author:
SCHWARTZ, Judge. FERGUSON, Judge NESBITT, Judge
      HUBBART, Chief Judge

text:
    Jerry B. SCHREIBER, personal representative of the Estate of Theadores W. Ross, Appellant, v. CHASE FEDERAL SAVINGS & LOAN ASSOCIATION, Luis Perez, and Gladys Perez, his wife, Appellees.
    No. 80-1213.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.

      Jerry B. Schreiber, Joseph A. McGowan, Miami, for appellant.
    Therrel, Baisden, Stanton, Wood & Setlin and Frank R. Gramling, John H. Duhig, Miami, for appellees.
    Before HUBBART, C.J., and BARK-DULL, HENDRY, SCHWARTZ, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   ON MOTION FOR REHEARING EN BANC GRANTED

SCHWARTZ, Judge.

The court has granted the appellant’s motion for rehearing en banc, because, as demonstrated by the uncontested factual recitals in the dissenting opinion, the panel majority’s affirmance has created a lack of uniformity within the meaning of Fla.R. App.P. 9.331(a) in this court’s decisions in this case and in Florida National Bank & Trust Co. at Miami v. Havris, 366 So.2d 491 (Fla. 3d DCA 1979).

Upon consideration of the merits, we adhere to Havris and adopt the dissenting panel opinion as the opinion and decision of this court.- Accordingly, the panel decision is vacated, the judgment below is reversed, and the cause is remanded with directions to cancel the deeds to Cournoyer and the Perezes and the Chase mortgage and for such further proceedings as are not inconsistent herewith.

Reversed and remanded.

HENDRY, DANIEL S. PEARSON and JORGENSON, JJ., concur.

FERGUSON, Judge

(concurring in part, dissenting in part).

I concur in the results, deducing that the original panel could have affirmed the trial court only by departing from Florida National Bank and Trust Co. at Miami v. Havris, supra, which holds that a deed to a grantee not related by blood or marital affinity to grantor, in consideration for love and affection, is invalid and of no force and effect. Applying the rule of law to the undisputed facts of this case, cancellation of the deed is imperative.

On the question what is the standard for en banc review, I agree with both dissenting opinions. Decisional conflict, as articulated in Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960) and discussed in the committee note to Fla.R.App.P. 9.331, is the ground for rehearing en banc. The proceeding is an extraordinary one, intended to be used sparingly. I specifically disagree with the standard suggested by Judge Schwartz — decisions are so inconsistent and disharmonious that they would not have been rendered by the same panel of the court — because it calls for speculation and is facilitative to excessive use of the en banc hearing.

NESBITT, Judge

(dissenting):

I am disturbed by the ambiguous scope of review announced by Judge Schwartz for granting rehearings en banc as well as its application to the present controversy.

It is clear that Florida Rule of Appellate Procedure 9.331, authorizing en banc proceedings, is procedural in nature rather than a grant of substantive authority. State Farm Mutual Automobile Co. v. Judges, 405 So.2d 980 (Fla.1981). Notwithstanding a possible constitutional infirmity in the en banc rule due to Article V, Section 4(a) of the Florida Constitution, which provides: “Three judges shall consider each case and the concurrence of two shall be necessary to a decision,” its constitutionality is assumed. Nonetheless, it is necessary to determine the purpose for the rule in order to understand its parameter.

There is nothing in Article V, Section 4 which expressly authorizes a district court of appeal to grant motions for rehearing en banc nor is there any express authority in Article V, Section 3, of the Florida Constitution authorizing the Supreme Court to delegate this function to the courts of appeal.

Under Article V, Section 4 of the Florida Constitution of 1956, the Supreme Court had discretionary jurisdiction to review a decision of a district court of appeal that conflicted with another district court of appeal. If the two decisions from the same district court of appeal conflicted, the decision that was later in time overruled the former. Little v. State, 206 So.2d 9, 10 (Fla.1968). In 1972, the Constitution was changed authorizing the Supreme Court discretionary jurisdiction to resolve conflicts between decisions of any district courts of appeal. Art. V, § 3(b)(3), Fla. Const.1972. The 1980 amendment restored the constitutional provision to its stature before 1972, when the Constitution first authorized the review of intradistrict conflicts.

The purpose of Rule 9.331, authorizing en banc proceedings, is, therefore, to permit a district court to harmonize its own intradistrict conflict because the Supreme Court can no longer do so. The en banc rule owes its existence then to the substitution of the district court’s jurisdiction for that formerly exercised by the Supreme Court — consequently, the power to be exercised by a district court of appeal must be the same as formerly exercised by the Supreme Court. If the scope of review for granting en banc rehearings is broader than the standard utilized by the Supreme Court in the exercise of its discretionary jurisdiction, then it will extend to the district court of appeal an unconstitutional power never contemplated under any version of the judicial articles of the Florida Constitution from 1956 to date.

This interpretation of the rule gains additional support from the Committee Note to Rule 9.331 which states: “The ground, maintenance of uniformity in the court’s decisions, is the equivalent of decisional conflict as developed by Supreme Court precedent in the exercise of its conflict cer-tiorari jurisdiction.”

Of the many statements attempting to define “decisional conflict” in order to activate the discretionary jurisdiction of the Supreme Court, perhaps the most articulate comes from Nielson v. City of Sarasota, 117 So.2d 731 (Fla.1960), where it is stated:

While conceivably there may be other circumstances, the principal situations justifying the invocation of our jurisdiction to review decisions of Courts of Appeal because of alleged conflicts are, (1) the announcement of a rule of law which conflicts with a rule previously announced by this Court, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by this Court. Under the first situation the facts are immaterial. It is the announcement of a conflicting rule of law that conveys jurisdiction to us to review the decision of the Court of Appeal. Under the second situation the controlling facts become vital and our jurisdiction may be asserted only where the Court of Appeal has applied a recognized rule of law to reach a conflicting conclusion in a case involving substantially the same controlling facts as were involved in allegedly conflicting pri- or decisions of this Court. Florida Power & Light Co. v. Bell, 113 So.2d 697 [Fla. 1959],

117 So.2d at 734. In Kyle v. Kyle, 139 So.2d 885 (Fla.1962), decisional conflict was also articulated to exist when one decision is so disharmonious with the prior decision by the court on the same point that it may be said to have overruled the former.

When that test is applied to the present case, it is apparent that the requisite conflict does not exist between this decision and Florida National Bank and Trust Company at Miami v. Havris, 366 So.2d 491 (Fla. 3d DCA 1979) relied upon in the majority decision. The majority would apply the rule of law enunciated in Havris, supra, to the facts of the present case. However, under the second test in Nielson, supra, the rule of law must be applied to “substantially the same controlling facts.” Clearly, the two cases differ in their controlling facts.

In Havris, there was a direct attack made upon the deed of conveyance, by the guardian of the property of the original grantor against the original grantee who was a niece of the incompetent grantor’s housekeeper. It was clear that there was no relationship by either consanguinity or affinity sufficient to support adequate consideration between the original parties. For this reason, the court quite correctly found from the record that the deed between the immediate parties — the grantor and grantee, based solely on love and affection, was not supported by consideration.

In the present case, the grantor, Mrs. Ross, delivered a deed for love and affection to a nonrelative who was a “con man.” When the deed in the present case was recorded, a third party, the Perezes, relying upon the Marketable Title Act, Section 695.-01, Florida Statutes (1979), gave valuable consideration to the con man in exchange for the deed. The purchaser then procured a purchase money mortgage from Chase Federal Savings and Loan Association. Mrs. Ross, the original grantor, brought an action against the original grantee (con man) as well as the third party purchaser and mortgage lender. The trial court granted a money judgment in favor of the grantor against the grantee; however, it refused to cancel the third party purchaser’s deed. If this were a suit solely between Mrs. Ross and the con man, it would be unassailable that Havris would control. However, the present case does not concern the question of whether a deed given to a nonrelative is without consideration, but rather considers whether such a recitation places a third party purchaser on constructive, implied, or actual notice. Because Havris is concerned with the rights and remedies of immediate parties, in contradistinction to the rights and remedies of third party purchasers, any consideration of Hav-ris, as directly conflicting with the present case, is erroneous.

Since the en banc rule is directed entirely to intradistrict conflict, to the extent that the minority opinion granting rehearing en banc relies upon apparent conflicts in the Supreme Court of Florida, or other districts, it is entirely misplaced. If the original majority decision indeed conflicts with any decision of the Supreme Court' or that of another district court of appeal, then it is the prerogative of the Florida Supreme Court to review under the exercise of its discretionary jurisdiction.

For these reasons, I dissent both as to the overbroad standard of review in the granting of en banc hearings announced by Judge Schwartz as well as to its application to the present controversy. The ambiguous standard announced by Judge Schwartz’ opinion is vague to the point that it permits review upon an ad hoc basis, which generates concern for the lack of finality of a decision of the district court of appeal and prompts needless requests for rehearings en banc. No matter how well motivated the majority decision is, it is apparent that it has granted a second appeal to the appellant without a substantial basis therefor. Such action does not comport with the constitutional scheme for reviewing judgments of the circuit court by the district courts of appeal under Article V of the Florida Constitution.

We certify to the Supreme Court, pursuant to Article V, Section 3(b)(4) of the Florida Constitution and in accordance with Florida Rule of Appellate Procedure 9.331, this question of great public importance involving the proper scope of review to be applied in granting motions for rehearing en banc.

HUBBART, C.J., and BARKDULL and BASKIN, JJ., concur.

HUBBART, Chief Judge

(dissenting).

I join in Judge Nesbitt’s dissenting opinion in this case. I, too, would vacate the order setting this cause for rehearing en banc for lack of any intradistrict conflict of decisions within this district — the necessary predicate for authorizing an en banc district court of appeal hearing under Fla.R.App. 9.331 — and would reinstate the panel decision herein. I write separately, however, to point out that the entire thrust behind the adoption of Fla.R.App.P. 9.331 was to restrict en banc review by a district court of appeal solely to cases of intradistrict conflict of decisions. A review of this rule’s history seems particularly appropriate in this case in view of the plurality’s adoption herein of a standard for en banc review which does not require, by its terms, a showing of intradistrict conflict of decisions.

I

On August 15, 1978, then Chief Justice Arthur J. England, Jr. of the Florida Supreme Court entered an administrative order creating a Commission on the Florida Appellate Court Structure to be chaired by Mr. Justice Ben F. Overton of the Florida Supreme Court. Appointed to the Commission was a cross-section of the bench, bar and lay community in this state. The assigned task of the Commission was to conduct a thorough review of Florida’s appellate court system and to make appropriate recommendations for change, if such were necessary. A subcommittee of this Commission, in turn, was subsequently formed by Mr. Justice Overton to look into the possibility of proposing an en banc rule of appellate procedure for district courts of appeal. This subcommittee, in turn, studied the problem at great length and went through innumerable drafts for a proposed en banc rule.

A

After extensive discussion and consideration of this subject, the Commission finally recommended in its March 13, 1979 report to Chief Justice England the following:

“RECOMMENDATION NO. 2:
The Commission recommends the adoption of a new appellate rule authorizing the district courts of appeal to sit en banc to resolve intradistrict conflicts of decisions or to consider cases of exceptional importance.
JUSTIFICATION:
The purpose of the proposed recommendation is to provide a formal procedural mechanism to permit the district courts to settle conflicts of decisions arising within the same district and to speak with one voice as a court on matters of exceptional importance.
Presently, the district courts hold ad hoc conferences to discuss problems of conflicts between panels and to determine whether a panel should recede from a prior written opinion of the court. This proposal will formalize that process and provide a method for securing the input of counsel to resolve cases worthy of en banc determination. Although conflicts of decisions in cases decided by the same district court do not often arise, this recommendation will serve the dual purpose of reducing the Supreme Court’s work load and furthering the goal of making the district courts the courts of last resort in most instances.
The Commission has carefully studied a possible constitutional infirmity in the en banc rule. Article V, section 4(a), Florida Constitution, provides: ‘Three judges shall be necessary to a decision.’ This provision might be construed to mean that district courts cannot constitutionally sit in panels larger than three judges. The Commission’s studied opinion, however, is that such a rigid construction of Article V, section 4(a) is neither required, nor is it the most reasonable. A memorandum of law prepared in 1961 by Charles A. Carroll, former judge of the Third District Court of Appeal, addressed this very issue. Judge Carroll concluded that this constitutional provision sets only a minimum standard and does not prohibit en banc review by district courts of appeal. Notably, a similar construction of a federal statute was necessary to permit federal circuit courts to hear cases en banc. The Commission adopts Judge Carroll’s well-reasoned memorandum and incorporates it as part of this recommendation. [Appendix B omitted].
IMPLEMENTATION:
The Commission recommends adoption of the following appellate rule:
Rule 9.331
DETERMINATION OF CAUSES BY A DISTRICT COURT OF APPEAL EN BANC
(a) EN BANC MATTERS: GENERALLY. A majority of a district court of appeal may order that an appeal or other proceeding pending before the court be heard or reheard en banc. A district court of appeal en banc shall consist of the judges in regular active service on such court. En banc hearings and rehearings are not favored and ordinarily will not be ordered except (1) when such consideration is necessary to maintain uniformity in the court’s decisions, or (2) when the proceeding involves a question of exceptional importance.
(b) HEARINGS EN BANC. A hearing. en banc may be ordered only by a district court of appeal on its own motion. A party may not request an en banc hearing, and a motion seeking such a hearing will be stricken.
(c) REHEARING EN BANC. A rehearing may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by Rule 9.330 for filing a motion for rehearing, a party may move for an en banc rehearing solely on the ground that such consideration is necessary to maintain uniformity in the court’s decisions; a motion based on any other ground will be stricken. A vote will not be taken on such motion unless requested by a judge on the panel which heard the cause, or by any judge in regular active service on the court; provided, that non-panel judges are under no obligation to consider such motion unless a vote is requested.
(1) REQUIRED STATEMENT FOR REHEARING EN BANC. A rehearing en banc is an extraordinary proceeding. In every case the duty of counsel is fully discharged without filing a motion for rehearing en banc unless the criterion set forth above is clearly met. In such instance, the above motion when filed by counsel shall contain the following statement:
I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision(s) of this court and that a consideration by the full court is necessary to maintain uniformity of decisions in this court: (citing specifically the case or cases).
/s/ _
(2) FORMAL ORDER ON REHEARING EN BANC. An order on a motion for rehearing en banc will not be entered unless a rehearing en banc is granted. Such order may limit the issues to be reheard, require the filing of additional briefs, or set the cause down for additional argument.” [emphasis added]. Id. at 2-1 — 2-4.

B

The Florida Supreme Court subsequently conducted a full hearing on the above en banc rule recommendation — along with the entire Commission report. Careful and thorough consideration was thereafter given to all the Commission’s recommendations.

1

On April 2, 1979, Chief Justice Arthur J. England, Jr. made a formal report to the Florida Legislature which stated, in part, as follows:

“(4) En Banc hearings in district courts; three judge circüit court panels. The Court has approved the commission’s coordinate recommendations concerning appellate procedures in the circuit and district courts, and following favorable legislative action on the other proposals in this report the Court will initiate rule- making proceedings to provide the district courts with en banc hearing authority (modified, however, to delete authorization for en banc hearings on matters other than intra-district conflicts) and to authorize circuit court judges to sit in panels of three to hear appeals from county courts. The justifications for these rule changes are adequately set forth in the commission’s report.” [emphasis added]. Id. at 21.

2

On September 20, 1979, the Florida Supreme Court issued the following opinion:

“Appended to this opinion is a new appellate rule designated as Florida Rule of Appellate Procedure 9.331 entitled ‘Determination of Causes by a District Court of Appeal En Banc.’
The Florida Appellate Structure Commission recommended that this Court adopt a new appellate rule authorizing the district courts of appeal to sit en banc to resolve intradistrict conflicts of decisions or to consider cases of exceptional importance and included a proposed rule for adoption in its report.
The Court has modified the en banc rule proposed by the Commission to limit its application to resolve intradistrict conflicts.
The justification for an en banc rule was set forth by the Appellate Structure Commission in its report as follows:
‘The purpose of the proposed recommendation is to provide a formal procedural mechanism to permit the district courts to settle conflicts of decisions arising within the same district and to speak with one voice as a court on matters of exceptional importance.’ ” [emphasis added]. In re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 374 So.2d 992-93 (Fla.1979).

The rule appended to the decision is almost verbatim what is now Fla.R.App.P. 9.331. This rule, in turn, was modified by the Court on December 6, 1979, to its present form as it exists today. The Court stated in its opinion as follows:

“In our opinion of In Re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 374 So.2d 992 (Fla.1979), we initially adopted this rule and afforded all interested parties an opportunity to present their objections or suggestions to the Court not later than November 1, 1979. We have modified the rule in accordance with some of the suggestions received by the Court. The rule as modified and appended to this opinion shall take effect at 12:01 a.m., January 1, 1980.
In light of the adoption of SJR 20-C and SB 21-C by the Florida Legislature on November 28,1979, jurisdiction of this proceeding is retained to consider further amendments to Rule 9.331 as may now be appropriate to permit en banc proceedings for matters other than intradistrict conñict.” [emphasis added]. In re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 377 So.2d 700 (Fla.1979).

The present Fla.R.App.P. 9.331, as finally adopted, provides as follows:

“RULE 9.331. DETERMINATION OF CAUSES IN A DISTRICT COURT OF APPEAL EN BANC
(a) EN BANC PROCEEDINGS: GENERALLY. A majority of the judges of a district court of appeal may order a proceeding pending before the court be determined en banc. A district court of appeal en banc shall consist of the judges in regular active service on the court. En banc hearings and rehearings shall not be ordered unless necessary to maintain uniformity in the court’s decisions.
(b) HEARINGS EN BANC. A hearing en banc may be ordered only by a district court of appeal on its own motion. A party may not request an en banc hearing. A motion seeking the hearing shall be stricken.
(c) REHEARINGS EN BANC.
(1) Generally. A rehearing en bane may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by Rule 9.330 and in conjunction with the motion for rehearing, a party may move for an en banc rehearing solely on the ground that such consideration is necessary to maintain uniformity in the court’s decisions. A motion based on any other ground shall be stricken. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.
(2) Required Statement for Rehearing En Banc. A rehearing en banc is an extraordinary proceeding. In every case the duty of counsel is discharged without filing a motion for rehearing en banc unless the ground set forth in (1) is clearly met. When filed by an attorney, the motion shall contain the following statement:
I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision(s) of this court and that a consideration by the full court is necessary to maintain uniformity of decisions in this court: (citing specifically the case or cases).
/s/ _
(3) Formal Order on Motion for Rehearing En Banc. An order on a motion for rehearing en banc shall be deemed denied upon a denial of rehearing or a grant of rehearing without en banc consideration. If rehearing en banc is granted, the court may limit the issues to be reheard, require the filing of additional briefs, and may require additional argument.” [emphasis added].

The commentary to the rule specifically states, in part, as follows:

“The ground, maintenance of uniformity in the court’s decisions, is the equivalent of decisional conflict as developed by Su-
preme Court precedent in the exercise of its conflict certiorari jurisdiction. The district courts are free, however, to develop their own concept of decisional uniformity.” In Re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 374 So.2d at 994.

Finally, on June 30, 1982, the Florida Supreme Court, in response to a petition filed by the Florida Conference of District Court of Appeal Judges, issued an opinion modifying Fla.R.App.P. 9.331, effective October 1, 1982, by adding the following underlined language to Fla.R.App.P. 9.331(a):

“(a) En Banc Proceedings: Generally. A majority of the judges of a district court of appeal participating may order a proceeding pending before the court be determined en banc. A district court of appeal en banc shall consist of the judges in regular active service on the court. En banc hearings and rehearings shall not be ordered unless necessary to maintain uniformity in the court’s decisions. The en banc decision shall be bv a majority of the active judges actually participating and voting on the case. In the event of a tie vote, the panel decision of the district court shall stand as the decision of the court. If there is no panel decision, a tie vote will affirm the trial court decision.”

The Court in its opinion recounted the history of the development of Fla.R.App.P. 9.331 and emphasized, once again, that the central purpose of the en banc rule was to allow district courts of appeal to resolve intra-district conflict of decisions. Indeed, the Court pointed out that the rule was intended to supplant the Florida Supreme Court’s former constitutional jurisdiction to review intradistrict conflict of decisions within a district court of appeal. See Art. V, § 3(b)(3), Fla.Const. (1979). That jurisdiction has since been deleted by constitutional amendment, see Art. V, § 3(b)(3), Fla. Const. (1981), and the en banc rule was part and parcel of that constitutional change. The Court stated in its opinion as follows:

“First and foremost, we must emphasize that a direct and important interrelationship exists between the en banc rule and the new constitutional amendment which limits Supreme Court jurisdiction. See art. V, § 3, Fla. Const. The amendment substantially strengthened the position of the district courts of appeal as final appellate courts. The en banc rule is an essential part of the philosophy of the constitutional scheme embodied in the new amendment because the Supreme Court no longer has jurisdiction under the amendment to review intra-district conflict.
The appellate structure commission, which this Court established to study the efficiency of Florida appellate structure, recommended that intra-district conflict be resolved by the district courts of appeal sitting en banc, rather than by this Court. The commission also recommended that such an en banc procedure be implemented by court rule. In its study, [footnote deleted] the commission considered any possible constitutional infirmity of such a rule and concluded that no constitutional impediment existed. The commission also noted that the federal courts had given a similar construction and interpretation to almost identical language in the congressional act which established the United States Circuit Courts of Appeals and the resulting authority for each circuit to proceed en banc, [footnote deleted].
This Court agreed with the commission and concluded that an en banc rule as part of Florida’s appellate structural scheme was appropriate and constitutional, particularly under the philosophy that the district courts should, to the extent possible, be final appellate courts. See In Re Rule 9.831, Determination by a District Court of Appeal En Banc, 374 So.2d 992, modified, 377 So.2d 700 (Fla.1979). Justice Boyd disagreed with the majority and expressed his dissent on constitutional grounds. Id. at 994-95 (Boyd, J., dissenting). The constitutional amendment was thereafter presented to the legislature and, in turn, to the electorate of the state with the understanding that the district courts of appeal could sit en banc to resolve intradistrict conflict. In fact, under the new amendment, if intra-dis-trict conflict is not resolved within the district courts by en banc decision, totally inconsistent decisions could be left standing and litigants left in doubt as to the staté of law. The new appellate structural scheme, including the en banc process, was intended to solve that problem and to provide litigants with a clear statement of the law within any given district.” [emphasis added]. In Re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 416 So.2d 1127, (Fla. 1982).

A recital of the above rule history demonstrates, I think, beyond any hope of successful contradiction, that the entire thrust, purpose and intent behind Fla.R.App.P. 9.331, as adopted, was to authorize en banc review in only one restricted class of cases, to wit: where there exists an intra-district conflict of decisions. Indeed, the Court specifically eliminated an additional ground for en banc review, which had been recommended by the Commission, namely, where the decision involved a question of exceptional importance. Moreover, the rule was intended to supplant the former constitutional jurisdiction of'the Florida Supreme Court to review intra-district conflict of decisions within a district court of appeal. It is, therefore, clear that district court en banc review is limited entirely to intra-dis-trict conflict of decisions.

It is true that Fla.R.App.P. 9.331(a) provides that “[e]n banc hearings and rehearings shall not be ordered unless necessary to maintain uniformity in the court’s decisions,” but it is plain from the above rule history that such a maintenance of uniformity in court decisions is only called for in the event of an intra-district conflict of decisions. Indeed, there was never even a whisper of a contrary idea during any of the proceedings, as above detailed, which led to the rule.

II

Today’s plurality opinion, however, departs from the letter and intent of Fla.R. App.P. 9.331, by announcing that en banc district court of appeal review lies “whenever it appears that [decisions within the district] are so inconsistent and disharmonious that they would not have been rendered by the same panel of the court,” [912 n. 1], a test that the plurality takes pains to point out is not the same as an intra-district conflict of decisions. Plainly and simply, this is a subjective test, difficult at best to grasp or enforce, which requires us to speculate whether the same panel would have rendered the same two decisions under consideration. As Judge Nesbitt quite properly points out, such a test is by nature vague and ambiguous, does not require intra-dis-trict conflict of decisions as a prerequisite to en banc review, and invites, if not supports, second appeals from a panel decision which is thought erroneous on the merits by the full court. This is contrary to the entire purpose behind the adoption of Fla.R. App.P. 9.331; it is also contrary to our recent decision in Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (en banc), which adopts the intra-district conflict of decisions test as the sole basis of invoking en banc review in a district court of appeal under Fla.R.App.P. 9.331.

For the above additional reasons, then, I think, Judge Nesbitt’s dissent in this cause is eminently correct. The order setting this cause for rehearing en banc should be vacated and the panel decision herein reinstated.

BASKIN, J., concurs.

      . The rule provides:
      (a) En Banc Proceedings: Generally. A majority of the judges of a district court of appeal may order a proceeding pending before the court be determined en banc. A district court of appeal en banc shall consist of the judges in regular active service on the court. En banc hearings and rehearings shall not be ordered unless necessary to maintain uniformity in the court’s decisions.
      According to the committee commentary to the rule, while “maintenance of uniformity in the court’s decisions is the equivalent of decisional conflict as developed by [the] Supreme Court ... [t]he district courts are free ... to develop their own concept of decisional uniformity.” Beginning that process, we look first to the statement of the supreme court in Town of Enterprise v. State, 29 Fla. 128, 10 So. 740, 746 (1892) that the term “ ‘[u]niformity’ indicates ‘consistency,’ ‘resemblance,’ ‘sameness,’ a ‘conformity’ to one pattern.”
      Applying these general criteria to the problem at hand is not an easy task. We do note, however, that a primary function of the en banc rule is to standardize the decisions of each district so as to minimize the importance of the “luck of the [appellate] draw,” see McAllister v. McAllister, 345 So.2d 352, 354 (Fla. 4th DCA 1977), cert. denied, 357 So.2d 186 (Fla.1978) in presenting cases before our increasingly multi-member courts. Considered in that light, we believe that an appropriate standard or rule-of-thumb is the rather practical one that decisions lack uniformity whenever it appears that they are so inconsistent and disharmonious that they would not have been rendered by the same panel of the court. Since this is the case, as is forcefully shown by the fact that Fla.R.App.P. 9.331(b) provides for a hearing en banc to preserve “uniformity” before any decision or opinion has been rendered at all, the particular form in which the nonuniform results are expressed — whether by written opinion, per curiam affirmance or otherwise — cannot jurisdictionally matter, and is important only as a factor in the determination of whether the discretionary authority to grant an en banc hearing will be exercised. In this respect at least, there is an obvious distinction between “uniformity” and the prerequisite of “direct conflict” between district court decisions which is necessary to support supreme court review jurisdiction. In the latter instance, because the emphasis is upon the reconciliation of differing legal precedents within the jurisdiction, see N & L Auto Parts Co. v. Doman, 117 So.2d 410, 412 (Fla.1960), the type of opinion or decision was of great significance even under the previous version of Art. V. § 3(b)(3), Fla. Const. (1972), see Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965), and is decisive under the present one. Art. V. § 3(b)(3), Fla. Const. (1980) (“expressly and directly conflicts”); Jenkins v. State, 385 So.2d 1356 (Fla.1980); Dodi Publishing Co. v. Editorial America, S.A., 385 So.2d 1369 (Fla.1980).
      The present case clearly falls within these guidelines. The general principles of constructive and implied actual notice of defects in title by which one is put on inquiry are so well established, e.g., Sapp v. Warner, 105 Fla. 245, 141 So. 124, 143 So. 648 (1932), and so clearly applicable to this case, Hagan v. Sabal Palms, Inc., 186 So.2d 302, 313 (Fla. 2d DCA 1966), cert. denied, 192 So.2d 489 (Fla.1966), that the judgment below could be affirmed only if a deed to a non-relative for love and affection alone is not invalid. (In fact, no other basis for the result has even been suggested.) Since, however, the Havris court held that it was, it is plain that the two conclusions cannot coexist. The en banc rule is available to resolve this contradiction in our decisions.

      . See also, Lawyers’ Title Guaranty Fund, Title Note 10.03.05 (1979):
      A. The question is whether a deed which recites the sole consideration as ‘love and affection’ where the deed fails to recite that the grantees are blood relatives of the grant- or is valid.
      In Florida Nat. Bank & Trust Co., Etc. v. Havris, 366 So.2d 491 (Fla. 3d DCA 1979), a conveyance to a friend not related to the grantor was held invalid where love and affection was the consideration. In that case the court said that Florida courts have recognized love and affection, express or implied, with absence of other consideration, as adequate considerations where the relationship of the grantor and grantee has been a blood relationship or a relationship of marital affinity, which is the relationship of husband and wife.
      A deed for love and affection is a voluntary act, and is not clear whether the grantee has any superior rights to the grantor or others holding under him. Triesbach [Triesback] v. Tyler [62 Fla. 580], 56 So. 947 (Fla.1911); Harrod v. Simmons, 143 So.2d 717 (Fla. 2d DCA 19.62); Tischler v. Robinson, 84 So. 914 (Fla.1920); and Money v. Powell, 139 So.2d 702 (Fla. 3d DCA 1962). Therefore, it is The Fund’s position that a title based on a deed reciting the consideration as ‘love and affection’ does not justify issuing a Fund policy to the grantee of such deed. It is also The Fund’s opinion that a title based on a deed from such grantee does not justify issuing a Fund policy unless it is first determined that such grantee is a blood relative of his grant- or.
      For additional authority for the proposition that the face of the deed put subsequent purchasers to the duty of diligent inquiry which would have shown the extrinsic, non-record fact that the grantor and grantee were not related and that the deed was therefore void under Havris, see Hagan v. Sabal Palms, Inc., supra; Asisten v. Underwood, 183 Cal.App.2d 304, 7 Cal.Rptr. 84 (1960); Ochenkowsky v. Dunaj, 137 Misc. 674, 244 N.Y.S. 267 (Sup.Ct.1930), aff’d, 232 App.Div. 441, 251 N.Y.S. 589 (1931); Stevens v. American Savings Institution, Inc., 289 Or. 349, 613 P.2d 1057 (1980).

      . We emphasize the limited nature of our ruling, which is determined by the express “love and affection” statement — the epitome of a “red flag” — on the face of the deed. If it had contained only the usual recital of a “good and valuable consideration,” Mrs. Ross could not have asserted, and a subsequent purchaser would, without more, not have been on notice that the consideration was legally insufficient and the deed invalid on that ground. See Mexican Crude Rubber Co. v. Ackley, 101 Fla. 552, 134 So. 585 (1930); Daniell v. Sherrill, 48 So.2d 736 (Fla.1950).

      .As the reader will readily observe, Judge Schwartz’ opinion as to the merits of the present case represents the majority opinion and decision. However, this dissenting opinion, having been joined in by Chief Judge Hub-bart and Judges Barkdull and Baskin, and specially concurred in by Judge Ferguson, has become the majority opinion as to the scope of review for granting rehearings en banc.

      . 53 Fla. Bar J. 274, 279, Report of the Supreme Court Commission on the Florida Appellate Court Structure (1979).

      . In re Rule 9.331, Florida Rules of Appellate Procedure, 374 So.2d 992 (Fla.1979).

      . 54 Fla. Bar J. 406, 412, An Analysis of the 1980 Jurisdictional Amendment (1980).

        .In Re Rule 9.331, 416 So.2d 1127 (Fla.1982).

      . The minority opinion suggests that the use of the language “necessary to maintain uniformity” indicates a different standard than the “direct conflict” required by the Supreme Court. There is no difference in meaning between the two phrases. Black’s Law Dictionary, 5th Edition, defines the word “uniform” as:
      Conforming to one rule, mode, pattern or unvarying standard; not different at different times or places; applicable to all places or divisions of a country. Equable, applying alike to all within a class; sameness.
      This “sameness” is the controlling factor in determining a “direct conflict” as will be discussed later in this dissent. Different labels to describe the requisite type of conflict may have been purposely employed by the drafters in an attempt to distinguish which court’s jurisdiction is sought to be invoked.

      . The Committee Note to Rule 9.331 indicates that the district courts of appeal are free to develop their own concepts of decisional uniformity. This, in my view, has reference to divergent practices about the use and employment of the rule rather than the scope of review. Such practices include: (1) the form which a nonuniform decision may take (per curiam affirmance without an opinion, an order dismissing an appeal or denying an extraordinary writ without an opinion); (2) whether rehearing could be granted before receding from an earlier decision rendered by that court; or (3) whether there may be a conflict with an opinion which has not yet been released. It is in this sense, as the majority recognizes in footnote 1, that the district courts may develop their own definitions different from the Supreme Court.

      . Even if this court could consider any apparent conflict with those decisions, a quick perusal of those cases indicates that their holding is consistent with the original majority opinion in this case. Despite some broad language in Sapp v. Warner, 105 Fla. 245, 141 So. 124 (1932), the actual holding is that the purchasers were bound to look to the record guardianship proceeding in order to ascertain whether there was authority to execute a deed of conveyance. It does not require the purchaser or examining attorney to resort to matters extrinsic to the record and is therefore consistent with Zaucha v. Town of Medley, 66 So.2d 238 (Fla.1953). Hagen v. Sabal Palms, Inc., 186 So.2d 302 (Fla. 2d DCA 1966), cert. denied, 192 So.2d 489 (Fla.1966), also cited by the majority, merely adopts the well-settled rule announced in Sapp v. Warner, supra, and Zaucha v. Town of Medley, supra.

      Furthermore, in Hull v. Maryland Casualty Co., 79 So.2d 517 (Fla.1955), the court held that the true owner is estopped to assert his title against bona fide purchasers who rely upon the record and are without notice of the interest of the true owner. And, in McCoy v. Love, 382 So.2d 647 (Fla.1980), the supreme court held that an elderly grantor is charged with the responsibility of informing herself as to the legal effect of the deed she is conveying. These two decisions as well as the maxim that, as between two innocent parties, the party whose negligence contributes to the error, will bear the risk of loss, Niccolls v. Jennings, 92 So.2d 829 (Fla.1957), support the original majority opinion that rescission should not be granted in favor of Mrs. Ross against the third party purchasers.


source: Caselaw Access Project

author: DANAHY, Judge. PER CURIAM.

license: Public Domain

text:
    Thelma JENKINS, as Administratrix of the Estate of Merton Earle Jenkins, deceased, Appellant, v. ARAB TERMITE AND PEST CONTROL OF FLORIDA, INC., et al., Appellees.
    Nos. 79-1989, 79-1990.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1982.
    Rehearing Denied Dec. 17, 1982.
    Julian Clarkson and Warren M. Goodrich of Holland & Knight, Tampa, for appellant.

      Clifford L. Somers of Miller, McKendree & Somers, Tampa, for appellees.
   DANAHY, Judge.

The trial judge in this case entered an order granting a new trial as to all issues unless the appellant agreed to a remittitur reducing the punitive damages awarded by the jury from $125,000 to $50,000. In his order, the trial judge said that “the amount of the punitive damages awarded by the jury clearly shocked the judicial conscience of the Court, as under the facts of the case the acts of the defendant lacked the degree of maliciousness and/or outrageous disregard for the decedent’s rights required to sustain the amount of the punitive damages verdict.” On appeal to this court, we reversed on the ground that the trial judge’s stated reason for granting a new trial or remittitur was improper. Jenkins v. Arab Termite and Pest Control, 388 So.2d 44 (Fla. 2d DCA 1980).

The supreme court quashed our decision, holding that it is proper for a trial judge to issue an order for a new trial or remittitur when the manifest weight of .the evidence shows that the amount of punitive damage assessed is out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct. The court went on to say that either this finding must be affirmatively supported by the record or the judge must find that the jury was influenced by matters outside the record. Arab Termite and Pest Control v. Jenkins, 409 So.2d 1039 (Fla.1982). Pointing out that because of the basis of our original opinion, we had not determined whether the trial court’s decision was affirmatively supported by the record (i.e., the manifest weight of the evidence) or by the findings in the judge’s order, the supreme court remanded the case to us to provide “the appropriate appellate review” as to that issue.

On remand, we have considered the briefs and oral argument of the parties on this issue and have reviewed the record. Although not stated in the supreme court’s opinion quashing our decision, we consider our duty of review to be a determination

whether the trial judge abused his discretion. That is the standard established in Cloud v. Fallis, 110 So.2d 669 (Fla.1959), and reaffirmed in Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), and Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980). As stated in Baptist Memorial Hospital, Inc. v. Bell:

In reviewing this type of discretionary act of the trial court, the appellate court should apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Applying the reasonableness test in this case, it is our opinion that reasonable men could differ on the question whether the manifest weight of the evidence showed that the amount of punitive damages assessed was out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct of the appellee. Accordingly, we find no abuse of discretion and affirm.

HOBSON, A.C.J., and RYDER, J., concur.

ON MOTION FOR REHEARING

PER CURIAM.

The motion for rehearing is denied. Remsberg v. Mosley, 58 So.2d 432 (Fla.1952); Shank v. Fassoulas, 304 So.2d 469 (Fla. 3d DCA 1974); 1661 Corp. v. Snyder, 267 So.2d 362 (Fla. 1st DCA 1972); and Lawson v. Swirn, 258 So.2d 458 (Fla. 1st DCA 1972).

HOBSON, A.C.J., and RYDER and DAN-AHY, JJ., concur.


author: RYDER, Judge.

text:
    Sandor SUTO, Appellant, v. STATE of Florida, Appellee.
    No. 82-1290.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1982.
    Rehearing Denied Nov. 29, 1982.
   RYDER, Judge.

Suto appeals an order of the trial court summarily denying relief under Florida Rule of Criminal Procedure 3.850. Suto was convicted of two counts of grand theft and two counts of burglary of a dwelling. His convictions were affirmed by this court on direct appeal. Suto v. State, 400 So.2d 1341 (Fla. 2d DCA 1981).

Suto alleges the following three grounds for relief in his rule 3.850 motion: (1) that the trial court erred in denying his motion for suppression of evidence; (2) that the trial court erred in denying his motion to dismiss for lack of speedy trial and (3) that his fifteen year sentence for burglary in case 79-2455 was in excess of the maximum authorized by law.

Issues which were or could have been raised on a direct appeal are not cognizable grounds for relief under rule 3.850. Hargrave v. State, 396 So.2d 1127 (Fla.1981); Owens v. State, 397 So.2d 1235 (Fla. 2d DCA 1981). Grounds (1) and (2) of Suto’s motion could have been raised on direct appeal. Suto’s claim directed to his sentence for burglary in case 79-2455 is wholly without merit. The body of the information filed in said case indicates that the burglary was of a dwelling. Since burglary of a dwelling is a second degree felony, the trial judge was authorized in sentencing Suto to the maximum sentence of fifteen years. See sections 810.02(3) section 775.082(3)(c), Florida Statutes (1981).

Accordingly, the trial court’s denial of the rule 3.850 motion is AFFIRMED.

BOARDMAN, A.C.J., and SCHEB, J., concur.


author: CAMPBELL, Judge.

text:
    Joel EVERS, as personal representative of the Estate of Helen Parks, deceased, Appellant, v. Peter ZELYK, Jr. and Shelia Zelyk, Appellees.
    No. 81-2549.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1982.
    Rehearing Denied Dec. 2, 1982.
    Marcus J. Ezelle, of Burton, Evers & Ezelle, P.A., Wauchula, for appellant.
    William R. Platt, Tampa, Val R. Patarini and Robert A. Meade, Jr., Wauchula, for appellees.
   CAMPBELL, Judge.

Joel Evers, as personal representative of the estate of Helen Parks, deceased, appeals from an order of the trial court granting a petition for revocation of probate of a will. The trial court’s order amounts to a final judgment which found that the testatrix executed the will as a result of the undue influence exerted by two of the principal beneficiaries of the will. The ten page order of the trial court sets forth numerous findings of fact surrounding the execution of the will by the testatrix. The court concluded: “From the aforementioned findings the Court concludes that a presumption of undue influence is raised.” The trial court did not make specific findings that the presumption of undue influence arose because of (1) a confidential relationship existing between the two beneficiaries and the testatrix, and (2) the beneficiaries’ active procurement of the execution of the will.

Such specific findings are not essential if we are able to determine from the trial court’s other findings and from the record that the conclusion of a presumption of undue influence is supported by evidence that supports the existence of (1) a confidential relationship, and (2) active procurement in the execution of the will. In re Estate of Carpenter, 253 So.2d 697 (Fla.1971); Williamson v. Kirby, 379 So.2d 693 (Fla. 2d DCA 1980). While we might not necessarily have reached the same conclusion, after an exhaustive review of the record, we determine that the trial court’s conclusion of the existence of a presumption of undue influence is supported by substantial, competent evidence. The trial court’s further finding that the proponents of the will have “failed to produce testimony to overcome or equalize the presumption of undue influence” is likewise supported by the record.

AFFIRMED.

OTT, C.J., and RYDER, J., concur.


author: BASKIN, Judge. LETTS, GAVIN K., Associate Judge,

text:
    The STATE of Florida, Appellant, v. Luis GARCIA, Appellee.
    No. 80-1851.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Rehearing Denied Dec. 13, 1982.
    Jim Smith, Atty. Gen., for appellant.
    F. Lee Bailey, Boston, Mass., Sams, Ger-stein & Ward and Richard E. Gerstein and Paul M. Rashkind, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and LETTS, GAVIN K., Associate Judge.
   BASKIN, Judge.

Defendant Luis Garcia sought to suppress his statement confessing to the first-degree murder of Maria Ripoll. The motion was denied and the case proceeded to trial before a jury. When the jury could not agree upon a verdict, the court declared a mistrial. Garcia filed another motion to suppress. The original judge had been transferred and a new judge was assigned to hear the case. Counsel for the state and for the defense attempted to stipulate with regard to what evidence the trial court could consider in deciding the motion to suppress. They agreed that the court should read the transcript of testimony presented at the hearing on the first motion to suppress. Garcia did not testify at that hearing. Whether the stipulation permitted the court to consider Garcia’s trial testimony in addition to the suppression testimony is the subject of the dispute in this appeal. The state contends that it objected to the court reading Garcia’s trial testimony whereas defense counsel points to statements in the record indicating the state agreed to the use of Garcia’s trial testimony. The defense argues that it was prepared to have Garcia testify before the court but refrained from doing so because the state announced that new testimony would not be necessary.

In its order granting Garcia’s motion to suppress, the trial court stated that it had considered defendant’s trial testimony as well as the testimony taken at the earlier hearing on the motion to suppress and that it found Garcia’s testimony persuasive and credible. The state contends that the court erred in basing its determination upon the credibility of witnesses who did not appear before it.

A careful examination of the record convinces us that the parties stipulated to the review of testimony of Detective Il-hardt and polygraph examiner Jurney presented at the hearing on the first motion to suppress; we find, however, that confusion clouds the remainder of the stipulation. We are unable to conclude with any degree of certainty that a stipulation permitted the court to consider Garcia’s trial testimony. Although a trial judge is not bound by rulings of a predecessor judge on interlocutory matters, see Tingle v. Dade County Board of County Commissioners, 245 So.2d 76 (Fla.1971), he may not reassess the credibility determination of a predecessor judge without hearing live testimony, Louis v. Blackburn, 630 F.2d 1105 (5th Cir.1980); United States v. Bergera, 512 F.2d 391 (9th Cir.1975).

We affirm, however, because the confession was unlawfully obtained and must be suppressed. Defendant Garcia was interrogated for ten hours before and after the polygraph exam was administered. The testimony of Ilhardt and Jurney, considered by the trial court pursuant to stipulation, discloses that during the interrogation Garcia twice attempted to call his attorney but could not reach him. When Jurney asked if he wanted to continue to talk, Garcia agreed to do so. Detective Ilhardt was aware of Garcia’s request for counsel. He later testified that he didn’t think a lawyer would allow continued interrogation. Nevertheless, the questioning continued until Garcia confessed. After completing the statement, however, Garcia asked Ilhardt to continue investigating the case because he had not committed the murder.

We conclude that defendant Garcia was deprived of his constitutional right to counsel by the state’s continued interrogation after he had invoked his right to counsel during a custodial interrogation. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).

We therefore affirm the trial court’s order suppressing the confession and remand the cause for further proceedings.

LETTS, GAVIN K., Associate Judge,

dissents without opinion.

      .The state announced:
      MR. KAHN: Judge, now, in fairness to both the Court and the Defense, the State’s position will be Tuesday that his Honor, is that correct, if he so wishes to review the entire transcript and base your ruling on the transcript of the motion to suppress that was heard by Judge Hickey prior to trial.
      Without any additional testimony, if there is a stipulation from the Defense that as far as reviewing the prior testimony whether it is or not, it’s going to incorporate the defendant’s testimony and at this time, we can prematurely stipulate to no need for live testimony.
      ******
      MR. KAHN: Well, I think then that I am understanding at this time from the Defense is that they are asking the Court to consider the prior trial and transcript and that it’s in light of that that I am simply saying your Honor should simply view the transcript and motion to suppress and make the proper ruling.

      . Apparently, the trial judge understood the stipulation to permit him to consider Garcia’s trial testimony.

      . Garcia’s confession differs from the facts in important details. According to Garcia, the victim was naked when shot in the chest with a .32 caliber revolver during an argument before 9:30 p.m. The known facts indicate that she was shot after 10:30 p.m., not in the chest, but in the head, neck, and back with a .22 caliber automatic and was partially clothed.

      . Our decision is based not upon defendant Garcia’s testimony but upon the testimony of Ilhardt and Jurney at the original hearing on the motion to suppress. Thus, there has been no reassessment of credibility.


author: DANIEL S. PEARSON, Judge.

text:
    Ulysses LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2516.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Rehearing Denied Dec. 13, 1982.

      Bennett H. Brummer, Public Defender and David J. Finger, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The defendant was convicted of burglary and petit theft alleged to have occurred when he and another individual entered a scrap metal yard and attempted to remove metal without permission. The main State witnesses were two men, Undorfer and Sto-naker, who testified that they were present in the yard at the time of the'alleged entry, chased the perpetrators, and caught the defendant only. They further stated that they apprehended a third individual, Oliver Ball, who was seated in a car outside of the yard. The witnesses claimed they subdued the defendant and Ball, handcuffed them, and called the police.

At trial, the defendant and Ball testified that the defendant had driven a third person to the area of the yard and remained in the car with Ball. While Ball and the defendant were seated in the car, this third person (whom the.defendant knew as Slim) ran by with Undorfer in hot pursuit. The defendant and Ball testified that shortly after this chase, which proved unsuccessful, Undorfer and Stonaker ordered them out of the car at gunpoint; handcuffed them, returned them to the yard, and beat them in an effort to ascertain the identity and whereabouts of the third person. The police arrived, spoke to Undorfer and Sto-naker, arrested the defendant and Ball, and took them to a hospital, where both were treated for lacerations of the face and scalp. No Miranda warnings were given to the defendant, and no statement was given by him to the police.

It is against this backdrop that we address the defendant’s contention on appeal that reversible error occurred when the trial court overruled his objection to the prosecutor’s closing argument comments:

“Now don’t you think that if the Defendant had just been beaten up by Mr. Un-dorfer, that he would have told somebody at the hospital that that’s what happened. But you will [sic] see it on these medical records. And, why didn't the defendant report all this to the police?” (emphasis supplied).

We think it inescapable that the comment made by the prosecutor directly called to the jury’s attention the defendant’s post-arrest silence. See, e.g., David v. State, 369 So.2d 943 (Fla.1979); Clark v. State, 363 So.2d 331 (Fla.1978); Bennett v. State, 316 So.2d 41 (Fla.1975); Ruiz v. State, 378 So.2d 101 (Fla. 3d DCA 1979); Barnes v. State, 375 So.2d 40 (Fla. 3d DCA 1979); Knight v. State, 374 So.2d 1065 (Fla. 3d DCA 1979). The State candidly concedes as much. It argues, however, that the prohibition against comment on post-arrest silence applies only where the silence has been induced by assurances, in the form of a Miranda warning not given here, that the silence will not in any way be used against him.

Were we concerned only with whether the comment violated the defendant’s due process rights guaranteed by the Federal Constitution, we would be compelled to agree that the defendant’s federal constitutional right to due process was not offended. As Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), and more recently Fletcher v. Weir, - U.S. -, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), make clear, the prohibition announced in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), against permitting the prosecution to call attention to an accused’s post-arrest silence and to insist that because he did not speak about the facts then, as he was told he need not do, an unfavorable inference might be drawn as to the truth of the accused’s trial testimony, applies only where, as Doyle itself noted, the defendant was told he need not speak.

But a state court is free to place greater restrictions on the use of post-arrest silence than the Doyle-Jenkins-Fletcher trilogy requires, since to do so merely expands, but is consistent with, the minimal due process these cases announce. Thus, in Webb v. State, 347 So.2d 1054 (Fla. 4th DCA 1977), precisely the same argument that the State makes here was rejected. Recognizing that Doyle prohibited comment on silence only after Miranda warnings, Judge Downey, speaking for the court, noted that:

“[W]hile Miranda warnings make it even more offensive to use a person’s silence upon arrest against him, the absence of such warnings does not add to nor detract from an individual’s Fifth Amendment right to remain silent. If one has a right upon arrest not to speak for fear of self-incrimination, then the mere fact that the police call his attention to that right does not elevate it to any higher level. If it were otherwise, an ignorant defendant who was advised of his right to remain silent would be protected against use of his silence to impeach him at trial; but an educated, sophisticated defendant familiar with his right to remain silent who was not apprised of that right by the police would be subject to impeachment for the exercise of a known constitutionally protected right.” Id. at 1056.

It is plain to us that the reasoning of Webb, with which we agree, is unaffected by Fletcher, which, as did Webb, considered Doyle to be restricted to the instance where silence is induced by Miranda warnings. Moreover, the view espoused in Webb fully comports with the Florida Supreme Court’s view that the right to remain silent is entitled to greater protection in our state than that required by the United States Supreme Court. Compare, e.g., Willinsky v. State, 360 So.2d 760 (Fla.1978) (harmless error rule not applicable to disclosure of the accused’s silence at the preliminary hearing); Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, supra (harmless error rule not applicable to disclosure of the accused’s silence at arrest) with Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963) (harmless error rule applicable to disclosure of accused’s silence if no reasonable possibility that disclosure contributed to conviction). Therefore, we hold that, as a matter of state constitutional law, it is impermissible to comment on a defendant’s post-arrest silence whether or not that silence is induced by Miranda warnings. See also Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977).

Having concluded that Lee must be afforded a new trial free from this comment on his post-arrest silence, we address one other point on appeal concerning the permissible scope of cross-examination of the State’s witnesses, Undorfer and Stonaker, because of the likelihood that it may arise upon retrial. Should that occur, the trial court is to be guided by the following principles. A basic guarantee of the Confrontation Clause in the Sixth Amendment is the right of an accused in a criminal prosecution to cross-examine witnesses. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Bias of a witness is a proper subject of cross-examination as tending to discredit the witness and to affect the weight of his testimony. Davis v. Alaska, supra; United States v. Tracey, 675 F.2d 433 (1st Cir.1982); United States v. Frankenthal, 582 F.2d 1102 (7th Cir.1978); United States v. Kartman, 417 F.2d 893 (9th Cir.1969); Wynn v. United States, 397 F.2d 621 (D.C.Cir.1967). Where, as here, the defendant is black, proper inquiry may be made of the State’s witnesses, not only as to their bias against the defendant as a black, Smith v. State, 404 So.2d 167 (Fla. 1st DCA 1981); Magness v. State, 67 Ark. 594, 50 S.W. 554 (1899), but also their bias against blacks in general, Smith v. State, supra; Jacek v. Bacote, 135 Conn. 702, 68 A.2d 144 (1949). Cf. Bonaparte v. State, 65 Fla. 287, 61 So. 633 (1913) (question whether in eight years sheriff had ever selected a black juror proper to impeach his denial of discrimination in jury selection). See United States v. Kartman, supra; Smith v. Civil Service Board, 289 So.2d 614 (Ala.1974) (prejudice toward a group of which the defendant is a part is a proper subject of inquiry on cross-examination of a witness).

While the trial court may exercise discretion over the scope of cross-examination, it must insure that there will be ample latitude for pertinent inquiry and that such limitations as are placed on the cross-examination are done with solicitude for the defendant’s Sixth Amendment rights. See D.C. v. State, 400 So.2d 825 (Fla. 3d DCA 1981); Lutherman v. State, 348 So.2d 624 (Fla. 3d DCA 1977); United States v. Tracey, supra; United States v. Kinnard, 465 F.2d 566 (D.C.Cir.1972); Wynn v. United States, supra. However, as in the case of other relevant evidence, evidence of bias may be inadmissible when it creates a danger of unfair prejudice, confusion of the issues, misleading of the jury, or results in a needless presentation of cumulative evidence. Smith v. State, supra at 169. Thus, for example, should the trial court find that the form of a proffered question is designed to elicit bias which may be too remote in time from the incident in question, see, e.g., Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974); Blackman v. State, 20 Ala.App. 281, 102 So. 147 (1924); Eye v. Kafer, Inc., 20 Cal.Rptr. 841, 202 Cal.App.2d 449 (1962); Missouri K & T Co. of Texas v. St. Clair, 21 Tex.Civ.App. 345, 51 S.W. 666 (1899), he might properly conclude that the probative value of an answer thereto might be outweighed by the tendency of the answer to confuse the issues or mislead the jury.

Reversed and remanded.

      . Lee’s defense was that he did not know what this third person intended to do.

      . The defendant thereafter made a timely motion for mistrial, see State v. Cumbie, 380 So.2d 1031 (Fla.1980), a now unnecessary step in preserving his overruled objection. See Simpson v. State, 418 So.2d 984 (Fla.1982).

      . In the context of the decision, the words “the Fifth Amendment right to remain silent” must be read as a generic and commonly used reference to the right as found in both the State and Federal Constitutions.

      . There may, therefore, be a vast difference between eliciting testimony that a witness has “on occasion” or “in some instance” used an epithet to refer to black people and eliciting testimony that the witness within the recent past has done so.

      . Although a trial judge may use his discretion to exclude false insinuations, groundless accusations, and evidence which needlessly debases the character of a witness, see United States v. Kinnard, supra, there appears to be little doubt that the question put to the State’s witness, Stonaker, was asked in good faith, that is, in reliance upon his admission in deposition that he referred to blacks “in some instances” by using a racial slur.


author: PER CURIAM.

text:
    Lester ARROW and Florence Arrow, his wife, Appellants, v. Laurence D. FAYE, Appellee.
    No. 81-2560.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Rehearing Denied Dec. 16, 1982.
    Alan E. Dubow, Coconut Grove, for appellants.
    Saul T. Von Zamft, Coral Gables, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

It indisputably appears that this action for legal malpractice (arising from the ap-pellee’s alleged failure to prosecute appellants’ action for personal injuries within the appropriate statute of limitations) was filed well within two years of the dismissal of the limitations-barred personal injury action and this court’s affirmance of that dismissal. Therefore, to the extent that appellants’ amended complaint was dismissed below as being without the two-year limitations period fixed for such an action,' see § 95.11(4)(a), Fla.Stat. (1979), such dismissal was error. There being no other discernible basis for the order of dismissal, the order is reversed and the cause remanded for further proceedings.

Reversed and remanded.


author: HENDRY, Judge.

text:
    Ervin WASHINGTON, Jr., Appellant, v. BURDINES, and Department of Labor and Employment Security, State of Florida, Unemployment Appeals Commission, Appellee.
    No. 82-1032.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Rehearing Denied Dec. 13, 1982.

      Ervin Washington, Jr., in pro. per.
    James R. Parks and Norman Blessing, Tallahassee, for appellee.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   HENDRY, Judge.

Appellant, a former employee of Bur-dines, seeks review of an order of the Unemployment Appeals Commission which affirmed a decision of the appeals referee determining that appellant was ineligible for unemployment compensation benefits.

The findings of the appeals referee in this cause show that the appellant was discharged because he intentionally and repeatedly failed to follow specific instructions regarding work, given by appropriate supervising personnel. On September 11, 1981, appellant was specifically instructed by the vice-president of personnel that before taking the following day off for a floating day, appellant was to speak directly to the assistant operations manager to seek and obtain permission. The appellant deliberately failed to obey the instructions and took the day off anyway. The following day he was discharged. The record and findings of the referee show that for no justifiable reason the appellant’s behavior demonstrated a clear, consistent pattern of insubordination.

The appeals referee is the fact finder in unemployment claims procedure. Section 443.07(4)(a), Florida Statutes (1979). If the record shows that there was substantial competent evidence to support the factual findings of the appeals referee then the decision must be upheld.

Appellant’s sole contention on appeal is that there is not substantial competent evidence in the record and a reasonable basis in law to support the findings of the referee and Commission that he was discharged for misconduct connected with his work.

We cannot agree with the appellant’s contention and hold that there was substantial competent evidence to support the Commission’s order. Fort Myers Pump and Supply, Inc. v. Florida Department of Labor and Employment Security, 373 So.2d 429 (Fla. 2d DCA 1979); Lundy’s Market, Inc. v. Florida Department of Commerce, Division of Employment Security, 373 So.2d 433 (Fla. 3d DCA 1979).

The order appealed is affirmed.

Affirmed.


text:
    Willie RILEY, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-197.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1982.
    Rehearing Denied Dec. 7, 1982.

      Willie Riley, pro se, appellant.
    Malcolm S. Greenfield, Tallahassee, Florida Parole and Probation Com’n, for appel-lee.
   PER CURIAM.

The appellant, an inmate at Dade Correctional Institution, contends that the commission incorrectly established his presumptive parole release date. Riley has not filed a rule challenge. Instead, in this direct appeal from commission action, he argues the commission failed to follow its rules when it assigned his matrix time range. We affirm.

Riley was convicted of attempted first degree murder. In establishing his PPRD, the commission assigned a matrix level in the “Greatest Most Serious III” category, which is one level lower than the matrix range for the consummated crime of first degree murder. It appears the commission correctly applied Florida Administrative Code Rule 23-19.01(6).

AFFIRMED.

MILLS, ERVIN and WIGGINTON, JJ., concur.


author: MILLS, Judge.

text:
    George KILPATRICK, Appellant, v. STATE of Florida, Appellee.
    No. AL-359.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1982.
    Rehearing Denied Dec. 9, 1982.
    George Kilpatrick, pro se, appellant.
    No appearance for appellee.
   MILLS, Judge.

Kilpatrick appeals the trial court’s summary denial of his motion for post-conviction relief. Rule 3.850, Florida Rules of Criminal Procedure. We affirm.

The first ground for relief raised by Kilpatrick was previously raised on direct appeal. Kilpatrick v. State, 402 So.2d 618 (Fla. 1st DCA 1981). Therefore, it cannot form the basis for collateral attack.

In his second ground for relief, Kil-patrick alleges that certain of his constitutional rights were violated at trial. We find that this is a matter which could have been raised on direct appeal. “The fact that the basis of the defendant’s collateral attack is alleged to be one of constitutional dimension does not preclude a waiver by the failure to assert it on direct appeal.” Roth v. State, 385 So.2d 114, 115 (Fla. 3d DCA 1980).

Finally, Kilpatrick’s allegations of ineffective assistance of counsel are insufficient under Knight v. State, 394 So.2d 997 (Fla.1981).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: SHARP, Judge.

text:
    STATE of Florida, DEPARTMENT OF REVENUE, Appellant, v. Suzanne JOHNSTON, as Flagler County Property Appraiser, and Flagler County, Appellees.
    No. 81-952.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1982.
    Rehearing Denied Dec. 7, 1982.
    Jim Smith, Atty. Gen., Linda C. Procta, and E. Wilson Crump, II, Asst. Attys. Gen., Tallahassee, for appellant.
    Ronald E. Clark, Palatka, for appellee, Suzanne Johnston.
    Noah C. McKinnon, Jr., Daytona Beach, for appellee, Flagler County.
   SHARP, Judge.

The Department of Revenue appeals from an order confirming as final the taxes levied in Flagler County against an interim assessment for the 1980 tax year. Pursuant to section 193.1145(8)(d), Florida Statutes (Supp.1980), of the Trim Bill, the order was based on a finding by the trial court that the implementation and administration of a reconciliation between the interim and final tax rolls was “not in the best interest of the public.” At issue are the meaning of “not in the best interest of the public,” and whether the trial court properly exercised its discretion in this case by allowing Fla-gler County a reprieve from assessing its real property at 100% or “just value” for the 1980 tax year. We affirm.

In September 1980, the Flagler tax appraiser filed suit in the Circuit Court for Flagler to obtain authorization to use the interim roll to levy and collect taxes, pursuant to subsections 193.1145(1), (2) and (3), Florida Statutes (Supp.1980). Work on the final roll went slowly. The appraiser obtained extensions through May of 1981, apparently concurred in by the Department of Revenue. On May 29, 1981, the Department approved the final tax roll submitted to it by the appraiser. The interim roll was never submitted to the Department for approval, but apparently there was no statutory requirement that it had to be submitted.

All parties agreed that the interim roll did not appraise Flagler property at 100% of its value or at “just value.” The interim roll showed the total taxable value in the county was $276,489,039.00, and the final roll showed a total taxable value of $571,-405,344.00. The difference was close to fifty percent of the final roll, or $294,916,-305.00. About half of the properties would receive refunds and half would be assessed additional taxes, if reconcilation of the two rolls was required.

Rather than proceeding to reconcile the two rolls and sending out refunds and supplemental bills, the property appraiser filed suit in June of 1981 to have the interim roll judicially declared the final one. The local tax authorities presented testimony that the cost of the reconciliation process in Fla-gler would be very high and unusually difficult. Flagler is a small county, but it has a relatively high number of different parcels of property. It does not have a computer, and all of the billing and refunding would have to be done manually. The staff available to work on the reconciliation process was hard at work on the tax roll for 1981, and could not do both. The new roll, like the final roll, was at one hundred percent assessed valuation.

Witnesses testified further that Flagler lacked sufficient funds to do the reconciliation process. It would cost approximately $30,000.00, but the county only had on hand a $7,000.00 contingency fund. Although the refunds theoretically nearly equaled the new billings, the effort to collect taxes from the 1980 owners in 1981 would create difficulties and problems of collection. The county would have to borrow funds to pay the tax refunds, or take monies from the courthouse construction fund, which would halt the project. Finally, the Director of Finance testified that because of a situation peculiar only to Flagler County, the reconciliation would cause the School Board to lose $300,000.00 in state revenues, which could not be replaced by local taxes.

The Department did not counter any of this testimony. Its witness stressed that the major effect of going from the interim to the final roll would be to shift the tax burden between types and classes of properties in Flager. Under the final roll, the homestead property would receive the greatest benefit because the larger homestead exemption would be available.

The trial court considered these financial losses to Flagler and the costs of reconciliation.

The Court is concerned with the revenues of approximately 1.4 million dollars that may be diverted from Flagler County if reconciliation at this stage were to be required. The court has considered the loss of additional revenues and the actual loss of revenues to the County of Flagler. The Court has considered the impact of revenues on a statewide basis. The Court has weighed impact upon the economy and the orderly flow of Government functions in Flagler County.

In State Department of Revenue v. Adkinson, 409 So.2d 53 (Fla. 1st DCA 1982), our sister court reversed a trial court’s order confirming an interim tax roll as the final one for Walton County. The lower court relied on the cost of preparing a final tax roll and the absence of any financial gain to be obtained by the county for its finding of “not in the best interest of the public.” The appellate court said this was too limited a view of the term “best interest of the public”:

In essence, the court decided that “in the best interest of the public” means “in the best interest of the taxing authorities of Walton County.” Such a construction is too parochial.

Id. at 55.

The Adkinson court then proceeded to construe the “public interest” language as being tied grammatically and by proximity to the provisions in section 193.1145(8)(d) relating to bills and refunds. It thus construed “best interest of the public” as requiring a finding by the trial court that:

the amount to be supplementally billed and refunded is so insufficient that it would not be in the best interest of the taxpaying public to require preparation of a final roll, or to order reconciliation between the final and interim rolls, that is, the preparation or reconciliation would amount to a mere formality. (Emphasis added).

Id. at 56. Such a limited construction would make the additional provision of section 193.1145(8)(c), Florida Statutes (Supp. 1980), which prohibits refunds and additional bills of amounts less than $10.00, superfluous.

We agree with Adkinson that the mere cost and inconvenience of doing a final tax roll or reconciliation of a final and interim roll, is not enough to support a finding of “against the public interest.” If it were, none would ever be done. However, in this case there were other additional factors peculiar to Flagler County which would cause genuine fiscal problems for the county government.

Adkinson would also deem these factors insufficient, because they relate to the welfare vel non of a single county rather than the state. Yet, we think the Legislature intended the court to consider the possible disruption of local government as the primary factor in applying the “against the public interest” waiver or exception to section 193.1145(8)(d). The first section of 193.1145(1), Florida Statutes (Supp.1980), states that the Legislature intends to achieve two competing goals:

that no undue restraint shall be placed on the ability of local government to finance its activities in a timely and orderly fashion, and, further, that just and uniform valuations for all parcels shall not be frustrated if the attainment of such valuations necessitates delaying a final determination of assessments beyond the normal 12 month period. (Emphasis added).

The venue of the law suits is set at the seat of the local governments in section 193.-1145, and it must be that entity’s “public interest” which the local court is meant to balance and consider along with the just value cost.

The struggle to get all counties to assess at one hundred percent or “just value” has been a long one for both the Legislature and the courts. The Trim Bill, of which section 193.1145 is a part, is a major step in that direction, and its reforms are welcome. But in drafting section 193.1145, the Legislature recognized the reality that many counties would take some time and special help in getting up to one hundred percent assessment, and it made provisions for that. It also created an escape window, or special waiver exception for counties who in good faith sought but failed to achieve the required one hundred percent assessment, and for whom that step would cause too great a local government disruption and crisis. The statutory technique of taxing on the interim tax basis, or allowing a one year reprieve, was borrowed (we think) from Florida Supreme Court cases, which first created those remedies based on common law and equitable consideration. We choose to read “not in the best interest of the public” in the context of those cases.

The lower court’s findings of “not in the public interest” are therefore supported by sufficient evidence in the record, and they are entitled to a presumption of correctness. Accordingly, the order is

AFFIRMED.

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

      . Section 193.1145(8)(d), Florida Statutes (Supp.1980), provides:
      However, the court, upon a determination that the amount to be supplementally billed and refunded is insufficient to warrant a separate billing or that the length of time until the next regular issuance of ad valorem tax bills is similarly insufficient, may authorize the tax collector to withhold issuance of supplemental bills and refunds until issuance of the next year’s tax bills. At that time the amount due or the refund amount shall be added to or subtracted from the amount of current taxes due on each parcel, provided that the current tax and the prior year’s tax or refund shall be shown separately on the bill. Alternatively, at the option of the tax collector, separate bills and statements of refund may be issued. In addition, the court may find that the implementation and administration of a reconciliation between the interim and final rolls or that the preparation of a final roll is not in the best interest of the public. Upon so finding, the court may enter an order confirming taxes levied against interim assessments to be final for the year in question; property appraisal adjustment board petitions may then be filed with respect to interim assessments, and delinquent provisional taxes shall then be subject to the provisions of chapter 197. (Emphasis added).

      . Art. VII, § 4, Fla.Const; § 193.011, Fla.Stat. (1979).

      . Because the interim roll was not in compliance with just valuation, Flagler residents would not be eligible for the increased homestead exemption provided by Article VII, section 6(d), Florida Constitution.

      . See Coe v. Broward County, 358 So.2d 214 (Fla. 4th DCA 1978).

      . See Spooner v. Askew, 345 So.2d 1055 (Fla.1976); Burns v. Butscher, 187 So.2d 594 (Fla.1966); Dickinson v. Geraci, 190 So.2d 368 (Fla.2d DCA 1966).

      . In Spooner, 345 So.2d at 1059, the court held that the statutory mandate of statewide uniformity of “just valuation,” mandated by Article VII, Section 4, Florida Constitution, was a “goal” not “a compelling right.”
      [I]t would be naive to have expected instant statewide uniformity (assuming it can ever be achieved) merely because the goal has been announced by law .... At best the legislative goal can be achieved only incrementally through cooperative efforts of the assessors and the Department, and by the development of procedures which will accommodate the responsibilities of both.

        Id. at 1059-60.

      . Slay v. Department of Revenue, 317 So.2d 744 (Fla.1975); McNayr v. State ex rel. Dupont Plaza Center, Inc., 166 So.2d 142 (Fla.1964); State ex rel. Glynn v. McNayr, 133 So.2d 312 (Fla.1961).

      . Dickinson, 190 So.2d 368.


author: COWART, Judge.

text:
    SEMINOLE COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. Mildred LONG, Appellee.
    No. 81-1421.
    District Court of Appeal of Florida, Fifth District.
    Nov. 3, 1982.
    Rehearing Denied Dec. 8, 1982.

      David V. Kornreich of Muller, Mintz, Kornreich, Caldwell & Casey, P.A., Orlando, for appellant.
    Treena A. Kaye, Sanford, for appellee.
   COWART, Judge.

Appellee, an employee of Seminole County, was terminated upon an accusation that she made a threatening telephone call to another employee. In the telephone call, she allegedly told the second employee, a supervisor, that she did not want that supervisor to accompany their superintendent when the superintendent again came to talk to appellee and told the supervisor to “back off” or there were certain people in certain organizations who would “take care of” the supervisor. The county personnel board heard and approved her discharge and the Board of County Commissioners heard her appeal and affirmed. The circuit court granted appellee’s petition for common law certiorari, found that the findings and conclusion of the personnel board did not comport with the essential requirements of law and due process and essentially quashed the order of the Board of County Commissioners approving appellee’s discharge. Seminole County appeals the circuit court order granting the petition for writ of certiorari.

Section 400-07-02(a) of the county’s personnel rules gives a number of examples of “major offenses” for which summary termination is appropriate. One of the examples given is “assault on another employee or supervisor.” The charge against appellee was “assault on another employee (verbal), merit system rules and regulations, section 400-07-2.,” and the specification of that charge was “your threatening telephone call to Mr. Milton J. Raw, station supervisor, Casselberry MVI station, on Wednesday, August 20, 1980, at approximately 7 o’clock p.m.” The circuit court defined “assault” in terms of its definition in civil tort law and granted certiorari because the act specified in the charge did not satisfy that definition, since “mere words or threats alone do not constitute an assault, unless together with other acts or circumstances they put the victim in reasonable apprehension of imminent harmful or offensive contact” [citing 4 Fla.Jur.2d Assault-Civil Aspects § 3 (1978)].

The threatening telephone call could constitute proper grounds for discharge. A number of cases affirm the rule that government employees may be discharged for “conduct unbecoming an employee.” Kennett v. Barber, 159 Fla. 81, 31 So.2d 44 (1947); Weisbrod v. Florida Career Service Comm’n., 375 So.2d 1102 (Fla. 1st DCA 1979); City of Miami v. Babey, 161 So.2d 230 (Fla. 3d DCA 1964). Kennett, Babey and Miranda v. City of Miami, 185 So.2d 498 (Fla. 3d DCA 1966), approved discharge of city employees for conduct unbecoming a city employee where the conduct complained of was in itself a crime. Babey involved transportation of explosives in a motor vehicle without license or permit; Kennett involved discharge of a fireman who, while intoxicated, threw his wife to the ground and beat another woman; Miranda approved the discharge of a city employee who conspired to steal an automobile and possessed the stolen auto. From these cases, appellee argues that employees cannot be discharged for “conduct unbecoming an employee” unless the conduct is itself criminal. This argument fails to consider cases like Baynard v. Windom, 63 So.2d 773 (Fla.1952), which approved discharge of nine city employees for being absent without leave, and Chastain v. Civil Service Board of Orlando, 327 So.2d 230 (Fla. 4th DCA 1976), which approved discharge of a police officer for shooting an escaping prisoner even though, under the facts of the case, he was not civilly or criminally liable for his conduct. Weis-brod’s reversal of the discharge of a state employee for using profane and abusive language to police officers who arrested her outside of working hours, does not diminish the fact that the court stated that “no right of an employee rises above the right of the city” to promulgate and enforce “as high a standard of social and cultural conduct as its people want,” which cannot be upset by the court “when the record reveals nothing more than an orderly attempt to enforce a reasonable standard of conduct on the part of city employees.” Weisbrod, 375 So.2d at 1106, quoting from Kennett v. Barber. That the county contemplated that a summary discharge could be predicated on noncriminal conduct is shown by the fact that one of the examples of “major offenses” is “gross insubordination,” which is certainly not a crime.

The circuit court on certiorari was too technical with the county. A complaint filed by an administrative agency is not required to fulfill the technical niceties of a pleading filed in a court of law. Such an administrative complaint must only be specific enough to inform the accused with reasonable certainty of the nature of the charge. The charge in this instance met that requirement. The administrative complaint was not so vague, indistinct and indefinite as to mislead the appellee or to embarrass her in the preparation of her defense. Appellee’s position was that she did not make the telephone call,'while the supervisor testified that she did. The personnel board of Seminole County determined as a matter of fact that the telephone call was made. All procedural due process requirements as to notice and opportunity to be heard were met and the Board of County Commissioners’ approval of the findings and conclusions of the personnel board should not have been disturbed on certiorari.

After this case was briefed and argued and this opinion prepared, the supreme court issued City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982), holding that a district court of appeal could review a final circuit court order reviewing administrative action only by certiorari, despite the clear language of Article V, section 4(b)(1) of the Florida Constitution. We did not question the district court of appeal’s jurisdiction to hear appeals from orders of the circuit court reviewing administrative action where the supreme court did not have such jurisdiction. Heretofore, this court had worked out that problem, giving effect to the plain language of article V, section 4, Florida Constitution, and holding that in such cases our scope of review might be as broad as, but never broader than, the circuit court’s scope of review of the administrative action. McCray v. County of Volusia, 400 So.2d 511 (Fla. 5th DCA 1981); Odham v. Petersen, 398 So.2d 875 (Fla. 5th DCA 1981); County of Volusia v. Transamerica Business Corp., 392 So.2d 585 (Fla. 5th DCA 1980). Our view was based on the belief that the constitutional drafters knew the difference between the words “appeal” and “review” and that the constitutional provision was, not only applicable and binding, but was a well-conceived implementation of long established principles of constitutional magnitude.

As a constitutional principle for the protection of individual liberty against arbitrary actions of governmental officials, the doctrine of separation of powers of government ranks equal to the guarantees in sections 9 and 10 of article I of the Constitution of the United States, in the first nine amendments thereto and in their state constitutional counterparts. See Art. II, § 3, Fla.Const. The fundamental idea of separation of powers is that the judiciary is the operative check on possible arbitrary action by legislative and executive officers. Therein lies the difference between circuit court review of a judgment of a county court, itself a subdivision of the judicial system, and circuit court review of actions of an administrative body, which is a component of another branch of government. The county court judgment is presumed to have been correctly reached in an impartial and detached judicial forum and, on review by appeal, the circuit court is required to defer to the fact findings of the county court, it being the initial judicial tribunal; on certiorari review, the district court should defer to the substantive law applied by the circuit court as appellate court and review the circuit court action only for procedural due process. See Combs v. State, 420 So.2d 316 (Fla. 5th DCA 1982).

Under our constitution, the primary purpose of judicial review of executive action is to prevent arbitrary fact-finding and actions by the executive. Upon judicial review of administrative action in the circuit court, by certiorari or otherwise, the administrative action is entitled to none of the deference due initial judicial action. Such judicial “review” partakes more of the nature of an original judicial proceeding (which it is) than of a classic appeal of a lower judicial tribunal. The constitution gives litigants the right to one appeal from initial judicial action. A right of direct plenary appeal from a circuit court order reviewing administrative action to the district court of appeal was unquestioned until now. The constitutional provision adopted in 1972 appears to be merely an affirmation and guarantee of prior good law. We prefer this rationale as the basis for appellate review in this case, but if we must justify our review under the Deerfield rationale, then we can be deemed to have treated this appeal as a petition for certiorari under Florida Rule of Appellate Procedure 9.040(c) and to have found that the circuit court applied incorrect rules of law relating to the non-technical nature of pleading administrative complaints and as to the breadth of authority and grounds for an employer, even a governmental employer, to discharge an employee under the case law cited above.

The order of the circuit court quashing the board’s decision is

REVERSED.

ORFINGER, C.J., and DAUKSCH, J., concur.

      . Adopted in 1972, Article V, section 4(b)(1), Florida Constitution, provides in pertinent part:
      District courts of appeal shall have jurisdiction to hear appeals that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court, (emphasis added)

      . In the prior constitution, Article V, section 5(c), Florida Constitution (1889), merely allowed “appeals from trial courts” to the district courts of appeal. Even though it did not specifically authorize appeals to district courts of appeal from final orders of the circuit court entered on review of administrative action, the supreme court held that litigants were entitled to such an appeal because the circuit court sitting in review of administrative action is acting as a “trial court.”
      This court has repeatedly held that where statutory administrative proceedings are had before administrative officers, boards, commissions or other tribunals, with statutory appeals to the circuit courts, such proceedings do not appear in the judicial department of the state government as a judicial “case” until they are brought to the circuit court by appeal; therefore, the “case” may be fairly regarded as originating in the circuit court through a statutory appeal from the administrative board as much as it would be so originating in the circuit court by injunction, certiorari or other original writ. South Atlantic S. S. Co. of Delaware v. Tutson, 1939, 139 Fla. 405, 190 So. 675; Duval Engineering & Contracting Co. v. Johnson, 1944, 154 Fla. 9, 16 So.2d 290; Alcoma Citrus Cooperative v. Isom, 1947, 159 Fla. 10, 30 So.2d 528.
      These cases consistently support the reasoning that the Circuit Court sat as a trial court when it reviewed the “entire cause” on appeal from the order of the County Authority. Reason and logic also support this conclusion. Such proceedings before boards and commissions are so often conducted without regard to proper decorum or observance of the rules for introduction or consideration of evidence that the work of the circuit court consists largely in preparing an intelligent and orderly “case” for review by the appellate court. Reviewing the “entire cause” connotes consideration of every aspect of it by the circuit court.

      The intent of the Constitution in providing for appeals in “cases” is directed at controversies pending in the judicial system and not controversies pending before an administrative agency of the executive branch of our government; and an order of an administrative agency is not a decision in a “case” within the scope of Section 6 of Article V of the Constitution.
      For the purposes of jurisdiction, an “appeal” to the circuit court pursuant to the statute becomes a “case” of original jurisdiction when it enters or is brought into the judicial system, if such an appeal is authorized by statute and the statute is not violative of the Constitution.

        State v. Furen, 118 So.2d 6, 8-10 (Fla.1960); accord, Wexler v. Ring, 125 So.2d 883 (Fla. 3d DCA 1961). The relevant portion of the constitution was replaced in 1972 by present Article V, section 4(b), Florida Constitution. The inclusion of the words “including those entered on review of administrative action” in the present section was undoubtedly intended to codify Furen’s holding.