because Arbogast’s payments to Ryan were illegal and void as against public policy. We disagree. Under the facts of this case, we do not believe the general rule that waiver does not apply to forbidden transactions is applicable. Courts will generally refuse judicial aid to all parties to such transactions. See, 17 Am.Jur.2d, Contracts, § 216. Moreover, we are concerned with Bryan’s waiver of his rights against Arbogast, not the alleged illegality of the transaction between Arbogast and Ryan.

Accordingly, final judgment should have been entered for the defendants. We reverse and remand for entry of such a judgment.

REVERSED and REMANDED.

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

      . The actual terms of the agreement are not clear from the record.


text:
    STATE of Florida, Appellant, v. William Ronald CARNEY, Appellee. STATE of Florida, Appellant, v. Harlan Glen HUGHES, Appellee.
    Nos. 79-2084, 79-2226.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1981.
    Michael J. Satz, State Atty., and Patti Englander, Asst. State Atty., Fort Lauder-dale, for appellant.
    No appearance for appellees.
   PER CURIAM.

These are consolidated appeals from orders of discharge under the speedy trial rule. The appeal in Case No. 79-2226 is hereby dismissed for lack of jurisdiction. See St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971). The order of discharge in Case No. 79-2084 is hereby reversed and remanded for further proceedings on the authority of Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    SERVICE VENDING OF TALLAHASSEE, INC., Petitioner, v. DEPARTMENT OF GENERAL SERVICES and State Board of Education, Respondents.
    No. VV-100.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1981.
    Rehearing Denied Feb. 25, 1981.
    Stephen Marc Slepin, Tallahassee, for petitioner.
    Spiro T. Kypreos, Tallahassee, for respondents.
   PER CURIAM.

We have considered the Petition for Writ of Certiorari and the response thereto. Because the hearing officer’s order did not depart from essential requirements of law, the petition is denied.

ROBERT P. SMITH, Jr., BOOTH and SHIVERS, JJ., concur.


author: SHIVERS, Judge.

text:
    PINELLAS COUNTY SCHOOL BOARD, Gallagher Bassett Insurance Service, Appellants, v. George L. FLY, Appellee.
    No. SS-227.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.
    Thomas D. Masterson, of Masterson, Rogers, Patterson, Masterson & Lowe, St. Pe-tersburg, for appellants.
    Charles W. Ehrlich, St. Petersburg, for appellee.
   SHIVERS, Judge.

Employer/carrier appeal a workers’ compensation order awarding claimant payment of a $52 medical bill. We reverse.

Claimant sustained a compensable low-back injury on November 27, 1978. Later that day, he received medical' treatment from Dr. Balduf, his chiropractor, with the knowledge of the employer. On November 28, 1978, according to claimant’s testimony, the employer advised the claimant that they would not authorize treatment by Dr. Bal-duf. Instead, the claimant was referred to Dr. Segal, a family practitioner. Dr. Segal examined the claimant on November 28, 1978, and diagnosed claimant’s injury as a low-back sprain. During his appointment with Dr. Segal, claimant told Dr. Segal that he was receiving chiropractic treatment from Dr. Balduf. Although Dr. Segal neither referred the claimant to Dr. Balduf nor prescribed chiropractic treatment, he did state that he had no objection to such treatment if the claimant thought one or two manipulations might help his recovery.

On November 29,1978, the employer/carrier notified Dr. Balduf that he was authorized to render one further treatment to the claimant if necessary and related to the accident. Dr. Balduf was also informed that Dr. Segal was authorized to render further medical treatment if the claimant had continuing difficulty with his injury. On November 30, 1978, Dr. Balduf again treated the claimant and the medical bill for this visit was paid by the employer/carrier.

On December 5,1978, the employer/carrier advised the claimant that Dr. Balduf was not authorized to provide further treatment and, should the claimant require additional treatment for his injury, he was to see Dr. Segal. However, claimant subsequently received treatment from Dr. Balduf on three separate occasions in December 1978, and on one occasion in January 1979.

On December 8, 1978, claimant’s counsel requested continued authorization for treatment by Dr. Balduf. The employer/carrier denied authorization for treatment by Dr. Balduf, reaffirmed authorization for treatment by Dr. Segal, but noted that if the claimant was dissatisfied with Dr. Segal, alternative medical treatment was possible with one of three specifically listed orthopedic surgeons. The employer/carrier then refused to pay Dr. Balduf’s medical bill for treatment provided after November 30, 1978.

Following a hearing on the issue of responsibility for payment of Dr. Balduf’s medical bill, the deputy commissioner found that the medical treatment rendered by Dr. Balduf was reasonable and necessary and ordered the employer/carrier to pay the medical bill. The deputy commissioner further found that the claimant’s attorney was entitled to a reasonable fee for obtaining the payment of Dr. Balduf’s medical bill.

The deputy commissioner erred in finding that the employer/carrier was responsible for Dr. Balduf’s medical bill and that the claimant was justified in continuing to receive treatment from Dr. Balduf. The employer/carrier notified both the claimant and Dr. Balduf that Dr. Balduf would not be authorized to treat the claimant after November 30, 1978. Instead, the employer/carrier authorized treatment by Dr. Segal and further offered alternative treatment from three orthopedic surgeons if the claimant was dissatisfied with Dr. Segal’s treatment. An authorized treating physician may be deauthorized by the employer/carrier if alternative medical treatment is offered to the claimant. Carlton Arms of Winter Park v. Polston, IRC Order 2-3725 (1979). The award of treatment by an unauthorized physician is reversible error where the employer/carrier promptly notifies the physician that he is not authorized to treat the claimant and a finding that the unauthorized treatment was reasonable and necessary does not excuse the failure to secure authorization. Courtelis Company v. Calizaire, IRC Order 2-3659 (1979).

Since the deputy commissioner erred in awarding payment of Dr. Balduf’s medical bill, the finding that claimant’s attorney was entitled to a reasonable fee was also error because no additional benefits were awarded to the claimant.

Accordingly, the order appealed is reversed and remanded with directions to enter an order consistent with this opinion.

ERVIN and SMITH, JJ„ concur.


text:
    CLERICI MASONRY AND PLASTER and R. P. Hewitt & Associates, Inc., Appellants, v. Donnie M. PROFIT, Appellee.
    No. TT-223.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.
    L. C. Shepard, Jr., of Adams, Coogler, Watson & Smith, West Palm Beach, for appellants.
    Richard A. Kupfer, of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellee.
   PER CURIAM.

Appellants challenge the determination made by the deputy commissioner that Section 440.12(2)(a), Florida Statutes, as amended by Chapter 79-40, Section 7, Laws of Florida, has an effective date of July 1, 1979. This case is controlled by Gunite Works, Inc. and Underwriters Adjusting Co. v. Lovett, 392 So.2d 910 (Fla. 1st DCA 1981), in which we held that July 1, 1979 was the effective date of Section 440.-12(2)(a). AFFIRMED.

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


text:
    Clyde KNOWLES, Appellant, v. The BANK OF GREEN COVE SPRINGS, Appellee.
    No. TT-430.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.
    Willard E. Parsons and Michael A. Kol-cun, Jacksonville, for appellant.
    William A. Wilkes of Anderson, Wilkes & McAnnally, Green Cove Springs, for appel-lee.
   PER CURIAM.

On July 19, 1978, the bank filed a complaint alleging that Knowles had failed to pay a $10,000 note due with interest since July 1977. Knowles answered by denying the allegations and by affirmatively alleging that he had already paid the note. He also made a timely demand for a jury trial. After a pretrial conference, the trial court denied Knowles’ demand and set the matter for trial without a jury. The trial court subsequently entered a judgment in favor of the bank.

We must reverse. The pleadings set forth an action at law. Accordingly, we hold that Knowles is entitled to a jury trial and remand the cause to the trial court for further proceedings consistent with this opinion.

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


text:
    Norman H. BRAHS, Appellant, v. RAVINE MACHINE COMPANY, INC., and Underwriters Adjusting Company, Appellees.
    No. UU-440.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.
    Janet W. Freeman of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellees.
   PER CURIAM.

We direct that the following paragraph be stricken from the deputy commissioner’s compensation order:

(b) All other claims for benefits not specifically enumerated to be paid in the foregoing paragraphs is [sic] hereby denied.

The order is otherwise affirmed,

ERVIN, BOOTH and JOANOS, JJ., concur.


author: WENTWORTH, Judge.

text:
    GREEN THUMB CORPORATION and Hartford Accident & indemnity Company, Appellants, v. Dorothy BRITTEN, Appellee.
    No. UU-453.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.

      Frederick J. Daniels, Orlando, for appellants.
    Curtis B. Goff, Orlando, for appellee.
   WENTWORTH, Judge.

The carrier appeals the deputy commissioner’s order awarding Britten reimbursement for travel expenses related to her medical treatment. We reverse.

This is the second appeal in this case. In 1978, a judge of industrial claims awarded benefits and Britten appealed, arguing, among other things, that the judge erred in failing to determine the issue of mileage reimbursement. The Industrial Relations Commission affirmed without comment.

Subsequently, Britten renewed her request for mileage reimbursement. The carrier, while stipulating to the number of miles at issue, argued she was not entitled to reimbursement. The deputy awarded $118.02, plus $125.00 in attorney’s fees, representing all of the mileage claimed.

Britten’s original claim filed in 1976 included a request for remedial treatment and mileage. In 1978, the parties’ pre-trial stipulation and the judge’s order both reflected that the question of mileage was at issue. There is no indication that Britten withdrew her claim for mileage, but the order contained no express rejection of that item. See Orlando v. Exxon Company, U.S.A., IRC Order 2-3040 (September 29, 1976). Although the claim for mileage was mature at the time of the hearing, Britten’s attorney did not present evidence on this issue.

Absent the withdrawal of the claim or the continuation of the cause or a permissible reservation of jurisdiction by the deputy commissioner, we find the 1978 deputy’s order to be res judicata in making no award for the item claimed. Florida’s Workers’ Compensation Law provides a mechanism for re-opening an adjudicated claim if there has been a change of condition or a mistake of fact. Section 440.28, Florida Statutes. However, Britten presents no ground for invoking that relief.

Therefore, the deputy erred in awarding Britten reimbursement for travel costs incurred before the 1978 order. The order now appealed is proper insofar as it awards mileage reimbursement for travel relating to ordered or authorized treatment after the original order.

Accordingly, the order is reversed and remanded for recomputation of mileage reimbursement and attorney’s fees.

REVERSED AND REMANDED.

MILLS, C. J., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Francis FARRUGIA and Gregory S. Sullivan, Appellees.
    No. VV-40.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.

      Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellant.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellees.
   PER CURIAM.

The State appeals the trial court’s order suppressing marijuana found in appellees’ vehicle. We reverse.

Appellees were stopped by an inspection officer, after they were observed bypassing an agricultural inspection station, driving a pick-up truck with an attached camper shell. Appellees refused to allow the inspector to check the vehicle for regulated agricultural, horticultural, or livestock products. They were escorted back to the inspection station, and the inspector placed the driver, Farrugia, under arrest for bypassing the station. A deputy sheriff was then summoned.

While appellees were being detained at the inspection station, the inspector smelled an odor coming from the corner of the camper-top door which, from his training and experience, he identified as the odor of marijuana. He prepared an affidavit for a search warrant, reciting the aforementioned facts. On the basis of this affidavit, a search warrant was issued to “the sheriff ... or any of his duly constituted agents” to search the truck for marijuana. A search was conducted pursuant to this warrant, and a quantity of marijuana was discovered.

The trial court based its order suppressing the marijuana on this court’s decision in State v. Webb, 378 So.2d 884 (Fla. 1st DCA 1979). However, the instant case is clearly distinguishable from Webb. In that case, a search warrant was issued to an inspection officer to search for agricultural products, based on the inspector’s belief that he smelled the odor of marijuana coming from the truck. This court held that the odor of marijuana did not constitute probable cause to search for agricultural, horticultural or livestock products.

This court has previously held, however, that the odor of marijuana is sufficient probable cause to search for marijuana. Mattson v. State, 328 So.2d 246 (Fla. 1st DCA 1976). Here, the search warrant was issued to the sheriff or his agents, to search for marijuana. All of the prerequisites for a valid search warrant were present. See Mahla v. State, 383 So.2d 730 (Fla. 1st DCA 1980).

Accordingly, the order of the trial court is REVERSED.

SHIVERS, SHAW and THOMPSON, JJ., concur.


text:
    In re the ESTATE OF Nubar S. DONOYAN, a/k/a Noubar S. Donoyan, Deceased. Ralph Donald WILBURN, a/k/a Ralph Donald Schmidt, Appellant, v. Christopher DONOYAN, Personal Representative of the Estate of Nubar S. Donoyan, a/k/a Noubar S. Donoyan, Appellee.
    No. VV-455.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.

      John F. Roscow, III, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Helpling & Austin, Gainesville, for appellant.
    John C. Cooper, of Douglass, Davey & Cooper, Tallahassee, for appellee.
   LILES, WOODIE A. (Retired), Associate Judge.

Decedent, Nubar S. Donoyan, died intestate on May 19, 1979. He is survived by, among others, an alleged illegitimate son Ralph Donald Wilburn. Ralph Donald was born to Luise Irene Schmidt on August 29, 1955, and was adopted by John D. Wilburn and Aileen Wilburn on August 5, 1969, in Giles County, Tennessee.

A petition to determine beneficiaries was filed by the personal representative of the Estate of Nubar S. Donoyan in the Eighth Judicial Circuit in and for Alachua County, where Donoyan’s estate was being probated. Following various and sundry pleadings and change of attorneys, a motion for judgment on the pleadings was filed and heard by the trial judge, before whom it was urged that § 732.108, Florida Statutes, was unconstitutional in that it violated both the federal and Florida constitutions; and further that if the said section was constitutional, Ralph Donald did not fall within the purview of the statute. Subsequently, the trial judge ruled:

“The Court finds that the Statute is constitutional and that Wilburn falls within its purview. By virtue thereof, and with special consideration given to the fact that he was indeed adopted, he is barred, as a matter of law, from asserting a claim as a lineal descendant of his alleged father.”

In reviewing the court’s order as regards Ralph Donald’s motion for judgment on the pleadings, we affirm that part of the trial court’s ruling quoted above. However, the trial judge went on to find:

“Furthermore, the Court finds, pursuant to Bell v. Setzer, 375 So.2d 61 (Fla.2d DCA 1979), that although Section 732 has been passed by the legislature intending to allow a Plaintiff a paternity suit after his father’s death, Section 742, the Florida Bastardy Act, whose proceedings are in lieu of any other proceedings provided by law for the determination of paternity and support of children born out of wedlock, provides no procedure for the maintenance of a paternity suit against other than a living Defendant. Thus, Wilburn can in no wise prevail, and judgment on the pleadings should be entered in favor of the Personal Representative.”

The Supreme Court has, since the entry of this order, ruled in Kendrick v. Everheart, 390 So.2d 53 (Fla.1980), that § 742.10 is limited in its application to suits brought by a mother to enforce her child’s support rights against the natural father. The Supreme Court having limited the “in lieu of” language, the fact that Chapter 742 provides no procedure for maintenance of a paternity suit for purposes of inheritance is of no consequence in this appeal, and the Legislature might well address this question. It was noted further in Kendrick, supra, that paternity determinations have been permitted in contexts other than paternity proceedings brought under Chapter 742 where such determinations were a necessary incident to the adjudication of the ultimate relief sought in the particular proceedings involved. However, this case was correctly decided by the trial court in holding that Ralph Donald falls within the purview of § 732.108 and is barred as a matter of law from asserting a claim as the lineal descendant of Donoyan. A perusal of this statute reflects the following:

(1) For the purpose of interstate succession by or from an adopted person, the adopted person is a lineal descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family, and he is not a lineal descendant of his natural parents, nor is he one of the kindred of any member of his natural parent’s family or any prior adoptive parent’s family ... [emphasis added]
(2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant of his mother and is one of the natural kindred of all members of the mother’s family. The person is also a lineal descendant of his father and is one of the natural kindred of all members of the father’s family ... [emphasis added]

The problem here is that subsection (2) does not apply to Ralph Donald since he is covered by subsection (1). We therefore need not concern ourselves any further except to consider the allegation that the statute is unconstitutional for the reason that it does not afford equal protection under the federal or state constitutions, and we believe this argument to be without merit. Appellant has furnished us with an abundance of statistical information regarding the increase of illegitimacy and the social reasons why § 732.108 should be declared unconstitutional. This argument can best be made before the Legislature which has the obligation to decide the social consequences of legislation. However, the statistics do nothing to convince us that there has been a denial of equal protection. The section simply provides that an adopted person is not a lineal descendant of his natural parent. Other provisions in the section provide that he is a lineal descendant of his adopting parents, the consequence of which affords him full and equal protection to inherit from his adoptive parents.

In conclusion, the order of the trial judge is affirmed insofar as it holds the statute is constitutional and that Ralph Donald Wilburn comes within the purview of § 732.108(1), thereby being barred as a matter of law from asserting a claim as a lineal descendant of his alleged father. Establishing paternity by whatever means provided by law would avail Wilburn no relief since his adoption bars inheritance from the estate of his alleged father.

AFFIRMED.

ROBERT P. SMITH and THOMPSON, JJ., concur.


text:
    WALGREENS and Travelers Insurance Company, Appellants, v. Nicholas DILUZIO, Appellee.
    No. VV-371.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.
    Daniel J. Sullivan of Gladson & Sullivan, Miami, for appellants.

      Stuart A. Suskin of Abrams & Suskin, North Miami Beach, for appellee.
   PER CURIAM.

The employer/carrier appeal from a Workers’ Compensation Order, wherein the claimant was awarded temporary total disability benefits. Five points are presented for review. We affirm on all points. However, with regard to Point V, we wish to clarify that the employer/carrier is obligated to pay for only those medical bills which are related to the back, hip, neck, shoulder, and right and left knee injuries.

The order is affirmed insofar as it is not inconsistent with this opinion.

SHIVERS, SHAW and THOMPSON, JJ., concur.


author: McCORD, Judge.

text:
    George HALL, Appellant, v. RED BISHOP ROOFING and Florida Farm Bureau, Appellees.
    No. QQ-370.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Richard A. Sadow of Sadow & Lynne, North Miami, for appellant.
    Thomas J. Tansey, II, Fort Lauderdale, for appellees.
   McCORD, Judge.

Appellant raises 12 points in this appeal from an order on his workers’ compensation claim. We reverse on some points and remand the case for reconsideration or further determination.

On September 17, 1977, while employed by Red Bishop Roofing, appellant suffered a compound fracture to his right leg, abrasions to the left leg, and injury to his back and left shoulder in a work-related accident. At the time of the accident, appellant was working only part time for approximately $5 an hour, although he desired to work full time but could not obtain full-time work due to a work shortage. His employer testified that appellant always worked when called. The evidence in the record of average weekly wage is sparse and relatively inconclusive. Without setting forth any ultimate facts supporting his conclusion, the Judge of Industrial Claims declared that a fair value of appellant’s average weekly wage is $60. On the basis of that determination and considering that appellant was only a part-time employee, without reference to any evidence that he had adopted part-time employment as his customary practice, the Judge of Industrial Claims determined that appellant’s compensation rate is $36 per week. On the basis of that compensation rating, he computed the temporary total disability and permanent partial disability benefits awarded. Because the Judge of Industrial Claims failed to set forth the findings of ultimate fact upon which he relied in determining average weekly wage, as required by § 440.-25(3)(c), we cannot review the sufficiency of the average weekly wage factor which so heavily influenced the compensation rate assigned. Therefore, we reverse and remand for a more in-depth determination of average weekly wage and for reconsideration of the compensation rate accordingly.

Appellant made a claim for rehabilitation benefits which employer/carrier disputed. At the hearing, appellant’s attorney represented to the Judge of Industrial Claims that appellant’s position at that time was that employer/carrier was not obligated to pay rehabilitation benefits since appellant had not been enrolled in any state rehabilitation program up through that period of time. In his order, the Judge of Industrial Claims merely stated that appellant was not entitled to rehabilitation benefits at that time because he is not in a state-approved program. Appellant cites that finding as error since the Judge of Industrial Claims had previously stated that he would reserve ruling on that question until a later date, and, therefore, appellant did not present further evidence on that point. Section 440.49(1), Florida Statutes (Supp.1978), provides for injured claimants to receive rehabilitation benefits. That statute declares:

(1) In eases in which it appears that disability probably will be permanent, the division shall assist injured employees to obtain appropriate training, education and employment and may cooperate with federal and state agencies for vocational education and with any public or private agency cooperating with such federal or state agencies in the vocational rehabilitation of injured employees ... All hearings arising under this subsection shall be conducted by judges of industrial claims pursuant to s. 440.25. However, no judge of industrial claims shall assume jurisdiction to approve or disapprove rehabilitation under this provision until the division has been given reasonable time to evaluate the injured worker...

Keith v. City of Altamonte Springs, 344 So.2d 555 (Fla.1977), declared that § 440.-49(1) “prohibits judges of industrial claims from assuming jurisdiction over rehabilitation programs until the division has had an opportunity to evaluate the injured worker and advise all parties as to any rehabilitation program which it would propose ...” Since the Judge of Industrial Claims in this case apparently had never received the proper report, he did not err in declining to award rehabilitation benefits at this time. Appellant has not been harmed by that ruling since he is free to present the question again when it is ripe for determination.

Appellant disputes the Judge of Industrial Claims’ finding that appellant reached maximum medical improvement on February 5, 1979, asserting that no competent substantial medical evidence supports a finding that maximum medical improvement as to all injuries has been reached. In making his determination, the Judge of Industrial Claims stated that he relied on the testimony of Dr. Rieman that, as to the orthopedic injuries to the right leg, appellant reached MMI on February 5, 1979. In regard to the left leg, the Judge of Industrial Claims stated that he relied on the testimony of Dr. Bolt, a plastic surgeon, who testified that, as of December 5, 1978, which was the last time he saw appellant, his treatment of the ulcerated wound on the left leg, caused by the abrasion sustained in the accident and aggravated by pre-existing scarring on that leg due to a prior burn injury, was only palliative and not curative. However, at the same time, Dr. Bolt also stated that appellant’s left leg wound had not reached maximum medical improvement; that it should continue to heal to a certain extent. Another doctor, Dr. Luskin, who also treated the left leg wound was of the opinion, as of February 13, 1979, that the left leg wound had not reached maximum medical improvement. The Judge of Industrial Claims specifically rejected that testimony. Although Dr. Rieman’s testimony does provide competent substantial evidence to support a finding of maximum medical improvement of the right leg, no competent substantial evidence supports a conclusion that appellant’s left leg has reached maximum medical improvement, and the Judge of Industrial Claims erred in so finding. We remand on this point for the taking of further evidence to determine if and when appellant reached MMI as to all of his injuries.

Appellant challenges the Judge of Industrial Claims’ finding that appellant was temporarily totally disabled from September 17, 1977, to February 5, 1979, asserting that temporary total disability benefits should continue since maximum medical improvement has not been reached. We remand for reconsideration of the temporary total disability period in accordance with the remand as to the maximum medical improvement date.

The Judge of Industrial Claims awarded permanent partial disability benefits for the right leg and the body as a whole, but he found that appellant has sustained no permanent partial disability of the left leg. Appellant asserts that the Judge of Industrial Claims erred in finding that appellant has sustained no permanent partial disability of the left leg and in failing to award greater benefits based on the loss of wage-earning capacity. The disability findings made as to the right leg and to the body as a whole, as well as absence of proof of earning capacity loss, appear to be supported by competent substantial evidence, but our review of the merits of appellant’s arguments on all these points would be premature in light of our remand for reconsideration of total maximum medical improvement including the left leg. Prematurity for the same reason precludes disposition of the merger argument presented by appellant. We remand as to those points also for reconsideration in keeping with the above remand.

In his last point on appeal, appellant asserts that the Judge of Industrial Claims erred in allowing credit for overpayment of temporary total disability benefits to be taken against permanent partial disability benefits awarded. Although a reading of the order shows that the Judge of Industrial Claims did not allow credit for dissimilar benefits, since the awards given are stricken because of our remand of the case, that point has been rendered moot.

Affirmed in part, reversed in part, and remanded for further consideration in light of this opinion.

LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    UNIVERSITY OF FLORIDA, INSTITUTE OF AGRICULTURAL SERVICES, Appellant, v. Alice KARCH, Appellee.
    No. UU-156.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Kurt Preston Hampp, of Jacobs, Robbins & Gaynor, St. Petersburg, for appellant.
    Ivan Matusek, St. Petersburg, for appel-lee.
   PER CURIAM.

The University of Florida, Institute of Agricultural Services, appeals that portion of a deputy commissioner’s order finding that he had subject matter jurisdiction to award Florida workers’ compensation benefits to the claimant, appellee, even though the claimant may have been entitled to benefits under the Federal Employees’ Compensation Act (FECA), 5 U.S.C. § 8101, et seq. (1980). We affirm.

The order of the deputy commissioner found that the claimant, a nutrition aide, was a state employee; that her disabilities were caused by this employment; that the program the claimant had been working under was totally or partially funded by the federal government; that the federal government had accepted the responsibility for paying FECA benefits for nutritional aides generally; and that the claimant had not received FECA benefits.

The entitlement of being covered by FECA does not preclude jurisdiction under the Florida Workers’ Compensation Law, Section 440.09(2), Florida Statutes (1977). Section 440.09(2) only bars compensation to “any employee covered by the Federal Employer’s Liability Act, the Longshoremen’s and Harbor Worker’s Compensation Act, or the Jones Act.” The Act applies to all employment unless specifically excluded. Street v. Safway Steel Scaffold Company, 148 So.2d 38 (Fla. 1st DCA 1962). Employees covered by FECA are not specifically excluded by Section 440.09(2). Additionally, the rule of statutory construction, expressio unius est exclusio alterius, applies here. If the legislature intended to exclude employees covered by FECA, presumably it would have included that Act among the other federal acts listed in Section 440.09(2). The claimant was disabled in the course of state employment and was entitled to compensation. See Section 440.02(l)(b)l, Florida Statutes.

The appellant contends that Congress, in enacting FECA, preempted the field and thereby precluded a state worker’s compensation remedy to a situation in which a claimant would be covered by FECA. The language in FECA clearly indicates that FECA is the exclusive remedy against the federal government. 5 U.S.C. § 8116(c) provides:

The liability of the United States . .. under this subchapter ... with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States ... (e. s.).

The above quoted section, however, does not indicate that FECA is a claimant’s exclusive remedy against other entities. Section 8132 of the same Act, captioned “Adjustment After Recovery From a Third Person” provides:

If an injury or death for which compensation is payable under this subchapter is caused under circumstances creating a legal liability in a person other than the United States to pay damages, and a beneficiary entitled to compensation from the United States for that injury or death receives money or other property in satisfaction of that liability as a result of suit or settlement by him or in his behalf, the beneficiary, after deducting therefrom the cost of suit and after a reasonable attorney’s fee, shall refund to the United States the amount of compensation paid by the United States and credit any surplus on future payments of compensation payable to him for the same injury.

Thus, it appears that Congress contemplated a scheme whereby a FECA claimant could recover from other sources besides the federal government without receiving double compensation via FECA benefits. We believe that the workers’ compensation claim against the State of Florida was a “legal liability in a person” within the meaning of Section 8132. Therefore, it does not appear that the legislative intent in enacting FECA was to preclude concurrent jurisdiction with state workers’ compensation laws. Cf. Sunship, Inc. v. Commonwealth of Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980), where the Court held that the legislative history of the Longshoremen’s and Harbor Workers’ Compensation Act did not establish an intent to preclude a state workers’ compensation claim.

AFFIRMED.

ERVIN, SHAW and WENTWORTH, JJ., concur.

      . These findings are not disputed.

      . Atkins v. State Dept. of Highway Safety and Motor Vehicles, 383 So.2d 313 (Fla. 1st DCA 1980), is of course distinguishable. There we held that a highway patrolman who was injured in the course of his duties at a two-week National Guard summer camp was not entitled to Florida workers’ compensation benefits. The key to our holding in Atkins was that the claimant was not acting as an employee of the State of Florida when he was injured.

      .Section 440.09(1), Florida Statutes, provides a similar scheme:
      [I]f an employee shall receive compensation or damages under the laws of any other state, nothing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided herein.