author: PER CURIAM.

text:
    Raymond Robert CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 52716.
    Supreme Court of Florida.
    Nov. 21, 1979.
    Rehearing Denied Feb. 18, 1980.

      Jack 0. Johnson, Public Defender, and James R. Wulchak, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen. and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for ap-pellee.
   PER CURIAM.

Raymond Robert Clark was adjudged guilty of murder in the first degree and was sentenced to death. His conviction and sentence of death are before this Court on direct appeal pursuant to article V, section 3(b)(1), Florida Constitution. Clark also appeals his convictions of kidnapping and extortion.

Clark raises several points on appeal which relate to his convictions. These include whether the trial court erred in denying his motion for a new trial on the basis that the verdict was contrary to the weight of the evidence; whether the trial court erred in denying his motion for a new trial on the basis of newly discovered evidence; whether the trial court committed reversible error in denying his motion to allow the jury to retire from deliberations where they had deliberated for a long period of time without a break; whether the trial court erroneously limited cross-examination of the State’s key witness; whether error was committed when the State was permitted to elicit testimony relating to Clark’s refusal to give voice exemplars and when the jury was instructed concerning Clark’s refusal; whether it was error to deny Clark’s motion to exclude the entire jury venire; whether the trial court erred in denying Clark’s motion to exclude cameras from the courtroom; whether the court erred in not severing the extortion charge from the murder and kidnapping charges; and whether the court erred in denying Clark’s motion for appointment of a certain psychologist. For the reasons which follow, we find that none of these issues have merit and, therefore, affirm the convictions. Clark raises five issues which relate to the sentencing phase of his trial. These are whether the court erred in denying Clark’s motion for a statement of particulars of the aggravating circumstances on which the State would rely; whether a psychiatrist should have been appointed to assist him in establishing the mitigating circumstance of commission of the crime while under extreme mental or emotional disturbance; whether section 921.141, Florida Statutes (1975), restricts the mitigating circumstances to be considered; whether the trial court improperly doubled up certain aggravating circumstances; and whether the trial court erred in failing to find mitigating circumstances. We find merit only with his contention that the trial court erroneously doubled up aggravating circumstances; however, because we determine that the trial court correctly concluded that there are no mitigating circumstances, we hold that this error does not require reversal of the death sentence.

Raymond Clark first met his accomplice, Ty Johnston, in California when Johnston was fourteen years old and was living at a juvenile group home. Clark, who was then thirty-four, lived with Johnston in California for two years prior to the murder. He fed, clothed, and sheltered Johnston and introduced himself as Johnston’s father, but, in fact, the pair had a homosexual relationship. Clark was the first and only person with whom Johnston had a homosexual relationship. Because the group home was being closed down and Johnston would have to move to a juvenile detention center, Clark decided to take Johnston to St. Pe-tersburg, Florida, where the two of them moved in with Clark’s girl friend.

Because he was in need of money, Clark formulated a plan to kidnap someone at a bank and to demand money from that person. In furtherance of Clark’s plan, on April 27, 1977, Clark and Johnston drove into several bank parking lots looking for a victim. Clark was armed with a .38 caliber pistol. They finally parked Clark’s Chevrolet Blazer in the parking lot of a bank next to a white Cadillac and awaited the return of the owner of the Cadillac. The victim was a forty-nine-year-old businessman who had been to the bank to arrange a real estate closing. When he returned to his automobile, the victim was ordered by Clark to get into his own car. Clark then got into the passenger’s side of the vehicle and ordered the victim to drive to several different locations in search of a deserted area. Johnston followed in Clark’s Blazer. After an hour and a half of driving, the victim was finally directed to park his automobile in a secluded spot where he was ordered at gunpoint to get out of the vehicle. Clark commanded him to disrobe with the exception of his undershorts and then forced him to write a check on his personal account, payable to cash, in the amount of five thousand dollars. Clark proceeded to tie the victim’s hands behind his back with wire and then asked Johnston whether he wanted to shoot the victim. Johnston replied that he did not. Clark then marched the victim into the bushes, made him kneel down, and shot him twice in the back of the head. When the victim’s body was later found, his undershorts were down around his knees.

Clark, driving the Cadillac, and Johnston, driving the Blazer, drove back to Clark’s girl friend’s residence where they left the Blazer. They proceeded to the bank in the victim’s Cadillac to cash the check. At the bank, Clark attempted to cash the check, but the teller refused. The Cadillac was then driven to a secluded location where Clark and Johnston wiped it down to eliminate any fingerprints.

Thereafter, concerned that he could face kidnapping charges for taking Johnston, a minor, from California, Clark drove Johnston back to California on the same day as the murder. Several days later Johnston went to live with his parents in California.

On May 9, 1977, before the victim’s body had been found, Detective San Marco received a telephone call from a man, whom he testified sounded like Clark, inquiring as to the status of the police investigation relating to the disappearance of the victim. Thereafter, Clark made several threatening phone calls to the victim’s son demanding ten thousand dollars for his father’s safe return. In these phone calls, Clark described several items contained in the victim’s car, including a V-neck tee shirt which he had used to wipe the fingerprints from the car and which had not been mentioned in newspaper accounts which had described the articles of clothing found in the victim’s car. Several of these phone calls were traced to Clark’s girl friend’s residence. This residence had been placed under police' surveillance. At the times the calls were made from this residence, there is evidence to place Clark in the residence, and at the time the calls were placed outside this home, there is evidence to show that Clark had gone out.

During the investigation of these extortion threats, the police developed the identity of Clark’s accomplice, Ty Johnston, whom they brought back to Florida. Johnston described the kidnapping and murder and Clark’s primary role in the incident and led the police to a wooded area where they found the victim’s badly decomposed body lying face down in a patch of palmettos with two bullet wounds in the back of his head, with his hands wired behind his back, and with his undershorts down around his knees.

Clark was charged with first-degree premeditated murder, kidnapping and extortion. At trial, Ty Johnston described in detail Clark’s role in the murder and kidnapping. Clark presented no defense. The jury returned a verdict of guilty on all three counts.

Analogizing this case to Tibbs v. State, 337 So.2d 788 (Fla.1976), Clark initially argues that the testimony of the State’s key witness was unreliable and unworthy of belief and that the trial court erred in denying his motion for a new trial on this basis. He contends that the principal evidence against him came from a co-perpetrator, who had an interest in the outcome of the case, who lied to save himself, and who lied out of vindictiveness.

This case, however, is not at all analogous to Tibbs v. State wherein it appeared clearly from the record that the uncorroborated testimony of the victim of the crime was inherently unreliable. In Tibbs, the only identification witness was under the influence of marijuana at the time of the crime and had never seen the defendant before the day of the crime; there was a real question as to the identification procedure first used by the police; the vehicle connected with the crime was never found; there were discrepancies in the testimony of the State’s witness relating to material elements of the case; and Tibbs put on a defense. The features, which we found cast doubt on the believability of the victim in Tibbs, are not present in this case.

The weight of the evidence is ordinarily a matter which falls within the exclusive province of the jury to decide, and we will not reverse a judgment based upon a verdict returned by a jury when there is competent evidence which is also substantial in character to support the jury’s verdict. Tibbs v. State; McNeil v. State, 104 Fla. 360, 139 So. 791 (1932).

There are no discrepancies in the essential facts of Johnston’s testimony. There is no question as to the identification of Clark or the fact that Clark’s Blazer was identified as being in the bank’s parking lot at the precise time that the victim was abducted. The teller at the bank testified that when Clark put on his sunglasses, he looked like the person who attempted to cash the victim’s check of five thousand dollars. She stated that the build of his face, his height, his weight, the hair on his arms, his beard, his long hair, and the way his glasses fit on his head looked like Clark’s features. Detective San Marco testified that Clark’s voice sounded the same as the voice of the person who had called him to see how the investigation of the case was developing. The jury found Johnston to be credible and believed his account of the essential elements of the crime. We hold that the trial court did not err in denying Clark’s motion for a new trial on this ground since the record contains substantial credible evidence to support the jury verdict.

We also find no abuse of discretion in the trial court’s denial of Clark’s motion for new trial based upon an alleged discovery of new evidence: a letter from a former cell mate of Johnston’s stating that Johnston had told him that he had shot the victim. A motion for new trial based on newly discovered evidence is addressed to the sound discretion of the trial court, and only very rarely will its determination be disturbed. Baker v. State, 336 So.2d 364 (Fla.1976); Bell v. State, 90 So.2d 704 (Fla. 1956). A new trial will not be awarded on the basis of newly discovered evidence unless the evidence was discovered after trial, unless due diligence was exercised to have such evidence at the former trial, unless the evidence goes to the merits of the cause and not merely to impeach a witness who testified, unless the evidence is not cumulative, and unless it is such that it probably would have changed the verdict. Harvey v. State, 87 So.2d 582 (Fla.1956); McVeigh v. State, 73 So.2d 694 (Fla.1954); Branch v. State, 96 Fla. 307, 118 So. 13 (1928); Hudson v. State, 353 So.2d 633 (Fla. 3d DCA 1977). The evidence upon which Clark relied to support his motion for a new trial, in reality, was not newly discovered evidence but rather was only a newly discovered witness. This evidence is of an inherently non-credible nature and merely goes to impeach the credibility of a witness. After considering the motion for a new trial, the trial court properly determined that Clark had information of a similar type available to him at the time of trial, but he elected not to present such evidence to the jury. The trial court also stated that there has been no showing that Clark would use this witness for a similar type of testimony in a new trial and that, in fact, there was no likelihood he would use it. Since the defense had similar information at the time of trial, the trial court correctly did not consider the letter to be newly discovered evidence.

Clark also challenges the denial of his motion to allow the jury to retire from its deliberations. He contends that, because of the lengthy period of deliberation, he was denied a fair trial by an impartial jury, free from outside influences. After nine hours of jury deliberation, Clark requested the court to call the jury back'and to permit them to return to their hotel for the evening. He renewed this motion two hours later. Expressing concern that to insert itself into jury deliberation at the times requested would be prejudicial to the defendant and the State because the jury could be at a very critical point in their deliberations, the court denied the first motion and further explained that there was nothing to indicate that the jurors were deadlocked or were not actively engaged in constructive deliberations or that they were tired and wanted to recess. In denying the second motion to recess the jury, the court expressed the view that it was fearful that, if it sent a note to the jury telling them they could break, they might take this as a subtle form of intimidation to arrive at a verdict more hastily than they normally would. The trial court did not abuse its discretion in denying these motions to recess. Clark has failed to demonstrate how he was denied a fair trial by an impartial jury on the basis of the length of time the jury deliberated.

Clark next suggests that the court erroneously limited his cross-examination of Johnston. Defense counsel asked the witness whether he had ever been treated by a psychiatrist or psychologist. The State objected that the testimony was irrelevant, and the trial court sustained the objection. Johnston’s competence had not been made an issue. Although Clark contends that this constituted a curtailment of his inquiry into the credibility of a witness and violated his right of confrontation, he does not show how an affirmative answer to this inquiry would in any way affect the truth or falsity of Johnston’s testimony. During oral argument, defense counsel conceded that he had no information as to what the psychiatrist’s tests showed or how they would dispute Johnston’s credibility. The most the jury could have done with an affirmative response to this question was to speculate or conjecture about Johnston’s mental condition.

Although acknowledging that the results of the voice exemplar are admissible, Clark next claims that the trial court erred in permitting the State to elicit testimony relative to his refusal to give voice exemplars and in instructing the jury to give the evidence of refusal such weight and consideration as it deserved in light of all the evidence. This point is likewise without merit. Prior to trial, the State filed a motion to compel a voice exemplar on the basis that it had reasonable grounds to believe that certain tape recorded telephone conversations in evidence were made by Clark. The court ordered Clark to give a voice exemplar in the exact words used by the extortionist. Clark refused on the basis that the giving of a voice sample violated his fifth amendment rights, and he was held in contempt. Clark’s privilege against self-incrimination would not have been violated by compelling him to speak the words spoken by the extortionist, and therefore his refusal to speak was not an exercise of this right. Since the fifth amendment offers no protection against compulsion to submit a voice exemplar and since it does not privilege refusal to submit, the admission of Clark’s refusal into evidence was not error. See Joseph v. State, 316 So.2d 585 (Fla. 4th DCA 1975); Boyer v. State, 182 So.2d 19 (Fla. 4th DCA 1966); Higgins v. Wainwright, 424 F.2d 177 (5th Cir. 1970), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970). Furthermore, we find no error in the trial court’s instruction to the jury pertaining to this refusal.

Clark next argues that the trial court erred in not excluding the entire jury panel because some prospective jurors are automatically excluded by the clerk for illnesses or disabilities which he alleges do not constitute physical infirmities as required by section 40.01, Florida Statutes (1977). To effectuate this statute, Pinellas County has compiled a list of illnesses and disabilities which may disqualify a potential juror from service. Clark maintains that the exclusion of these certain classes of people deprived him of a representative cross-section of the community. The trial court disagreed with Clark, found substantial compliance with the statute, and denied the motion for exclusion. We agree with the trial court and find no error in its ruling. There is no suggestion that the selection process in Pinellas County systematically and intentionally excludes any economic, social, religious, racial, political, or geographical group. See Reed v. State, 292 So.2d 7 (Fla.1974), cert. denied, 419 U.S. 995, 95 S.Ct. 307, 42 L.Ed.2d 268 (1974); State v. Silva, 259 So.2d 153 (Fla.1972).

Clark also made a motion to have the rule allowing cameras in the courtroom during his trial declared unconstitutional or, in the alternative, to have the trial court enter an order prohibiting the presence of cameras in the courtroom. This motion was denied. He contends that cameras in the courtroom are a per se deprivation of his due process rights. We find this contention to be without merit. In Re: Petition of Post-Newsweek Stations, Florida, for Change in Code of Judicial Conduct, 370 So.2d 764 (Fla.1979). Additionally, Clark has failed to demonstrate any specific denial of due process resulting from the presence of cameras in the courtroom during his trial.

Acknowledging the great measure of discretion accorded trial judges on the question of severance and recognizing that some evidence relevant to the extortion charge would be admissible at trial on the murder and kidnapping charges, Clark asserts that the trial court erred in refusing to sever the extortion charge from the murder and kidnapping charges. We conclude that the trial court did not abuse its discretion in denying the motion for severance and that the consolidation of the offenses did not prejudice Clark’s right to a fair trial. See Smith v. State, 365 So.2d 704 (Fla.1978); Ashley v. State, 265 So.2d 685 (Fla.1972).

Furthermore, the trial court did not err in denying Clark’s request for appointment of a psychologist. Although refusing to move for a sanity inquisition and to comply with the requirements of Florida Rule of Criminal Procedure 3.210, Clark requested that the court appoint a particular psychologist to examine Clark and to test him to determine whether a possible defense of not guilty by reason of insanity exists and to make his report confidential and solely to Clark’s counsel for his determination of whether or not to make sanity an issue at trial. By his motion, Clark was attempting to circumvent Florida Rule of Criminal Procedure 3.210.

In addition to reviewing the record in light of these alleged errors asserted by Clark, which we have determined to be without merit, we also have reviewed the evidence pursuant to Florida Appellate Rule 6.16 to determine whether the interests of justice require a new trial and conclude that no new trial is required. Accordingly, the convictions are affirmed.

We now consider Clark’s challenges to the imposition of the death penalty. The jury recommended that the death penalty be imposed. In ordering that the death penalty be imposed, the trial court found no mitigating circumstances and found the following aggravating circumstances:

A. The Defendant, RAYMOND ROBERT CLARK, was previously convicted in California of Murder in the First Degree, which carried a possible maximum sentence of death. The Defendant was sentenced to life imprisonment for the commission of that crime but was paroled after serving ten (10) years in the California prison system. At the time of the commission of the present homicide, he was on parole from California, but was in violation of that parole by being in Florida.
B. The murder in the present case was committed by the Defendant during the course of a robbery.
,C. The victim in the instant case was killed in order to eliminate him as a witness to the robbery.
D. The murder was committed by the - Defendant for pecuniary gain.
E. The murder was committed for the purpose of hindering enforcement of the robbery laws of this State.
F. The murder was committed by the Defendant in a cool, callous and heartless manner without mercy or compassion for the victim, and therefore, was an especially heinous, atrocious and cruel crime.

Clark challenges his sentence upon several grounds. His contention that he was entitled to a statement of particulars as to the aggravating circumstances upon which the State would rely and present evidence of to support its request for the death penalty is without merit. Menendez v. State, 368 So.2d 1278 (Fla.1979). Furthermore, Clark’s argument that Florida’s death penalty statute restricts the mitigating circumstances which may be considered was recently dealt with in our decision in Songer v. State, 365 So.2d 696 (Fla.1978), wherein we held that Florida’s death penalty statute does not violate the eighth and fourteenth amendments to the Constitution of the United States since it does not limit the trial judge to consideration of only the statutorily enumerated mitigating circumstances.

Clark now claims that he was entitled to have a psychiatrist appointed to assist him in establishing the mitigating circumstance of commission of the murder while under extreme mental or emotional disturbance. A review of the record, however, reveals that no such request was made to the trial court, and the trial court was never given an opportunity to rule on whether Clark was entitled to a psychiatrist to assist him in the determination of mitigating circumstances. The motion for appointment of a psychiatrist only requested that a certain psychologist be appointed to examine Clark to determine if a possible defense of not guilty by reason of insanity was available to him.

The State concurs with Clark’s contention that the trial court erroneously doubled up certain aggravating circumstances which this Court held was prohibited in Provence v. State, 337 So.2d 783 (Fla.1976). We find that the trial court erred in finding as two separate aggravating circumstances that the murder was committed during a robbery and that the murder was committed for pecuniary gain and, in finding as two separate aggravating circumstances, that the victim was killed in order to eliminate him as a witness to the robbery and that the murder was committed to hinder law enforcement. Since we find that the trial court did not err in finding no mitigating circumstances, however, this defect in the trial court’s order does not require re-sentencing. Hargrave v. State, 366 So.2d 1 (Fla.1978); Elledge v. State, 346 So.2d 998 (Fla.1977). Even with the elimination of the doubling-up of aggravating circumstances, there remain several aggravating circumstances to support the imposition of the death penalty. We find the death sentence to be warranted by the circumstances of this case.

Accordingly, having found no reversible error, we affirm the judgments and sentences.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

      . Section 40.01(3) provides:
      In the selection of jury lists only such persons as the selecting officers know, or have reason to believe, are law abiding citizens of approved integrity, good character, sound judgment and intelligence, and who are not physically or mentally infirm, shall be selected for jury duty.


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    Robert L. SHEVIN, Attorney General of Florida, H. Layton Mainguy, Mayor, and the City of Oakland Park, Appellants, v. BOCACCIO, INC., a corporation, d/b/a Front Page, and 4245 Corporation, Inc., d/b/a Backstage Lounge, Appellees.
    No. 55762.
    Supreme Court of Florida.
    Nov. 21, 1979.
    Rehearing Denied Feb. 18, 1980.
    Jim Smith, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, and Lewis D. Haines, II, City Atty., and Edward J. Williams, Asst. City Atty., Fort Lauderdale, for City of Oakland Park.
    Emerson Allsworth of Allsworth, Dou-mar, Schuler, Padula & Laystrom, Fort Lauderdale, and Sy Chadroff and Charles L. Curtis, Miami, for appellees.
   OVERTON, Justice.

This case is before the Court on direct appeal from a circuit court which held the “B-girl” prohibition statute, section 562.131, Florida Statutes (1977), unconstitutional on its face and as applied to the appellees. We have jurisdiction.

The statute prohibits so-called “B-girl” activity, where employees of an alcoholic beverage establishment solicit the establishment’s patrons to buy drinks for them. We find the statute constitutional and reverse the trial court.

The appellees challenged the statute on the ground that the prohibition of the solicitation of both alcoholic and non-alcoholic beverages bears no reasonable relationship to the purpose of the statute. In appellees’ view, the statute is intended to prohibit the solicitation of alcoholic beverages only; the appellees assert that the inclusion of the words “alcoholic or otherwise” makes the statute an invalid exercise of the police power. The appellees also contend that because the statute applies only to alcoholic beverage licensees and their employees, it violates the state and federal guarantees of equal protection of the laws.

The trial court held the statute unconstitutional on its face because it “transcends the evil sought to be remedied” in violation of the substantive due process rights of the appellees. Art. I, § 9, Fla.Const.; U.S. Const. Amend. XIV. The trial court also found that the statute unreasonably applied solely to alcoholic beverage licensees in violation of article I, section 9, Florida Constitution.

We reject the conclusion of the trial court. State regulation of establishments licensed to sell alcoholic beverages may extend beyond regulation of alcohol sales. The legislature has found that it is in the public’s interest to halt this solicitation activity in establishments which sell alcoholic beverages, and we find it is rational and reasonable legislation.

We reject the argument of appel-lees that such regulation is a violation of their equal protection rights because there are countless establishments which sell nonalcoholic beverages and are not subject to this legislation. Statutory regulation need not be all-encompassing. Newman v. Carson, 280 So.2d 426 (Fla.1973); Pacheco v. Pacheco, 246 So.2d 778 (Fla.1971). A classification based upon a legislative determination that establishments serving alcoholic beverages are particularly susceptible to the activity is not irrational. The dictates of due process and equal protection, related in regulation of this type, require only that the statutory means of regulation be rationally related to the statutory objective, and that the members of the regulated class be treated equally. Soverino v. State, 356 So.2d 269 (Fla.1978); Gammon v. Cobb, 335 So.2d 261 (Fla.1976). This standard was met in the instant case.

We find section 562.131 to be constitutional. Accordingly, we reverse the judgment of the trial court and remand for new trial.

It is so ordered.

ADKINS, BOYD, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.

ENGLAND, C. J., concurs in result only.

      . Art. V, § 3(b)(1), Fla.Const.

      . The term is colloquial; the statute is gender neutral. Section 562.131, Florida Statutes (1977), provides:
      Solicitation for sale of alcoholic beverage prohibited; penalty.—
      (1)It is unlawful for any licensee, his employee, agent, servant, or any entertainer employed at the licensed premises or employed on a contractual basis to entertain, perform or work upon the licensed premises to beg or solicit any patron or customer thereof or visitor in any licensed premises to purchase any beverage, alcoholic or otherwise, for such licensee’s employee, agent, servant, or entertainer.
      (2) It is unlawful for any licensee, his employee, agent, or servant to knowingly permit any person to loiter in or about the licensed premises for the purpose of begging or soliciting any patron or customer of, or visitor in, such premises to purchase any beverage, alcoholic or otherwise.
      (3) Any violation of this section is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.


text:
    In re Inquiry Concerning a Judge, Joseph M. CROWELL.
    No. 54200.
    Supreme Court of Florida.
    Dec. 27, 1979.
    Rehearing Denied Feb. 12, 1980.
    Richard C. McFarlain, Tallahassee, Special Counsel, Florida Judicial Qualifications Commission, of McFarlain, Bobo, Sternstein & Wiley, Tallahassee, Florida, for complainant.
    D. L. Middlebrooks, Leo A. Thomas, Louis K. Rosenbloum and Barry Silber, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for respondent.
   PER CURIAM.

This proceeding is before the Court upon the report and recommendation of the Judicial Qualifications Commission and the petition of the respondent Judge Joseph M. Crowell to reject or modify the commission’s recommendation. It is this Court’s function to review the commission’s findings and conclusions and to render an appropriate decision in this matter. Art. V, § 12, Fla.Const.; Fla.Jud.Qual.Comm’n Rule 23. Our judgment is that Judge Crowell must be removed from office.

Judge Crowell is a judge of the Circuit Court of the First Judicial Circuit of Florida. Before becoming a circuit judge, he served as a judge of the Court of Record of Escambia County and the Municipal Court of the City of Pensacola. In September, 1975, the Judicial Qualifications Commission began an investigation of Judge Crowell’s conduct. Following a preliminary investigation of a number of complaints, the commission served upon Judge Crowell a notice of investigation. Fla.Jud.Qual.Comm’n Rule 6. After finding probable cause to believe Judge Crowell had engaged in conduct unbecoming a member of the judiciary, the commission instituted formal proceedings. Id. Rule 7. After a hearing on a number of allegations, the commission permitted the filing of an amended notice and a second amended notice of formal charges. After allowing Judge Crowell time to prepare to respond to the new charges, further hearings were held. The commission has filed its findings and recommendation with this Court. Id. Rule 22.

The second amended notice of formal charges contained eighteen counts of alleged improper conduct. The commission dismissed nine of these due to lack of clear and convincing evidence. The remaining nine counts form the basis for the commission’s conclusion that Judge Crowell’s conduct demonstrates a present unfitness to hold judicial office and its recommendation that he be removed from the office of circuit judge.

The commission found that at a conference on the custody of a minor girl, Judge Crowell, in the presence of the child, made reference to her grandmother having been a prostitute. Following this hearing, a Division of Youth Services counselor, who placed the child in the custody of her grandparents, was declared by Judge Crowell to be in contempt for violating his custody order. But either the custody order was unclear or the counselor was justified in thinking that custody had been left to his discretion. A short time later, Judge Cro-well rescinded the contempt order. The commission concluded that these findings show an arbitrary abuse of the authority of the office of circuit judge.

The commission found that on two occasions, Judge Crowell declared a certain attorney in contempt for being late to court without allowing him to explain and declared further penalties upon his attempts to explain. On one of these occasions no order was entered and the lawyer was not detained. On the other occasion the lawyer was escorted to jail, photographed, fingerprinted, and detained for a few hours until released when another lawyer interceded for him. The commission concluded that Judge Crowell’s conduct was arrogant and constituted abuse of the power of the office of circuit judge.

The commission found that Judge Cro-well told Division of Youth Services personnel that he wanted a certain juvenile counselor transferred, suspended or fired. He thought the counselor had lied to him and he so accused her when she was appearing before him. The commission found that an order of Judge Crowell requiring periodic written reports from the agency was in retaliation for Division officials’ refusal to accede to his demand. The commission concluded that this conduct was arrogant, arbitrary and abusive of judicial power.

The commission found that Judge Crow-ell issued an order on a custody petition, requiring a change in the custody of certain children, without allowing the custodial parent or his attorney to respond or argue the merits of the custody question. The judge also sentenced the respondent in the case to sixty days in jail for being late, when he had been served notice to appear with his children only minutes before the scheduled hearing. The commission concluded that Judge Crowell failed to observe elementary standards of judicial conduct and that his actions undermined public confidence in the integrity and impartiality of the judicial system.

The commission found that at a hearing on the alleged delinquency of a juvenile, Judge Crowell sought to have the juvenile’s attorney stipulate to the identification of certain physical evidence. The attorney had objected, to the admission of the evidence because it was identified only by a written laboratory report rather than by an expert witness. The judge ordered a continuance so that the state could bring in an expert, but in retaliation for the refusal to stipulate he ordered the child confined in the juvenile shelter. The juvenile had been in the custody of his father from the time of arrest until the time of hearing, a period of two months. It was the first time the boy had ever been alleged to be delinquent. The boy’s father went to Judge Crowell's chambers to ask the reason for detaining his son and was told to leave. The man remained either in the hall or the judge’s outer office while talking to the boy’s attorney, and was arrested for contempt, fined $500, and detained for two hours. The judgment of contempt was reversed on appeal when Judge Crowell did not respond to the district court of appeal’s order for a supplemental record.

The commission concluded that the incident shows a “propensity to summarily adjudicate and incarcerate a citizen . without according to the accused a right to be heard or any opportunity to defend himself.” Such conduct, the commission maintains, results in a loss of the public’s confidence in the impartiality of the judicial system.

The commission found that Judge Crow-ell exhibited “overbearing and unreasonable conduct” at a hearing where he declared an attorney in contempt and assessed a penalty of $750 or thirty days in jail. The order of contempt was never executed. The judge based his ruling on the lawyer’s refusal to answer questions but a transcript of the hearing shows that the lawyer attempted to answer Judge Crowell’s questions. The commission concluded that this incident amounted to conduct unbecoming a member of the judiciary.

The commission found a “display of intemperate conduct, lack of impartiality, and abuse of the power of his office” in connection with Judge Crowell’s courtroom upbraiding of an officer of the sheriff’s department. The judge harshly reprimanded the officer for lack of cooperation with the judge’s secretary in an administrative matter, without allowing the officer to respond. The commission concluded that this conduct contributed to a loss of public confidence in the judicial system.

The commission reports an incident in which Judge Crowell found access to his reserved parking space at the Escambia County Courthouse Annex blocked by a delivery truck. The driveway providing access to the parking space was also designated as a fire lane. The driver had regularly parked there to make deliveries for years. Judge Crowell asked the driver to move the truck. When the driver did not immediately comply, Judge Crowell had him arrested; he declared that he would require a $5,000 bond and that the truck would be impounded. The driver was detained for over an hour before Judge Crowell released him. The commission concluded that this was arbitrary and capricious conduct which resulted in a measurable loss of confidence in the competence of the judicial system.

In November, 1978, two weeks prior to the first of his hearings before the commission, Judge Crowell spoke to a Department of Health and Rehabilitative Services supervisor whom he happened to meet at the courthouse. The supervisor would be testifying against Judge Crowell. The judge told him that he had better be prepared, that his personal life was not in order and said, “You’re going to be sorry. We’re coming after you.” The commission maintains that this was an attempt to intimidate a witness.

Before reporting findings of fact to this Court, the commission must conclude that they are established by clear and convincing evidence. There were substantial conflicts in the testimony received by the commission. But because the commission was in a position to evaluate the evidence first-hand, its findings of fact “are of persuasive force and should be given great weight.” In re La Motte, 341 So.2d 513, 516 (Fla.1977); In re Kelly, 238 So.2d 565 (Fla.1970). Our review of the record of the proceedings before the commission reveals that its findings of fact are supported by clear and convincing evidence.

Judge Crowell argues that the incidents established by the evidence do not constitute misconduct unbecoming a member of the judiciary or demonstrating a present unfitness to hold office. He bases this argument in part on the proposition that his departures from proper standards of judicial decorum and temperament were caused by medical problems combined with the stress of his judicial duties.

There are medical reports and expert medical testimony in the record tending to show that a number of medical problems afflicting Judge Crowell could have combined with the stress of being a circuit court judge to bring about the incidents of irascibility and intemperate, irrational behavior. Judge Crowell argues that now that his medical problems are properly diagnosed, they can be controlled through medication and proper diet so that he can continue on the bench without further incident. The evidence tending to show that the result Judge Crowell urges would adequately protect the public interest in an impartial, well-regarded judiciary is not sufficient to overcome the clear and convincing evidence of present and continuing unfitness for judicial office.

Some of the incidents reported to us are susceptible of more favorable interpretation than the commission has provided in its conclusions from the evidence. We do not feel that any vindictive or corrupt motive or moral turpitude has been shown. To the contrary, it appears that Judge Crowell’s unfitness is substantially due to his tendency to lose his temper when confronted by the human failings and shortcomings of others. Taken as a whole, however, the incidents in the record show a pattern of conduct over a long period of time, involving persistent abuse of the contempt power, which demonstrates a lack of proper judicial temperament and a tendency to abuse the authority of the office.

Conduct unbecoming a member of the judiciary may be proved by evidence of specific major incidents which indicate such conduct, or it may also be proved by evidence of an accumulation of small and ostensibly innocuous incidents which, [taken] together, emerge as a pattern of hostile conduct unbecoming a member of the judiciary.

In re Kelly, 238 So.2d 565, 566 (Fla.1970). While some of Judge Crowell’s conduct is subject to varying inferences as to its harmfulness or innocuousness, the evidence as a whole shows a continuing pattern of conduct that does not comport with the standards of impartiality and restraint required of judicial officers. We concur in the commission’s conclusion that the evidence shows a pattern of conduct violative of the Code of Judicial Conduct, Canons 1, 2 A, 3 A(3), 3 A(4), and 3 B(l).

In the case of In re Kelly, 238 So.2d 565 (Fla.1970), this Court reprimanded a circuit judge for conduct unbecoming a member of the judiciary, where the record clearly reflected “a pattern of hostility toward many attorneys, court officials, and fellow judges, as well as a concerted effort to pamper the public and news media by press releases designed to bolster his personal image at the expense of the judiciary.” Id. at 566. The Court admonished the judge to abide by the established principles of judicial conduct in the future. The conduct shown in the present case is more serious, demonstrates present unfitness for judicial office, and warrants removal. See Cannon v. Commission on Judicial Qualifications, 14 Cal.3d 678, 122 Cal.Rptr. 778, 537 P.2d 898 (1975). The Constitution provides for the removal, without regard to malaf-ides, scienter or moral turpitude, of a judicial officer “whose conduct demonstrates a present unfitness to hold office.” Art. V, § 12(f), Fla.Const. •

It is the judgment of this Court that Judge Joseph M. Crowell be removed from the office of circuit court judge, on the ground of his present unfitness to hold judicial office, as found by the commission and supported in the record by clear and convincing evidence. His removal shall be effective upon this decision becoming final.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, ALDERMAN and McDONALD, JJ., concur.


text:
    George Roy DUTTON, Appellant, v. Mildred DUTTON, Appellee.
    No. 78-1919.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1979.
    Rehearing Denied Oct. 11, 1979.
    Papy, DuVal & Poole and Harvie S. Du-Val, Coral Gables, for appellant.
    Manners, Amoon & Whatley, Howard J. Hochman, Miami, for appellee.
    Before HENDRY, HUBBART AND SCHWARTZ, JJ.
   PER CURIAM.

This appeal and cross appeal arise out of an action for dissolution of marriage in the trial court. The final judgment of dissolution provides, inter alia, that the marriage is dissolved; that respondent-husband is to pay a certain sum as permanent alimony on a monthly basis; that husband is to cause the wife to be the irrevocable beneficiary of a life insurance policy of a specified amount, said policy to be kept in full force and effect and to remain unencumbered by loan, assignment or otherwise; that certain real property which has been held as a tenancy by the entireties shall become a tenancy in common.

Two of the provisions, dealing with permanent alimony and retention of a life insurance policy for the benefit of the wife, are the subjects of husband’s appeal. The wife’s cross appeal raises the issue of whether the trial court abused its discretion in denying the wife special equity in the former marital home and a parcel of improved real property in North Carolina.

From our review of the record, briefs and applicable law, we have determined that the award of permanent alimony to the wife constitutes an abuse of discretion as it is not supported by competent evidence that she has the financial need for such support. The undisputed facts reveal that the wife was forty-four at the time of the action, in good health, with no children and no dependents; she has been fully employed prior to her marriage and throughout the twelve-year marriage. Appellee is a senior stewardess with Eastern Airlines and holds a real estate sales license. The wife has continuously maintained a savings account, initially in joint names, then later in her name only, and her employment provides free pension benefits upon her retirement.

In Thigpen v. Thigpen, 277 So.2d 583 (Fla.1st DCA 1973), the court stated, at 585-586:

“We have carefully considered the pertinent evidence contained in the record but fail to find any reasonable basis on which the alimony award made to appellee can be sustained. The very heart of an alimony award is and always has been the need of the demanding spouse for support and the ability of the other spouse to respond. The new concept of the marriage relation implicit in the so-called ‘no fault’ divorce law enacted by the legislature in 1971 places both parties to the marriage on a basis of complete equality as partners sharing equal rights and obligations in the marriage relationship and sharing equal burdens in the event of dissolution .
“Iii the case sub judice appellee-wife is in good health and has a proven capacity to engage in responsible and gainful employment sufficient to provide for her own needs.”

It is our conclusion that the award of permanent alimony made to appellee constitutes an abuse of discretion under the facts of this cause and it cannot be supported by the applicable principles of law.

The appellant next challenges the propriety of that portion of the trial court’s order requiring that the husband cause the wife to be the irrevocable beneficiary of a life insurance policy, to remain in full force and effect and unencumbered. We reverse that part of the final order, as it would appear to be an attempt by the trial court to provide alimony after death, without evidence of request or need by the wife. See Perkins v. Perkins, 310 So.2d 438 (Fla.4th DCA 1975); Wilbur v. Wilbur, 299 So.2d 99 (Fla.3d DCA 1974); Faidley v. Faidley, 298 So.2d 425 (Fla.3d DCA 1974).

Appellee’s cross appeal urges reversal of the trial court decision that each of the parties has a one-half interest in the real properties as tenants in common under Section 689.15, Florida Statutes (1977); ap-pellee maintains that she should have been awarded a special equity in both the marital home and North Carolina residence. We cannot agree, since the wife failed to carry the burden of proof to sustain a special equity to the exclusion of a reasonable doubt in either of the properties. See Hanzelik v. Hanzelik, 294 So.2d 117 (Fla.4th DCA 1974) and Zuidhof v. Zuidhof, 242 So.2d 739 (Fla.4th DCA 1971).

The provisions regarding permanent alimony and retention of a life insurance policy for the benefit of the appellee are reversed, and the cause is remanded to the trial court for entry of a judgment consistent with the principles discussed herein.

Therefore, we reverse and remand as to both points raised by the main appeal and affirm the trial court order as to the point raised by the cross appeal.

      . See also Kennedy v. Kennedy, 303 So.2d 325 (Fla.1974); Crees v. Crees, 342 So.2d 1014 (Fla.4th DCA 1977); Roberts v. Roberts, 283 So.2d 396 (Fla.1st DCA 1973).


text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. Bernard TIMON and Annie Timon, Appellees.
    No. OO-251.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1979.
    Rehearing Denied Nov. 7, 1979.
    Larry Hill of Sherrill, Moore & Hill, Pensacola, for appellant.
    Robert J. Mayes of Levine, Warfield, Middlebrooks, Magie, Rosenbloum & Magie, Pensacola, for appellees.
   ROBERT P. SMITH, Jr., Acting Chief Judge.

USF&G appeals from a circuit court summary judgment determining that USF&G is or will be liable, depending on the extent of appellees’ injuries, for up to $10,000 of uninsured motorist benefits provided by their USF&G policy, even if appellees should collect the liability policy limits, $10,000, on an automobile operated by alleged (and assumed) tortfeasor Shell into a collision with appellees’ vehicle. The summary judgment is predicated on the theory that a third vehicle, driven by a hit-and-run phantom tortfeasor, contributed to appellees’ loss; that the phantom tortfeasor’s vehicle was uninsured; and consequently that appellees’ uninsured motorist benefits should compensate appellees on account of the unavailability of an insured recovery from the phantom tortfeasor, even though the insurer of joint tortfeasor Shell will respond to the extent of $10,000, the exact amount of ap-pellees’ uninsured motorist coverage.

In our view USF&G’s limit of liability for uninsured motorist benefits is $10,000, irrespective of the number of tortfeasors and vehicles in the collision, and that the availability of an insured $10,000 recovery from tortfeasor Shell precludes access to USF&G’s uninsured motorist benefits. See Dewberry v. Auto Owners Ins. Co., 363 So.2d 1077 (Fla.1978); Travelers Ins. Co. v. Wilson, 371 So.2d 145 (Fla. 3d DCA 1979); Aetna Cas. and Surety Co. v. Ilmonen, 360 So.2d 1271 (Fla. 3d DCA 1978). The availability of one joint tortfeasor’s liability insurance benefits, in the same amount as claimants’ uninsured motorist benefits, satisfies the purpose for which uninsured motorist benefits were provided by law and contract, irrespective of the fact that those uninsured motorist benefits would be available to claimants in full were the phantom the only tortfeasor, and irrespective of the fact that claimants’ insured recovery would be greater were the phantom not a phantom but rather an insured tortfeasor brought jointly to court with the tortfeasor insured equally with claimants’ uninsured motorist liability limits.

REVERSED.

SHIVERS, J., and MASON, ERNEST E., Associate Judge, concur.


author: McCORD, Acting Chief Judge.

text:
    HOWARD JOHNSON’S MOTOR LODGES, INC., Realty Syndicates of Lake City, Inc., and Liberty Mutual Insurance Company, Petitioners, v. Earl H. BARANOV and Frances M. Baranov, Respondents.
    No. OO-271.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1979.
    Rehearing Denied Nov. 7, 1979.
    Steven H. Gray of Green, Simmons, Green, Hightower & Gray, Ocala, for petitioners.
    W. Roderick Bowdoin of Darby, Peele, Page & Bowdoin, Lake City, for respondents.
   McCORD, Acting Chief Judge.

Petitioners seek a common law writ of certiorari to review an order of the trial court directing them to respond to the following three interrogatories propounded by respondents:

“20. Give the name, business address, home address, and telephone number of any and all investigators which any of the defendants has hired to complete any investigation or surveillance of the plaintiffs herein.
21. Please advise whether such investigators named immediately above, or other persons, have any photographs or moving pictures of the plaintiff.
22. Please give the names and addresses of all persons that have been contacted by said investigator, the substance of any information obtained from said persons, and advise whether or not any of said investigations or conversations were recorded on a tape recorder or other machine.”

The trial court directed that the interrogatories be answered with the exception that petitioners were not required to give the substance of any information obtained from persons contacted by the investigator for respondents. By their petition, petitioners have narrowed the issue for review in relation to the above three questions to the question of whether or not it was error for the trial court to require that they divulge the existence of surveillance films and surveillance information on the respondents, contending that such invades the work product of petitioners. It is our ruling that the existence of surveillance films and the existence of surveillance information is discoverable. Compare Corack v. Travelers Ins. Co., 347 So.2d 641 (Fla. 4 DCA 1977), and Spencer v. Beverly, 307 So.2d 461 (Fla. 4 DCA 1975). The trial court ordered that the substance of any information obtained need not be given and that ruling is not questioned here.

Certiorari denied.

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


author: ERVIN, Judge.

text:
    Jake JONES, Clifton Crews, and Nonnie Redmon, both Individually and as Members of the School Board of Holmes County, Florida and the School Board of Holmes County, Florida, Appellants, v. W. R. BRAXTON, Billy F. Cook, Beverly Dodson, Heston F. Ellis, Elizabeth Gavin, Glen D. George, Kenneth H. Givens, Robert E. Griffin, W. O. Hardy, Doy H. Marshall, D. A. Martin, Lynn E. Mayfield, William K. Parrish, Barbara Penney, Leon C. Smith, Orren R. Smith, Ray Smith, Sara Smith, C. E. (Bill) Taylor, Harold Ward and W. C. Ward, Appellees.
    No. NN-76.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1979.

      Jim J. Austin, Panama City, for appellants.
    Joseph A. Sheffield of Roberts & Sheffield, Marianna, for appellees.
   ERVIN, Judge.

The appellants, individual members of the Holmes County School Board and the school board, appeal from a circuit court order permanently enjoining them from breaching a construction contract to build a new high school and temporarily enjoining them from entering into a contract for construction of an elementary school.

The Holmes County School Board voted to consolidate high schools in Bonifay, Bethlehem and Poplar Springs by constructing one facility. They hired an architect, who drew plans for the school, and advertised for construction contract bids. Shortly afterward, however, three of the board members were replaced in a general election. Thirteen days before the new board members were scheduled to take office, the old board continued plans for the construction of the new school by obtaining advance funding from the state for the project. A construction contract was signed on November 16, 1978. On December 5, 1978, the revised board rescinded the contract. A group of private citizens in Bonifay filed a complaint for an injunction to prohibit breach of the contract.

Appellants argue first that the circuit court had no jurisdiction because the appellees failed to exhaust administrative remedies. This issue was not raised until after the final order was rendered by petition for rehearing. Generally, error cannot be claimed in judicial acts to which objections were not made at the appropriate time. See 3 Fla.Jur.2d, Appellate Review § 95. Since the question of exhaustion of administrative remedies is “not one of jurisdiction . . . but of policy,” we will not review it in this appeal. Department of Revenue v. Joanos, 364 So.2d 24, 25 (Fla. 1st DCA 1978). See also Department of Revenue v. Young American Builders, 358 So.2d 1096, 1100-1101 (Fla. 1st DCA 1978) and National Automobile Insurance Association v. Brumit, 98 So.2d 330 (Fla.1957).

Next, it is urged that appellees had no standing to seek the injunction. The complaint alleged that appellees were taxpayers and that the actions in breaching the contract were illegal and would increase their tax burdens. While it is true that “taxpayers may maintain suits to prevent illegal acts of tax receiving bodies that will increase the burden of taxation . ”, Housing Authority of the City of Melbourne v. Richardson, 196 So.2d 489, 492 (Fla. 4th DCA 1967), we conclude, however, that the decision to breach the construction contract was not illegal and that the trial judge erred in overruling the board’s decision on a matter properly within its discretion.

Appellees argue that the provisions of Chapter 235 govern the procedure relating to the construction of public schools within school districts, and since that procedure was followed by the former board even up to the point of letting a construction contract, the later board had no discretionary authority to undo that previously done.

Chapter 235, the Educational Facilities Construction Act, is designed, among other things, to establish systematic plans for the construction of educational facilities in order to “meet the current and projected needs of the public education system population as quickly as possible by building . educational environments . . .” Section 235.002. To accomplish those goals, district school boards are mandated at least every five years to conduct a survey which shall include recommendations for both existing and new educational plants. Section 235.15. The board is required to file its recommendations with the Office of Educational Facilities Construction, which shall study the proposed program and submit it together with its findings and recommendations to the State Board of Education. Section 235.16. Additionally, each board is required to adopt annually a capital outlay budget, which shall be in harmony with the educational facilities program as approved by the State Board of Education. Section 235.18. No funds may be expended for construction of educational facilities unless approved by the Department of Education. Id.

In order to determine the extent of control boards exercise over the construction of educational facilities within their districts, we think it necessary to compare the provisions of Chapter 235 with those of Chapter 230, setting out the boards’ responsibilities in operating the district school system, and if possible, to harmonize the respective provisions with one another. Chapter 230 delegates to the boards broad powers of control, including the power to determine policies and programs “deemed necessary by [them] for the efficient operation and general improvement of the district school system. .”, Section 230.22(1), the power to adopt policies which “it may find . necessary for the improvement of the district school system . . . .”, Section 230.22(5), the power to provide “for the consolidation of schools whenever the needs of pupils can better and more economically be served at other school centers . . .”, Section 230.23(4)(b), and the power to approve “plans for constructing school property as prescribed in Chapter 235.” Section 230.23(9). Moreover, the boards are charged with developing a district wide school building program, which shall be part of a long time program for the district and, “insofar as practicable, shall be based on the recommendations of a survey made or approved under the direction of the Department of Education.” (e. s.) Section 230.23(9)(a). The last provision should be compared with Section 235.-014(17), encouraging local initiative “as far as practicable, when constructing new educational facilities . . ”, and with Section 235.01, promoting joint cooperative efforts by state and local officials “in establishing and maintaining educational plants that will meet public educational needs throughout the state . . . .”

We see no insurmountable dissonance in the provisions of the two chapters. They do not suggest that the board is vested with control over construction of educational facilities by Chapter 230, yet divested of such control by Chapter 235. We think a reasonable interpretation of Chapter 235 is that once a board has made the initial decision to construct an educational facility, local and state officials, working together, then prepare plans for the facility, which are subject to the approval of the state Board of Education before they may be incorporated into the board’s annual capital outlay budget. We do not interpret Chapter 235 to require a board to submit recommendations for new educational plants if its survey does not reveal the existence of a need for their construction. The board appears to be vested with the discretion to determine initially whether or not to propose a new facility. See Section 235.15. Moreover, even though plans are submitted and approved, as here, we do not consider it the legislative intent to divest from a board the right to question the wisdom of its previous action and, if need be, unilaterally revoke it.

If we were to accept appellees’ argument that Chapter 235 vests discretion to build or not to build in the state — not the local boards — such an interpretation would do violence to that constitutional provision placing in the school boards control of all public schools. Article IX, Section 5, Fla. Const. (1968). The state may, consistently with the constitution, establish reasonable regulations for the construction of public schools once a board determines whether a new facility need be built. The schools may not be built unless their plans are in accord with established guidelines of the State Board of Education. The state may not, however, force a board to build, nor once a board decides to build, force it to persist in that decision if later events prove the board’s course unwise. When a public body exercises its discretionary powers within the ambit of the laws delegated to it, it is not for the courts to determine whether the action of that body is wise, economical or advantageous. The taxpayer’s recourse is to the ballot box, not to the courts. Town of Riviera Beach v. State, 53 So.2d 828 (Fla.1951); Broward County Rubbish Con. Assn. v. Broward County, 112 So.2d 898 (Fla.2d DCA 1959). We conclude there is nothing in Chapter 235 which removes from the boards the discretion to build an educational facility, and once that decision is made, the discretion to revoke it.

Although the board’s act in breaching the contract was not an abuse of discretion for which a taxpayer’s suit for an injunction provides a remedy, its act does not insulate it from potential damages for breach of the contract. A school board “may be sued in an appropriate action ex contractu on an obligation lawfully incurred by it where the payment of that obligation would not involve an unauthorized disbursement of school funds.” 29 Fla.Jur., Schools, § 29, citing Board of Public Instruction v. Knight and Wall Co., 100 Fla. 1649, 132 So. 644 (1931); Section 230.22(4), Florida Statutes (1977). The capacity to be sued on contract implies the power to breach a contract.

Neither was the board’s action rescinding the contract violative of Section 237.121(2), Florida Statutes (1977), which provides for personal liability and possible removal of board members “voting to incur an indebtedness ... in excess of the expenditure allowed by law, or in excess of any appropriation . . . adopted in the budget or amendments thereto . .” Rescission of a contract is not synonymous with incurring a debt.

Since the board’s action was not illegal, contrary to the trial court’s finding, and since no finding was made regarding whether the board had abused its discretion in an action completely within its authority, there is no basis for judicial intervention. The order appealed from is

REVERSED.

ROBERT P. SMITH, Jr., Acting C. J., and BOOTH, J., concur.

      . In fact, the appellants’ memorandum to the trial court and appellate brief suggested irregularities in the letting of the contract which would make it illegal.


author: CHAPPELL, BILL G., Associate Judge.

text:
    WILLIAMS, SALOMON, KANNER & DAMIAN, as Trustee, Appellant, v. AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA, a Florida Corporation, Appellee.
    No. 78-2288.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1979.
    Rehearing Denied Feb. 6, 1980.

      Williams, Salomon, Kanner, Damian, Weissler & Brooks and Vincent E. Damian, Jr., Miami, for appellant.
    Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellee.
    Before BAREDULL and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.
   CHAPPELL, BILL G., Associate Judge.

Appellee, American Bankers Life Assurance Company of Florida, held a first mortgage in the original amount of $500,000, and Development International Corporation of Florida held a second mortgage in the original amount of $125,000 on real property owned by Maulé Industries, Inc. Then, on August 6, 1974, Appellee obtained a third mortgage in the amount of $239,-530.74 on the subject property relying upon a Subordination Agreement dated July 11, 1974 from Development International Corporation of Florida yielding priority of the second mortgage to a “new mortgage” in the amount of $700,000. On August 15, 1974, American Bankers recorded a Mortgage Consolidation and Extension Agreement which consolidated and extended the first and third mortgages to form a single lien of $700,000. Prior to executing the Subordination Agreement, Development International Corporation of Florida had made a collateral assignment of the second mortgage to Security Mortgage Investors securing all obligations of Development International Corporation to Security Mortgage Investors. This assignment was dated April 5, 1974 and recorded April 25, 1974. On April 15, 1975, pursuant to a Stipulation of Settlement in a lawsuit filed in Osceola County, Security Mortgage Investors executed a General Release to Development International Corporation and assigned the second mortgage to appellants herein. This appeal is from a final judgment of foreclosure in which the Court below ruled that the Mortgage Consolidation and Extension Agreement and the first and third mortgages of appellee, consolidated and extended by said Agreement, together constituted a first lien upon the subject property.

Obviously, the trial court found the Subordination Agreement to be binding, and with this we do not agree. When collateral is duly assigned as security for a debt, the assignee creditor acquires the title of the security which the assignor cannot abridge, the latter enjoying merely an equity of redemption. Travelers Insurance Company v. Tallahassee Bank and Trust Co., 133 So.2d 463 (Fla. 1st DCA 1961).

If nothing is left to be redeemed, the assignor’s rights therein would be terminated. Since Security Mortgage Investors, the assignee, was not a party to the Subordination Agreement, it cannot be bound thereby. Roberts v. Harkins, 292 So.2d 603 (Fla. 2nd DCA 1974).

A mortgage that is assigned as collateral security may be foreclosed by the assignee, Gables Racing Assoc., Inc. v. Persky, 116 Fla. 77, 156 So. 392 (1934), but the original mortgagee may intervene in the suit for the purpose of showing that the assignment was made as collateral security only. Torreyson v. Dutton, 145 Fla. 169, 198 So. 796 (1940). Here, it appears that the debt secured by the mortgage was in default, and as part of an agreement releasing the debtor of its obligations, Security Mortgage Investors assigned the mortgage to appellants, leaving nothing for Development International Corporation of Florida to redeem. Appellants, as assignees of the mortgage, may foreclose the mortgage in a proceeding brought in their own names. Smith v. Kleiser, 91 Fla. 84, 107 So. 262 (1926).

Appellants further contend that the Mortgage Consolidation and Extension Agreement extinguishes the first and third mortgages and creates a new mortgage inferior to their second mortgage. We see nothing in the Agreement indicating an intention to extinguish these mortgages. Federal Land Bank of Columbia v. Godwin, 136 So. 513 (Fla.1931), aff’d. as mod., 107 Fla. 537, 145 So. 883 (1932). Nor do we see any indication that a new debt is being substituted for the old. Murphy v. Green, 102 Fla. 102, 135 So. 531 (1931); Taines v. Capital City First Nat. Bank, 344 So.2d 273 (Fla. 1st DCA 1977). In fact, the language describes the consolidated mortgage as two mortgages taken together and the consolidated note as two notes taken together. It is our opinion that this agreement merely changes the mode of payment without discharging the mortgages or depriving the holder of the security afforded thereby. Marden v. The Elks Club, 138 Fla. 707, 190 So. 40 (1939).

In view of our holding the Subordination Agreement ineffective as to the appellants herein, we must further point out that the third mortgage cannot be elevated to the same priority of that held by the first mortgage. In accordance with the general rule, the three mortgages herein rank in the priority of their acquisition.

Accordingly, the order appealed is reversed and the cause is remanded with directions for further proceedings to establish the amounts due the parties on each of the mortgages consistent with the .views herein expressed.

Reversed and remanded with directions.


author: DANAHY, Associate Judge.

text:
    Barbara Patella ULESKY, Appellant, v. STATE of Florida, Appellee.
    No. 79-323/NT2-2.
    District Court of Appeal of Florida, Fifth District.
    Nov. 28, 1979.
    As Modified On Denial of Rehearing Dec. 21, 1979.

      Jack 0. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Associate Judge.

Appellant was charged with possession of more than five grams of marijuana, a felony. Following the denial of her motion to suppress the marijuana as illegally obtained evidence, appellant changed her plea from not guilty to nolo contendere, reserving the right to review of the denial of her motion to suppress. We hold that the motion should have been granted as to the marijuana which was found in her purse.

The chain of events leading to the charge against appellant began when a police officer observed appellant backing a pickup truck down a public roadway, narrowly avoiding an accident. The officer stopped appellant, which clearly was justified under the circumstances. When he did so, the officer smelled what he believed to be marijuana smoke coming from the truck and asked appellant to open the ashtray. Appellant reached into the ashtray and dropped what appeared to be a single marijuana cigarette onto the floor board. At this point, the officer arrested appellant and placed her in the back of his patrol car. He then returned to the truck, seized a single marijuana cigarette from the floor board, and searched appellant’s purse, which she had left in the cab. The officer found several small bags of marijuana in the purse.

The general rule is that a search conducted without a search warrant and without consent is per se unreasonable under the Fourth Amendment to the United States Constitution, subject only to a limited number of well defined exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Hornblower v. State, 351 So.2d 716 (Fla.1977). Thus, the beginning point of our analysis is the recognition that the warrantless search of appellant’s purse was invalid under the Fourth Amendment unless it fell within one of the recognized exceptions to the warrant requirement.

The Fourth Amendment is cast in absolute terms with deceptively simple language. It provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While a literal reading of this language might lead one to conclude that no warrant-less searches are permissible, the key word is “unreasonable.” Each of the exceptions to the Fourth Amendment warrant requirement has evolved from a finding by the courts that a search under the circumstances of the exception is not “unreasonable.” These exceptions have been strictly construed, however, and a warrantless search will not be upheld unless it clearly falls within one of the delineated exceptions. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).

In addition to a search based upon consent, there are five generally accepted exceptions to the warrant requirement: first, a search incident to a lawful arrest; second, a search based upon probable cause coupled with exigent circumstances; third, a search in connection with the seizure of an automobile for the purpose of a forfeiture proceeding; fourth, a bona fide inventory search; fifth, a protective search for weapons known as a “frisk,” incident to a valid “stop.”

Three of these exceptions may be summarily dismissed as clearly inapplicable to the search of appellant’s purse. Since no forfeiture action was initiated against the truck driven by appellant, the forfeiture exception cannot apply. Since neither the contents of the truck nor the contents of the purse were ever inventoried, the inventory search exception cannot apply. Since-the initial stop of appellant had expanded to an arrest prior to the search, the point for application of the “stop and frisk” exception had passed. We are, therefore, left with only two possible justifications for the search of appellant’s purse; that the search was based upon probable cause coupled with exigent circumstances, or that the search was incident to a lawful arrest.

The warrantless search of an automobile based upon probable cause is generally considered to be coupled with exigent circumstances and is often termed the “automobile exception” to the warrant requirement, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), but the exception does not invariably apply simply because an automobile is involved. Essentially, the exigent circumstance which, together with probable cause, justifies the warrantless search of an automobile is that the mobility of the automobile often makes it impracticable to obtain a warrant. An additional factor justifying the automobile exception is that there is generally a lesser expectation of privacy in an automobile than in other personal property. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

In Chadwick, the Supreme Court refused to apply the rationale of the automobile exception to the search of a double locked footlocker removed from the open trunk of a parked car. The Court grounded its rejection of an analogy to the automobile exception on the higher expectation of privacy which attaches to luggage, as opposed to the automobile in general, and on the fact that, once seized by law enforcement officers, the footlocker was safely immobilized. In Arkansas v. Sanders, supra, the Supreme Court clarified the Chadwick holding, disapproving the warrantless search of luggage taken from the trunk of a taxicab in which the owner of the luggage was riding as a passenger.

Once police have seized a suitcase, as they did here, the extent of its mobility is in no way affected by the place from which it was taken. . . . Accordingly as a general rule there is no greater need for warrantless searches of luggage taken from automobiles than of luggage taken from other places. 442 U.S. at 763, 99 S.Ct. at 2593, 61 L.Ed.2d at 245 (footnotes omitted).

Based upon Chadwick and Sanders, we hold that even though there may have been probable cause, the search of appellant’s purse cannot be upheld because there were no exigent circumstances attendant upon the fact that the purse was in the cab of a truck, or otherwise. Once the police officer had seized appellant’s purse and put it exclusively within his control, there was no longer a problem of mobility. Furthermore, there is a much higher expectation of privacy in a purse than in an automobile. Since neither of the two factors which justify the automobile exception was present, the search cannot be upheld under that exception.

The only remaining possibility for upholding the search of appellant’s purse is under the exception applicable to a search incident to a lawful arrest. This exception was first mentioned by the Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) (dictum). As there stated, the permitted search was limited to the arrestee’s person. Following Weeks, the Court both expanded and contracted the scope of this exception to the warrant requirement. In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), however, the Court finally settled upon a narrow scope for the exception of a warrantless search incident to a lawful arrest. It held that the proper scope of such a search is limited to the area within the “immediate control” of the defendant.

The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. 376 U.S. at 367, 84 S.Ct. at 833, 11 L.Ed.2d at 780.

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Court clarified what it meant by “immediate control.” There the police searched the defendant’s entire house after he was arrested for burglary of a coin shop. The Court ruled that this was entirely too broad a search to be justified as incidental to a lawful arrest. While the facts of Chimel are clearly distinguishable from the present case, the rationale used by the Court is controlling.

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or its destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary item, must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the ar-restee’s person and the area “within his immediate control” — construing that phrase to mean the area from which he might gain possession of a weapon or destructible evidence. 395 U.S. at 762, 89 S.Ct. at 2040, 23 L.Ed.2d at 694.

Applying this rationale to the facts of the case at hand, we hold that the warrantless search of appellant’s purse was impermissible. The only two reasons for allowing a warrantless search incident to a lawful arrest are to prevent the arrestee from seizing a weapon and to prevent the arrestee from concealing or destroying evidence. No other considerations are relevant. Chimel v. California, supra. Thus, the search must be limited to the area within the immediate control of the arrestee at the time of the search, not at the time of the arrest. Here, once appellant was placed in the patrol car and thereby separated from her purse, neither of the justifications for the search incident to arrest exception were present. There was no longer any danger that appellant would obtain a weapon from the purse. Similarly, there was no danger that appellant would conceal or destroy any items of evidence which might have been in the purse. The purse simply was no longer within appellant’s “immediate control.”

Although we hold that the trial judge erred in denying appellant’s motion to suppress insofar as the marijuana obtained in the search of her purse was concerned, we find that the trial judge was correct in denying her motion insofar as the single marijuana cigarette was concerned. The smell of marijuana smoke provided probable cause for the warrantless search of the truck, including the ashtray. Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977). The single marijuana cigarette, however, is insufficient to sustain a felony conviction in this case under Section 893.13(1)(f), Florida Statutes (1977), since this is appellant’s first offense. Accordingly, we reverse appellant’s felony conviction and remand this case to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

SCHEB, Acting Chief Associate Judge, and RYDER, Associate Judge, concur.

      . The Florida Constitution also contains a prohibition against unreasonable searches and seizures, in much the same language as that of the Fourth Amendment. Art. I, § 12, Fla.Const. This court has held that the standard imposed by the comparable provision of the Florida Constitution is no higher than that imposed by the Fourth Amendment. State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979). Therefore, we express the applicable constitutional standard in a search and seizure case as that imposed by the Fourth Amendment.

      . As to what constitutes valid consent to a search, see Bailey v. State, 319 So.2d 22 (Fla.1975).

      . A sixth situation, sometimes discussed as an exception, arises when evidence is observed in “plain view.” In such a situation, under the “plain view” doctrine, no search takes place leading to the seizure of the evidence. State v. Ashby, 245 So.2d 225 (Fla.1971). In the instant case appellant’s purse was in plain view, but its contents were not.

      . Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

      . Hornblower v. State, 351 So.2d 716 (Fla.1977).

      . Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

      . Godbee v. State, 224 So.2d 441 (Fla. 2d DCA 1969).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Had the officer found the marijuana in the course of a bona fide inventory search, our decision on this appeal might well have been different. The officer, however, admitted that the purpose of his search was to uncover weapons or drugs. Haugland v. State, 374 So.2d 1026 (Fla. 3d DCA 1979). But see State v. Southwell, 369 So.2d 371 (Fla. 1st DCA 1979).

      . The search of a woman’s purse is within the scope of a justifiable frisk. Dawson v. State, 40 Md.App. 640, 395 A.2d 160 (1978).

      . We note that the First District Court of Appeal recently reached the same conclusion in a case involving a very similar set of facts. Liles v. State, 375 So.2d 1094 (Fla. 1st DCA 1979).

      . We have no difficulty finding the necessary exigent circumstances in connection with the seizure of the single marijuana cigarette. The marijuana cigarette was in the ashtray of the appellant’s truck, where she could not reasonably have had the same expectation of privacy that she had in her purse. Additionally, the truck had not been impounded at the time the cigarette was seized, so there was a problem of mobility which did not exist with respect to the purse.


author: LETTS, Judge. LETTS, Judge.

text:
    Sandra O. HANKERSON, Appellant, v. David L. HADDEN, Appellee.
    No. 78-2303.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1979.
    On Rehearing Jan. 30, 1980.
    James P. O’Flarity of the Law Offices of James P. O’Flarity, Palm Beach, for appellant.
    Charles T. Kessler of Pyszka, Kessler & Adams, Fort Lauderdale, for appellee.
   LETTS, Judge.

This cause is affirmed upon the authority of Leibman v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA) (1979).

BERANEK, J., and CROSS, SPENCER C., Associate Judge, concur.

ON MOTION FOR REHEARING AND/OR CLARIFICATION

LETTS, Judge.

The motion is granted.

This appeal is dismissed as the order in question may not be the subject of an interlocutory appeal under the authority of Leibman v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA 1979).

BERANEK, J., and CROSS, SPENCER C., Associate Judge, concur.


text:
    MASTERS MERCHANDISE MART, INC., a Florida Corporation, Appellant, v. ELECTRONIC DATA PREPARATION CORPORATION, INC., and Anacomp, Inc., Florida Corporations et al., Appellee.
    No. 79-1108.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1979.
    Rehearing Denied Jan. 16, 1980.
    Richard V. Harrison, Sarasota, for appellant.
    William E. Lowe of Lowe, Ferrell & Ferrell, Bradenton, for appellee.
   PER CURIAM.

We affirm the non-final Order dated May 18, 1979 insofar as it permits the Appellee to retain possession of the property recited in the Order. However, we decline to pass on the issue of ownership of such property as the determination by the trial court of the ownership issue appears to be premature.

GRIMES, C. J., SCHEB, J., and SHAFER, Jr., ROBERT T., Associate Judge, concur.


text:
    Steven Erik KISTNER, Appellant, v. STATE of Florida, Appellee.
    No. NN-8.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1979.
    Charles G. Brackins, of Meldon & Brac-kins, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ROBERT P. SMITH, Jr., Acting Chief Judge.

An appeal from convictions on charges of possession of marijuana and paraphernalia. The sheriff found the contraband in appellant’s home when executing a warrant for searching the house. The sheriff knocked repeatedly and called out, “Anybody home?”, to which there was no reply because his knock and call were not heard by the occupant, appellant's wife. So the sheriff entered. The trial court denied a suppression motion reasoning that if the occupant did not hear the knock and “Anybody home?” call, she would not have heard the sheriff announce his identity and purpose. The state urges that the sheriff’s failure to announce his identity and purpose should be excused because that announcement was or seemed futile, and it reasonably appeared to him that no one was home to hear his call. We cannot subscribe to that erosion of Benefield v. State, 160 So.2d 706 (Fla.1964). See Whisnant v. State, 303 So.2d 397 (Fla. 3d DCA 1974), cert. den., 323 So.2d 273; Berryman v. State, 368 So.2d 893 (Fla. 4th DCA 1979); Moreno v. State, 277 So.2d 81 (Fla. 3d DCA 1973); State v. Collier, 270 So.2d 451 (Fla. 4th DCA 1972); Section 933.09, Florida Statutes (1977).

REVERSED.

ERVIN, J., concurs.

BOOTH, J., dissents.


author: HENDRY, Judge.

text:
    COTTON STATES MUTUAL INSURANCE COMPANY, Appellant, v. Elena S. Abdelnour JACOB, William Howard Condermann, Jr., and Robert Bookbinder, Appellees.
    No. 79-369.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1979.
    Rehearing Denied Jan. 18, 1980.
    Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellant.
    Walton & Garrick and Wallace I. Garrick, Levy & Cohen, Miami, for appellees.
    Before HENDRY and NESBITT, JJ., and CHARLES CARROLL. (Ret.), Associate Judge.
   HENDRY, Judge.

A declaratory action was brought in the lower court by Cotton States Mutual Insurance Company, appellant herein, seeking a determination as to whether coverage was to be afforded the appellee, Condermann, under a policy of automobile insurance between appellant and Bohnert Roofing & Supply Company, Condermann’s employer. The subject policy contained an additional interest endorsement naming Condermann as such an additional interest-insured. Under the policy there were certain exclusions, the crucial one, dealing with the use of a vehicle other than one scheduled in the policy, recited:

“None of the following is an insured: any person while employed in or otherwise engaged in duties in connection with an automobile business.”

The facts, simply stated, are that William Howard Condermann, while visiting a friend who owns and operates an automobile paint and body repair shop, was presented with an opportunity to drive a certain Maserati sports car which was at the shop for minor repairs. While Conder-mann was driving the sports ear and the owner/operator was a passenger, they were involved in an accident with another vehicle. Thereafter one Elena S. Abdelnour Jacob filed a personal injury action against Condermann, the owner of the Maserati, the appellant-insurance company and others, seeking damages allegedly resulting from the vehicular accident between Con-dermann and Jacob. The appellant filed its declaratory action during the pendency of the personal injury action brought by Jacob. The trial court, as trier of law and fact, held that the above-quoted exclusion clause did not apply and that Condermenn was covered under the provisions of the policy of insurance. The insurer thereafter filed the instant appeal, contending that the trial court erred in its determination of the coverage question because Condermann was engaged “in duties in connection with an automobile business.” We cannot agree with the position advanced by the appellant; we affirm the trial court’s order of final judgment.

Appellee urges affirmance on the authority of the holdings in American Hardware Mutual Insurance Co. v. Miami Leasing and Rentals, Inc., 362 So.2d 28 (Fla.3d DCA 1978); Tropical Park, Inc. v. United States Fidelity & Guarantee Company, 357 So.2d 253 (Fla.3d DCA 1978); Schaffer v. Government Employees Insurance Company, 280 So.2d 504 (Fla.2d DCA 1973). We concur and affirm the conclusion of law reached by the trial court that the exclusion does not apply, since Condermann received no consideration, was under no duty or obligation to perform any driving services, was driving the automobile for his own personal pleasure only, and was clearly not employed in or otherwise engaged in duties in connection with an automobile business within the meaning of the policy of insurance.

Affirmed.

CHARLES CARROLL (Ret.), Associate Judge, dissents.


text:
    PUBLIX SUPER MARKETS, INC., and the Hartford Insurance Group, Appellants, v. Jacobo GOMIS, Appellee.
    No. 79-853.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1979.
    As Corrected On Denial Of Rehearing Jan. 25, 1980.
    Williams & Zientz and John G. Tomlin-son, Jr., Coral Gables, for appellants.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Following an opinion reported in Publix Super Markets, Inc. v. Gomis, 367 So.2d 722 (Fla.3d DCA 1979), the matter reoceurred in the trial court for a determination of whether or not the claimant under workmen’s compensation had received less than the full value of the damages sustained from a third party tort-feasor. The trial judge again rendered a fifteen (15%) per cent equitable distribution. We reverse.

The claimant failed to demonstrate in the record, and therefore did not sustain his burden to show a recovery of less than the full value of his injuries. Therefore, pursuant to Section 440.39(3)(a), Florida Statutes (1975), the employer and its workmen’s compensation carrier were entitled to fifty (50%) per cent of what was paid and future benefits to be paid.

The appellee attempts to defeat the lien of the carrier because of an alleged failure to record its lien, as provided in Section 440.39, Florida Statutes (1975). If recording is a requirement for a valid lien (which we do not here decide) any objection upon this ground was waived because it was not properly raised in the trial court by pleading or as an issue in the prior proceedings before this court.

Therefore, the order of distribution is reversed, with directions to award the employer or its compensation carrier one-half of the amount it has paid on the claim.

Reversed and remanded, with directions.