author: JOANOS, Judge.

text:
    BILL TERRY’S INC., a Florida corporation, Appellant, v. ATLANTIC MOTOR SALES, INC., a foreign corporation, Appellee.
    No. AB-16.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.

      S. Gordon Blalock of Blalock, Holbrook & Akel, Jacksonville, for appellant.
    Norwood S. Wilner, Jacksonville, for ap-pellee.
   JOANOS, Judge.

Bill Terry’s Inc. appeals from final judgment entered after a jury verdict in favor of Atlantic Motor Sales, Inc. on counts of breach of warranty, fraud, and violation of the Federal Odometer Disclosure Law (Title 15 U.S.C. § 1989(a)(1)). The jury assessed actual damages of $2,845 and punitive damages under the fraud count of $10,000. As required by the Odometer Disclosure Law, the trial judge tripled the amount of actual damages and awarded $8,535. The judge also awarded $10,000 punitive damages for common law fraud based upon the same events which resulted in the federal statutory violation. Bill Terry’s challenges the evidentiary and legal support for the finding that the Odometer Disclosure Law was violated. In addition, Bill Terry’s argues that the amount of actual damages was not satisfactorily proven and that the trial judge erred in awarding both treble damages and punitive damages. We affirm in all respects except as to the award of both treble and punitive damages.

In 1972, Bill Terry’s sold a new model Buick to Duval Container Co., in care of Jose Talpalar, an employee. From December 1972 to June 1976, the car was regularly serviced at Bill Terry’s and the mileage was recorded on the service record. It is apparent from the service record that the five-place odometer on the Buick “rolled over” past the 100,000 mile increment and began to register in the low thousands.

In March of 1976, Talpalar purchased a new car and traded in the Buick with Bill Terry’s. At that point, the mileage shown on the odometer was 10,975 miles, but the car had actually traveled 110,975 miles. An Odometer Disclosure Form was filled out in which actual mileage was certified (supposedly by Talpalar, the transferor) as 10,975. Although the form shows “Jose Talpalar c/o Duval Container” as signator, a handwriting expert testified that the signature was not Talpalar’s but stongly resembled the handwriting of Paul Scull, Bill Terry’s salesman who handled the trade-in.

On July 13, 1976, Bill Terry’s sold the Buick to appellee, Atlantic Motor Sales. Bill Terry’s salesman for this transaction signed the Odometer Disclosure Form certifying that the actual mileage was only 11,202. The salesman testified that he made the certification solely by looking at the odometer and that he never checked service records on the used cars he sells.

Atlantic Motor Sales resold the Buick to a customer in 1977 certifying the mileage on the car to be 11,890. About six months later, when the customer started having mechanical problems with the car, he began to suspect that the mileage on the car might be more than the mileage certified. He obtained the service record from Bill Terry’s and discovered that the Buick had traveled more than 100,000 miles. Atlantic Motor Sales was sued by the customer, resulting in legal expenses and ultimately a settlement for the purchase price of the car. Atlantic Motor Sales then filed suit against Bill Terry’s seeking actual and punitive damages for breach of warranty, fraud, and violation of 15 U.S.C. § 1989(a)(1), the Odometer Disclosure Law.

Citing several federal district court opinions, Bill Terry’s asserts that the Odometer Disclosure Law does not require disclosure of a 100,000 miles increment even where there is a clear finding of intent to defraud. Leach v. Bishop Brothers Auto Action, Inc., 441 F.Supp. 98 (N.D.Ga.1977); Rider Oldsmobile, Inc. v. Wright, 415 F.Supp. 258 (M.D.Pa.1976). Both the Fourth and Fifth Circuits, however, have held that the Odometer Disclosure Law requires that a trans-feror certify that a car has traveled over 100,000 miles if, in the exercise of reasonable care, the transferor would have reason to know that the odometer had “turned over.” Ryan v. Edwards, 592 F.2d 756 (4th Cir. 1979); Suits v. Little Motor Co., 642 F.2d 883 (5th Cir. 1981). In Ryan, the court stated that the purpose of the statute was to enable purchasers to know how many miles the car has traveled as a guide to safety, reliability, and value. As a remedial statute, it should be liberally construed to effect its purpose.

Absolute certainty that an odometer has turned over is not necessary if the transferor would have discovered the “roll over” in the exercise of reasonable care. Ryan, supra. In Nieto v. Pence, 578 F.2d 640 (5th Cir. 1978), the court held that constructive knowledge of an incorrect odometer reading may be sufficient to show intent to defraud. The transferor cannot “close his eyes to the truth.”

From the evidence before it, the jury could infer that Bill Terry’s had either actual or constructive knowledge of the car’s mileage sufficient to form the requisite “intent to defraud.” The jury also could have concluded that a Bill Terry’s salesman forged an odometer statement when the car. was originally traded in. When the car was resold, Bill Terry’s never made an effort to check its own service records although the four year old car had suspiciously low mileage.

Bill Terry’s also contends that the two year statute of limitations barred Atlantic Motor Sales’ action on the Odometer Disclosure Law. We do not agree. The statute of limitations in 15 U.S.C. § 1989 begins to run upon discovery of the violation. Byrne v. Autohaus on Edens, 488 F.Supp. 276 (N.D.Ill.1980); Levine v. MacNeil, 428 F.Supp. 675 (D.Mass.1977). The incorrect certification of mileage was not suspected until Atlantic Motor Sales’ customer began to experience mechanical trouble with the car. This occurred within the two year period before the suit was filed.

We also reject Bill Terry’s argument that the evidence does not support the award of actual damages. The trial judge’s award of both treble damages and punitive damages, however, merits closer inspection.

We agree with appellant that an award of both treble damages and punitive damages for the same act amounts to a double recovery or an excessive penalty. See John Mohr & Sons, Inc. v. Jahnke, 55 Wis.2d 402, 198 N.W.2d 363 (1972); 22 Am. Jur.2d Damages § 267. Appellant, however, seeks to have the punitive damages award stricken under the theory that the federal Act preempts the field. With this premise, we disagree. In 15 U.S.C. § 1991, Congress specifically stated that the Odometer Disclosure Law was not intended to affect state laws regarding odometer tampering except to the extent of any inconsistency. The Tenth Circuit in Edgar v. Fred Jones Lincoln-Mercury, 524 F.2d 162 (1975) interpreted § 1991’s reference to “inconsistencies” as applying only to less stringent state laws on the same subject and not to common law fraud counts. Where, as here, the punitive damage award for common law fraud exceeded the damages under 15 U.S.C. § 1989, no “inconsistency” with the federal Act results if the greater amount is awarded.

AFFIRMED in part. REVERSED in part with instructions to award the appellee actual and punitive damages assessed by the jury on the common law fraud count.

SHAW, J., and MASON, ERNEST E. (Retired) Associate Judge, concur.

      . Of course, if the total award under the common law fraud count was less than a treble damage award under the Odometer Disclosure Law, the award should be made pursuant to the federal statute.


source: Caselaw Access Project

author: FERGUSON, Judge.

license: Public Domain

text:
    The STATE of Florida, Petitioner, v. Stanley STEINBRECHER, Respondent.
    No. 81-727.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for petitioner.
    Bernard A. Frank and Jack R. Nageley, Miami Beach, for respondent.
    Before BASKIN and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Petitioner State of Florida, seeks certio-rari review of a pre-trial evidentiary ruling. The determinative issues before us are whether this court may review by certiorari a pre-trial order excluding evidence, and, if so, whether the requirements permitting review by petition for certiorari are present in this case.

Respondent Steinbrecher filed in the trial court a motion to exclude certain tape recordings of conversations. On March 27, 1981 the court entered its order granting defendant’s motion to exclude a tape recording dated December 21, 1978 and denying the motion to exclude a tape recording dated December 19,1978. The State filed a notice of appeal from the order of March 27, 1981. Because the pre-trial evidentiary ruling excluding the tape of December 21, 1978 was based on the intelligibility and audibility of the tape and did not involve issues of suppression of pre-trial confessions, admissions, or evidence obtained by search and seizure, this court treated the notice of appeal from that ruling as a petition for writ of certiorari. See Fla.R. App.P. 9.140(c)(1)(B); Fla.R.App.P. 9.030(b)(2)(A).

Respondent argues that there is no authority for certiorari review of a pre-trial ruling excluding evidence. We disagree. Rule 9.140(c) of the Florida Rules of Appellate Procedure does limit matters which may be appealed by the state before trial as of right. However, this limitation as to appeals is not a bar to this court’s power of discretionary review. Art. V, § 4(b)(3) Fla. Const.; State v. Ramos, 378 So.2d 894 (Fla. 1st DCA 1979); State v. Williams, 227 So.2d 253 (Fla. 2d DCA 1969). See also Pressley v. Wainwright, 367 So.2d 222 (Fla.1979), England, C. J. dissenting; State v. Harris, 136 So.2d 633 (Fla.1962) (petition to supreme court). Fla.R.App. 9.140(c), Committee Notes, 1977 Revision, (“This rule has no effect on... the availability of extraordinary writs otherwise within the jurisdiction of the court to grant...”).

We believe, therefore, that the correct interpretation of Florida law is that if the requirements permitting certiorari jurisdiction otherwise exist, a pre-trial order excluding evidence which has the effect of substantially impairing the ability of the state to prosecute its case is subject to certiorari review. We are mindful of a prior opinion in this case declining certiorari review of a pre-trial evidentiary ruling, State v. Steinbrecher, 393 So.2d 66 (Fla. 3d DCA 1981), and expressly recede from its holding. Cf. People v. Young, 82 Ill.2d 234, 45 Ill.Dec. 150, 412 N.E.2d 501 (Ill.1980), setting forth the rationale for permitting appeal by the state of pre-trial evidentiary rulings that review of an erroneous pre-trial evidentiary ruling which the state certifies as crucial to its case is desirable in order to promote justice by ensuring proper application of the governing law and by protecting the ability of the trial court to determine the truth of the factual allegations involved.

Having determined that Florida Rule of Appellate Procedure 9.140(c) is no proscription on the power of this court to review by common-law certiorari pre-trial evidentiary rulings, we must now determine whether the facts of this case meet the requirements permitting such review.

Under Florida Rules of Appellate Procedure, the State cannot appeal an erroneous pre-trial evidentiary ruling which results in acquittal, and, therefore, cannot be said to have an adequate remedy at law. In addition, the order of March 27, 1981 departed from the essential requirements of law by refusing to admit into evidence the recording of December 21, 1978 which is audible and intelligible in relevant portions. Florida law provides that if reasonable persons could disagree whether the recorded statements are clear enough to be understood, the determination of the trial court will not be disturbed. See, e.g., State v. Phillipe, 402 So.2d 33 (Fla. 3d DCA 1981); Roberts v. State, 390 So.2d 769 (Fla. 3d DCA 1980) pet. for rev. dismissed, 402 So.2d 612 (Fla.1981); State v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979). Cf. United States v. Llinas, 603 F.2d 506 (5th Cir. 1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1030, 62 L.Ed.2d 762 (1980) (applying federal law that trustworthiness of tape recording is left to sound discretion of trial judge). Partial inaudibility or unintelligi-bility of portions of a recording, however, is not a ground for excluding a recording if the audible parts are relevant, authenticated, and otherwise properly admissible. Odom v. State, 403 So.2d 936 (Fla.1981), citing Todisco v. United States, 298 F.2d 208 (9th Cir. 1961), cert. denied, 368 U.S. 989, 82 S.Ct. 602, 7 L.Ed.2d 527 (1962); Monroe v. United States, 234 F.2d 49 (D.C. Cir. 1956), cert. denied, 352 U.S. 873, 77 S.Ct. 94, 1 L.Ed.2d 76 (1956); Brady v. State, 178 So.2d 121 (Fla. 2d DCA 1965); Gomien v. State, 172 So.2d 511 (Fla. 3d DCA 1965). Cf. United States v. Llinas, supra, (partially unintelligible tapes generally admissible). We have listened to the tapes and conclude that the brief recording of December 21st is quite audible and intelligible in relevant portions and should not have been excluded.

Certiorari is granted and that portion of the order under review which excludes from evidence the taped conversation of December 21, 1978 is quashed. The cause is remanded for further consistent proceedings.

      . The transcript of the proceedings reflects that the trial court found only two to ten minutes of the approximately hour-long tape of December 19, 1978 intelligible, but that there was not the same garbled situation as to the tape of December 21, 1978. On motion of the State, we relinquished jurisdiction to the trial court for the purpose of correcting the order to show that it was the tape of December 19th and not the tape of December 21st which had been determined inaudible by the trial court. On remand the trial court entered a supplemental order stating essentially that the order of March 27, 1981 “clearly reflects the intention and finding of the Court on defendant’s motion to exclude tapes.” The record has been supplemented to include the trial court’s supplemental order.


author: PER CURIAM.

text:
    SOUTHERN DISCOUNT COMPANY, Appellant, v. John W. McLEES, et al., Appellees.
    No. 81-808.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Elliot L. Miller, Miami Beach, for appellant.
    Peeples, Earl, Smith, Moore & Blank and Paul H. Amundsen, Miami, for appellees.
    Before NESBITT and DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Overholser v. Overstreet, 383 So.2d 953 (Fla. 3d DCA 1980); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980).


author: DAUKSCH, Chief Judge.

text:
    Anthony N. DiNATALE; Kathryn Lynn DiNatale, Appellants, v. Robert A. LIEBERMAN, M.D.; Sunland Regional Center at Orlando, etc., et al., Appellees. Susan Carol ALLEN, etc., et al., Appellants, v. COLONIAL LABORATORY, INC., etc., et al., Appellees.
    Nos. 81-115, 81-116 and 81-503.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.

      William G. Osborne of Robertson, Williams, Duane, Lewis, Briggs & Ranson, P. A., Orlando, for appellants DiNatale.
    Marón E. Lovell, Orlando, for appellants Allen.
    William B. Wilson of Maguire, Voorhis & Wells, P. A., Orlando, for appellee Lieberman.
    Michael A. Estes of Woolfolk, Estes & Palmour, P. A., Orlando, for appellee Sun-land.
    Chet Parker, Orlando, for appellee Colonial Laboratory, Inc.
   DAUKSCH, Chief Judge.

In these consolidated appeals the principal question for our review is the right of a child and its parents to sue a physician or other health care provider for damages allegedly suffered as a result of pre-natal negligence of the defendant. As we held in Moores v. Lucas, 405 So.2d 1022 (Fla. 5th DCA 1981), a child born with physical or mental defects does not have a cause of action against anyone on account of his having been born. Neither this court nor any other court in Florida recognizes a “wrongful life” cause of action.

The fathers’ viable causes of action in this appeal are predicated upon a “wrongful birth” theory which is based upon the alleged negligence of a physician or laboratory in failing to properly diagnose and inform the parents of the impending birth of a defective child, thus giving them the choice to terminate the pregnancy. Even though a father has no legally enforceable right to either compel or prevent an abortion, he has a right to participate in the decision. § 390.001(4)(b), Florida Statutes (1981); See, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); See also, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). He shares the mother’s right to seek damages for the negligent wrongful birth because he shares the legal obligation to provide for the child’s care and support. See, §§ 61.09 and 27.04-.06, Florida Statutes (1981); Variety Children’s Hospital, Inc. v. Vigliotti, 385 So.2d 1052 (Fla. 3d DCA 1980). The father’s right is not dependent upon the mother’s cause of action but is his individually.

If either parent can prove that the child will require extraordinary care in the future and that the negligence of the defendant caused, or will in the future cause, the parent to incur expenses for that extraordinary care, then the parent is entitled to recover damages in court for those extraordinary expenses. Moores. Because there are allegations of such negligence and of extraordinary expenses which will be incurred we reverse those portions of the trial court’s orders which dismissed the fathers’ claims. The plaintiffs and defendants should be permitted to file amended pleadings to conform with the Moores decision and with this decision, if they file a timely motion to do so.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . “Wrongful life” has been defined as the child’s cause of action for having been born deformed, and “wrongful birth” as the parents’ cause of action for the expenses of caring for the defective child. Curlender v. Bioscience Laboratories, 106 Cal.App.3d 811, 165 Cal.Rptr. 477 (1980).

      . Section 390.001(4)(b) which requires that a husband be given notice of a proposed abortion, was not effective until after the pregnancies in question here. It was passed to replace a prior provision requiring the husband’s consent to an abortion, which was declared unconstitutional in Coe v. Gerstein, 376 F.Supp. 695 (S.D.Fla.1973) aff’d, 517 F.2d 787 (5th Cir. 1975), affm’d., 428 U.S. 901, 94 S.Ct. 2247, 41 L.Ed.2d 70 (1976).


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

text:
    Quinnie NEWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-344.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant was convicted of uttering a false or forged instrument. He was sentenced to five years on the condition that the sentence “be served consecutively with any other sentence imposed by any other court.” Construing this language as referring only to a sentence already imposed at the time the court entered its judgment, we AFFIRM. See Teffeteller v. State, 396 So.2d 1171 (Fla. 5th DCA 1981).

AFFIRMED.

DAUKSCH, C. J., and COWART, J., concur.


text:
    LOUISVILLE TITLE INSURANCE COMPANY, a foreign corporation doing business in Florida, Appellant, v. Maone B. GUERARD, Appellee.
    No. 81-414.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.

      John L. Waller, St. Petersburg, for appellant.
    Frank McClung and Ann G. Paschall of McClung & Paschall, Brooksville, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from an order granting partial summary judgment in favor of ap-pellee Maone B. Guerard, on the issue of liability.

Appellee obtained a policy of title insurance from appellant to cover appellee’s property in Hernando County. Appellee was sued by Waldron and Glenda Roper who sought to establish a prescriptive easement over an unpaved roadway that existed on appellee’s land. Appellant refused to defend the suit.

Appellant based its refusal on various exceptions to the policy found in Schedule B which provided that “the policy does not insure against loss or damage by reason of the following:

1. Rights or claims of parties other than Insured in actual possession of any or all of the property;
2. Unrecorded easements, if any, on, above or below the surface....

Appellant also contended that it was not bound to defend under a provision in the policy excluding coverage for adverse claims not known to appellant and not shown on public records but known by the insured at the date of execution of the policy or when the insured acquired the property.

In entering summary judgment, the trial court concluded that while Schedule B, paragraph 2, excepts from the policy’s coverage unrecorded easements, it did not except claims of unrecorded easements and therefore appellant was required to defend the title to appellee’s property against the claim of an unrecorded easement. The court relied on the well established principle that an ambiguity or uncertainty in the exceptions in a policy of title insurance will be strictly construed against the insurer. See McDaniel v. Lawyers’ Title Guaranty Fund, 327 So.2d 852 (Fla. 2d DCA 1976). See also Tropical Park, Inc. v. U.S. Fidelity & Guaranty Co., 357 So.2d 253 (Fla. 3d DCA 1978).

We believe that Capoferri v. Allstate Insurance Co., 322 So.2d 625 (Fla. 3d DCA 1975), provides the applicable rule. In that case, the plaintiff alleged that Capoferri, insured with automobile liability coverage by Allstate, had wilfully assaulted him by deliberately driving his car into plaintiff’s car. Allstate refused to defend on the ground that the policy specifically excluded bodily injury or property damage intentionally caused by the insured. In affirming a summary judgment by the trial court for Allstate, the appellate court stated initially that an insurer has a duty to defend only when the suit filed against the insured alleges a state of facts within the coverage of the policy. 322 So.2d at 626. Prom this the court reasoned that an insurer “is not required to defend if it would not be bound to indemnify the insured even though the plaintiff should prevail in his action.” See also Federal Insurance Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979) (“the very reason that [an insurer] is not required to defend a particular action is that ‘it would not be bound to indemnify the insured even though the plaintiff should prevail in his action’ ”).

The Capoferri court then analyzed the case before it:

Here, the only cause of action alleged in the [plaintiff’s] complaint was one for intentional acts by [defendant]. The record reflects that intentional acts by the insured were not within the coverage of the Allstate automobile liability policy. Even if [plaintiff] had proved all of the allegations in his complaint and taken a judgment against [defendant] based on the rule set forth above, Allstate would have been under no obligation to indemnify [defendant]. Therefore, since Allstate had no duty to defend in this matter, the trial court properly granted judgment for Allstate on its motion for summary judgment.

322 So.2d at 627.

In the instant case, the only causes of action alleged in the Ropers’ complaint were for a prescriptive easement and statutory way of necessity. Unrecorded easements, however, were not within the coverage of the title insurance policy. Even if the Ropers proved their case and got a judgment against appellee, appellant would have been under no duty to indemnify ap-pellee. Therefore, applying the rationale in Capoferri, appellant had no duty to defend.

Appellee argues that Schedule B, paragraph 2 is ambiguous and that the trial court correctly resolved this ambiguity against appellant under McDaniel and Tropical Park. However, in neither of those two cases did the court hold that an insurer was required to defend an action against its insured where it was not obligated to indemnify the insured.

Tropical Park is the most relevant of the two cases. There appellant insurer refused to defend its insured, Tropical Park racetrack, against a claim brought by Alfonso Perez. Perez sued claiming that as a “freelance jockey” he was injured due to Tropical Park’s negligence while exercising a horse at the racetrack. Appellant refused to defend, relying on an exclusionary clause in the policy denying coverage to the track “for bodily injury claims on account of injury to any person while practicing for or participating in any contest or exhibition of an athletic or sports nature sponsored by the insured.” 357 So.2d at 254.

The appellate court held that the exclusionary clause was inapplicable to deny coverage, that appellant was obligated under the policy to pay the insured for any judgment arising out of the claim, and that appellant was contractually obligated to defend the lawsuit based on the claim. Id. at 255. The court, construing the policy strictly against the insurer, found that Perez was merely an “exercise boy” and was not “practicing for or participating in any contest or exhibition of an athletic or sports nature.”

The significance of Tropical Park, if any, to the instant case is that where the insurer is obligated under the policy to pay the insured for a judgment arising out of a claim, it is obligated to defend in the suit. The logical corollary appears to be that where an insurer is not liable under the policy to pay the insured for a judgment arising out of a claim, it has no duty to defend the action for the insured. Here, under Schedule B, paragraph 2, appellant excluded unrecorded easements from the policy’s coverage. The Ropers sought to establish a prescriptive (unrecorded) easement on appellee’s property. Since appellant was not liable under the policy for such a claim, it had no duty to defend appellee’s title in that action.

REVERSED.

ORFINGER and COBB, JJ., concur.

      . Appellee retained private counsel and was ultimately successful in defending her property when this court, in Guerard v. Roper, 385 So.2d 718 (Fla. 5th DCA 1980), held that the Ropers had not sufficiently proved the existence of a prescriptive easement.


text:
    Manuel Clayton DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 81-566.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Leon R. Ross, Certified Legal Intern, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

The April 17, 1981, probationary order of the court below is corrected to read that Daniels entered a plea of nolo contendere specifically reserving his right to appeal.

The motion to suppress was properly denied. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); § 901.151, Fla. Stat. (1979). Therefore, the probationary order of the court is otherwise affirmed.

DAUKSCH, C. J., and COBB and CO-WART, JJ., concur.


author: COWART, Judge.

text:
    William Gladstone BUTLER, III, Appellant, v. Ronda Jean Reynolds BUTLER, Appellee.
    No. 81-614.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.
    Paul L. Martz of Martz & McClure, St. Augustine, for appellant.
    No appearance for appellee.
   COWART, Judge.

Appellant claims that the trial court erred in ordering, under section 742.041, Florida Statutes (1979), him to pay as support for two children the amount of $100 per week when the only evidence before the court was that, as a self-styled artist and minister, his average annual income for the preceding four years was only between $100 and $250. Although appellant has heretofore liquidated assets for other purposes, he argues here that in setting child support the trial court cannot take into consideration his substantial inherited non-income producing assets, because that would require him to invade his principal assets. A parent’s duty to support minor dependent children is one of the highest obligations known to morality and law. The trial judge can consider a parent’s ability to meet that duty in any manner, including the parent’s ability to earn support money or to acquire it from any source including unearned income from assets or the reinvestment or, if necessary, sale of assets.

AFFIRMED.

ORFINGER and SHARP, JJ„ concur.


author: COBB, Judge.

text:
    STATE of Florida, Appellant, v. Melvin Burnett BONAMY, Appellee.
    No. 81-626.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    Joseph W. DuRocher, Public Defender, and Glenn Klausman, Asst. Public Defender, Orlando, for appellee.
   COBB, Judge.

This case requires interpretation of a defendant’s right to speedy trial as measured by constitutional, as opposed to procedural, standards.

The defendant, Melvin Bonamy, was arrested on April 15, 1980, and charged with burglary of a dwelling. The case was originally set for trial on August 13, 1980. On that day, the defense moved for a continuance on the ground that three of the state’s witnesses had failed to appear for pre-trial depositions. It was not shown that these witnesses had been properly subpoenaed by the defense for such depositions. Even if they were, it is well settled that it is not the responsibility of the state to produce witnesses subpoenaed by the defense for discovery purposes. State v. Roig, 305 So.2d 836, 837 (Fla. 3d DCA 1974).

The trial court granted the defense motion for continuance without making any determination, as requested by the defense, that the continuance be charged against the state. As a matter of law, it was chargeable against the defense and, once granted, rendered inapplicable the 180-day limitation set forth in Florida Rule of Criminal Procedure 3.191(a)(1). Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). Thereafter, the defendant was entitled to a speedy trial as evaluated by the standards set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Florida, of course, as pointed out in Fluellen, a defendant desiring a more expeditious trial date may affirmatively demand a speedy trial to be held within sixty days by filing a motion pursuant to Florida Rule of Criminal Procedure 3.191(a)(2).

The trial was then rescheduled some four or five times, at the request of the state, at brief intervals in October and November, 1980. On November 4, 1980, Bonamy filed a motion for discharge claiming violation Of the 180-day speedy trial rule — which he had waived by his own motion the preceding August. This motion was never heard for reasons not clarified by this record. Finally, on March 24, 1981, Bonamy filed an additional motion to discharge, alleging a violation of his constitutional right to a speedy trial. This motion was granted by the trial court on April 27, 1981, and this is the order being appealed by the state.

The Sixth Amendment speedy trial clause does not become applicable until the defendant is either arrested or indicted. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In the case at hand, Bonamy was arrested on April 15,1980, and his motion to discharge was granted on April 27, 1981. Therefore, we are dealing with a delay of approximately one year.

The dispositive case which controls the issue of constitutional speedy trial is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker, the United States Supreme Court set forth the four elements that are to be balanced against each other on a case-by-case basis in order to determine whether a defendant has been denied his Sixth Amendment speedy trial. These four elements are: (1) length of delay, (2) reason for delay, (3) whether the defendant asserted his right to be tried speedily, and (4) prejudice to the defendant caused by the delay.

The first element of Barker, the length of delay, is merely a threshold triggering mechanism. A court need not inquire into the other factors unless there has been a delay of such length as to be “presumptively prejudicial.” United States v. Edwards, 577 F.2d 883 (5th Cir. 1978). A delay of seven months between arraignment and trial is not presumptively prejudicial for speedy trial time. United States v. Rankin, 572 F.2d 503 (5th Cir. 1978). A delay of one year is long enough to trigger this threshold presumption. United States v. Anderson, 621 F.2d 292 (8th Cir. 1980). However, the length of delay itself is not enough to show that a defendant was deprived of a constitutional speedy trial. In Barker, the United States Supreme Court found that there had been no denial of speedy trial even though the delay had been “well over five years.” In numerous other cases, delays ranging from one-and-a-half years to six years have been found not in violation of a defendant’s constitutional speedy trial when viewed in light of the other elements. E.g., United States v. Hill, 622 F.2d 900 (5th Cir. 1980); United States v. Saglimbene, 471 F.2d 16 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2146, 36 L.Ed.2d 686 (1973).

The second element of Barker is the reason for the delay. There may be a variety of reasons for a delay. Good reasons include: (a) a complex case, (b) widely scattered witnesses, (c) absence of a witness, and (d) illness of a witness. Neutral reasons include overcrowded court dockets. Bad reasons include a deliberate delay by the state. Barker; United States v. Katz, 494 F.Supp. 1287 (M.D.Fla.1980). In the case at hand, the reasons attributable to the state for delay were an overcrowded court docket and a conflicting trial schedule of the prosecutor.

The third element of Barker is whether the defendant asserted his right. It would be a rare case in which a defendant had been denied his constitutional speedy trial if the defendant never asserted his right to be speedily tried. Barker. There are many times when the defendant does not want to be tried. This is often the situation where a defendant wants to wait and see what the outcome is of the separate trial of one of his co-defendants on the belief that if his co-defendant is found innocent then he himself will probably never be tried. For example, see United States v. Tercero, 640 F.2d 190 (9th Cir. 1980); Sagiimbene. In the case at hand, Bonamy was not ready for his August trial date, but was ready for his October trial dates. In November he filed his motion for discharge, but he never filed a written demand for speedy trial under Rule 3.191(a)(2).

Finally, the fourth element of Barker is the prejudice to the defendant. Prejudice may first result from oppressive pre-trial incarceration which could result in the loss of the defendant’s job, disrupt his family, and hinder him in the preparation of his defense. Second, a defendant may suffer anxiety and concern due to public scorn and the chilling effect that a pending trial may have on his freedom of association. Third, and most importantly, there is the possibility that the defense will be impaired due to fading memories and lost evidence. Barker. In the case at hand, the defendant was let out on bond so that there was no oppressive pre-trial incarceration. Nor did the defendant show a factual basis for any other prejudice. A defendant must do more than simply allege that memories fade or that evidence may be lost. He must come forth and show that some particular witness that would have been helpful to his case has actually forgotten the facts or that some particular witness that would have been helpful to his case has actually been lost. See United States v. McGrath, 622 F.2d 36 (2d Cir. 1980).

In summary, Bonamy had a delay of about one year from the date of his arrest. Part of the early delay was due to Bona-my’s motion for continuance. The latter delay was due to a crowded court docket and busy prosecutors with conflicting trial schedules. Bonamy never filed a demand for speedy trial, was not incarcerated during the delay, and he failed to show any prejudice to his case resulting from the trial delay.

In the majority opinion authored by Justice Powell in Barker, we find the following commentary:

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.

In the instant case, Bonamy relied upon only one of the four factors enumerated in Barker: the length of time between arrest and trial. If that factor, standing alone, is insufficient — and Barker clearly states that it is — then the trial court erred in ordering his discharge without consideration of the other factors and the balancing process required in Barker.

Accordingly, the order of discharge is reversed and this cause remanded for trial.

DAUKSCH, C. J., and COWART, J., concur.


text:
    SOUTHEASTERN FIDELITY INSURANCE COMPANY, Appellant, v. Stavros Samuel SINTROS, et al., and Liberty Mutual Insurance Company, et al., Appellees.
    Nos. 81-732, 81-1324.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.
    Elmo R. Hoffman of Hoffman, Hendry, Stoner, Sims & Sawicki, P. A., Orlando, for appellant.
    A. Craig Cameron, Orlando, for appellee, Liberty Mut. Ins. Co.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in an insurance coverage case.

The question on appeal is whether appellant is required under its “Automobile Service Center Policy” to pay for the automobile accident described in this opinion.

The policy in pertinent part provides coverage for “automobile service center operations hazard” and the policy defines the hazard as follows:

automobile service center operations hazard—
the ownership, maintenance or use of the premises for the purposes of a gasoline service station and all operations necessary or incidental thereto herein called service station operations including the automobile hazard which shall be defined as the use in connection with service station operations of any automobile which is neither owned nor hired by the named insured, a partner therein or a member of the same household as any such person.

In addition to the foregoing provision there is a specific exclusionary clause in the policy which says:

Exclusions — Section 2 of this policy does not apply under Part 1:
(c) To any automobile:
1. While being operated in any prearranged or organized racing or speed contest,
2. While rented to others by the named insured, or,
3. While being used by the insured as a public or livery conveyance or for carrying property for any charge,
(emphasis supplied).

Mike Smith d/b/a Mike’s Texaco operates a service station which provides full service for automobiles and Southeastern Fidelity wrote its policy covering the named insured “Mike Smith d/b/a Mike’s Texaco.”

In addition to the operation of the Texaco station, Mike Smith conducted a car rental business for Avis Rent-A-Car, Inc. Avis had some of its rental cars located on the premises of the service station; after expiration of their rental contracts, patrons could either return cars rented from Mike’s Texaco or drop off cars rented from other Avis agencies. Mike Smith was apparently an agent for Avis in the renting of these cars, in addition to being responsible for cleaning and servicing the cars which were returned or dropped off after rental.

A thief named LaValle saw the keys had been left in one of the Avis rental cars parked and available for rent at Mike’s Texaco. He stole the ear and wrecked it, injuring Sintros. Sintros sued LaValle, Mike Smith and Avis and others. Southeastern denies it is responsible under its policy with Mike’s Texaco because the operation of a car rental agency is not a necessary or incidental operation of an automobile service station. Avis’ insurer Liberty Mutual contends Southeastern must at least share with Liberty the coverage of the accident because the car rental was incidental to the service station operation; moreover, because Mike’s Texaco was also responsible for the servicing of the Avis cars on its lot so that the car was probably being serviced as well as rented.

The trial judge considered the facts, which are not in dispute, and the insurance policies and concluded coverage was provided under the Southeastern policy for the LaValle-Sintros accident. The judgment does not set out any rationale for the finding of coverage so we shall assume each and all of the appellee Liberty Mutual’s arguments were the basis for the judgment.

We agree with appellee’s statement in its brief that “This case is simply one of policy construction and application to the Sintros Complaint.” That is, in order to determine Southeastern’s liability vel non we look to the insurance policy.

Because the policy covers only operations necessary and incidental to the servicing of automobiles and there is no proof the subject car was on the premises for anything other than rental we must conclude the Southeastern insurance policy does not cover the accident. It is our determination that the operation of a car rental agency is not a necessary and/or incidental part of a service station operation thus the policy was not broad enough to cover the accident even if Mike’s Texaco had serviced the car before placing it on the lot for rent. That servicing of the car, if it had occurred, was incidental to the rental agency, not vice versa.

The judgment of the trial court is reversed and this cause remanded for further proceedings.

REVERSED AND REMANDED.

COBB and SHARP, JJ., concur.


text:
    Ira A. ERBER, Appellant, v. FEDERAL EXPRESS CORPORATION and Department of Labor and Unemployment Security, State of Florida, Unemployment Appeals Commission, Appellee.
    No. 81-757.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.

      Bill McCabe of Sheperd, McCabe & Cooley, Orlando, for appellant.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellee, Unemployment Appeals Com’n.
   DAUKSCH, Chief Judge.

This is an appeal from an order of the Unemployment Appeals Commission which denied the appellant unemployment compensation. We have jurisdiction under section 120.68(2), Florida Statutes (1981), and we reverse the order.

Appellant was employed by Federal Express as a fleet supervisor, in charge of vehicle maintenance. One of the employees appellant supervised was caught falsifying his time records. When confronted by appellant and the City Manager of the Orlando Federal Express office, the employee was given the choice of either resigning or being discharged. The employee chose to resign and listed “personal reasons” as the reason for his resignation.

In accordance with company procedure the employee had an “exit interview” with appellant’s supervisor who then discovered the “resign or be fired” choice the employee had to make. This supervisor determined appellant had acted improperly in failing to inform the company of the real reason for the termination and in failing to follow proper procedure requiring discussion of planned disciplinary actions with supervisors. On a Friday evening appellant was instructed to reinstate the employee effective that Sunday evening. Upon receiving those instructions appellant called an officer of the company and protested the instructions. That officer said he would look into the matter and discuss it with the appellant on Monday. On Monday the officer told appellant to reinstate the employee, which he did.

Appellant was discharged by Federal Express for misconduct. The statute provides that no unemployment benefits may be received if an employee is discharged for misconduct. Sec. 443.101(l)(a), Fla.Stat. (1981).

Misconduct is defined in the statute as:

‘Misconduct’ includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

The commission through its appeals referee found that appellant had violated three orders or procedures of the employer. Quoting from the referee, “Those were: not discussing planned disciplinary action with his supervisor; not informing his supervisors of the real reason for discharge; and failure to reinstate the mechanic immediately. Therefore it can only be concluded that the claimant was discharged for misconduct connected with work.”

The referee also found “The (appellant’s) actions in attempting to protect the employer’s interests by stopping what he felt was falsification of time records is laudable.”

We agree with all that the referee found and disagree only in the application of the facts and findings to the statutory law, set out above. In our opinion the actions of the appellant do not amount to such willful and wanton disregard, or culpability or evil design, etc. to warrant a disallowance of unemployment benefits. See Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla.3d DCA 1963). Here the appellant seemed to be acting only in the best interests of the employer and although probably misguided in his actions he was not acting willfully, wantonly or with such a substantial disregard of the employer’s interests as to warrant the denial of benefits under the statute. Just because his actions may have warranted his dismissal from employment does not mean he cannot receive unemployment benefits.

The order of the commission is quashed and the commission is directed to award the unemployment benefits to appellant.

ORDER QUASHED.

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


text:
    Bert L. HAWKS and Sandra S. Hawks, his wife, Appellants, v. Michael A. WALKER, Herbert H. Walker, et al., Appellees.
    No. 81-829.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.
    Mark S. Peters of Blumenthal, Stevens, Schwartz & Riley, P. A., Merritt Island, for appellants.
    W. C. Airth, Jr., of Fowler, Williams & Airth, P. A., Orlando, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from an “Order requiring that there be declared a set-off .. .. ” Even assuming this is an appeal-able order, the notice of appeal was not timely filed and this court lacks jurisdiction to consider the matter further. Appellant’s statements as to the dates when the order appealed was rendered and the notice Of appeal was filed are patently wrong and the record is clear and obvious that the order appealed was rendered on May 15,1981 and the notice of appeal was not filed until June 16, 1981 some 32 days later. A timely notice of appeal must be filed within 30 days in order for this court to have jurisdiction; late filing is a defect no one can correct, not even the court. Pla.R.App.P. 9.110(b). Dibble v. Dibble, 377 So.2d 1001 (Fla. 3d DC A 1979); Perego v. Robinson, 377 So.2d 834 (Fla. 5th DCA 1979), cert. den., 388 So.2d 1116 (Fla.).

APPEAL DISMISSED.

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


text:
    James L. BAKER, Trustee, Appellant, v. CITY OF SATELLITE BEACH, A Municipal Corporation in the State of Florida, Appellee.
    No. 81-897.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.
    Frank Clark, III, Melbourne, for appellant.
    Joseph S. Gillin, Jr., of Storms, Krasny, Normile, Dettmer & Gillin, P. A., Melbourne, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order finally dismissing a complaint for declaratory relief. Because the complaint alleges a cause of action asserting the facial unconstitutionality of a city zoning ordinance, we reverse the order of dismissal as it pertains to Count II of the Amended Complaint and remand this case to the trial court for further proceedings.

REVERSED AND REMANDED.

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


author: SHARP, Judge.

text:
    RUBY MOUNTAIN CONSTRUCTION & DEVELOPMENT CORPORATION, Atlantic Commercial Development Corp. and Meadow Valley Ranchos, Inc., Petitioners, v. Barbara RAYMOND; Louis J. Wine; Claire L. Wine; Arthur L. Reichardt; Dorothy J. Lowe; Thelma Darby; Judith Sheplan; Mildred Swanson; Lillian Graubert; Dalia Enterprises, Inc.; Charles W. Grant, Trustee; Department of Business Regulation, State of Florida; and James H. Millican, Jr., Receiver, Respondents.
    No. 81-989.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.

      Donald L. O’Dell, of Rice, O’Dell & Goldman, P.A., Orlando, for petitioners.
    Terrance E. Schmidt, of Bledsoe, Gallagher, Mikals & Schmidt, P.A., Jacksonville, for respondent, Charles W. Grant, trustee.
   SHARP, Judge.

Petitioners ask this court to review, by writ of certiorari, three post-judgment orders entered by the trial court while the judgment was being appealed. We elect to treat this matter as an appeal from nonfi-nal orders pursuant to Florida Rule of Appellate Procedure 9.130(a)(4) and we affirm the orders of trial court.

Petitioners first challenge the trial court’s holding them in contempt for not complying with the final judgment. However, Petitioners filed their petition for cer-tiorari more than thirty days after the trial court’s order was rendered. Therefore, we lack jurisdiction to review it. Lawrence v. Orange County; 404 So.2d 421 (Fla. 5th DCA 1981). As to the two remaining orders, the petition was timely filed.

The second order relates to discovery efforts by the respondents to enable enforcement of the judgment. The petitioners never filed a supersedeas bond or otherwise gained a stay against the enforcement of the judgment. The order appears to us to be a proper order to assist enforcement of the final judgment. It was designed to end apparent dilatory tactics on the part of petitioners. An appeal without supersedeas does not deprive the trial court of its authority to enforce the judgment. Glasser v. Hackett, 37 Fla. 358, 20 So. 532 (1896); Weintrab v. Weintrab, 390 So.2d 824 (Fla. 1st DCA 1980).

The third order awarded respondents costs, pursuant to the appealed final judgment, and as part of the order the trial court awarded attorney’s fees pursuant to section 57.105 in connection with petitioners’ motion for rehearing because it was frivolous and had been filed solely for the purpose of delay. We conclude the appeal of the final judgment did not deprive the trial court of jurisdiction to make such awards. Roberts v. Askew, 260 So.2d 492 (Fla.1972). These actions by the trial court would not affect or interfere with the subject matter of the appeal and thus impinge on the appellate court’s power and authority to decide the issues presented to it by the appeal. Bailey v. Bailey, 392 So.2d 49 (Fla. 3d DCA 1981). But see Wilson Realty, Inc. v. David, 369 So.2d 75 (Fla. 2d DCA 1979).

AFFIRMED.

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

      . That appeal has now been dismissed by order of this Court because of the petitioners’ continuing willful refusal to comply with the requirements of the final judgment.

      . Roberts v. Askew, 260 So.2d 492 (Fla.1972); see Mogul v. Fodiman, 406 So.2d 1225 (Fla. 5th DCA 1981).


text:
    Emil Albert DEALTO, Petitioner, v. The Honorable Richard B. KEATING, as Circuit Judge, In and For the Ninth Judicial Circuit of the State of Florida, Orange County, Florida, Respondent.
    No. 81-1661.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.
    Stephen A. Weinstein, Orlando, and Joseph A. Rosier, Altamonte Springs, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for respondent.
   ON MOTION FOR RECONSIDERATION OF ORDER

SHARP, Judge.

Petitioner’s motion for reconsideration of our denial of his petition for writ of prohibition was timely filed, and because the issue therein sought to be raised may again be argued to this court in an appeal or interlocutory appeal, we hereby clarify our original denial of the petition as follows: We deny the petition for writ of prohibition because of lack of jurisdiction. The possible violation of section 901.25(3), Florida Statutes (1981), does not deprive the lower court of its power to. act in the case, and therefore prohibition is not an appropriate remedy.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: ORFINGER, Judge.

text:
    Janet HOFER, Guardian Ad Litem, Petitioner, v. Maritz GIL DE RUBIO and Ferdinand Gil De Rubio, Respondents.
    No. 82-10.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.

      James D. Sloan of Massey, Álper & Walden, P. A., Altamonte Springs, for petitioner.
    No appearance for respondents.
   ORFINGER, Judge.

The petition for certiorari is dismissed for lack of jurisdiction, because it was not filed within thirty days of the rendition of the order sought to be reviewed. Fla.R.App.P. 9.100(c). We do not consider the merits of the petition. There is no provision in the Florida Rules of Civil Procedure authorizing a motion for rehearing addressed to an interlocutory or non-final order. Therefore, the filing of such motion for rehearing of the trial court’s order striking from the docket a report of the guardian ad litem does not delay “rendition” of the order, because only an authorized motion delays rendition. Florida Rule of Appellate Procedure 9.020(g). The motion for rehearing here had no effect on the time for filing the petition for writ of certiorari. Wagner v. Bieley, Wagner and Associates, Inc., 263 So.2d 1 (Fla.1972); Gordon v. Barley, 383 So.2d 322 (Fla. 5th DCA 1980); Stockton, Whatley, Davin and Company v. Crapps, 382 So.2d 891 (Fla. 1st DCA 1980).

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


text:
    Willie Lee McNEAL, Appellant, v. STATE of Florida, Appellee.
    No. 82-59.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 1982.
    Willie Lee McNeal, pro se.
    No appearance for appellee.
   COWART, Judge.

In his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief appellant claimed the denial of his constitutional right to the effective assistance of counsel during his trial for the capital crime of first degree murder because his counsel, in summation to the jury, argued that, at most and at best, the one and only logical result of the State’s evidence was proof of manslaughter. The jury rejected this argument and convicted appellant of first degree murder, which conviction was affirmed on appeal. Now appellant turns on his trial counsel, citing federal cases and cases from other states where courts have from hindsight second-guessed counsel’s judgment and unsuccessful trial strategy and declared that in doing or not doing some act, defense counsel abdicated his function and his client’s cause. We do not think courts should review any specific discretionary or judgmental act or position of trial counsel, whether tactical or strategic, on an inquiry as to effectiveness of counsel. See Baker v. State, 404 So.2d 1151 (Fla. 5th DCA 1981); Ferby v. State, 404 So.2d 407 (Fla. 5th DCA 1981); Brown v. State, 404 So.2d 157 (Fla. 5th DCA 1981); Ables v. State, 404 So.2d 137 (Fla. 5th DCA 1981).

When faced with the duty of attempting to avoid the consequences of overwhelming evidence of the commission of an atrocious crime, such as a deliberate, considered killing without the remotest legal justification or excuse, it is commonly considered a good trial strategy for a defense counsel to make some halfway concessions to the truth in order to give the appearance of reasonableness and candor and to thereby gain credibility and jury acceptance of some more important position. To be effectual, trial counsel should be able to do this without express approval of his client and without risk of being branded as being professionally ineffective because others may have different judgment or less experience.

AFFIRMED.

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

      . A trial is always a matter of calculated risks — the lawyer makes the calculations — the client takes the risks.


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Lawrence TREPANY, James Tessmer, Gary Salzlein and Frank Vino, Jr., Appellees.
    No. 81-1407.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied March 3, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.

      Joseph A. Varón of Varón & Stahl, P.A., Hollywood, for appellees.
   BERANEK, Judge.

The State appeals the granting of a motion to suppress in this drug case. As the result of an anonymous phone call, the Bro-ward County Sheriff’s Office began surveillance of the residence and boat which were involved in the suppression hearing. An officer viewed the area from across a canal with the aid of a night scope and noticed that the boat was riding low in the water. After some hours, a person came onto the deck of the boat, scanned the canal area with the use of a night scope similar to that being used by the officer and left. Later, two people went below deck and started transporting bundles from the boat to the back of the house. All of this activity was carried out in darkness. Lights were not turned on in the boat or in the house. Recognizing the bales as marijuana, the officer radioed support units. These officers approached the house and detained one man who was carrying a large package into the house. Next, an officer went to the boat, identified himself, and asked anyone on board to get off. Receiving no response, the officer stepped onto the top section of the boat and shined a flashlight. Two men exited and were detained. Finally, an officer called into the house and a fourth man exited the home. The police arrested all four and then proceeded to obtain a search warrant prior to entering the house and the boat.

The trial court held that the surveilling officer lawfully observed the above occurrences and had grounds for seeking a warrant. Furthermore, the court found the warrant was legally sufficient and based upon probable cause. However, the court granted the motion to suppress because there was “no justification or support for the trespass by the police officers and the arrest and detention of the defendants prior to the obtaining of a warrant.” We reverse. In its suppression order, the trial court relied on our opinion issued on March 12,1980 in the case of Rizzo v. State Ex Rel City of Pompano Beach, whose facts were similar to this case. We granted rehearing in Rizzo and reversed our prior decision. The final holding in Rizzo was that the arrests and seizures made under similar circumstances were lawful. Rizzo v. State Ex Rel City of Pompano Beach, 396 So.2d 869 (Fla. 4th DCA 1981). Unfortunately, the trial court did not have the benefit of our opinion on rehearing. Pursuant to that opinion, we conclude the motion to suppress in this case should have been denied. The order granting suppression is vacated and the case remanded for further proceedings.

REVERSED AND REMANDED.

HERSEY and DELL, JJ., concur.


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

text:
    Steven M. ORTEGA, Appellant, v. OWENS-CORNING FIBERGLAS CORPORATION, et al., Appellees.
    No. AC-28.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1982.

      John D. Rawls, Jacksonville, for appellant.
    John K. Aurell of Holland & Knight, and Thomas A. Waddell of Boyd, Harris and Smith, P. A., Tallahassee, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

Ortega sustained an accidental injury arising out of and in the course of his employment. Disavowing his workers’ compensation remedy, chapter 440, Florida Statutes (1981), he sued his employer in circuit court seeking a declaratory judgment that chapter 440 as amended in 1979 is unconstitutional on various grounds and demanding money damages for injuries alleged to have been caused by his employer’s negligence. The circuit court dismissed Ortega’s complaint, saying the constitutional questions could be carried to the district court of appeal in the natural course of Ortega’s administrative claim for chapter 440 benefits, and that it was appropriate in those circumstances to abstain from judging Ortega’s constitutional claims. The circuit court relied on State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977) and Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). Ortega appeals.

Willis of course prohibited collateral judicial intrusion into administrative disputes involving nonconstitutional issues for which chapter 120 offers available and adequate decisional remedies. Rice, together with Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Fund, 400 So.2d 66 (Fla. 1st DCA 1981), counseled judicial adherence to the principle of exhaustion of administrative remedies even in the presence of a constitutional question, when it is made to appear that a district court of appeal can effectively decide that question, if necessary, upon an appeal from the agency’s decision on non-constitutional issues. Accord, Solimena v. State Department of Business Regulation, 402 So.2d 1240, 1245 n. 6 (Fla. 3d DCA 1981). But because the circuit court’s jurisdiction or power to decide constitutional questions is undiminished by chapter 120, the decision to abstain, like other judgments, must realistically assess the facts, in this case the availability and adequacy of chapter 120 processes to provide an effective remedy on nonconstitutional or, if necessary, constitutional grounds.

Reluctant as we are to question a circuit judge’s decision to abstain on matters thought to be cognizable under chapter 120, we find no basis for thinking that Ortega’s constitutional claims can' effectively be yoked with a compensation claim and thus be carried through the administrative system to a district court in the fashion described in Rice, Key Haven, and Solimena. For essentially two reasons we must return Ortega’s complaint for declaratory and other relief to the circuit court for resolution.

First, chapter 120 offers factfinding and other resources to a district court of appeal, for review of constitutional as well as non-constitutional issues in the interpretation of statutes, which simply are unavailable in chapter 440 appeals to this Court. Section 440.021, Florida Statutes (1981), exempts proceedings on workers’ compensation claims from chapter 120. Therefore, while deputy commissioners function only as adjudicative officers in a traditional sense, a chapter 120 agency may be required to explore the factual assumptions on which its accustomed interpretation of a statute is predicated, if that may help the agency or court avoid a possibly unconstitutional interpretation. Rice, 386 So.2d at 850. In respect to nonconstitutional questions, too, such an agency may be required to adduce conventional proof in support of its preferred policy choice within the statutory bounds, preliminary to a district court deciding the issue as a matter of law or deferring to the agency in the formulation of policy. E.g., Cenac v. Florida State Board of Accountancy, 399 So.2d 1013, 1018 (Fla. 1st DCA 1981); School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981). No comparable resources are available to this Court in reviewing latent constitutional questions on workers’ compensation appeals from orders of the deputy commissioners.

And second, Ortega’s constitutional claims in this case cannot be considered as complementing a chapter 440 claim cognizable by a deputy commissioner. Ortega’s constitutional claims are inconsistent with and in derogation of the compensation claim that is his only means of entry to the proceedings that must be relied on to bring his constitutional claim to this Court. In that respect Ortega’s constitutional claim is unlike those we have considered in other workers’ compensation cases where the constitutional claim did not negate the deputy commissioner’s chapter 440 power to act at all in the premises. See Miami-Dade Water & Sewer Authority v. Cormio, 388 So.2d 1238 (Fla. 1st DCA 1979), aff’d sub nom. Rollins v. Southern Bell Telephone and Telegraph Co., 384 So.2d 650 (Fla.1980), deciding the constitutionality of legislation assigning all compensation appeals to this Court; and Carr v. Central Florida Aluminum Products, Inc., 402 So.2d 565 (Fla. 1st DCA 1981), deciding the constitutionality of certain statutory reductions in compensation benefits, where claimant alternatively requested reactivation of the pre-1979 legislative scheme or remission to his common law remedies in circuit court. Here, in contrast to those cases, Ortega assails chapter 440 as a whole and asks for nothing that a deputy commissioner is empowered to grant. In no sense, therefore, is Ortega’s claimed remedy available in chapter 440 proceedings before a deputy; in no sense are the proceedings authorized by chapter 440 adequate to resolve Ortega’s claim for common law money damages.

Because “the principle underlying the exhaustion requirement is inapplicable where adequate remedies do not abide within the administrative sphere,” we REVERSE the circuit court’s order dismissing Ortega’s complaint for declaratory and other relief and REMAND the ease for disposition.

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

      . Junco v. State Board of Accountancy, 390 So.2d 329, 331 (Fla.1980); Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978); Willis, 344 So.2d at 590.

      . Judge Wentworth’s dissent in Carr doubted that Carr’s claim for pre-1979 compensation benefits was sufficiently substantial to serve as a genuine basis for a chapter 440 proceeding before a deputy, the predicate for our deciding the constitutional question on appeal.

      . Junco, supra n. 1, 390 So.2d at 331. See also Gulf Pines, 361 So.2d at 699; Willis, 344 So.2d at 591.


text:
    Carolyn Jean COOLEY, Appellant/Cross-Appellee, v. Fleming Blackwell COOLEY, III, Appellee/Cross-Appellant.
    No. 80-780.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Robert M. Curtis of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellant/cross-appellee.
    John J. Byrne of Price, Byrne & Tribett, Fort Lauderdale and Clayton, Ga., for ap-pellee/ cross-appellant.
   ON REHEARING

BERANEK, Judge.

This matter has been considered on the husband’s petition for rehearing directed to this court’s previous opinion filed December 23, 1981. The opinion of December 23, 1981, is hereby withdrawn.

This is an appeal by the wife from a final judgment of dissolution of marriage, along with a cross-appeal by the husband. The parties were married for approximately 22 years. Three children were born of the marriage who were adults at the time of the dissolution. The wife was a dental hygienist and the husband a dentist. The wife assisted the husband by working to further his education and, when not engaged in raising the children, the wife worked intermittently. Her earnings, although minimal, went into a joint account. At the time of the dissolution of marriage, the husband had substantial assets in his own name and a profitable dental professional association producing substantial income. A simple comparison shows the husband was in a far superior financial position to the wife with most of the assets held in his name. The only substantial joint asset was the marital residence.

By virtue of the appeal and cross-appeal, both parties contest most of the financial provisions of the judgment regarding alimony. We conclude that the court erred in certain respects to the prejudice of the wife and reverse.

The trial court awarded the wife the husband’s interest in the marital homeplace as lump sum alimony. The house was valued at approximately $70,000 with an outstanding balance on the mortgage of approximately $38,000 leaving an equity of $32,000. Thus, the award to the wife represented some $16,000 in lump sum alimony if and when the house is sold. In addition, the trial court awarded permanent periodic alimony to the wife in the amount of $1,000 per month for the first year but automatically reduced this amount thereafter. In Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980), this court found progressive reductions in alimony to be improper and ordered permanent periodic alimony where it was not shown that the wife would have any greater income in the future. Similarly, in DeVito v. DeVito, 393 So.2d 1189 (Fla. 3d DCA 1981), an automatic reduction of permanent alimony was found to be improper.

The appellant/wife contends that she was short-changed after 22 years of marriage in that the sum of $1,000 a month plus the husband’s interest in the home was totally inadequate when viewed in light of her future needs and the husband’s obvious ability to pay. At the time of the dissolution, the husband had an interest in various real estate trusts which the trial court valued at a minimum of $150,000. These assets were held in the husband’s name alone. They had been bought from a joint account and if money was borrowed to make an investment in the husband’s name, the wife’s name was also placed on the mortgage, or she was otherwise bound on the debt. The trial court denied the wife’s request for any interest in the husband’s real estate holdings.

Husband urges that the wife, a dental hygienist, is earning a reasonable income, and that she should support herself. We view the overall award to the wife as being too low. The fact that the wife may, with her own earnings plus alimony, be able to provide basic food, shelter, and necessities, does not mean that this is the maximum she is entitled to receive after 22 years of participation in the partnership of marriage. Her standard of living during the marriage was considerably higher than “the bare necessities” and husband can clearly afford greater payments.

We conclude that the automatically declining alimony constituted a legal error, and same is hereby reversed based upon the above cited authorities. The matter is remanded to the trial court for further proceedings to reconsider the wife’s prayer for lump sum alimony and permanent periodic alimony commensurate with her needs and the husband’s ability. The points raised by husband on cross-appeal are found to be without merit.

REVERSED and REMANDED.

OWEN, WILLIAM C., Jr. (Retired), and GREEN, OLIVER L., Jr., Associate Judges, concur.