text:
    LIFE LABORATORIES, INC., Appellant, v. Cleopatra VALDES, Appellee.
    No. 80-224.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1980.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellant.
    Charles F. Atwood, III, and Theresa E-Dalba, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

By interlocutory appeal, appellant, defendant below (Life Laboratories), seeks reversal of an order denying its motion to dismiss appellee’s (Valdes) amended complaint for lack of in personam jurisdiction. We find error and reverse.

Valdes’ amended complaint sought to impose liability against Life Laboratories and co-defendant, Plus Products Corporation (against which the amended complaint is pending in the trial court) on various product liability theories.

Valdes attempted to subject Life Laboratories to the long-arm jurisdiction of the Florida courts under Section 48.-193(l)(f)2, Florida Statutes (1979). In order to invoke a statutory right, a pleader must either allege ultimate facts to activate the statute or show how the statute applies. 25 Fla.Jur. Pleadings § 57. Valdes’ amended complaint did not do either but instead merely tracked the qualifying language in Section 48.193(l)(f)2 and, standing alone, this is insufficient.

In her amended complaint, Valdes alleged that:

Defendant, LIFE LABORATORIES, INC. is the manufacturer of the product, PLUS FORMULA 730 PABA CREME, and Defendant offered the product for consumption by the public, and consumers generally, by manufacturing the product for PLUS PRODUCTS who sold the product to retail merchants, who then sold the product to consumers, such as Plaintiff, in Florida.

The amended complaint must be gauged by the foregoing allegation to determine whether Valdes pled sufficient ultimate jurisdictional facts to render Life Laboratories personally amenable to the jurisdiction of the Florida courts.

The constitutionality of Section 48.-193(l)(f)2, was sustained in Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977). In that case, the complaint alleged that the defective product was purchased, based on advertising campaigns conducted in Florida, through wholesale houses, mail order outlets, and other outlets utilized by the manufacturer for the sale of its product to the general public, by which it became available to users in this state.

It is now settled that in order to satisfy the jurisdictional nexus over a nonresident defendant by a long-arm statute and satisfy the minimum contact concept announced in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) a plaintiff must show, as set forth in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), that a non-resident defendant “purposefully avails” himself of the privilege of acting in the forum state. World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Horace v. American National Bank and Trust Company, 251 So.2d 33 (Fla. 4th DCA 1971).

In Aero Mechanical Electronic Craftsman v. Parent, 366 So.2d 1268 (Fla. 4th DCA 1979), that court articulated the test by which to activate Section 48.193(l)(f)2, as follows:

We . . . interpret the phrase in the ordinary course of commerce to mean that the non-resident must at least have some reason to anticipate that his product will reach another state in the ordinary course of interstate commerce. The manufacturer could then be said to have acted in a purposeful manner or with such knowledge as to make its deeds the equivalent of having purposefully availed itself of the privilege of conducting activities within our state, [emphasis original]

366 So.2d at 1270. Although we agree with that test, we find it helpful to amplify and explain by quoting the California Supreme Court in Buckeye Boiler Co. v. Superior Court, 71 Cal.2d 893, 458 P.2d 57, 80 Cal.Rptr. 113 (1969):

A manufacturer engages in the economic activity within a state as a matter of ‘commercial actuality’ whenever the purchase or use of its product within the state generates gross income for the manufacturer and is not so fortuitous or unforeseeable as to negative the existence of an intent on the manufacturer’s part to bring about the result.

71 Cal.2d at 902, 458 P.2d at 64, 80 Cal.Rptr. at 120.

The “purposefully avails” test of Hanson v. Denckla, supra, was further explained in Buckeye Boiler Co. v. Superior Court, supra :

A manufacturer whose products pass through the hands of one or more middlemen before reaching their ultimate users cannot disclaim responsibility for the total distribution pattern of the products. If the manufacturer sells its products in circumstances such that it knows or should reasonably anticipate that they will ultimately be resold in a particular state, it should be held to have purposefully availed itself of the market for its products in that state.

71 Cal.2d at 902, 458 P.2d at 64, 80 Cal.Rptr. at 120.

Like our colleagues in Aero Mechanical Electronics Craftsman, supra, we find no allegations in the amended complaint disclosing that Life Laboratories knew or had any specific reason to anticipate that its products would be shipped in interstate commerce so that it would foreseeably injure a Florida user. There were no allegations that Florida was a target area or that Life Laboratories obtained substantial economic benefit from or sought to enter the Florida market. The complaint alleged that Life Laboratories manufactured the product for Plus Products. There are no allegations that Life Laboratories made marketing, advertising, or distribution decisions or that they controlled those determinations made by Plus Products. There were also no allegations that Life Laboratories distributed its products to Plus Products Corporation with the anticipation that the product would reach Florida.

In construing Section 48.193(l)(f)2, a nexus more substantial than a mere possibility that a product might reach this state must be pled and, if controverted, overcome. Harlo Products Corporation v. J. I. Case Company, 360 So.2d 1328 (Fla. 1st DCA 1978); Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla. 1st DCA 1977); Dunn v. Upjohn Company, 350 So.2d 127 (Fla. 1st DCA 1977); Dublin Company v. Peninsular Supply Company, supra; In-Flight Devices Corporation v. Van Dusen Air, Inc., 466 F.2d 220 (6th Cir. 1972).

Accordingly, we reverse the interlocutory order appealed from and remand the cause with directions to dismiss the amended complaint, without prejudice, for lack of in per-sonam jurisdiction.

Reversed and remanded.

      . We have jurisdiction pursuant to Fla.R. App.P. 9.130(a)(3)(C)(i).

      . 48.193 Acts subjecting persons to jurisdiction of courts of state. -
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:

      (f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury either:

      (2) Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury.

      . In its motion to dismiss for lack of jurisdiction over the person, Life Laboratories incorporated a sworn affidavit controverting the material allegations of the complaint. We do not consider the affidavit here because we agree with Life Laboratories that Valdes did not satisfy her initial pleading burden so as to subject Life Laboratories to personal service. Dublin Company v. Peninsular Supply Company, 309 So.2d 207 (Fla. 4th DCA 1975).

      . The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.
      357 U.S. at 253, 78 S.Ct. at 1239-40, 2 L.Ed.2d at 1298.


source: Caselaw Access Project

author: HURLEY, Judge.

license: Public Domain

text:
    Orville KRIEGER, Phillip E. Miller and Malcom Firth, Appellants, v. OCEAN PROPERTIES, LTD., a Florida Corporation, and Thomas Walsh, Appellees.
    No. 78-721.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.

      William F. Zamer of Zamer & Holmes, Oakland Park, for appellants.
    Patrick L. Bailey and George E. Gleason of Sullivan, Ranaghan, Bailey & Gleason, Pompano Beach, for appellees.
   HURLEY, Judge.

Appellants, plaintiffs below, appeal the entry of an adverse final judgment, entered upon a motion for judgment on the pleadings. We reverse.

Plaintiffs filed a three count amended complaint. Counts one and two sought brokerage commissions allegedly due as a result of the sale of Florida realty. Count three alleged tortious interference with a contractual or business relationship.

The amended complaint indicates that plaintiffs Krieger and Miller are real estate brokers licensed in the state of Indiana. Plaintiff Firth is a real estate broker licensed in the state of Florida. Appel-lee/defendants are the purchasers of four Holiday Inns located in Florida. Plaintiffs claim to have rendered multiple services and to have been the procuring cause in the purchase of these Holiday Inns.

In granting judgment on the pleadings, the trial court expressly relied on two cases: Paris v. Hilton, 352 So.2d 534 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 713 (Fla. 1978), cert. denied, 441 U.S. 931 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979) and Meadows of Beautiful Bronson, Inc., v. E.G.L. Investment Corp., 353 So.2d 199 (Fla.3d DCA 1977), cert. denied, 360 So.2d 1248 (Fla. 1978). Both cases dealt with the performance of real estate brokerage services in Florida by individuals not licensed or registered in Florida, and consequently the court found, as a matter of public policy, that the contracts were void and unenforceable. See Sections 475.01(2) and 475.41, Florida Statutes (1977). On the other hand, it has long been recognized that brokers licensed in other states may recover commissions in connection with the sale of Florida realty where such brokers were employed by brokers licensed in Florida to locate purchasers within the states in which they were licensed. Kagan v. Garfinkle, 312 So.2d 778 (Fla.3d DCA 1975); Pokress v. Tisch Florida Properties, Inc., 153 So.2d 346 (Fla.3d DCA 1963).

To properly evaluate plaintiff’s complaint, we must turn to the general rules governing motions for judgment on the pleadings. Under Rule 1.140(c), Fla.R. Civ.P., all material allegations of the opposing party’s pleading are to be taken as true, and all those of the movant which have been denied are taken as false. McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976). Since an answer requires no responsive pleading, all allegations contained therein are deemed denied. Butts v. State Farm Mutual Automobile Ins. Co., 207 So.2d 73 (Fla.3d DCA 1968). Such a motion is to be decided wholly on the pleadings, without the aid of outside matters. City of Miami v. J. C. Vereen & Sons, Inc., 359 So.2d 533 (Fla.3d DCA 1978). Judgment on the pleadings may be granted only if, on admitted facts, the moving party is clearly entitled to judgment as a matter of law. Williams v. Howard, 329 So.2d 277 (Fla.1976). It is improper for a trial court to enter judgment on the pleadings where a factual question is involved. McAbee v. Edwards, supra.

The pleadings in the case at bar fail to specify whether brokerage services were rendered in Florida and, if so, by whom. Determination of this issue involves factual questions which cannot be resolved except by evidence outside the pleadings, thereby precluding entry of judgment on the pleadings.

Appellants also contend that the trial court erred in granting appellees’ motion for judgment on the pleadings with respect to count three of the amended complaint, tortious interference with a contractual or business relationship.

Applying the previously discussed standards for determination of a motion for judgment on the pleadings, appellants’ allegations in their complaint must be taken as true. These included: (1) appellants had a valid contract with All American Leisure Properties, Inc., the seller, concerning payment of a commission by All American to appellants with respect to a Holiday Inn in Delray Beach; (2) appellees orally contacted All American and attempted to cause All American to delay or deny payment of said commission and “did otherwise attempt to interfere” with the contract; (3) as a result of appellees’ actions, payment from All American was substantially delayed; (4) ap-pellees’ actions were willful, wanton, malicious, indifferent, and unlawful, and caused financial detriment to appellants.

This court set forth the elements of the tort of interference with business relationship in Symon v. J. Roife Davis, Inc., 245 So.2d 278, 280 (Fla. 4th DCA), cert. denied, 249 So.2d 36 (Fla.1971) as follows:

The elements of the tort, then, are: (1) the existence of a business relationship under which the plaintiff has legal rights, (2) an intentional and unjustified interference with that relationship by the defendant, and (3) damage to the plaintiff as a result of the breach of the business relationship.

In establishing this tort, it is not essential that the business relationship be founded on an actual enforceable contract. United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668 (Fla.1979); Azar v. Lehigh Corporation, 364 So.2d 860 (Fla. 2d DCA 1978). There must, however, be some attendant legal rights. Lake Gateway Motor Inn, Inc. v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979).

The complaint in the instant case alleges each of the elements set forth above and, this being a motion for judgment on the pleadings, these allegations are taken as true. Thus, it was improper for the trial court to enter judgment on the pleadings for appellees as to this cause since, on the facts admitted, the movants were clearly not entitled to judgment as a matter of law. City of Miami v. J. C. Vereen & Sons, Inc., supra.

Accordingly, the order under appeal is reversed and the cause is remanded for further proceedings consistent with this opinion.

DOWNEY and GLICKSTEIN, JJ., concur.

      . Chapter 475, Florida Statutes was subsequently repealed by Laws 1976, c. 76-168, § 3, effective July 1, 1978. Laws 1977, c. 77-457, § 1 amended Laws 1976, c. 76-168, § 3, to change the effective date of repeal to July 1, 1979. Laws 1979, c. 79-239, renumbered, amended, readopted or repealed the provisions of the chapter and, as reconstituted, it appears as Fla.St.1979, Chapter 475, §§ 475.001 to 475.-486.


author: BERANEK, Judge.

text:
    Craig Lawrence MANNER, Appellant, v. STATE of Florida, Appellee.
    No. 78-1585.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Rehearing Denied Oct. 15, 1980.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal from a judgment and sentence for possession of cocaine with intent to sell and conspiracy to obtain cocaine.

The defendant raises two points for consideration. Defendant initially contends that evidence was admitted which was outside the time restrictions of a bill of particulars filed by the State. We find no error in this regard. Clearly, defendant was not embarrassed in his defense and the facts introduced into evidence were relevant to the crime of conspiracy. Sharp v. State, 328 So.2d 503 (Fla. 3d DCA 1976).

Defendant also asserts the evidence was insufficient to support his conviction of conspiracy. Our review of the evidence convinces us to the contrary.

The essential facts regarding conspiracy are as follows. On July 18, 1977, John Marinello, an undercover policeman, inquired of John Dean about the purchase of two grams of cocaine. Dean told Marinello his source lived in Lake Worth. Marinello went to Dean’s later that evening and Dean left to get the cocaine from his source. Dean was followed by police to defendant’s house and back to Dean’s own home. Mari-nello testified that Dean said there had been a problem at the house and he would have to return later. Shortly thereafter, Dean was again followed to defendant’s house. On this trip Dean returned to Mari-nello with cocaine.

The next day, Dean told Marinello he would sell him more cocaine. Marinello testified Dean stated his connection was coming to the house to deliver the cocaine. Marinello called again and Dean told him that his source and the cocaine were there. Five minutes later, Marinello went to Dean’s house and saw defendant sitting in the living room with Dean’s wife. Dean and Marinello concluded their sale outside the presence of the defendant and no discussion of the sale occurred in his presence.

On June 26, Dean and Marinello discussed another purchase and Dean indicated he could get more from the same source.

On July 27, at 8:30 p. m., Dean told Marinello that his source would be bringing over the cocaine shortly. Several agents were at this time watching defendant’s house and followed him as he went to Dean’s house. Officers identified themselves to defendant when he arrived in Dean’s driveway. At this point defendant backed out and started driving away pouring a plastic packet of white powder out the window as he went. The packet and powder were recovered in the street and the powder was identified as cocaine.

Defendant maintains the above was insufficient evidence upon which a jury could return a verdict for conspiracy to sell cocaine. The crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Both an agreement and an intention to commit an offense are necessary elements of this crime. King vState, 104 So.2d 730 (Fla.1958); Ramirez v. State, 371 So.2d 1063 (Fla. 3d DCA 1979). Evidence that a defendant aided and abetted another in the commission of a crime is insufficient to support a conviction of conspiracy. Ramirez, supra.

We can find no Florida decision with sufficiently similar facts to aid us in determining whether there was sufficient evidence in this case. Defendant urges the evidence of conspiracy here is circumstantial. The existence of an agreement to support a charge of conspiracy may, however, be shown circumstantially. United States v. Hitsman, 604 F.2d 443 (5th Cir. 1979); Borders v. State, 312 So.2d 247 (Fla. 3d DCA 1975).

One Fifth Circuit decision is sufficiently similar to shed light on the issue. In United States v. Littreil, 574 F.2d 828 (5th Cir. 1978), a co-defendant Davi was arranging a sale of cocaine with drug agents and called his “source” telling him to bring it over. Shortly later, Davi said, “All right. The man is here.” Littreil, the appellant, drove up and Davi went out to talk to him. Litt-reil left and went next door to a bar. Davi then took a white paper sack containing cocaine from the glove compartment. In reviewing the subsequent conspiracy conviction of Littreil, the court found insufficient evidence. In the court’s view, even when the evidence was viewed most favorably to the Government it did not exclude every reasonable hypothesis of innocence. The court considered it possible that Littreil was merely an unknowing courier and noted there was no evidence that Littreil owned the car or that he knew there was cocaine in it.

Where the instant ease differs from Littreil, however, is the key element of evidence of knowledge of the presence of cocaine. When defendant was approached by police officers in Dean’s driveway, he immediately backed out and tried to drive away pouring cocaine out the window as he left. Unlike Littreil, we have more than mere presence at the scene to “tip the balance.” Here, defendant demonstrated knowledge which when taken with the other circumstantial evidence viewed most favorably to the State was sufficient basis upon which the jury could have found defendant guilty of conspiracy.

AFFIRMED.

. MOORE and HURLEY, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Danny Ray GASPARD, Appellant, v. STATE of Florida, Appellee.
    No. OO-381.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1980.

      Michael J. Minerva, Public Defender, and Louis G. Carres, and Margaret Good, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

Gaspard’s appeal from his conviction of the crime of false imprisonment presents the issue of whether his written confession given on Thursday, April 13,1978, four days after his arrest, was shown by the State to have been free of the coercive influences found sufficient by the trial judge to suppress his oral confession made on Wednesday evening, April 12,1978. Appellant contends that nothing in the evidence shows a break in the chain of circumstances sufficient to erase the taint of the coercive interrogation that made his Wednesday evening confession inadmissible. We agree and reverse.

Appellant was charged with kidnapping arising from an incident in which he allegedly drove his automobile from Quincy, Florida, into the State of Georgia, carrying with him against her will a minor female whom he forced to engage in oral sex with him, then released. An alert police officer who knew a warrant had been issued for appellant’s arrest, using identification furnished by individuals who had been in the company of appellant and the victim just prior to her abduction spotted appellant on his return through Quincy and placed him under arrest. It was not known until a week later that the victim, unharmed, had made her way back to Ft. Lauderdale. During the four days following his arrest appellant was subjected to multiple interrogations, including two polygraph tests, which produced incriminating statements and a written confession, all of which appellant moved to suppress prior to trial.

The facts as established at the suppression hearing show that appellant was arrested at 1:05 a. m. on Sunday, April 9, 1978. At the police station he was given a Miranda, warning and interrogated by officers until approximately 3:00 a. m., and by the State Attorney’s investigator until approximately 4:00 a. m. At about 6:30 a. m. on the same date appellant accompanied officers to the spot in Georgia where he said he last saw the victim, and was then returned to Quincy at about 11:00 a. m., and placed in the county jail.

Further interrogation took place on Monday, April 10, at the State Attorney’s office in Gadsden County. Additional trips were made to Georgia, but the record is not entirely clear when these trips were made.

On Tuesday, April 11,1978, appellant was again taken to the State Attorney’s office for a polygraph examination administered by an examiner employed with the Florida Department of Criminal Law Enforcement. Testimony of the participating officers differ as to the exact time of this examination and how long it lasted. It apparently began no earlier than about 4:00 p. m., and continued not later than 10:00 p. m. that evening. During this polygraph test the examiner, or one of the investigating officers, told appellant that his minor victim had been found dead and that her body was in a morgue, which was untrue. During the examination appellant stated that the victim was alive when he last saw her. The examiner testified that the polygraph indicated this response was untruthful, and appellant was so advised, although it was in fact true.

A second polygraph examination was conducted on Wednesday, April 12. This interrogation extended from about 12:30 or 1:00 p. m. until 5:30 or 6:00 p. m. Only the examiner and appellant were present in the' room while the examination was being conducted; however, several officers, including Assistant State Attorney Richmond, Sheriff Woodham and Captain Clark of the Sheriff’s Department were all present in an outer office.

During this second polygraph examination screams were heard coming from the polygraph room. When the Assistant State Attorney entered the room, appellant crawled on his hands and knees across the room, crying, and grabbed the Assistant State Attorney around the waist, saying, “I didn’t mean to kill her. I didn’t kill her.” One officer testified that appellant was “just crying and carrying on, just hollering and screaming.”

The polygraph examiner testified that during the second polygraph examination, on Wednesday afternoon, appellant’s appearance was that “of a dog that had been whipped,” that he became “quite upset,” and was psychologically and mentally exhausted.

Continuing into Wednesday evening, after the polygraph examination, appellant was interrogated by two investigators from the State Attorney’s office. This interrogation lasted from approximately 6:00 p. m. until about 7:00 p. m., when the officers obtained from appellant an oral statement. During either this Wednesday evening interrogation, or that of the day before, appellant asked for psychiatric help.

Appellant testified, without contradiction, that the Assistant State Attorney read to him from the Florida Statutes concerning the death penalty, and that he was told “about the electric chair” many times during the interrogations. At one point during the interrogations the officers succeeded in obtaining a “false confession” in which appellant stated that he “had visions and remembered something vaguely about some water and putting some brush or brushes over her.” Evidence at the trial revealed that nothing of this sort occurred.

On Thursday, April 13, 1978, appellant was taken to the office of the Sheriff in the Gadsden County Courthouse, where Sheriff Woodham and Captain Clark continued the interrogation. After again being advised of his rights, the Sheriff testified that appellant gave oral statements, then a written statement. This interrogation commenced at about 8:30 a. m. and terminated with the obtaining of the written statement at approximately 10:30 a. m.

At the suppression hearing the State indicated that it would seek introduction into evidence only of the Wednesday night oral confession and the Thursday morning written confession. The trial judge suppressed the Wednesday evening oral confession, but ruled that the Thursday morning written confession would be admissible, based upon his determination that sufficient time had elapsed from the interrogation of the previous evening, and under all the circumstances, that this could be considered to have been freely and voluntarily made.

We conclude that the ruling as to the Thursday morning confession was erroneous based upon the recent decision of the Florida Supreme Court in Brewer v. State, 386 So.2d 232, (Fla.1980), because here, as in Brewer, the State has failed to carry the burden of showing that the coercive influences which produced the inadmissible Wednesday night confession had been dissipated prior to the Thursday morning confession.

Once it is established that there were coercive influences attendant upon an initial confession, the coercion is presumed to continue “unless clearly shown to have been removed prior to a subsequent confession.” State v. Outten, 206 So.2d 392, 396 (Fla.1968). The inquiry is whether, under the circumstances, the influence of the coercion that produced the first confession was dissipated so that the second confession was the voluntary act of a free will. See, e. g., Darwin v. Connecticut, 391 U.S. 346 [88 S.Ct. 1488, 20 L.Ed.2d 630] (1968); Leyra v. Denno, 347 U.S. 556 [74 S.Ct. 716, 98 L.Ed. 948] (1953); United States v. Bayer, 331 U.S. 532 [67 S.Ct. 1394, 91 L.Ed. 1654] (1947); Lyons v. Oklahoma, 322 U.S. 596 [64 S.Ct. 1208, 88 L.Ed. 1481] (1943). (Brewer v. State, supra, at 236).

Upon examining the “totality of the circumstances surrounding the confession,” as mandated by Brewer, we find nothing upon which to predicate a ruling that the mere lapse of time between termination of the Wednesday evening confession at 7:00 p. m. and commencement of the Thursday morning interrogation at 8:30 a. m., is sufficient to clearly show removal of the coercive influences previously exerted upon appellant.

Because we are dealing with the cold record, we must first recognize the rule that a determination by the trial judge that a confession was freely and voluntarily made comes to a reviewing court with the same presumption of correctness which attends jury verdicts and final judgments. Stone v. State, 378 So.2d 765 (Fla.1979). Our review in light of this rule has a dual aspect, for on the one hand the trial judge’s ruling invalidated, as involuntary, the purported confession made on Wednesday evening, April 12, but held voluntary, and admissible, the Thursday morning statement. As to the suppression of the Wednesday evening statement we are satisfied that the ruling of the trial judge, after hearing the testimony of the law enforcement officers who participated in the interrogation, and that of the appellant, was eminently correct. We agree with the judge’s observations found in the record of the suppression hearing concerning the tactics used during the interrogation, and we further agree with his ruling excluding the Wednesday evening statement, as follows:

THE COURT: Well, the investigation that was going on initially was to either locate a missing girl, a missing thirteen-year-old girl, with some indications that foul play had occurred. And I think there is a great deal of latitude to officers who are trying to not just solve a crime that has been committed, but to ascertain the destiny of someone who is a possible victim. So the interrogation was critical to get information and get it as quickly as possible and to rescue the girl, or least find her if she was alive, and, if dead, to find the body. So I think that what took place Sunday night or Sunday morning and the trip up into Georgia was not out of line or unreasonable. As I understand, there are no statements that were taken at that time that would be used, anyway.
Now, frankly, I am concerned about this polygraph test. I am not knowledgeable of the technicalities and procedures and so forth, but what was given as a false answer was a patently true answer; that when he last saw her, she was alive; and there was no way it could have been anything else. And that was put down as a false statement.
Another thing, did he do anything to cause her death? And he said that was false. And, of course, it was true because she hadn’t been killed.
And then to deliberately tell a falsehood as a basis for finding out whether a falsehood is going to be told somehow to me, doesn’t add up.
But I don’t understand that you are intending to use anything that grew out of this polygraph examination, but I do understand that the statements that were made to VanLandingham and Gandy were shortly after that. Is that true?
MR. RICHMOND: That’s true, your honor. It was within an hour and a half, approximately, of the polygraph examination.
Now the statement, if I might clarify for the Court, the statement that she was dead was made the first time on the 11th and was cleared up on the night of the 11th. The statement made-
THE COURT: Does the evidence show that he did know she was alive?
MR. RICHMOND: Well, the evidence showed we didn’t know what had happened to her, but we sure didn’t know she was dead, like he had been told, at that point.
MR. DUVALL: Your honor, if I might, I believe Mr. Townsend testified that at the time of the second polygraph test he was told-
THE COURT: Well, he asked did he do anything to cause her death.
MR. RICHMOND: That’s true.
THE COURT: And he said, “No,’’ and he said that was a lie.
MR. RICHMOND: That’s true.
THE COURT: What’s true? Nothing is true about it.
MR. RICHMOND: He didn’t tell him she was dead that day.
THE COURT: Did he tell him that they didn’t know whether she was dead?
I’m going to suppress VanLandingham and Gandy’s statement, but I’m going to admit the other one. .

The arguments presented in this court by the State, in support of the trial judge’s admission of the Thursday morning statement, appear to be primarily applicable to the question of whether there was evidence sufficient to establish threats, coercion or improper influences requiring exclusion of any statement or confession made by appellant. The State cites Florida precedents holding that deception and trickery alone will not invalidate a confession. Denmark v. State, 95 Fla. 757, 116 So. 757 (1928); Halliwell v. State, 323 So.2d 557 (Fla.1975). Under the “totality of the circumstances” test, however, the use of deception, trickery, or misrepresentation is a factor to be considered. Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1968).

Mental or emotional disturbance resulting from the stress imposed by the predicament in which the accused finds himself, not induced by extraneous pressures, will not alone invalidate a confession. Ebert v. State, 140 So.2d 63 (Fla.1962). It is clear, however, that coercion sufficient to invalidate a confession can be mental as well as physical. Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). This court recently held, in Hawthorne v. State, 377 So.2d 780 (Fla. 1st DCA 1979), that a confession was invalidated because it was produced by improper inducements and influences.

Although the constitutional inquiry into the issue of voluntariness “requires more than a mere color-matching of cases,” Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961), we have given consideration to a number of cases involving successive confessions in order to become familiar with factors of significance in determining whether coercive influences invalidating prior confessions have been dissipated or removed. Among these factors are communication with counsel, or other persons from the outside world, or lack of it, during the intervening period between the coerced and subsequent confessions, Darwin v. Conn., 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968), Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 483 (1967); removal from the place where the improper coercion occurred, Lyons v. Okl., 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 148 (1943); giving a confession to persons other than those who participated in the preceding coercive activity, Lyons v. Okl. supra; the interval of time elapsing between the coercion and the subsequent confession, U.S. v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947); and the presence or absence of restraints or relative freedom during the intervening period, U.S. v. Bayer, supra. It goes without saying that the extent or degree of the improprieties involved, and their effect upon the accused, will necessarily in every case be a factor in determining when such improper influences have ceased or become dissipated, and as to these matters the trial judge is in far better position than this court to make a judgment, particularly where the evidence is in conflict.

With these factors in mind, we further examine the evidence. During questioning early on Sunday morning following his arrest, appellant admitted being with the minor victim and volunteered to take the officers to the place in Georgia where he said he let her out of the car. The trip was made and appellant showed the officers the place. He was told that' he was under arrest for possible kidnapping and murder. Later that day a tape recorded statement was given in which appellant related the events surrounding his meeting the girl and two other hitchhikers, a boy and a girl, near Daytona Beach, and driving with them to Quincy, Florida. In Quincy, while the boy and the other girl were buying food in a store, appellant drove off and left them. He denied knowing the young girl was in the back seat of his car until he stopped in Georgia, but he did advise the officers that he had left her there, unharmed.

Appellant’s story was not believed by the investigating officers, and he was so informed. The officers were genuinely concerned that the girl might in fact be either dead, or perhaps seriously injured and in need of help. In any event, they offered and appellant apparently requested, a polygraph examination. He was questioned only briefly on Monday. During the first polygraph examination, on Tuesday, he was told that the girl was dead. According to his testimony, and that of the polygraph examiner, at this time he was already tired and exhausted. He had been repeatedly questioned and requested to tell the officers where the girl’s body could be found. Appellant testified that he was threatened repeatedly with the electric chair. During the Wednesday polygraph examination, he was told that the polygraph had registered the fact that he had killed the girl. Appellant became frightened, upset, he broke down, screamed, begged for help and pleaded with the officers to believe he had not killed the girl. The intensity of the interrogation and its coercive effect upon appellant is evidenced, to some degree, by the testimony of the State’s own witness who related appellant’s false admissions to the effect that he remembered water, and putting some brush or brushes over the girl.

Investigators Gandy and VanLanding-ham began their Wednesday evening interrogation of appellant immediately following the polygraph examination which had already produced the dramatic breakdown referred to above. It was during this Wednesday evening questioning that appellant made his first admission of criminal conduct.

The polygraph examinations and the interrogation by the State Attorney’s investigators were conducted in the State Attorney’s office in Quincy. The Thursday morning confession, given in the presence of Sheriff Woodham and Captain Clark, was in the Sheriff’s office, in the Gadsden County Courthouse, also in Quincy. Sheriff Woodham was present in the State Attorney’s office on Tuesday evening, and had conversations with the appellant. Sheriff Woodham and Captain Clark were also present in the State Attorney’s suite of offices when the second polygraph exam was given on Wednesday, although the record does not indicate their presence in the examining room at the time the test was being administered. It is clear that the City Police Department, State Attorney’s office,.and the Sheriff’s office were all involved in the investigation from its beginning.

At no time, from the beginning of the interrogation at the time of his arrest, until after the Thursday confession, was appellant represented by counsel. It appears that counsel was appointed on April 19, 1978, six days after the confession. Although no issue is made of it on this appeal, we observe that the record before us does not show whether Rule 3.130, Florida Rules of Criminal Procedure, the “first appearance” rule, was complied with. There is an indication, based upon appellant’s testimony that he was given a “bond hearing,” and that he was given a first appearance. However, we are unable to determine whether defendant was properly advised of his right to counsel at the first appearance, or whether after being so advised, he waived counsel in writing, as required by the rule.

Summarizing, appellant was subjected to repeated and coercive interrogations over a period of four days, gave a confession which the trial court suppressed because of the improper influences producing it, and repeated his confession some twelve hours later in the same locality, before some of the same officers who were present during prior interrogations, without the benefit of counsel or the intervention, for that matter, of any other person not connected with the investigating officials.

We have noted the testimony of appellant, given at the suppression hearing, that he talked with everyone “voluntarily”, and the testimony of the Sheriff, who stated that appellant appeared rested and relaxed prior to giving his Thursday morning statement. Beyond these circumstances, and the mere conclusory declarations by the witnesses that appellant’s Thursday morning statement was freely and voluntarily made, we find no other articulable facts in the record to support the conclusion that the twelve-hour interval of time just prior to the Thursday morning statement was sufficient to dissipate the improper influences of the preceding days.

Because of our ruling on the confession issue, we find it unnecessary to address appellant’s contention that the trial court erred in quashing the witness subpoena issued for the deposition of Assistant State Attorney, Hal S. Richmond. We further determine that the trial court did not err in denying appellant’s motion for judgment of acquittal based upon insufficiency of the evidence.

For the foregoing reasons, the judgment of conviction is REVERSED and the cause is REMANDED for a new trial.

SHAW, J., and LILES, WOODIE A. (Ret.), Associate Judge, concur.


text:
    Vicki GAINEY, Appellant, v. SCHOOL BOARD OF LIBERTY COUNTY, Florida, Appellee.
    No. PP-271.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1980.

      Ronald G. Meyer, Tampa, for appellant.
    James Conner, Tallahassee, and Gary M. Ketchum, Tampa, for appellee.
   LARRY G. SMITH, Judge.

Vicki Gainey appeals from an order of the School Board of Liberty County denying her continuing contract status, reinstatement to her teaching job in Liberty County, and reimbursement of lost salary during the period when she was denied teaching employment in the County. We conclude that the School Board erroneously rejected the recommended order of the hearing examiner, Division of Administrative Hearings, who found, based upon competent substantial evidence, that appellant had not resigned, abandoned her job, nor waived her right to continuing contract status, and that she was statutorily guaranteed continuing employment. Reversed with directions.

Continuing contracts for members of the instructional staff of public schools are provided for by Section 231.36(3)(a), Florida Statutes (1977):

(3)(a) The school board of each district shall provide continuing contracts as prescribed herein. Each member of the instructional staff . . . who:
1. Holds a regular certificate based at least on graduation from a standard 4-year college, or as otherwise provided by law;
2. Has completed 3 years of service in the same district of the state during a period not in excess of 5 successive years, such service being continuous except for leave duly authorized and granted;
3. Has been reappointed for the fourth year; and
4. Has been recommended by the Superintendent for such continuing contract based on successful performance of duties and demonstration of professional competence
shall be entitled to and shall be issued a continuing contract in such form as may be prescribed by regulations of the school board.

Appellant clearly met the first three conditions in that she had the necessary teacher’s certificate, completed three years continuous service (school years 1971-72, 1972-73, and 1973-74), and was reappointed, upon recommendation of the School Superintendent, for the school year 1974-75, her fourth year.

The controversy in this case hinges upon whether the fourth condition - recommendation by the School Superintendent - for a continuing contract was satisfied, so as to entitle appellant to a continuing contract. On this point the hearing examiner ruled in appellant’s favor, giving effect to appellant’s undisputed testimony that she was recommended by her principal and the School Superintendent for reappointment for her fourth year under a continuing contract, and finding that her testimony was corroborated by a letter (dated December 1, 1977) from her principal to the School Board, requesting her reinstatement to continuing status, reciting in part:

Mrs. Gainey held continuing contract in the Liberty County school system prior to taking personal leave in November of 1974. She was re-employed in her original position November, 1976.

The Board presented no testimony controverting that of appellant. In addition, the Board’s official minutes of their May 4, 1974 meeting show that appellant was recommended for employment as a teacher for the 1974-75 school year, and was employed by the Board. A primary cause for the present difficulty between the parties is the failure of these official minutes to contain any reference as to appellant’s employment status, whether upon an annual or continuing contract basis; and this deficiency was further compounded by the failure of the Board to actually ever submit to appellant a written contract for her signature for the school year 1974-75.

The appellee-School Board’s attack upon the hearing examiner’s findings with respect to her contract status focuses upon the equivocal nature of the Board’s minutes, and upon its contention that the hearing examiner erred as a matter of law in considering the principal’s December 1, 1977 letter as evidence, over the Board’s objection that it was pure hearsay. We determine that the deficiencies in the Board’s own minutes cannot be used to deprive appellant of statutory rights she possesses as a teacher; and, although we agree that the principal’s letter cannot be accepted as proof of the Superintendent’s recommendation, it was admissible and entitled to limited consideration in support of appellant’s testimony that she understood she had been recommended for and was under a continuing contract, and it is also indicative of the absence of any question as to appellant’s professional competence and successful performance of her duties.

Our reading of the controlling statutes convinces us that a sufficient showing was made by appellant to warrant a determination that she was entitled to be accorded continuing contract status for the 1974-75 school year. Appellee concedes that the action of the School Board at its May 4, 1974 meeting is significant, “[F]or, at that time the appellant was completing her third continuous year of service with the appellee School Board and it would be the appropriate time for the Superintendent to either recommend that she be hired for a fourth year and be placed on a continuing contract, . or recommend that she be hired for a fourth year pursuant to an annual contract , . . (Appellee’s brief, page 5) This observation correctly sums up the statutory alternatives facing a School Board when a teacher is eligible for a fourth year of employment.

Under Section 231.36(3)(a), the Board . . • shall provide continuing contracts . . .for each teacher meeting the requirements of the statute, including recommendation by the Superintendent for continuing contract “based on successful performance of duties and demonstration of professional competence,” or, under Section 231.351, a teacher who is otherwise qualified under Section 231.36 “may in the alternative be retained on an annual basis if the school board of the particular district upon the recommendation of the superintendent shall by majority vote find that such teacher does not meet the desired standards.” A further provision, found in Section 231.-36(3)(c), allows an extension of the three year service period (Section 231.36(3)(a)3.) to four years, “when prescribed by the school board and agreed to in writing by the employee at the time of reappointment or as provided by Section 231.351.”

The statutory scheme, therefore, is simply that a teacher, upon becoming eligible for and being granted a fourth year of employment, must be considered as entitled to a continuing contract, unless (1) the teacher has been found (by the Board, upon recommendation of the Superintendent) not to meet the desired standards of successful performance and professional competence during the three year service period, or (2) unless the three year period has been extended at the time of reappointment to four years by agreement in writing between the Board and the teacher. In other words, the applicable statutory provisions, when taken as a whole, impose a mandatory duty upon the Superintendent and the Board to either grant a continuing contract (unless agreed otherwise in writing by the teacher), retain the teacher upon an annual contract by finding that the teacher does not meet the desired standards for a continuing contract, or to discharge the teacher. We find no other construction which would give meaning and effect to all the pertinent statutory provisions. If, as apparently assumed by appellee, a teacher meeting the first three conditions of Section 231.36(3)(a) could merely be recommended for employment and hired for a fourth year, without consideration of the teacher’s entitlement to continuing contract status, the legislature would have had no occasion to enact Section 231.351, which requires an affirmative finding of unfitness as a condition to retention for a fourth year under an annual contract. Furthermore, Section 231.36(3)(c), allowing extension of the three year service period to four years by agreement in writing, would be rendered meaningless.

Our interpretation of the statutes is consistent with the ruling in McDowell v. School Board of Suwannee County, 365 So.2d 454 (Fla. 1st DCA 1978), that under the statutes, “a nominee for a continuing contract, as opposed to an annual contract, has an earned status . . . (emphasis supplied) In McDowell, the error of the Board in failing to find “good cause” (under Section 230.23(5)(c), Florida Statutes) for rejection of the Superintendent’s nomination of a teacher for a fourth year continuing contract required that the teacher be furnished a statement of the reasons for her rejection, and be afforded a hearing. This case requires a different remedy, for here appellant not only had an “earned status” under the statutes, she was in fact retained by the School Board for her fourth year; and the action of the Board in re-employing her, without specification of any reason why she did not meet the desired standards (under Section 231.351, Florida Statutes), is tantamount to acceptance of her performance and professional competence as a teacher.

While it is true that no written continuing contract was actually tendered to appellant for her fourth year, contracts were customarily submitted by the Board late in the school year, and it so happened that appellant was granted maternity leave in November, 1974, before her contract for that year was presented to her. That she was employed for the fourth year, however, is not disputed; and the fact that this was not attended by the formality of a signed document is not a circumstance that may be visited upon appellant to deny her statutory continuing contract rights. As between the two parties, the burden of preparing and presenting a written contract clearly falls upon the School Board, not appellant, under Section 230.23(5)(e), Florida Statutes. The familiar equitable maxim, “Equity regards that as done which ought to have been done,” has persuasive force under the circumstances presented here.

In order to retain appellant on an annual contract for her fourth ■ year, the Board, upon the recommendation of the Superintendent, was required to find “by a majority vote” that she did not meet the criteria for a continuing contract. This the Board clearly did not do, and we reject any notion that a School Board may retain an eligible teacher “in limbo” during a fourth year of service by simply failing to comply with these statutory directives. Consequently, we hold that appellant must be held to have met all requirements for a continuing contract for the 1974-75 school year, and the recommendation for her employment by the School Superintendent, and its acceptance by the Board, must be considered as resulting in a continuing, not an annual contract.

Appellee contends, however, that appellant abandoned her job by failing to report for work during the 1975-76 school year, citing Hart v. School Board of Wakulla County, 340 So.2d 121 (Fla. 1st DCA 1976). The Hart case held that a teacher, who had submitted his written resignation to his principal, had the right to withdraw his resignation at any time prior to acceptancé by the School Board, based upon the fundamental premise that a teacher’s contract is with the School Board, not with the principal. Appellee argues, using this ruling, that appellant’s principal, Mr. Johnson, had no authority to extend her leave, which had been granted through June 4, 1975, so as to excuse her absence during the 1975-76 school year. Her absence, according to ap-pellee, could only be approved by the School Board. Consequently, appellee argues, appellant’s failure to appear for her teaching job in the fall of 1975, and her absence for the remainder of the year, constituted an abandonment of her teaching position.

We do not find the Hart decision applicable to the facts of this case. The facts here are that during the summer of 1975 appellant discussed with her principal, Johnson, her inclination to apply for an additional year of leave. Two or three days later, before submitting any leave request forms, she informed the principal that she had changed her mind and instead intended to return to her teaching job for the year 1975-76. The principal, however, advised her that based upon her announced intention, he had in the interim hired someone else to take her position. Appellant maintained her efforts to return to her employment, and at the beginning of the 1975-76 school term, when she again requested her teaching position, she was advised by her principal that he would try to find another position for her. A few months later, her principal called to advise her of a possible opening, but the expected vacancy did not occur. Throughout the 1975-76 year, appellant remained ready, willing and able to return to her teaching job. However, in the fall of 1976, she was forced by the necessity of earning a livelihood to accompany her husband to another state where he had obtained employment. In November 1976, only two months after her departure from Florida, her principal assigned her to a teaching position, and she returned to Liberty County where she resumed her teaching job.

The facts do not support appel-lee’s contention that appellant “abandoned” her teaching position, or that she waived or is somehow estopped to claim the benefit of the statutes providing for continuing contract status. At all times from the date of expiration of her formally approved maternity leave (June, 1975), she remained ready, willing and able to return to her teaching job. Her conversation with her principal, in which she indicated her inclination to have her leave extended, was promptly followed by her withdrawal of that request. For reasons already stated, she cannot be held to have “resigned” her position. Appellee argues, however, that she abandoned her job by failing to report for work in the fall of 1975. We agree that the more prudent course of action on her part would have been to confront the School Board at that time, and to demand her position. That she did not, no doubt out of consideration for embarrassment to her principal that would have resulted, shows only a preference for cooperation and peaceful solutions, rather than abandonment of her position. She testified that she visited the principal either in late August or early September, 1975, explaining to him that while she did not want to force the issue, by a lawsuit in a small community, she would appreciate being given the first teaching position available. There is no merit to appellee’s contention that appellant may be faulted for failing to report for work in August, 1975. She had been advised by her principal that no position was available, and the Board took no action against her for failing to demand a job. If she had been considered in default in any manner, the Board should have taken some'action against her at that time to dismiss her, and to terminate her continuing contract rights in the manner provided by statute, Section 231.36. Subsection (4) of the statute provides for dismissal of a teacher on continuing contract for “good and sufficient reasons” after notice and a hearing on the charges. As this court has previously noted, this statute is in effect a penal statute, which must be strictly construed, and any ambiguities must be construed in favor of the employee. School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1st DCA 1980). It is obvious that no action was taken against appellant because none was warranted, either under subsection (4), or subsection (6), which provides specific grounds for dismissal. We note also that Section 231.44 provides specifically for cancellation of a teacher’s contract for “absence without leave.” No action was taken by the Board under this statute and it is now simply too late for any such action.

Appellee further maintains that appellant’s contract status was changed when she was rehired in November, 1976. At that time she signed a contract for the 1976-77 school year providing for her employment on an annual basis. When she inquired of her principal why she, a continuing contract teacher, was being asked to sign an annual contract, her principal explained only that it was “customary”. At the end of the 1976-77 year the School Superintendent recommended and the Board approved her continued employment, and she was then retained for the 1977-78 school year. However, during the term when she was tendered an annual contract for that year, she refused to sign it, and in early December, 1977, sought clarification from the Board. The Board took no action notwithstanding her claim, supported by the written request of her principal, that she had previously been granted continuing contract rights. At the end of the 1977-78 school year, although her principal recommended that she be re-employed, she was discharged by the School Board.

We agree with appellant that her status was not changed by the signing of an annual contract, notwithstanding the language purporting to limit her right to claim a continuing contract. Clause 9 of the 1976-77 contract provided:

The teacher understands that unless and until she shall receive a continuing contract under and by virtue of the provisions of Section 231.36, Florida Statutes, she shall have probationary status and no legal cause shall be required of the School Board in the event that the teacher is not re-employed by the School Board after 6-30, 1977.

In McDowell, supra, this court held that the annual contract signed by the teacher in that case did not waive or otherwise relieve the Board of its statutory obligations with respect to re-employment of teachers. Although different facts and statutory provisions were involved in McDowell, we apply the same principle here. A teacher whose right to a continuing contract has vested may not be deprived of the benefits of that statutorily mandated status by the device of obtaining the teacher’s signature on an annual contract. See State v. Board of Public Instruction of Palm Beach County, 105 So.2d 511 (Fla. 2nd DCA 1958). Section 231.36(3)(e) further protects the teacher by providing:

(e) Each person to whom a continuing contract has been issued as provided herein shall be entitled to continue in his position or in a similar position in the district at the salary schedule authorized by the School Board without the necessity for annual nomination or reappointment until such time as the position is discontinued, the person resigns, or his contractual status is changed as provided below.

Appellant’s position was not discontinued, she did not resign, and her “contractual status” was not changed in a manner prescribed by the statutes. After the fourth year, a change in contractual status from continuing to annual must be accomplished by the procedures spelled out in the statute, which require notice of charges and a hearing. As already observed, these statutes, being penal in nature, must be strictly complied with. School Board of Pinellas County v. Noble, supra. Since no effort was made to dismiss appellant or terminate her continuing contract rights in the manner prescribed by statute, her discharge was improper, and she is entitled to reinstatement.

We find no merit in appellee’s contention that the relief sought by appellant is barred by the statute of limitations, Sections 95.11(4)(c), (5)(a). However, we agree that appellant must be considered to have acquiesced in loss of pay for the 1975-76 school year, and until her re-employment in November 16, 1976, by reason of her failure to make demand to the School Board for employment.

REVERSED and REMANDED for the entry of an order reinstating appellant to her teaching position, reimbursement of lost salary from the beginning of the school year 1978-79, and payment of expenses of this proceeding.

ROBERT P. SMITH, Jr., and WENT-WORTH, JJ., concur.


text:
    IMPERIAL INDUSTRIES, INC. and Adobe Building Centers, Inc., Appellants, v. The FLORIDA COMPENSATION RATING BUREAU and the Florida Department of Insurance, Appellees.
    No. LL-368.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1980.

      S. Daniel Ponce of Frates, Floyd, Pearson, Stewart, Richman & Greer, Miami and Larry Levy of Dickinson, Levy & Taylor, Tallahassee, for appellants.
    James E. Cobb of Matthews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee, The Florida Compensation Rating Bureau.
    Douglas A. Mang and S. Strom Maxwell, Tallahassee, for appellee, The Florida Department of Insurance.
   REVISED OPINION

MASON, ERNEST E. (Circuit Judge, Retired), Associate Judge.

This is an appeal from an order of The Florida Department of Insurance affirming The Florida Compensation Rating Bureau’s denial of Appellants’ request for relief. Appellants will hereinafter be referred to as Imperial and Adobe, respectively, and Appellees will be referred to as the Bureau and the Department, respectively.

The initial hearing below, held pursuant to the provisions of Section 627.291(2), Florida Statutes, involved review of the manner in which an experience modification was applied by the Bureau to the operations of Appellants for the policy year January 20, 1976-January 20, 1977. An experience modification factor is “a variation from the average premium charged by a particular insured’s industry which expresses the insured’s risk experience over a three-year period above or below the average.” See footnote 1, Florida Welding & Erection Service, Inc. v. American Mutual Insurance Company of Boston, 285 So.2d 386 (Fla. 1973). Appellants had requested that the Bureau apply an experience modification factor of 1.0 or, in the alternative, manual rates, to their operations. The Bureau denied this request, basing its denial on its Rule 11, Section III, Experience Rating Pian Manual-Workmen’s Compensation and Employers Liability Insurance, National Council of Compensation Insurance, hereinafter referred to as “Rule 11”. Appellants, petitioners below, petitioned the Department to review the decision of the Bureau and a hearing examiner was designated by the Department to conduct a hearing upon such petition. The hearing examiner heard all parties interested and made his recommendation to the Department that the decision of the Bureau be affirmed. In so doing, he held that Appellants did not qualify for manual rates or, in the alternative, for an experience modification factor of 1.0, because of the application of Rule 11 to their operations, citing as his reason that Imperial did not undergo a change in ownership interest such as to entitle it to the requested rates. The report, findings, conclusions and recommendations of the hearing examiner were adopted by the Department and the decision of the Bureau affirmed. Hence, this appeal.

Rule 11 of the Bureau as it was applied by the Bureau in denying the relief requested by Appellants provides, in part as so applied:

“11. Change of Control, Management, Name, Operations or Ownership.
(a) If there is a change in control, management, name or operations, not accompanied by any change in ownership interest, incurred experience shall be used in future ratings.
(b) If there is a change in ownership interest, either alone or accompanied by a change in control, management, name or operations . . incurred experience shall be used in future ratings.
Exception: Incurred experience shall not be used in the future ratings of the entity undergoing change:
i. when the entire ownership interest after the change had no ownership interest before the change, or
ii. when the collective ownership interest of all those having such an interest in the entity both before and after the change in ownership amounts to either:
(a) less than 33V3% of the ownership interest before the change, or
(b) less than 50% of the ownership interest after the change.
Note: In the application of this exception, an analysis shall be made to determine the individuals holding ownership interests in any entity, whether the entity be the one rated or any other entity in any way connected, directly or indirectly, in any chain of ownership with the risk being rated.

Ownership Interest:

(1) In any corporation shall be determined on the basis of the ownership of the issued voting stock of any such corporation . . . ”

A recitation of the salient .facts as disclosed before the hearing examiner with respect to the ownership interest in Appellant Imperial Corporation is appropriate to determine if the Bureau’s decision and that of the Department in affirming the same were correct.

Appellant Imperial is a Delaware corporation doing business in Florida and is a publicly owned company trading on the American Stock Exchange. Appellant Adobe is a corporation doing business in Florida which was acquired by Imperial as a wholly-owned subsidiary in 1971. In 1972 Adobe sold 25% of its common stock through a public offering and traded in over-the-counter market until September 30, 1978, when Adobe merged into Imperial and again became a wholly-owned subsidiary. Regal Wood Products, Inc. is a Florida corporation which, prior to October, 1975, was a wholly-owned subsidiary of Imperial. In the latter month Imperial sold Regal to certain of its principal officers, directors and employees. In return the purchasers surrendered 216,420 shares of Imperial’s common stock, which was then retired by Imperial. These shares represented 19.5% of the outstanding shares of Imperial, and the net effect of the sale was to reduce the outstanding common stock of Imperial from I,108,417 to 891,997 shares. In January, 1976, Imperial advised the Bureau that a change of ownership had taken place in Imperial the previous October through the sale of Regal and requested that, “In view of these changes (of ownership and management) . . . Imperial should not be subject to the incurred experience as presently promulgated by (Bureau's) . . . office.” This “incurred experience” sought to be removed in the consideration of rates to be fixed by the Bureau was the unfavorable loss experience of Regal. Based upon such request, the Bureau applied manual rates to the operations of Imperial for 1976 rather than the previous experience modification.

But upon further review, the Bureau in January, 1977, advised Imperial that no material change in ownership in Imperial had actually taken place, and since the continuation or elimination of experience modification was contingent upon ownership changes, or not, in accordance with its Rule II, the earlier application of manual rates was incorrect. The Bureau thereupon reinstated the experience modification as the basis for rates for both Imperial and Adobe for the period in question beginning in October, 1975.

The National Council on Compensation Insurance is a rating organization licensed by the Department to make rate filings in accordance with Chapter 627, Florida Statutes. The Bureau is a division of the Council and as such, it acted as a rating organization for the insurers of Appellants herein. Pursuant to its license from the Department, the Bureau made rate filings for workmen’s compensation pursuant to Section 627.091(4) and adopted rules for the governing of matters pursuant to the filing. Those rules, insofar as pertinent to this case, were incorporated in the manual relating to experience modification and were approved by the Department pursuant to Section 627.231, Florida Statutes. That section of the statute permits the Appellant, upon request, to obtain review by the Department of any rule upon written notice to the Bureau. Section 627.291(2), Florida Statutes, permits review upon written request of the manner in which any rating system has been applied to a particular insured.

It is well to note the difference between a manual rate and a rate based on experience modification factor. A manual rate is a rate set forth in a particular rating organization’s manual of rates, and is based on the experience of a particular industry or class of insureds as to risks or losses. An experience modification rate is one based on the experience of a particular insured as to such risks or losses over a given period of time as noted by the Supreme Court in Florida Welding & Erection Service, Inc., supra.

In their first point on appeal, Appellants complaint that the Bureau’s Rule 11 should not have been applied by it in determining the rate to be fixed for them because the same had not been properly promulgated and filed by the Department with the Department of State prior to the hearing below, as required by the Administrative Procedure Act (Chapter 120, F.S.). If this argument is valid, then we, as the first reviewing authority of agency action, have the jurisdiction and responsibility to review the issue even though, as here, the point as to the validity of the alleged rule was not raised below, either before the hearing examiner or the Department. 4245 Corporation, Mother’s Lounge, Inc., et al. v. Division of Beverage, 348 So.2d 934 (Fla.App.).

However, the rule complained of is not an “agency” rule subject to the strictures of Section 120.54 of the Administrative Procedure Act. Section 120.52(14) defines a rule as “each agency statement of general applicability that implements, interprets. or prescribes law or policy . . . ” (underscoring emphasized). We reject the argument of Appellants that when Appellee Department approved and adopted the order of the hearing examiner, such order became an agency statement of the Department of general applicability which implemented or interpreted or prescribed law or policy. State v. Matthews Corporation, 358 So.2d 256 (Fla. DCA 1978); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. DCA 1977). In adopting the hearing officer’s order, the Department was simply considering the reasonableness of the Bureau’s Rule 11 as applied by it to Appellants and the Department’s order did not, by such adoption, promulgate such rule for general application throughout the industry. Furthermore, the Bureau’s Rule 11 is no more than an internal rule or procedure of a private rating organization created by the Council for the purpose of making rate filings with the Department in accordance with Chapter 627, Florida Statutes. As subscribers to the Council, Appellants, if not satisfied by the rules of such Council’s rating bureau division, could have withdrawn from the Council and formed another rating organization more to their liking, thus removing themselves from the operation of the “Rule” to which they now object.

The “Rule” neither prescribes law nor policy, nor does it describe the procedure or practice, of an “agency” of the government of Florida.

The second and sixth points raised by Appellants are that Sections 627.221, F.S., and 627.291(2), F.S., are unconstitutional in that they constitute improper delegations of legislative authority forbidden by the Florida Constitution. We hold these points to be without merit by force of the reasoning of the Supreme Court of Florida in Florida Welding & Erection Service, Inc. v. American Mutual Insurance Company, 285 So.2d 386 (Fla.1973), supra.

Therefore, turning to the real issue as presented by the record herein, viz: was the Bureau’s rule reasonably applied to Appellants by it, and was there substantial competent evidence to sustain the order of the Department, we find that the rule was reasonably applied and that there was substantial competent evidence to sustain the Bureau’s action and the Department’s order approving the same. We therefore affirm.

Under the provisions of the rule, in order to be entitled to an experience modification factor of 1.0 or manual rates as requested by Imperial, it was necessary for it to show that at the time of Imperial’s application for such rates there had been a material change in ownership by the sale of Regal to certain of its former officers, directors and employees. Upon the sale of Regal to such purchasers, Imperial retired the 216,420 shares of its stock held by such purchasers, inasmuch as the consideration for such purchase was the shares of Imperial stock held by the purchasers. This left 891,997 shares in Imperial of the original 1,108,417 shares of issued stock. Bearing in mind that the test of ownership interest under the rule is based upon ownership of voting stock of the corporation, Imperial still held over 80% of the corporation’s stock after the Regal sale. Therefore, the hearing officer’s finding and conclusion that there was no change of ownership interest and that the proper basis for ratings for the period in question was incurred experience were based upon substantial competent evidence.

We find the other points argued to be without merit.

AFFIRMED.

McCORD and SHIVERS, JJ., concur.


author: McCORD, Judge.

text:
    SOUTH SEAS PLANTATION, LTD., Appellant, v. Hipolito ACEVEDO, Appellee.
    No. QQ-239.
    District Court of Appeal of Florida, First District.
    Sept. 15, 1980.
    Alex P. Lancaster of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellant.
    Robert A. Pierce, Tallahassee, for appel-lee.
    Peter C. Burkert of Henderson, Franklin, Starnes & Holt, Fort Myers, for interve-nors.
   McCORD, Judge.

This appeal is from an order of the Judge of Industrial Claims directing appellant employer to pay workers’ compensation benefits to appellee claimant. We reverse.

Intervenor, Mariner Properties, Inc., is the general partner and managing partner of South Seas Plantation, Ltd., a limited partnership and appellant here. As general partner, Mariner conducts the day-to-day business of the partnership and receives a share of the partnership profits. Appellant partnership is engaged in the business of developing property. While engaged in the development of “Beach Villas,” a condominium project being developed by appellant on land owned by it, Mariner, as managing partner, hired Angelo Avila to clear brush from certain land. Avila hired a number of laborers, including appellee Acevedo to perform the brush clearing job. Appellee was injured while working on that job.

Avila had been hired before by Mariner to perform specified land-clearing projects, and appellee often was one of Avila’s laborers on those projects. There is competent substantial evidence to support the Judge of Industrial Claims’ finding that appellant had no direct control over Avila and his men. The findings of the judge in this regard are as follows:

. I have viewed the totality of the evidence and I specifically find that at the time of the accident, the extent of control exercised by MARINER PROPERTIES’ personnel over the activities of the employees of ANGELO AVILA consisted of observing the work in progress and inspecting the completed work. If any discrepancies were found, they were communicated to the foreman, who was usually ANGELO AVILA, and in his absence, the Claimant, HIPOLITO ACEVEDO. There was no direct control concerning the manner of accomplishing the task. I find that such contact as existed between the employees of MARINER PROPERTIES, INC. and the foreman, ANGELO AVILA, was consistent with the type of work and labor being performed which required certain manual dexterity.
The tools necessary for the accomplishment of the work, including a truck, were provided by ANGELO AVILA and that payment for services performed was made by invoice directly from ANGELO AVILA, who then paid his employees. The basis of payment was the number of man hours of work performed and it was left to the discretion of ANGELO AVILA as to how many men he brought to the job for the accomplishment of the work pursuant to the oral contract. MARINER PROPERTIES, INC., as general partner and agent for SOUTH SEAS PLANTATION LIMITED, had no direct control over the time or date on which ANGELO AVILA reported with his work crew to perform the contract, nor could they require his continued presence until the completion of any tasks beyond the initial contract period. It is apparent from the testimony that MARINER PROPERTIES, INC. did not have the ability to discharge or terminate an individual employee, but merely to make any complaints or demands upon the subcontractor, ANGELO AVILA, or the foreman present on the job during ANGELO AVILA’s absence; in this case, the Claimant, HIPOLITO ACEVEDO, and thereafter terminate the services under the contract of the entire crew.

We disagree with the judge’s finding or conclusion that “at the time of the accident, ANGELO AVILA was an independent subcontractor providing semi-skilled labor services to SOUTH SEAS PLANTATION, LTD., pursuant to oral contracts made with MARINER PROPERTIES, INC., acting as agent for SOUTH SEAS PLANTATION, LTD.” insofar as he found Avila to have been a subcontractor. By virtue of this finding, the judge required appellant to pay workers’ compensation benefits to appellee pursuant to § 440.10(1), Florida Statutes (1977), which in pertinent part states as follows:

“. . . In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment . . . ”

Avila had not secured payment of compensation to appellee so the judge, considering him to be a subcontractor, awarded compensation to appellee against appellant as the contractor.

The keystone issue on this appeal is the question of whether or not a contractor-subcontractor relationship existed between appellant and appellee’s employer Avila. Only if such a relationship existed is appel-lee entitled to receive compensation from appellant. Since appellant had no primary obligation under a contract which it passed on to Avila as subcontractor, Avila cannot be classified as a subcontractor. See Jones v. Florida Power Corporation, 72 So.2d 285 (Fla.1954); State v. Luckie, 145 So.2d 239 (Fla. 1 DCA 1962). In construing the statute involved here, this Court, in Luckie, stated as follows:

It seems clear from the facts in this case that Auchter occupies the position of primary employer and owner of the land and the improvements sought to be constructed thereon. The fact that it is also a licensed general contractor engaged in the construction industry would appear to be of no importance, and has no controlling effect upon the interpretation to be placed upon the pertinent statute under consideration. In order for Auchter to be considered a contractor within the meaning and intent of the statute it would have to be bound by a contractual obligation to build for some third party the improvements which were in the process of construction at the time Swain was injured. By the same token Florida Steel could not be held to be a subcontractor within the meaning of the statute unless it can be established that Auchter passed on to Florida Steel an obligation under a contract for which Auchter was primarily obligated.

The above ruling is equally applicable to the case here before us except that here the facts militating against a finding of a contractor-subcontractor relationship is stronger because there is no indication that either appellant partnership or one of its partners, Mariner, was a licensed general contractor.

Appellee and the Judge of Industrial Claims both relied upon Allison Developments, Inc. v. Rudasill, 202 So.2d 752 (Fla. 1967). That case is not applicable to the situation here before us, however, because it appears from that opinion that Allison contracted with a purchaser to build a home and .then sub-contracted with others to perform certain parts of the construction.

REVERSED.

MILLS, C. J., concurs.

BOOTH, J., dissents without written opinion.


author: DANIEL S. PEARSON, Judge.

text:
    Donald J. MULLER, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1860.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker and Karen M. Gott-lieb, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto and James H. Greason, Asst. Attys. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

This is an appeal of three criminal cases consolidated for hearing in the trial court. In each case Muller contended that the trial court erroneously denied his motion for discharge based on a violation of the speedy trial rule.

On December 29, 1975, Muller was taken into custody on an arrest warrant charging him with an offense committed that date (Circuit Court Case No. 76-261), and on alias capiases issued on December 8, 1975, as a result of his failure to appear for proceedings in two cases upon which he had been earlier arrested and admitted to bail (Circuit Court Case Nos. 75-1023 and 75-6768). On July 2, 1976, not having been brought to trial on any of the three cases, Muller demanded a speedy trial, and on July 6, 1976, moved for discharge under Florida Rule of Criminal Procedure 3.191(d)(1).

Muller’s claim in respect to Case Nos. 75-1023 and 75-6768, the two cases pending before December 29, 1975, is unavailing. It appears that in October 1975, Muller moved for and was granted a continuance of the trial of these cases and did nothing until July 2, 1976, to revive his right to speedy trial under the rule. Butterworth v. Fluellen (Fla.1980) (Case No. 57,385, opinion filed July 24, 1980); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971).

Muller’s claim in respect to the case which began with his arrest on December 29, 1975, is different. The October 1975 continuance was unrelated to the distinct and separate offense committed on December 29, 1975, and as to that offense, Muller did not forfeit any of the benefits of the speedy trial rule by the earlier continuance. Clark v. State, 318 So.2d 513 (Fla. 4th DCA 1975). Since the time within which Muller was to be brought to trial on this case expired on June 25, 1976, Florida Rule of Criminal Procedure 3.191(a)(1), Muller was entitled to discharge unless, as the State contends, the speedy trial period was extended or waived.

The State first argues that the speedy trial period was extended by probation revocation proceedings against Muller commenced with the filing of an affidavit on March 17,1976, and concluded at a hearing held on March 19, 1976, with an order revoking probation and imposition of sentence. Assuming, arguendo, that probation revocation proceedings are proceedings which would have justified the trial court extending the speedy trial time under Florida Rule of Criminal Procedure 3.191(d)(2), a court order extending the time for that reason, or any other reason, was never entered. In the absence of an order of extension entered by the trial court during the speedy trial period, we will not find that the time was extended, no matter how compelling or exceptional the circumstances may appear. State v. Barnett, 366 So.2d 411 (Fla.1978); Stuart v. State, 360 So.2d 406 (Fla.1978); State ex rel. Lee v. Harper, 372 So.2d 1012 (Fla. 1st DCA 1979); Mullin v. State, 307 So.2d 829 (Fla. 3d DCA 1974); Pouncy v. State, 296 So.2d 625 (Fla.3d DCA 1974).

The State next urges that the defendant waived his speedy trial claim. It appears that on June 30, 1976, after the 180-day speedy trial period had run, but prior to the filing of his motion for discharge, defense counsel moved for a continuance on the ground that “defense counsel will be on vacation.” The State argues that this motion, pending when the motion for discharge was filed, evidenced the defendant’s unreadiness for trial and thereby authorized the denial of discharge. The motion for continuance, however, was made five days after the speedy trial time had run. Such a motion does not affect Muller’s right to discharge. Llanusa v. Glickstein, 376 So.2d 45 (Fla. 4th DCA 1979). Cf. White v. State, 338 So.2d 256 (Fla. 4th DCA 1976) (defendant’s discovery demands made after speedy trial period has run do not constitute a waiver); Hammock v. State, 330 So.2d 522 (Fla. 1st DCA 1976) (a demonstration of unpreparedness for trial developed after the 180-day period has elapsed does not toll the speedy trial time).

Accordingly, we affirm the trial court’s order denying Muller’s motion for discharge entered in Circuit Court Case Nos. 75-1023 and 75-6768, and reverse its order denying Muller’s motion for discharge entered in Circuit Court Case No. 76-261.

Affirmed in part; reversed in part.

      . In 1979, we granted Muller a belated appeal under Baggett v. Wainwright, 229 So.2d 239 (Fla.1969).

      . Muller entered pleas of nolo contendere to the charges, expressly reserving the right to appeal the propriety of the trial court’s denial of his motions for discharge.

      . Muller’s demand for a speedy trial would trigger his right to be brought to trial thereafter within sixty days, Florida Rule of Criminal Procedure 3.191(a)(2); the denial of his motion for discharge on July 30, 1976, would require that he be brought to trial within ninety days from the denial, Florida Rule of Criminal Procedure 3.191(d)(3). See Butterworth v. Fluellen, supra. No constitutional speedy trial claim was advanced by Muller in the trial court or before this court.

      .As stated, Circuit Court Case No. 76-261 did not spring from either of the criminal episodes involved in Circuit court Case Nos. 75-1023 or 75- 6768. Were that the case, then the earlier continuance would impact Muller’s claim. State v. Boyd, 368 So.2d 54 (Fla. 2d DCA 1979); Homer v. State, 358 So.2d 1176 (Fla. 3d DCA 1978); State v. Luck, 336 So.2d 464 (Fla. 4th DCA 1976).

      . To its credit, the State does not rely on the reason given by the trial court for its ruling. The trial court ruled that when Muller’s probation was revoked and a sentence of imprisonment imposed, Muller became a “prisoner” within the meaning of Florida Rule of Criminal Procedure 3.191(b)(1), to be tried within a year, not 180 days. Under Cradduck v. State, 360 So.2d 416 (Fla.1978), and Lewis v. State, 357 So.2d 725 (Fla.1978), the determination of whether a defendant is a prisoner is based upon his status at the commencement of the speedy trial period, here on December 29, 1975. The trial court’s reason for denial of the defendant’s motion for discharge was clearly wrong, but its ruling will be upheld if it is correct for other reasons. See Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980).

      . This Rule authorizes an extension for “a period of reasonable and necessary delay resulting from proceedings including but not limited to [the] trial of other pending criminal charges against the accused.”

      .Had an order been entered by the trial court, we would undoubtedly have before us the propriety of án order that delayed the speedy trial time more than was “reasonable and necessary.” Here the probation revocation proceedings from charge to adjudication took three days. It is likely that an order extending the time more than three days would be inappropriate. Cf. State v. Barnett, supra (speedy trial time tolled from date State moved for extension during pendency of appeal to date mandate received in trial court); Grisham v. State, 319 So.2d 130 (Fla. 1st DCA 1975) (speedy trial time tolled from date trial court entered order committing defendant to hospital until date trial court ordered defendant’s return to jail).


text:
    The STATE of Florida, Appellant, v. Jerome FULLER, Appellee.
    No. 79-1329.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Janet Reno, State’s Atty., for appellant.
    John H. Lipinski, Miami, for appellee.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The State and counsel for Fuller entered into an agreement under which Fuller would submit to a polygraph examination. The attorney for the State confirmed the agreement by letter, stating in pertinent part:

“It was agreed that the results and conclusions of Mr. Slattery's examination be admissible in any hearings and/or trial regarding Circuit Court Case No. 79-7600. I agreed on behalf of the State that if your client passed the polygraph examination, I would nolle prosse the charges against Mr. Fuller. If the polygraph test is inconclusive, then the examination is not admissible in any hearing or trial regarding Circuit Court Case No. 79-7600.” (emphasis supplied).

Pursuant to this understanding, Fuller met with George Slattery, the polygraph examiner. There Fuller, upon advice of counsel, executed three separate forms, two of which warned that anything Fuller said could and would be introduced into evidence in court against him, and all of which contained his acknowledgment that he freely and voluntarily submitted to the polygraph examination without any promises having been made to him.

The result of the polygraph test was inconclusive. Thereafter, the State notified Fuller of its intention to introduce statements made by him during the course of the four-hour pretest interview conducted by Slattery. Fuller sought to have his statements suppressed based upon the agreement between his counsel and the State. The trial court granted Fuller’s motion to suppress, and the State appealed.

We construe the agreement strictly against the State, its author. The State’s use of the phrase “results and conclusions” in one instance, and the word “examination” in another, is a clear recognition of the distinction between the two. Yet the State tells us that when it agreed the “examination” would not be used, it meant the “results” of the examination. Quite obviously, had Fuller failed the test, the State would have urged the admissibility of his pretest interview statements by arguing conversely that when it agreed that “results and conclusions” would be used, it meant the “examination.”

Moreover, as Slattery testified, and as is universally accepted, see generally, N. Ansley, Legal Admissibility of the Polygraph (1975); The Use of Polygraphs and Similar Devices by Federal Agencies: Hearings Before A Subcommittee of The Committee On Government Operations, H.R., 93d Cong., 2d Sess. 6 (1974), the pretest interview is an essential part of a polygraph examination. Thus, the State cannot seriously contend that the word “examination” was limited to the several-minute polygraph test and did not include the four-hour pretest interview.

We conclude, therefore, that the agreement made by the State was that if the test results were inconclusive, the pretest interview was inadmissible. Our conclusion makes irrelevant the fact that Slat-tery administered warnings to Fuller and that Fuller freely and voluntarily spoke to Slattery in the pretest interview. It is obvious that Fuller spoke to Slattery pursuant to his understanding with the State, and that understanding controls. Nothing in the record suggests anything in the Slat-tery warnings which would apprise Fuller that notwithstanding his previous agreement, his statements would be used. Where an accused waives his constitutional right to remain silent in exchange for an agreement that his statements will not be used under certain conditions which are fulfilled, the bargain made by the State will be enforced. Cf. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

Accordingly, the order of the trial court suppressing Fuller’s statements to Slattery is affirmed.

Affirmed.

      . As the trial court remarked, “there certainly [is] a difference between an examination and the result of an examination.” Finding no ambiguity, the court did not entertain parol evidence as to the meaning of the agreement. Defense counsel remarked in argument that it was his understanding that if “it came back inconclusive, forget it. It wasn’t for the purpose of them making the case and getting discovery.”

      . The construction suggested by the State would produce the anomalous result that if Fuller failed the test, his pretest interview statements would be inadmissible, but if the test were inconclusive, these same statements would be admissible. Further, it would be absurd to think that defense counsel merely bargained for the inadmissibility of inconclusive results which are likely inadmissible in the absence of a bargain. Expert testimony is admissible only if it “will assist the trier of fact in understanding the evidence or in determining a fact in issue.” § 90.702, Fla.Stat. (1979). Relevant evidence is that which tends “to prove or disprove a material fact.” § 90.401, Fla.Stat. (1979). It is improbable that the inconclusive results of a stipulated polygraph would be admissible, except perhaps to rebut the improper suggestion that the defendant passed or failed.

      . “Then you should say what you mean,” the March Hare went on.
      “1 do,” Alice hastily replied; “at least — at least I mean what 1 say — that’s the same thing, you know.”
      “Not the same thing a bit!” said the Hatter. “Why, you might just as well say that ‘I see what I eat’ is the same thing as ‘I eat what I see’!”
      “You might just as well say,” added the March Hare, “that ‘I like what I get’ is the same thing as ‘I get what I like’!”
      “You might just as well say,” added the Dormouse, who seemed to be talking in his sleep, “that T breathe when I sleep’ is the same thing as ‘1 sleep when 1 breathe’!”
      Carroll, Lewis. Alice’s Adventures in Wonderland, “A Mad Tea Party.”

      . The existence of the agreement with the State differentiates this case from others which hold that voluntary statements made to a polygraph operator are admissible notwithstanding the legal inadmissibility of the results. See e.g., Hostzclaw v. State, 351 So.2d 970 (Fla.1977); Burch v. State, 343 So.2d 831 (Fla.1977); Roberts v. State, 195 So.2d 257 (Fla.2d DCA 1967); Johnson v. State, 166 So.2d 798 (Fla.2d DCA 1964). Compare State v. Cunningham, 324 So.2d 173 (Fla.3d DCA 1975).

      . The State argues that if the agreement had been not to use the pretest interview in the event of inconclusive results, no purpose would be served by the warnings. But it is equally plausible that the purpose of the Slattery warnings was to insure the voluntariness, and thus admissibility, of statements made in the pretest interview in the event Fuller failed the test.