author: DANIEL S. PEARSON, Judge.

text:
    Reinolds Enrique CASTRO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-894.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.

      Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

When Reinolds Enrique Castro first came to our attention, he had been convicted in back-to-back bench trials after having been denied the services of a court-appointed lawyer and adequate information about his right to a jury trial. Because of these deficiencies, we set aside Castro’s convictions. See Enrique v. State, 408 So.2d 635 (Fla. 3d DCA 1981). We now learn that prior to our decision, Castro was again in the trial court facing yet another charge which ultimated in the conviction which is the subject of the present appeal. In connection with that charge, the trial court, in a somewhat inexplicable about-face, appointed the Public Defender to represent Castro.

The assistant public defender who initially met with and represented Castro on the instant case was approached by the prosecutor to enter a plea in exchange for a five-year sentence to run concurrently with the then-extant sentences imposed less than a month before in the counselless bench trials. The assistant public defender questioned in his own mind the validity of the prior convictions which were then being appealed, and it was his view that a plea should not be entered, at least until the merits of the defendant’s appeals in the earlier cases were determined. He turned over the case to another assistant public defender, without informing his colleague or Castro about his doubts.

Castro’s new counsel was aware that Castro had been convicted in the prior counsel-less non-jury trials and had received concurrent five-year sentences. However, he was unaware of the potential that those convictions might be reversed, and he assumed their validity. He asked Castro nothing about the preceding convictions and nothing about the pending case. He pursued no investigation of the merits of either. In respect to the earlier convictions, he “felt there was no reason to doubt that Mr. Castro had knowingly, voluntarily and intelligently waived his constitutional rights to counsel and jury trial. ...” Consequently, he counseled Castro to plead guilty in exchange for a promise that he would receive a sentence of five years to run concurrently with the five-year concurrent sentences imposed on the prior convictions. He did not tell Castro that such a plea would effectively insure that even a successful challenge to his prior convictions and sentences would, in large part, be academic. Instead, he told his client that it was in his best interest to plead guilty because there was no benefit to Castro if he was acquitted. The potential detriment which counsel sought to avoid was the possibility of a consecutive sentence and an enhanced sentence under the habitual felony offender law, § 775.084, Fla.Stat. (1979), based on the earlier felony convictions. The plea was entered and the concurrent five-year sentence imposed.

Essentially all of the above facts were spelled out in Castro’s motion to vacate his plea, conviction and sentence filed under Rule 3.850 and in the unchallenged supporting affidavits of Castro and both assistant public defenders. The trial court denied the motion and Castro appealed. Months later, the convictions and sentences in the earlier cases, the sine qua non of the plea in the present case, were set aside.

To determine whether an attorney has provided reasonably effective assistance of counsel to his client, we look to the principles so recently adopted by our Supreme Court in Knight v. State, 394 So.2d 997 (Fla.1981). First, there is no dispute that the specific omission upon which the ineffectiveness claim is based was appropriately pleaded. Second, we have little doubt that counsel’s failure to advise Castro that the proposed plea of guilty to avoid an enhanced or consecutive sentence was based on counsel’s uninformed (and ultimately incorrect) assumption about the validity of the prior convictions and that such a failure was “a substantial and serious deficiency measurably below that of competent counsel.” The threat of either an enhanced penalty or consecutive sentence which the plea sought to avoid was, of course, meaningless if the prior convictions were invalid; only arguably meaningful if the prior convictions were of questionable validity; and, at most, only one factor among others to be considered. Surely, a bargain for a maximum sentence to run concurrently with convictions that may very well be set aside is hardly a bargain. This is not to say that a fully-informed Castro could not have entered such a plea, or that the subsequent vacation of the prior convictions, standing alone, would have rendered counsel ineffective. In such a case, Castro could not be heard to complain.

“Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U.S. 708, 92 L.Ed. 309, 68 S.Ct. 316 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.” Brady v. United States, 397 U.S. 742, 756-57, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747, 761 (1970).

But the wrong here is not that the defendant’s “calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.” The wrong is that counsel failed to carry out his duty to ascertain that his client’s plea of guilty was entered voluntarily and knowingly, that is, upon advice which would enable the accused to make an informed, intelligent and conscious decision to plead guilty or not. Edwards v. State, 393 So.2d 597 (Fla. 3d DCA 1981); Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). See Edwards v. Estelle, 541 F.2d 1162 (5th Cir. 1976), cert. denied, 430 U.S. 973, 97 S.Ct. 1662, 52 L.Ed.2d 367 (1977). That duty encompasses not simply an assessment of the client’s guilt or innocence of the charges upon which the plea is to be entered, but, as well, an assessment of the potential consequences of accepting or foregoing the plea bargain offered and the feasible options. Hawkman v. Parratt, 661 F.2d 1161 (8th Cir. 1981); Beckham v. Wainwright, 639 F.2d 262 (5th Cir. 1981); United States ex rel. Healey v. Cannon, 553 F.2d 1052 (7th Cir. 1977).

In the strikingly similar case of Tolliver v. United States, 563 F.2d 1117 (4th Cir. 1977), the defendant was held to have been denied the effective assistance of counsel where counsel urged him to plead guilty and accept an apparently advantageous plea bargain which would expose Tolliver to a maximum of five years imprisonment. Among other things, Tolliver’s counsel advised him he was facing a maximum of eighteen years in jail if he went to trial and was convicted on both counts, since he could, because of previous drug convictions, be sentenced as a multiple drug offender; that if he went to trial he could be impeached by his prior convictions; and, finally, even if he was not sentenced as a multiple drug offender, the prior convictions would likely lead the court to impose a harsher sentence. What counsel failed to tell Tolliver was that the validity of his prior convictions, which was so central to their advice to him to accept the offered plea, was at least highly questionable. The court concluded that counsel’s misadvice was so flagrant that it obviously arose from neglect or ignorance rather than informed professional deliberation.

The third inquiry under Knight v. State, supra, is whether the deficiency in counsel’s conduct is “substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings.” We think the prejudice which results from a plea of guilty based on the erroneous advice of counsel, unlike the prejudice which results from counsel’s conduct at a trial, is self-evident.

The State contends, however, that at the time Castro entered his plea, we had not invalidated his prior convictions, and because convictions are presumed valid, the entry of the plea was a good thing for Castro. It says further that the plea may still prove to be sound advice if Castro is, upon retrial of the earlier cases, convicted again. This may be true, but it certainly cannot be the test for measuring prejudice, for if it were, then prejudice could be shown only in cases where the defendant is ultimately acquitted at a later trial, which trial, ironically, can never be ordered unless the defendant shows that he was prejudiced at the earlier proceeding. The “likelihood that the deficient conduct affected the outcome of the court proceedings” refers not, as the State’s Catch-22 suggests, see Holyoke Mutual Insurance Company in Salem v. Concrete Equipment, Inc., 394 So.2d 193, 194 n. 1 (Fla. 3d DCA 1981), to some ultimate outcome of acquittal, but rather to the outcome, albeit tentative, of the proceeding in which the alleged ineffectiveness occurs. Thus, if a defendant is convicted and his conviction is attributable to ineffective assistance of counsel, that conviction prejudices him and must fall even though he may ultimately be found guilty in an appropriately conducted trial. As the court observed in Tolliver v. United States:

“Of course it may well be, as the district court found, that counsel obtained for Tolliver ‘a good deal.’ If guilty, Tolliver’s sentence is relatively light compared to what the statutes permit. But at this juncture of the case, we cannot say what his sentence would otherwise have been had he gone to trial and been convicted on one or both of the charges. The fact remains that Tolliver was entitled to effective assistance of counsel when he tendered his plea and when he sought to withdraw his plea, and this he did not receive. Had he received it, the decision to plead guilty would have been his own depending upon his informed appraisal of the attractiveness of the government’s offer.
“Because Tolliver did not receive effective assistance of counsel, it follows that his sentence must be vacated, his plea must be stricken, and he must be afforded the opportunity to plead anew.” 563 F.2d at 1121 (citation omitted).

We think the same holds true for Castro — his judgment of conviction must be vacated, his plea of guilty stricken, and he must be afforded an opportunity to plead anew. In so deciding, we have not overlooked the fourth principle of Knight v. State, supra, that where the defendant shows a prima facie case of prejudice, the State has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact. That principle simply has no application in this case where the ineffectiveness of counsel is the total failure to evaluate the validity of prior convictions which are later set aside, which, in turn, resulted in a plea of guilty entered in exchange for a maximum sentence to run concurrently with the sentences imposed on such prior judgments of conviction.

Reversed and remanded.

      . The case is reported as Enrique v. State, because the informations charged Castro as Reynold Enrique a/k/a Reinolds Enrique Castro.

      . See Enrique v. State, supra.

      . The charge against Castro was grand theft in the second degree, a third-degree felony, see § 812.014(2)(b), Fla.Stat. (1979), punishable by a maximum term of imprisonment of five years. See § 775.082(3)(d), Fla.Stat. (1979). Thus, the purported attractiveness of the proposal was that the sentence was to be concurrent and the State would not seek to have Castro sentenced for this offense to ten years as an habitual felony offender. See § 775.-084(4)(a)3, Fla.Stat. (1979).

      . The trial court conducted no evidentiary hearing nor, since the facts were undisputed, was one necessary. However, based on the affidavits, the trial court found that Castro’s counsel was not ineffective.

      . The State claims that Castro’s Rule 3.850 motion, because unsworn, was deficient. As we have noted, the motion was accompanied by the sworn affidavits of Castro and his counsel, which fully set forth all that the motion contained, and is more than sufficient to satisfy any requirement that the motion be sworn.

      . As counsel candidly admitted, he did not even discuss the merits of the present case with Castro.

      . Tolliver’s prior convictions were for violations of Title 26 U.S.C. § 4744(a), which made unlawful the obtaining, transporting or concealment of marijuana without paying a transfer tax. Subsequently, the United States Supreme Court held in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), that a timely assertion of the Fifth Amendment privilege against self-incrimination would bar prosecution under that statute. By the time of Tolliver’s plea, numerous federal courts, holding Leary retroactive, had invalidated convictions rendered before Leary.

      . In Cox v. State, 407 So.2d 633 (Fla. 3d DCA 1981), the court decided that Cox’s lawyer was not ineffective by failing to object to testimony that the Miranda -warned defendant remained silent in the face of police questioning because, at the time of trial, the law deemed that no objection was required. It was thus unnecessary to reach the question whether counsel’s conduct, not deficient, affected the outcome of the court proceedings and therefore the further question, id. at 637 n. 9, which we now decide, whether “the court proceedings” refers to the particular proceeding where conviction occurs or the final disposition of the case.


source: Caselaw Access Project

author: NESBITT, Judge.

license: Public Domain

text:
    NORTH MIAMI GENERAL HOSPITAL, Appellant, v. CENTRAL NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 81-1145.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.

      Lawrence & Daniels and Adam Lawrence, Miami, for appellant.
    Shutts & Bowen and Barbara E. Vicevich and Karen H. Curtis, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

North Miami General Hospital (Hospital) brought an action for the value of hospital services rendered to Clifford Teachman against Teachman and his major medical insurer, Central National Life Insurance Company (Insurer). The Hospital won a final judgment against Teachman, but the Insurer obtained a final summary judgment relieving it from liability. The Hospital appeals the final summary judgment entered in favor of the Insurer.

On March 1, 1976, the Insurer issued to Teachman a policy insuring against sickness when “such sickness ... first manifests itself while a covered person is insured ... . ” The policy also contained a statutorily-required “incontestability” provision as follows:

TIME LIMIT ON CERTAIN DEFENSES:

(a) After two years from the date a person becomes covered under this policy no misstatements, except fraudulent misstatements, made by the applicant in the application for such policy shall be used to void the policy or to deny a claim for loss incurred.
(b) No claim for loss incurred commencing after two years from the date a person becomes covered under this policy shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name or specific description effective on the date of loss had existed prior to the effective date of coverage of this policy.

As early as 1972, Teachman was diagnosed as having a humpback condition known as kyphosis. However, Teachman did not reveal this fact on his application for insurance, allegedly because he had never been informed of the 1972 diagnosis. In March of 1977, Teachman entered the Hospital to undergo corrective surgery for his condition. The Hospital sought payment for the expenses in treating Teachman on this occasion. The Insurer denied it on the ground that the kyphosis had manifested itself prior to the issuance of the policy and therefore was excluded from coverage under the “first-manifest” clause quoted above.

The Hospital argues here that Teachman filed his claim after the two-year period for contesting coverage for pre-existing illness and thus that the Insurer cannot deny coverage in the face of the incontestability clause. We disagree.

The key language for determining whether an illness falls within the two-year con-testability period or within the incontestability period arising thereafter is that “[n]o claim for loss incurred commencing after two years” from the date of coverage of the policy may be contested by the insurance company on the ground that the illness pre-existed that date. Presented with a nearly identical provision of a disability policy, the court, in Mutual Life Insurance Company of New York v. Hayden, 87 Misc.2d 1039, 386 N.Y.S.2d 978 (Sup.Ct.1976), aff’d, 60 A.D.2d 823, 401 N.Y.S.2d 992, motion for leave to appeal dismissed, 44 N.Y.2d 838, 406 N.Y.S.2d 758, 378 N.E.2d 121 (1978), held that the date a claim is filed is irrelevant to a determination of the applicability of the incontestability clause. The important date is when the loss is incurred. Here, the loss was incurred when Teachman began receiving the treatment for which benefits were sought. This occurred well within the two-year contestable period.

Were we to follow the Hospital’s interpretation and place emphasis on the date the claim is filed, the insured could always avoid contestability merely by waiting until the two-year period had expired before filing a claim. We cannot adopt an interpretation which would render the legislatively-created two-year provision ineffective and purposeless. Dickinson v. Davis, 224 So.2d 262, 264 (Fla.1969); City of Indian Harbour Beach v. City of Melbourne, 265 So.2d 422, 424 (Fla. 4th DCA 1972); see Boalt v. City Commissioners, City of Miami, 408 So.2d 1080, 1083 (Fla. 3d DCA 1982).

Consequently, we hold that the incontestability clause by its own terms does not apply in this case because the loss resulting from a pre-existing condition commenced within two years of the date of the policy. Keaten v. Paul Revere Life Insurance Company, 648 F.2d 299, 304 (5th Cir. 1981), (Roney, J. concurring). The Hospital does not argue that Teachman’s illness did not manifest itself prior to issuance of his policy. On the contrary, it admits that Teachman’s condition was diagnosed as ky-phosis in 1972, four years previously. Thus, the policy’s definition of sickness which excludes pre-manifesting conditions bars Teachman, and therefore, the Hospital, from recovering under the policy.

Alternatively, the Hospital maintains that the Insurer has waived or is estopped to assert the limitations on coverage in its policy and that the Insurer owed a duty to the Hospital to exercise due care in investigating Teachman for the purpose of discovering medical conditions which would render him ineligible for benefits. The rule is that an insurance company has the right to rely on an applicant’s representations in an application for insurance and is under no duty to inquire further, New York Life Insurance Company v. Nespereira, 366 So.2d 859 (Fla. 3d DCA 1979), unless it has actual or constructive knowledge that such representations are incorrect or untrue. Hardy v. American Southern Life Insurance Company, 211 So.2d 559 (Fla.1968); Joe’s Creek Industrial Park, Inc. v. Loyal American Life Insurance Company, 251 So.2d 348 (Fla. 2d DCA 1971). In this case, the mere fact that Teachman may have appeared “stooped over” to the Insurer’s agents did not put the Insurer on notice that further inquiry was necessary. New York Life Insurance Company v. Nespereira, supra. The Insurer is not estopped to assert the exclusions in its policy; nor was it under a duty to investigate Teach-man’s condition at the time he became insured.

We have carefully examined the remaining points in the Hospital’s brief and determine that only one merits discussion and makes error appear. Subsequent to his hospitalization for kyphosis, Teachman was readmitted to the Hospital and treated for ulnar nerve palsy. The Insurer denied coverage for this treatment on the basis of a policy provision barring recovery for a sickness that is due to the same or related causes as a prior sickness for which there has been no recovery. However, no evidence was offered to show whether the ulnar nerve palsy was due to the same or related causes as the kyphosis. Obviously then, the summary judgment must be reversed as to the question of the Insurer’s liability for the ulnar nerve palsy treatment since triable issues of fact exist with regard thereto.

Affirmed in part, reversed in part.

      . § 627.607, Fla.Stat. (1975).

      . For reasons unapparent, the author of the Hayden opinion felt it was necessary to distinguish the case of Rackear v. Springfield Fire & Marine Insurance Company, 48 Misc.2d 707, 265 N.Y.S.2d 715 (Sup.Ct.1965) (enforcing a similar incontestability provision) on the basis that Rackear dealt with a major medical insurance policy while Hayden concerned a disability income policy. In reality, there was no need to distinguish Rackear on that ground. Rack-ear merely stated that the loss is incurred when the medical and hospital bills are incurred. 265 N.Y.S.2d at 720. However, in Rackear, the insured sought coverage for hospital bills which were incurred for treatment which began a full six months after the expiration of the contestability period. Thus, the incontestability period obviously applied in that case.

      . We note that even if the loss was incurred after the two-year contestable period and thus the Insurer was barred from contesting the claim on the ground that the disease was preexisting, the Hospital would still be presented with the formidable stumbling block of Massachusetts Casualty Insurance Company v. Forman, 516 F.2d 425 (5th Cir. 1975), cert. denied, 424 U.S. 914, 96 S.Ct. 1114, 47 L.Ed.2d 319 (1976) (construing Florida law) which held that in insurance policies containing both the preexisting illness incontestability and the pre-manifesting exclusion, the incontestability clause does not expand coverage to illnesses which not only exist but also manifest themselves prior to issuance of the policy. But see Fischer v. Massachusetts Casualty insurance Company, 458 F.Supp. 939 (S.D.N.Y.1978).

      . In fact, an agent of the Insurer attributed Teachman’s appearance to “typical teenage slouch.”


author: SCHWARTZ, Judge.

text:
    SOMATRA LINES, LTD., Appellant, v. RAYNE INTERNATIONAL, INC., and Drake Insurance Co. of New York, Appellees.
    No. 81-1248.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Militana, Militana & Militana and John Militana, Miami, for appellant.
    David M. Goldstein, North Miami Beach, for appellees.
    Before HENDRY and SCHWARTZ, JJ., and WILLIAM C. OWEN, Jr., (Ret.), Associate Judge.
   SCHWARTZ, Judge.

We may not interfere with the trial judge’s conclusion upon a stipulated statement of facts that the defendant security company was not, as alleged, shown to have negligently employed a guard who later stole several vehicles from the plaintiff’s premises. Delgado v. Strong, 360 So.2d 73 (Fla.1978); Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982); Friedman v. Mutual Broadcasting System, Inc., 380 So.2d 1313 (Fla. 3d DCA 1980), cert. denied, 388 So.2d 1112 (Fla.1980); Sea Board Air Line R. Co. v. Watson, 94 Fla. 571, 113 So. 716 (1927) (conformance to custom in industry evidence of reasonable care); cf. Mallory v. O’Neil, 69 So.2d 313 (Fla.1954); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970); compare, Williams v. Brooklyn District Telegraph Co., 12 Misc. 565, 33 N.Y.S. 849 (City Ct. of Brooklyn 1895) (jury finding of negligent hiring).

There is no occasion to consider any possible alternative theory of liability since no other was contained in the plaintiff’s pleadings. See, Dober v. Worrell, 401 So.2d 1322 (Fla.1981).

Affirmed.

      . The stipulation stated:
      4. That on April 4, 1978, Defendant, RAYNE INTERNATIONAL, INC., entered into a security agreement with Plaintiff, SO-MATRA LINES, LTD., to provide guard services. The parties stipulate that the attached security agreement is a true copy of the agreement mentioned.
      5. That the FBI reports, one night between April 4, 1978, and April 10, 1978, Defendant, RAYNE INTERNATIONAL, INC., supplied the services of a security guard who, unbeknown to the Defendant, RAYNE INTERNATIONAL, was a minor and a convicted felon.
      6. That during the early hours of April 10, 1978, while an employee of Defendant, RAYNE INTERNATIONAL, INC., was on guard duty, the seven aforementioned vehicles were stolen from the area. There was no evidence of knowledge by the RAYNE INTERNATIONAL security guard on duty that night that a theft had taken place or evidence of resistance to the theft. It was further reported, by the FBI, that the original equipment keys were used to steal the vehicles, and that another bag of keys was subsequently found the next day by a fence around the property. Furthermore, the Defendant, RAYNE, and its security guards, had no access to any of the vehicle keys.
      7'. That the theft was caused by the 17 year old minor felon, security guard of Defendant, RAYNE INTERNATIONAL, INC., who was a guard on duty, as reported by the FBI on one of the previous nights. That although the theft was caused by this guard, he was not within the scope of his employment with Defendant, RAYNE INTERNATIONAL, INC., while causing the theft. The 17 year old guard had filled out an application with RAYNE INTERNATIONAL and had not indicated any previous criminal record or that he was under age. He was, in fact, operating under a temporary license issued by the State of Florida, which is a procedure allowed by law and standard and customary in the security industry, and Defendant, RAYNE INTERNATIONAL, was awaiting notification from the State of Florida as to the issuance of a permanent license. The 17 year old minor guard was subsequently convicted of this theft.


author: PER CURIAM.

text:
    Vernon Gregory TILLMAN, Appellant, v. The STATE of Florida, Appellee.
    Nos. 81-1514, 81-1670.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Bennett H. Brummer, Public Defender and Lee Weissenborn, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny Her-shoff, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

The contentions properly reviewable on these direct appeals are without merit. Fla.R.Crim.P. 3.191(d)(3); State v. Tait, 387 So.2d 338 (Fla.1980); McNamara v. State, 357 So.2d 410 (Fla.1978). Hence, the convictions are affirmed, without prejudice, however, to the subsequent consideration of a Fla.R.Crim.P. 3.850 motion based upon alleged ineffective assistance of trial counsel or any other appropriate ground.

      . Since the trial court was without jurisdiction to consider a 3.850 motion while these appeals were pending, State v. Meneses, 392 So.2d 905 (Fla.1980), any ruling on such a motion which may have already been made provides no impediment to an initial determination of the merits.


author: FERGUSON, Judge.

text:
    WASHINGTON SAVINGS AND LOAN ASSOCIATION OF FLORIDA, a DIVISION OF CITIZEN’S SAVINGS, FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. CONCEPCION DEL PORTILLO, Appellee.
    No. 81-1883.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Steel, Hector & Davis and Donald M. Middlebrooks, Miami, for appellant.
    Ciravolo & Feldman and Bennett Feld-man; Merlin & Horowitz, Miami, for appel-lee.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and J. Frost Walker, Miami, for Am-erifirst Fed. Sav. and Loan Ass’n, as amicus curiae.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   CORRECTED OPINION

FERGUSON, Judge.

Washington Savings and Loan Association of Florida appeals from a Summary Final Judgment enjoining them from enforcing a due-on-sale provision in a mortgage contract after the owner of the mortgaged property had sold or transferred the property without approval of the lender in violation of the contract terms. The trial court held, consistent with the holding of earlier Florida and Minnesota cases, that absent some showing that transfer of the mortgaged property had impaired the lender’s security, appellant-savings and loan association would not be permitted to enforce the due-on-sale clause.

In a sweeping opinion which issued subsequent to the filing of briefs in this case, the United States Supreme Court held in Fidelity Federal Savings & Loan Association v. de la Cuesta, - U.S. -, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982), that (1) the Federal Home Loan Bank Board’s due-on-sale regulation was meant to pre-empt conflicting state limitations on the due-on-sale practices of federal savings and loan associations, and (2) the applicable regulations do not confine a federal association’s right to accelerate a loan to cases where the lender’s security is impaired. De la Cuesta overrules the cases which hold that courts may, applying state equity law, refuse to enforce due-on-sale clauses in federal savings and loan association mortgage contracts, and is squarely dispositive of the narrow question presented by this appeal.

Reversed and remanded for further proceedings.

      . The mortgage contract contains the following provisions:
      If all or any part of the property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent ... Lender may at Lender’s option, declare all the sums secured by this mortgage to be immediately due and payable. Lender shall have waived such option to accelerate if, pri- or to the sale or transfer, the Lender and the person to whom the property is to be sold or transferred reach agreement in writing that the credit of such person is satisfactory to Lender and that the interest payable on the sum secured by this mortgage shall be at a rate as Lender shall request. If Lender had waived the option to accelerate provided in this paragraph 17, and if Borrower as successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Mortgage and the Note.
      * * * * * *
      Should Borrower or any other person acquiring title to the real estate encumbered hereby, transfer said title, or should same be transferred by operation of law, then at the time of such transfer or transfers, Lender at its option and in its sole discretion, shall have the right to increase the rate of interest prescribed in said promissory note to the rate at which Lender shall then be charging on new mortgage loans secured by real estate similar to that encumbered hereby ... such increased rate shall be binding upon all subsequent transferees, and upon Borrower.

      . See First Federal Savings and Loan Association v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980); Holiday Acres Number Three v. Midwest Federal Savings & Loan Association, 308 N.W.2d471 (Minn.1981); cf. Consolidated Capital Properties II, Ltd. and Creekwood Village Association, Ltd. v. National Bank of North America, 420 So.2d 618 (Fla. 5th DCA 1982) (federal-due-on-sale regulation inapplicable to non-federal financial institutions).

      . The Federal Home Loan Bank Board is an independent federal regulatory agency which has complete authority to administer the Home Owner’s Loan Act of 1933 (HOLA), 48 Stat. 128, as amended, 12 U.S.C. § 1461 et seq. (1976 ed. and Supp. II). The statute empowers the Board to make “such rules and regulations as it may prescribe, to provide for the organization, incorporation, examination, operation, and regulation of associations to be known as ‘Federal Savings and Loan Associations’.”

      .12 C.F.R. § 545.6-11(g) (1975) is the pertinent regulation. It provides in part;
      (f) Due-on-sale clauses. A Federal association continues to have the power to include, as a matter of contract between it and the borrower a provision in its loan instruments whereby the association may at its option declare immediately due and payable all of the sums secured by the association’s security instrument if all or any part of the real property securing the loan is transferred by the borrower without the association’s prior consent. . . .


text:
    Stan E. MEACHAM, Appellant, v. Diane L. MEACHAM, Appellee.
    No. 81-2092.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Whitman, Wolfe & Gross and John W. Salmon, Miami, for appellant.
    Ferrell & Ferrell and Milton Ferrell, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


author: BASKIN, Judge.

text:
    Virgilio BLASCO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2331.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

In an attempt to impeach defendant Blas-co’s statement during trial that he had previously been convicted of only one crime, the state “refreshed” his memory by questioning him concerning the nature of other convictions, without introducing conviction records. All but one of the convictions were of misdemeanors and did not involve dishonesty or false statements which would have permitted their use for impeachment. The questions posed by the state constituted improper impeachment under the procedure outlined in Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982), which we adopt.

To contradict a witness by past convictions a record of such convictions must be introduced into evidence. Rommell v. Firestone Tire and Rubber Co., 394 So.2d 572 (Fla. 5th DCA 1981). Questions regarding past convictions should not be asked unless the prosecutor has knowledge that the witness has been convicted of a crime and has the evidence necessary for impeachment if the witness fails to admit the number of convictions of such crimes. We agree with the First District Court of Appeal that the question, ‘Have you ever been convicted of a felony?’ will cover crimes punishable by death or imprisonment in excess of one year. However, the second part of Section 90.610(1) presents a more difficult problem. A defendant may not know which crimes involve dishonesty or false statements and may open the door to disclosure of certain crimes by failing to acknowledge the number of such convictions or create the impression of a pattern of criminal conduct by including crimes not cognizable by Section 90.610(1). Therefore it may be appropriate for the trial court upon request of either counsel to instruct the witness out of the presence of the jury as to the types of crime which involve dishonesty or false statements. We hold that as a predicate to impeachment under Section 90.610(1), Florida Statutes (1979), two questions may be asked: ‘Have you ever been convicted of a felony?’ and ‘Have you ever been convicted of a crime involving dishonesty or false statement?’ Accordingly, the form of the prosecutor’s question was improper. . . .

Id. at 439. See also McClellan v. State, 417 So.2d 1098 (Fla. 4th DCA 1982). In view of the overwhelming evidence of defendant’s guilt, however, reversal is not appropriate. Houston v. State, 337 So.2d 852 (Fla. 1st DCA 1976); Lockwood v. State, 107 So.2d 770 (Fla. 2d DCA), cert. denied, 111 So.2d 41 (Fla.1959).

Affirmed.


text:
    Robert LEVINE, Appellant, v. DADE COUNTY SCHOOL BOARD, etc., Appellee.
    No. 81-2352.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Arthur W. Tifford and Peter Clemente, Miami, for appellant.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Nancy Schleifer and Donna S. Catoe, Miami, for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant instituted an action to recover damages for an injury he sustained when he was assaulted on school premises. His appeal challenges the trial court’s ruling that his action was precluded by his failure to present written notice of claim to the Department of Insurance, even though he served timely notice upon the School Board and upon Dade County. He contends that he satisfied the requirements of section 768.28(6), Florida Statutes (1977).

According to section 768.28(6), Florida Statutes (1977):

An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance, within three years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within six months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted by counterclaim pursuant to s. 768.14.

In our opinion, the failure to serve notice of claim upon the Department of Insurance should not preclude appellant from maintaining this action. By serving timely notice upon the real parties in interest, appellant complied with statutory requirements. The Department of Insurance has neither a financial interest nor an investigative concern in the proceedings and can show no prejudice from the lack of notice. Its sole function in this instance is to report the number of claims. The affidavit of the Administrator of General Liability Insurance, Michael Rinehart, establishes the mere formality of the required notice:

5. The Department of Insurance has no financial interest in any claim made against a school board for any political subdivision of the State of Florida, including each and all of the counties constituting and comprising the State of Florida.
6. The Department of Insurance has no investigative or substantive interest in any claim made against any county school board within the State of Florida; the Department of Insurance does not participate in any investigation of a claim or the disposition thereof; that is to say the Department of Insurance does not participate in the investigation of any claim made against any county school board and does not participate in any decision with respect to paying or not paying any such claim. Nor does the Department of Insurance participate in the payment of any claim made against any county school board by way of contribution to the funding of such payment.
7. The Department of Insurance has no financial interest in any civil action brought against any county school board. Nor does it participate in such litigation, substantively or procedurally. The insurance department does not participate in any decision to settle or not settle such civil actions.
8. The only interest the Department of Insurance has in any claims made against any political subdivision of the State of Florida, including each of the counties or their school boards is as follows: the Department of Insurance reports annually to the State Legislature the number of claims made or filed against political subdivisions of the State of Florida, including county school boards. This reporting requirement simply reflects the number of claims made; it does not include further information as to the amount of claim, the disposition of the claim, if any, whether the claim results in civil litigation and, if so, the disposition thereof.

We are of the opinion that appellant has complied with statutory prerequisites to the waiver of sovereign immunity. We are unable to reverse the trial court’s dismissal, however, because the supreme court, in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1023-24 (Fla.1979), ruled that notice to the Department of Insurance must be alleged in the complaint. In Commercial Carrier, the court remanded for amendment; that procedure would afford no relief here because the Department of Insurance did not receive timely notice.

We therefore certify to the Supreme Court of Florida as a question of great public importance, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2XA)(v), the following question:

May a plaintiff maintain an action to recover damages from a state agency or subdivision, pursuant to section 768.28(6), Florida Statutes (1977), if he notified the appropriate agency but failed to present a written notice of claim to the Department of Insurance, which has no interest or role in the proceedings other than to report claims to the legislature, and no prejudice resulted?

Affirmed and question certified.


text:
    Albert SOREY, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2465.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.

      Bennett H. Brummer, Public Defender and Michael L. Van Zamft, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Sorey challenges his convictions for assorted crimes arising out of an armed holdup of a Burger King restaurant upon the essential ground that the sole evidence to establish the identity of Sorey as a perpetrator of the crimes was his fingerprints, which, he contends, were not shown by the State to have been made only at the time the crime was committed. Sorey separately challenges his convictions for kidnapping of the robbery victims, contending that the confinement of the victims, who were placed on the floor and bound with ropes, was merely incidental to, inherent in, and of no significance independent of the crime of robbery.

We quickly dispose of Sorey’s challenge to the kidnapping convictions. The evidence shows that after the contents of the store safe had been removed, the four Burger King employees were made to lie on the floor of the restaurant where each had his hands tied behind his back and his feet tied together by Sorey and his confederate. The defendants departed and the bound victims were later found.

Sorey’s act of tying the victims to facilitate his escape and lessen the risk of detection constitutes kidnapping, even applying the most stringent interpretation of Florida’s kidnapping statute. See Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980), and its progeny, Carron v. State, 414 So.2d 288 (Fla. 2d DCA 1982); Simpkins v. State, 395 So.2d 625 (Fla. 1st DCA 1981); Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980); compare Gilley v. State, 412 So.2d 68 (Fla. 1st DCA 1982); Faison v. State, 399 So.2d 19 (Fla. 3d DCA 1981). In Harkins, the court held that tying the victim to the bed where he was sexually assaulted and stabbed to death was not incidental to and inherent in the sexual assault and murder and thus independently established the offense of kidnapping. Of course, under the broader view of the kidnapping statute which we espoused in Faison v. State, supra, Sorey’s argument fares even worse. Accord, Dowdell v. State, 415 So.2d 144 (Fla. 1st DCA 1982) (requiring store manager at gunpoint to re-enter rear door of store and crawl to safe in front constitutes movement and confinement which served to lessen risk of detection and made out an offense under kidnapping statute).

We turn now to Sorey’s argument that the circumstantial fingerprint evidence was insufficient to sustain the jury’s finding of guilt and that he was entitled to a judgment of acquittal. The record reflects that one of the two robbers ordered the shift manager, Mr. Casebolt, to take him back to the safe located in a rear room, a non-public part of the restaurant. There the offender, his hands bared, reached into the safe, removed money and envelopes and placed them in a bag. Casebolt, in charge of the restaurant at the time of the robbery, testified that the envelopes contained instructions for gift certificate programs conducted by Burger King, were kept in the top compartment of the safe, had been there approximately two weeks, and, to the best of his knowledge, were inaccessible to the public. No manager from any other shift testified. Moments after the robbers left the restaurant a police officer in a patrol car spotted them. One had a bundle in his hand, which he threw down when the officer gave chase. Although the officer was unsuccessful in apprehending the robbers, the bag was recovered from a flowerbed some fifty feet from the Burger King and within an hour and a half of the robbery. One envelope found therein contained a fingerprint which matched Sorey’s.

Sorey’s basic thesis is that there were four persons who managed the Burger King on different shifts, each one with access to the safe, and that no testimony was elicited from the three managers who were absent when the crimes occurred to dispel the possibility that the envelope was removed from the safe and left out in the main and public part of the restaurant where a customer, perhaps Sorey, could have touched it. Thus, he says, the evidence does not exclude every reasonable hypothesis of innocence and is thereby insufficient for conviction.

Where, as here, fingerprint evidence is the sole evidence relied upon to establish that the defendant was the perpetrator of the crime, it is said that “the circumstances must be such that the print could have been made only at the time the crime was committed.” Tirko v. State, 138 So.2d 388, 389 (Fla. 3d DCA 1962). The determination of whether the circumstances are such that the print could have been made only at the time the crime was committed is to be made by the fact-finder, Roberts v. State, 268 So.2d 578 (Fla. 3d DCA 1972), provided that the court, viewing the evidence in a light most favorable to the State, M. R. v. State, 399 So.2d 56 (Fla. 3d DCA 1981), has first determined that a reasonable-minded jury could find the guilt of the defendant beyond a reasonable doubt. In the Interest of G. B. S., 417 So.2d 1181 (Fla. 4th DCA 1982); Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974). Thus, in a case where fingerprint evidence is the sole evidence relied upon to establish the identity of the defendant as the perpetrator of the crime, the court, viewing the evidence most favorably to the State, must decide whether reasonable-minded jurors could find beyond a reasonable doubt that the fingerprints were made at the time the crime was committed.

Where the sole evidence linking a defendant to the crime is fingerprints found in a place or on a thing accessible to the general public and there is no other evidence to show that the prints were made at the time of the crime, see, e.g., Williams v. State, 247 So.2d 425 (Fla.1971), courts must conclude that a defendant is entitled to a judgment of acquittal. For example, in Ivey v. State, 176 So.2d 611 (Fla. 3d DCA 1965), evidence that the defendant’s fingerprint was found on a glass jalousie on the front door of a store building was held insufficient to support a jury finding of guilt “because the print was in a public place and the record does not preclude that it might have been placed there sometime before the crime.” Id. at 612. Moreover, when the place where the print is found is as accessible to the general public as a store front, the testimony of the store owner that he never saw the defendant at the store does not overcome the insufficiency. Ivey v. State, supra. See Dixon v. State, 216 So.2d 85 (Fla. 2d DCA 1968) (where a print is left in a place open to the public and there is no other evidence of identity, the courts must assume that a defendant was shopping rather than stealing). Similarly, in Wilkerson v. State, 232 So.2d 217 (Fla. 2d DCA 1970), fingerprints found on broken glass near and from the front glass door of a clothing shop which had been smashed in a burglary were insufficient to establish that the defendant committed the burglary. Since the front door was accessible to the general public, the prints might have been placed on the glass sometime before the glass was broken in the burglary., And in A. V. P. v. State, 307 So.2d 468 (Fla. 1st DCA 1975), where the juvenile’s fingerprints were on a soft drink bottle filled with gasoline and found in the vicinity of the arson, the assumption was indulged that the print could have been made at a time unconnected with the arson, presumably because a soft drink bottle is by its nature an object which may be discarded after use, and as such may bear the prints not only of a user, but any member of the public who may thereafter come upon it.

The hypothesis of innocence, that prints were made at a time other than the time of the crime, is then reasonable as a matter of law where the prints are found in a place or on a thing which is accessible to the general public and where there is no other evidence to show that the prints were made at the time of the crime. Where, however, the prints are located in a place, on an object, or on a particular part of an object to which the general public does not have access, the hypothesis that the print was not placed on the object at the time of the crime is not one which the court must declare reasonable as a matter of law, and it remains for the jury to determine its reasonableness. This is so because in the latter instance we need not assume that the defendant as a member of the general public placed his fingerprint at the place or on the object at a time other than the crime. Therefore, when the State proves that the print was found in a place or on a thing not accessible to the general public, such proof, standing alone, is legally sufficient, and the jury may infer from it that the print was made at the time of the crime. See Dargans v. State, 259 So.2d 782 (Fla. 2d DCA 1972) (defendant’s fingerprints found on bottom of beer carton which, on heels of break-in, was found outside of burglarized store; since bottom of the beer carton is normally inaccessible to store customers, evidence of the defendant’s identity as the perpetrator of the break-in was sufficiently established); Roberts v. State, supra (defendant’s fingerprints found on kitchen doorjamb, cigarette lighter in bedroom, and windowsill in front bedroom were sufficient to establish that prints made at time of crime).

If, however, the defendant shows through testimony that he, unlike a member of the general public, had access to the place or object at a time other than the time of the crime so as to reasonably explain the existence of his prints, the version of events related by the defense must be accepted as true unless contradicted by other proof showing the defendant’s version to be false. Jaramillo v. State, 417 So.2d 257 (Fla.1982). See McArthur v. State, 351 So.2d 972 (Fla.1977); Mayo v. State, 71 So.2d 899 (Fla.1954); Holton v. State, 87 Fla. 65, 99 So. 244 (1924). Thus, where the defendant’s fingerprints were found on candlestick holders, a pitcher, a plate and the back of an inside doorknob in a residence owned and occupied by a husband and wife, the hypothesis of innocence raised by the defendant’s testimony that he had visited in the home in the wife’s presence some ten days before was not overcome by the husband’s testimony that “as far as he knew,” the defendant had never been inside the house. Williams v. State, 308 So.2d 595 (Fla. 1st DCA 1975). But where the defendant’s fingerprint was found on the lower drawer of a file cabinet located in that part of the dentist’s office to which patients did not ordinarily have access, the defendant’s testimony that he had been to the dentist’s office months before the alleged break-in for a tooth extraction and rested on a couch close to the cabinet while recovering from the extraction did not entitle the defendant to a judgment of acquittal, where the dentist testified he had no recollection of the defendant being a patient. Summerson v. State, 200 So.2d 594 (Fla. 3d DCA 1967).

But Sorey presented no testimony to explain how his prints got on the Burger King envelope at a time other than the time of the crime. The State, having shown the envelope to be in a place inaccessible to a member of the public such as Sorey, was not obliged to contradict defense counsel’s unsupported hypothesis that a manager of Burger King removed the envelope from the safe, brought it to a place where the defendant was, and the defendant touched it. While Sorey’s counsel was free to make this argument, the jury was free to reject the reasonableness of his hypothesis. It did exactly that, and we affirm.

Affirmed.

      . Significantly, the court in Harkins quoted with approval a distinction set forth in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976);
      “The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is.” Harkins v. State, 380 So.2d at 528.
      This distinction led to the no-kidnapping result in Friend where the confinement consisted of ordering the employees into a bathroom, telling them to stay there, and shutting but not locking the door. Presumably, Friend would have been decided differently if the bathroom door had been locked. Compare Ayendes v. State, 385 So.2d 698 (Fla. 1st DCA 1980). The confinement in Simpkins was not for the purpose of lessening the risk of detection or facilitating escape.

      . Where, however, fingerprints are not the sole evidence to establish the identity of the defendant as the perpetrator, this rule does not apply. See Bryant v. State, 235 So.2d 721 (Fla.1970) (fingerprints found on telephone extension in public coin laundry admissible to corroborate identity of defendant as perpetrator otherwise established by similar act evidence); Engdall v. State, 319 So.2d 144 (Fla. 4th DCA 1975) (although affirmed without opinion, facts set forth in dissent indicate that fingerprints found on several day-old rolled-up newspapers in burglarized apartment apparently found admissible to corroborate identity of defendant as perpetrator otherwise established by similar act evidence); State v. Perry, 297 So.2d 638 (Fla. 2d DCA 1974) (fingerprints found on glas-sine envelopes containing heroin admissible to corroborate identity of defendant as perpetrator otherwise established by his presence in vehicle from which packets appeared to have been thrown); Dixon v. State, 216 So.2d 85 (Fla. 2d DCA 1968) (fingerprints found on TV sets which had been on public display in store admissible to corroborate identity of defendant as perpetrator otherwise established by evidence that TV sets were found in his car).

      . To say, as in Tirko, that the circumstances must be such that the print could have been made only at the time the crime was committed is the equivalent of saying that the circumstances must be such that a reasonable jury could find beyond a reasonable doubt that the prints were made at the time the crime was committed, or that a reasonable jury could find that the evidence excludes the reasonable hypothesis of innocence, that is, that the prints were not made at the time the crime was committed.

      . In Wilkerson, the court points out that the glass door was broken at 1:45 a. m. and the prints taken at 3:30 a. m. That fact would be relevant only if the prints could not have been placed on the glass before it was broken.

      . Perhaps the most generous view of place accessible to the general public is found in Knight v. State, 294 So.2d 387 (Fla. 4th DCA 1974), where the court held that the defendant’s fingerprint found at the base of a service bay door of a gasoline service station was, because the door was in reach of customers, insufficient proof to sustain the defendant’s conviction.

      . But see State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976), where the court, despite the absence of any testimony to explain the existence of the defendant’s prints on a jalousie slat found in the bushes near the burglarized home, see discussion infra, speculated that since the house was for sale and had been burglarized three weeks earlier, the prints could have been made when the defendant was being shown the house by the realtor, when he independently viewed the house, when the house was burglarized previously, or when he picked up the jalousie in the bushes. While all of these are certainly hypotheses of innocence which a jury might find reasonable, they are not, in the case of a private residence, reasonable as a matter of law so as to require acquittal.

      . In our view, Dargans cannot be read as a case in which the defendant’s identity was otherwise established, since the only other proof was that the defendant and a car in which he was found a short time after the break-in “fit the description” of the burglar and the car which left the scene. Nor can Dargans be classified as a case where independent proof established that the prints were made at the time of entry despite the storeowner’s testimony that he was present from the time of the delivery to the time of the break-in and, presumably, had never seen the defendant in the store. If the print were found in a place on the carton accessible to the general public, the owner’s testimony that he never saw the defendant would not overcome the hypothesis that the print was made by the defendant as a customer. See Ivey v. State, supra.

      . It is apparent that since the conclusion in Williams was that the evidence was insufficient to establish the defendant’s guilt, the court’s remand for a new trial was inappropriate. See Tibbs v. State, 397 So.2d 1120 (Fla.1981); McArthur v. Nourse, 369 So.2d 578 (Fla.1979). See also Jaramillo v. State, supra, where, based on the same conclusion, the court ordered the defendant discharged.

      . But see J. C. v. State, 377 So.2d 731 (Fla. 3d DCA 1979), where despite burglary victim’s testimony that defendant, who admittedly had been to the home to visit victim’s son, never had access to the point of entry, a utility room door where the prints were found, and had not been to the house for a week prior to the break-in, the court held the evidence insufficient as failing to exclude the reasonable hypothesis that the “energetic and inquisitive propensities” of the youth led him to the utility room door at a time other than the time of the crime. While this hypothesis might very well be one which a jury could accept, the fact remains that because it was contradicted by the victim’s testimony, it was not reasonable as a matter of law so as to require acquittal.

      . Sorey’s counsel, in closing argument to the jury, stated:
      “The manager, Mr. Casebolt, if you want to believe that he saw those envelopes back there and taken out of the safe and thrown into the bag, that is up to you. Those two envelopes, were they only in that safe the whole time? That is important. We show that he is one of the four managers. We know that Mr. Casebolt, according to him, is not there all the time. There were other managers and they divided their time, there is one manager in there a time. We know that those four managers all had access to that safe. We know that anyone of those four managers could have gone in there and taken out those envelopes and done whatever. They could have if they wanted to study the contents of the envelope, they could have taken the envelope out and taken a ten minute break and sat down at a table and had a Burger King cheeseburger with a coke and french fries.”


text:
    Mark LATULAS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2503.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Bennett H. Brummer, Public Defender and Randolph Q. Ferguson and John H. Lipinski, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

The single issue on this appeal is whether or not the coneededly circumstantial evidence is sufficient to support a conviction for manslaughter. We agree with the appellant that the evidence is insufficient and, consequently, reverse.

The evidence at trial consisted of the exculpatory statement of the defendant and the testimony of the medical examiner who had performed the autopsy. The defendant’s statement, introduced in the State’s case in chief, was that he and the victim had a disagreement and that she had threatened him with a broken soda bottle. He further stated that he had taken the bottle away and, thereafter, the victim had run across the street. The medical examiner’s findings indicated that the victim died as a result of a stab wound to the abdomen consistent with a broken soda bottle. On cross-examination, the medical examiner opined that the fatal wound could have been accidental. The foregoing was the only evidence which might establish criminal liability on the part of the defendant.

On these facts, the evidence is insufficient to support a manslaughter conviction. McArthur v. State, 351 So.2d 972 (Fla.1977); Mayo v. State, 71 So.2d 899 (Fla.1954). In the absence of testimony contradictory to the defendant’s theory of self-defense, the State has failed to meet its burden of making out a prima facie case on a charge of manslaughter. Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980); Ferguson v. State, 379 So.2d 163 (Fla. 3d DCA 1980).

For the foregoing reasons, the judgment of conviction is reversed and this cause remanded to the trial court with directions to discharge the defendant.

Reversed and remanded with directions.


text:
    The STATE of Florida, Appellant, v. Willie Lee DORSEY, Appellee.
    No. 82-307.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Redondo v. State, 403 So.2d 954 (Fla.1981); Mahaun v. State, 377 So.2d 1158 (Fla.1979); Wooten v. State, 404 So.2d 1072 (Fla. 3d DCA 1981), pet. for review denied, 412 So.2d 471 (Fla.1982).


text:
    AMERICAN TITLE INSURANCE COMPANY, as Subrogee of Nicholas Gomez and Linda Gomez, his wife, Appellant, v. Helen COAKLEY, Appellee.
    No. 82-423.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.

      Heitner & Rosenfeld and Allan Stein, North Miami Beach, for appellant.
    Sylvester P. Adair, Homestead, for appel-lee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Mrs. Coakley conveyed her home to the Gomezes in 1977. The abstract of title failed to disclose the existence of an Internal Revenue Service lien against Mrs. Coak-ley. The title insurance company that insured the Gomezes paid the lien; and, as subrogee of the Gomezes, instituted this action against Mrs. Coakley for breach of the covenant against encumbrances. On this uncontradicted record, the trial judge nonetheless issued final judgment in favor of the defendant. We reverse.

Pursuant to the warranty deed, the grantor covenants that the land is free and clear of encumbrances, § 689.03, Fla. Stat. (1977), including a lien for taxes. Howard Cole & Co. v. Whidden, 77 Fla. 842, 82 So. 297 (1919). Any breach thereof entitles the grantee, his assignee or subrogee to recover the amount paid to remove the lien on the property, with interest.

Accordingly, we reverse and remand with directions to enter judgment for the plaintiff.

Reversed and remanded.


text:
    Mitchell RUBIN, Appellant, v. Harold GLICK, M.D. and Florida Patient’s Compensation Fund, Appellees.
    No. 82-933.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Hoppe & Backmeyer, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart, Miami, Perkins & Collins and Samuel R. Neel, III, Tallahassee, for appellees.
    Before HUBBART, C. J., and BARK-DULL and PEARSON, DANIEL S., JJ.
   PER CURIAM.

The appellant’s sole contention on appeal is that Florida Rule of Civil Procedure 1.450(e) unconstitutionally denies him, a medical malpractice plaintiff, rights accorded dissimilar plaintiffs and that any non-arbitrary basis for this separate classification disappeared when the Florida Supreme Court in Aldana v. Holub, 381 So.2d 231 (Fla.1980), declared the medical mediation act unconstitutional as violative of due process. Because the appellant did not challenge the constitutionality of the rule in the trial court, we will not entertain his challenge here. Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So.2d 128 (Fla.1978); Sanford v. Rubin, 237 So.2d 134 (Fla.1970); Granados v. Miller, 369 So.2d 358 (Fla. 4th DCA 1979); Picchione v. Asti, 354 So.2d 954 (Fla. 3d DCA 1978).

Affirmed.

      . The rule provides:
      “In any civil medical malpractice action, the trial on the merits shall be conducted without any reference to insurance, to insurance coverage, or to the joinder of an insurer as co-defendant in the suit.”


author: PEARSON, DANIEL S., Judge.

text:
    Terry ZIEGLER, James Greenbaum, Jeffrey Wallerstein and Prime Financial Services, Inc., a Florida corporation, Petitioners, v. The Honorable Francis X. KNUCK, a Judge in the Eleventh Judicial Circuit in and for Dade County, Florida, and KGG, Inc., a Florida corporation, Respondents.
    No. 82-1058.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Dan Cytryn, Lauderhill, for petitioners.
    Steven B. Dolchin, Hollywood, for respondents.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   ON PETITION FOR WRIT OF CERTIORARI

PEARSON, DANIEL S., Judge.

KGG, Inc., the respondent, and Prime Financial Services, Inc., the petitioner, each own fifty per cent of a partnership called Prime Financial Sales. Frank, Strelkow & Gay, the attorneys for the partnership, recovered a judgment and received moneys from the judgment debtor on behalf of their client. A dispute having arisen between the partners in Prime Financial Sales as to the entitlement to the funds, the attorneys, as holders of the funds, filed a complaint for interpleader joining the partners as defendants. The trial court ordered the moneys paid into the registry of the court and dismissed the attorney-stakeholders from the action.

After the stakeholders were dismissed, KGG, Inc. filed a cross-claim against its partner, Prime Financial Services, Inc., for breach of contract, diversion of partnership funds, conversion of assets, and breach of fiduciary duty. Before filing any other pleading against KGG, the petitioner moved to dismiss the crossclaim and to compel arbitration. The motion was denied by the trial court, and its denial is the subject of this petition for certiorari. We have jurisdiction. Lapidus v. Arlen Beach Condominium Association, 394 So.2d 1102 (Fla. 3d DCA 1981).

The partnership agreement between the petitioner and the respondent contained the following arbitration clause:

“Arbitration of all Disagreements and Controversies
“The parties wish to provide a speedy and informal method for resolving all disagreements and controversies and to break all ‘deadlocks’. To do this Paul H. Clancy, President of Bengal has been designated as ‘arbitrator’
“Either party, with or without notice to the other party, may submit a question or controversy to the Arbitrator for a decision, which shall be final and binding upon both parties. The Arbitrator shall establish such procedures as he deems appropriate, permit both sides to be heard by him and render a speedy decision. The Arbitrator will hold a formal hearing as requested by either party.”

The respondent first urges that the language of the arbitration clause, “either party ... may submit ...,” does not require arbitration, but instead makes arbitration optional. Of course, even if the language of the arbitration clause were compulsory, the right to forego insistence upon its enforcement is always optional. Thus, the use of the optional language is little different than the use of the compulsory language— it creates in either party the right to insist upon arbitration; it creates in neither party the right to resist arbitration insisted upon by the other. Construing a clause similar to the one at issue here, the court in Bonnot v. Congress of Independent Unions Local # 14, 331 F.2d 355 (8th Cir. 1964), stated:

“We should mention, perhaps, the union’s suggestion that the bargaining agreement does not compel arbitration, but only provides that either party ‘may request it,’ that it is thus permissive and optional; and that neither it nor the contractor elected to arbitrate. The result claimed to follow is that the arbitration here is not mandatory. We think that the result is necessarily the other way. The obvious purpose of the ‘may’ language is to give an aggrieved party the choice between arbitration or the abandonment of its claim. The presence of this or similar language has not prevented the conclusion that a claim, if pressed, is compulsorily subject to arbitration. See [United Steelworkers of America v.] American Mfg. Co., supra, p. 565 of 363 U.S. [564], 80 S.Ct. 1343, 4 L.Ed.2d 1403 [(1960)], where the contract provided that differences ‘may be submitted’, and Drake [Bakeries, Inc. v. Local 50, American Bakery, etc. Workers], supra, p. 257 of 370 U.S. [254], p. 1349 of 82 S.Ct. [1346], 8 L.Ed.2d 474, footnote 2 [ (1962) ], where the contract read, ‘either party shall have the right to refer the matter to arbitration’. The Fifth Circuit has flatly rejected the union’s argument. Deaton Truck Line, Inc. v. Local 612 etc., International Bhd. of Teamsters, 314 F.2d 418, 422 (5 Cir. 1962). We agree. If either Employees Labor Ass’n v. Proctor & Gamble Mfg. Co., 172 F.Supp. 210, 214 (D.Kans.1959), or Wisconsin Motor Corp. v. Wisconsin Employment Relations Bd., 274 Wis. 85, 79 N.W.2d 119, 124 (1956), contains any implication to the contrary, we only note that both were decided before American Mfg. Co. and Drake. We follow the later federal precedents we have cited.” Id. at 359-60.

And in Deaton Truck Line, Inc. v. Local Union 612, Internationa] Brotherhood of Teamsters, 314 F.2d 418 (5th Cir. 1962), relied on in Bonnot, supra, the court held:

“Appellant argues that the use of the word ‘may’ in the contract prevents arbitration from being compulsory or obligatory. Clearly, however, ‘may’ should be construed to give either aggrieved party the option to require arbitration. United Steelworkers of America v. American Mfg. Co., 1960, 363 U.S. 564, 565, n. 1, 80 S.Ct. 1343 [1345] 4 L.Ed.2d 1403; International Association of Machinists, AFL-CIO v. Hayes Corp., 5th Cir., 1961, 296 F.2d 238, 241, n. 6.” Id. at 422.

In our view, these cases set at rest the respondent’s first contention. Therefore, since the petitioner insisted upon its option to arbitrate' the dispute by submitting the controversy to the named arbitrator simultaneously with the filing of its motion to compel arbitration, and the dispute between the partners as to the entitlement to the interpleaded funds is undoubtedly a disagreement or controversy within the meaning of the clause, the petitioner’s right to compel arbitration is clear unless, as the respondent next urges, the petitioner has waived its right by some action inconsistent with arbitration.

The respondent argues that waiver occurred when the petitioner resisted the stakeholder’s interpleader action, initially through motions to dismiss, strike, and to transfer venue to Broward County, and next by its answer and affirmative defenses to that action, all without mention of the petitioner’s right to arbitrate. The respondent further suggests that even if these acts did not constitute a waiver, the petitioner’s later act of answering the respondent’s crossclaim, and crossclaiming for the interpleaded funds after an adverse ruling on the motion to compel arbitration was itself a waiver. Again we disagree.

The petitioner’s actions vis-a-vis Frank, Strelkow & Gay, the interpleader-plaintiff, are irrelevant to a claim that it waived arbitration as against KGG. The partnership agreement which gave the petitioner a right to arbitrate was between the co-defendant, KGG, and the petitioner, not between the interpleading plaintiff and the petitioner. The petitioner could not interpose the arbitration agreement as a defense to the interpleader. The issue whether the interpleader action was a proper one, raised in the petitioner’s motions to dismiss and strike the complaint for interpleader and its affirmative defense to that action, was not an issue subject to arbitration. Only the defense of a lawsuit on issues subject to arbitration may constitute a waiver. See Seville Condominium # 1, Inc. v. Clearwater Development Corp., 340 So.2d 1243 (Fla. 2d DCA 1976). Since the right of the interpleading plaintiff to interplead the funds was not an issue subject to arbitration, and since all pleadings filed by the petitioner prior to its motion to compel arbitration were directed only to the propriety of the interpleader action, there was no waiver of the right to arbitrate in these pleadings of the petitioner.

It was not until the trial court allowed the interpleader that KGG filed its crossclaim against the petitioner and the issue of arbitration ripened. At that point, the petitioner moved to compel arbitration and its motion was denied. It was after the denial of this motion that, its motion to stay further proceedings having been denied by the trial court, the petitioner, under threat of default, answered KGG’s crossclaim, filed affirmative defenses thereto, and cross-claimed against KGG for the interpleaded funds. We do not deem this compelled submission to the trial court’s ruling to be a repudiation by the petitioner of its right to arbitration when the very ruling denying arbitration is challenged by a timely petition for certiorari. Nor by the same reasoning can the petitioner’s crossclaim against KGG, the equivalent of a compulsory counterclaim, be deemed a waiver. The petitioner, having timely moved to compel arbitration, has not by its subsequent obligatory pleadings waived its rights to arbitration.

The petition for writ of certiorari is granted, and the trial court’s order denying petitioner’s motion to compel arbitration is quashed with directions to the trial court to compel arbitration pursuant to the parties’ agreement and to stay all further proceedings in the trial court pending arbitration.

      . The complaint also joined five individuals, Ziegler, et at, who were the shareholders of Prime Financial Services, Inc. The parties make no distinction between the petitioners.

      . The propriety of the interpleader action and the dismissal of the attorneys is the subject of a separate appeal pending in this court, Ziegler, et al. v. Frank, Strelkow & Gay, Case No. 82-461.

      . The respondent’s reliance on Wisconsin Motor Corp. v. Wisconsin Employment Relations Board, supra, is thus misplaced. In any event, we read Wisconsin Motor Corp. as being a waiver case.


text:
    Felton Bernard GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1578.
    District Court of Appeal of Florida, Third District.
    Opinion filed Sept. 28, 1982.
    Felton Bernard Green, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and PEARSON, DANIEL S., JJ.
   PER CURIAM.

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

Affirmed.