author: JOANOS, Judge. ERVIN, Chief Judge,

text:
    Terry Louis DAVIS, Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellee.
    No. AR-120.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1984.
    Thomas G. Sherman of DeMeo & Sherman, P.A., Coral Gables, Mark Baer, Miami, for appellant.
    Jim Smith, Atty. Gen. and Kelly Over-street Johnson, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Appellant Davis, an inmate at Florida State Prison, was stabbed on the morning of September 9, 1975, while standing in his cell, by another inmate, William Freeman. Freeman had been incarcerated for first degree murder and assault with intent to commit murder, and Davis had been incarcerated for breaking and entering. Davis also recently had attempted to escape and had just been moved from a maximum confinement area into the open population area of the prison the day before the stabbing. There were no witnesses to the stabbing. The guard on duty was performing other duties, specifically, seeing that the different sections of prisoners proceeded to their work assignments. Freeman was assigned to work in the culinary department.

Freeman had previously stabbed a fellow inmate at the Dade County Jail. During processing at Lake Butler, he had been recommended for close custody classification by a corrections officer and a psychologist. The corrections officer reported that Freeman appeared to be en route to becoming a serious disciplinary problem, and that Freeman had said “that an organization is out to get him. He states that he will get them first if he is in population before they get him.” The psychologist reported that Freeman was impulsive with poor judgment and minimal insight and that he possessed anti-social tendencies, was hyperactive and negative and could be severely depressed.

Davis sued Freeman and the Department of Corrections (“DOC”), alleging, among other things, that DOC was negligent in its classification of Freeman and placement of Freeman in close proximity to Davis in the open population wing; negligent in its supervision of the facility; and negligent in having an insufficient number of supervisory and security personnel to safely maintain the facility. The lower court entered summary judgment for DOC, determining that the allegation of negligent classification was non-actionable under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979); the allegations regarding number and placement of security personnel were also non-actionable as discretionary activity by DOC; and that based on the pleadings, depositions, and affidavits, it was unforeseeable as a matter of law that Freeman would attack Davis, and the alleged injuries were caused solely by an intervening criminal act.

The record reflects that Florida State Prison is a maximum security prison and virtually all of the inmates there are classified for close custody. There are different statuses within close custody, specifically, close management I and II, and administrative or disciplinary confinement. According to the record, close management I and II involve close monitoring of inmate behavior, usually due to disciplinary problems. Administrative and disciplinary confinement involve segregation of the inmate from the rest of the prison population. Among the functions of administrative confinement is observation of an inmate upon arrival at Florida State Prison. Freeman had been in administrative confinement in April, 1975. •

DOC’s affidavits indicated there were no classification guidelines in effect, and classification decisions were based on the inmate’s age, prior record, the nature of the offense, length of sentence, and need for available treatment programs.

Davis’s primary argument on appeal is that the classification and placement of Freeman was not a discretionary function of DOC, but that the classification of a specific individual does not involve a basic policy evaluation and is therefore operational and not subject to sovereign immunity. He contends that Freeman’s history, particularly his prior attack on a jail inmate and his statement about “getting” someone in population, calls into question whether DOC made a considered decision in housing him in open population. He also contends the alleged negligent placement of supervisory personnel involved implementation of a policy decision which had already been made.

We conclude the lower court did not err in granting summary judgment in this case. The classification and placement of inmates within the prison system constitutes a discretionary planning level function under the tests set forth in Commercial Carrier, therefore sovereign immunity applies. In addition, the number and placement of supervisory personnel constitutes a discretionary decision, Cf. Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980); Ellmer v. City of St. Petersburg, 378 So.2d 825 (Fla. 2d DCA 1979); Wong v. City of Miami, 237 So.2d 132 (Fla.1970). The allegations in this case do not bring it within the exception noted in Relyea for torts committed during implementation of security objectives “such as the accidental discharge of a weapon by security personnel, or the negligent failure of personnel to perform as instructed or intended.”

Smith v. Department of Corrections, 432 So.2d 1338 (Fla. 1st DCA 1983), is distinguishable from the present case because of the inference in that case that the inmate was given preferential treatment, reclassified for improper reasons unrelated to the prison function, and therefore placed in an inadequately supervised situation. No such inference of improper personal motivation exists in the present case.

The ruling on appellant’s first issue renders the issue of foreseeability moot. We conclude, however, that this case involves a question of great public importance and certify the following question to the Florida Supreme Court:

WHETHER PRISON INMATE CLASSIFICATION CONSTITUTES A DISCRETIONARY FUNCTION OF THE DEPARTMENT OF CORRECTIONS FOR PURPOSES OF SOVEREIGN IMMUNITY?

AFFIRMED.

PEARSON, TILLMAN (Ret.), Associate Judge, concurs.

ERVIN, C.J., dissents with written opinion.

ERVIN, Chief Judge,

dissenting.

I dissent. Despite the Department’s knowledge that Freeman had assaulted another inmate less than a year before his infliction of injury upon Davis, despite evidence of his paranoidal delusions and his threats to get others before they got him, despite recommendations that Freeman be placed in close custody, and despite an affidavit of an expert in corrections that the Department was negligent in allowing Freeman to remain in open population, the lower court granted summary judgment, holding that the alleged negligent classification of Freeman by the Department of Corrections was nonactionable. I am aware that an inmate classification supervisor testified that a prisoner who is close custody may be allowed to be in open population, however he also testified that there were various types of subdivisions within the major classification of close custody, including administrative confinement and disciplinary confinement. The former meant a place to review the inmate or to observe him in an environment where he would be less prone to involve himself in any disruptive behavior. The latter sub-classification required the inmate to be housed in a different wing than where Davis was placed at the time of the incident.

Notwithstanding the discretion given the Department to make a reasoned choice as to the category of custody in which to place Freeman, its decision for him to remain in open prison population cannot, under the circumstances, be considered a judgmental decision made at the planning level and therefore one immune from liability. Following Department of Transportation v. Neilson, 419 So.2d 1071, 1077 (Fla.1982), I am of the view that the Department’s decision should be considered one inherently defective in that it created a “known dangerous condition” and failed to warn others who might be foreseeably harmed of the danger. The Department’s choice over other alternatives can be likened to a governmental entity’s election to build a highway having a curve, with the knowledge that vehicles cannot safely negotiate it at speeds of more than twenty-five miles per hour. Id. at 1078. Its decision to design the curve is itself nonactionable, but if the governmental entity fails to warn the motoring public of the hazard, it can be held liable. The basis for liability is that the agency had created a latent danger of which it had knowledge and others did not and, having done so, it was under a duty “to avert the danger or properly warn persons who may be injured by that danger.” St. Petersburg,v. Collom, 419 So.2d 1082, 1086 (Fla.1982). If a jury in Smith v. Department of Corrections of State, 432 So.2d 1338, 1340 (Fla. 1st DCA 1983), could reasonably conclude that violence to third persons was a foreseeable consequence of the Department’s placing a dangerous inmate in minimum custody, I fail to see why a jury should not be given the same opportunity to decide the question of the agency’s liability in the present case, in view of its knowledge both of his past record of assaults and his continued inclination to do so.

My view is consistent with that of holdings in other jurisdictions, requiring as a condition to recovery from a governmental unit, allegedly caused by its negligence in permitting the infliction of injuries upon one prisoner by another, that the entity must have knowledge of some unusual danger, or reason to anticipate the danger. See, e.g., Flaherty v. State, 296 N.Y. 342, 73 N.E.2d 543 (1947); City of Lexington v. Greenhow, 451 S.W.2d 424 (Ky.1970); Cohen v. United States, 252 F.Supp. 679 (D.C.Ga.1966), rev’d. on other grounds, 389 F.2d 689 (5th Cir.1967). See also, Annoh, 41 A.L.R.3d 1021, 1030 (1972). Accord, Spann v. State, Department of Corrections, 421 So.2d 1090, 1092 (Fla. 4th DCA 1982) (“In order to find that the custodian’s negligence was a proximate cause of the injury it must be shown that the injury was a reasonably foreseeable consequence of that negligence.”). Spann offered two examples of the above rule, the first non-actionable, and the second submissible for jury consideration:

When a guard is negligent it is possible but not probable that one inmate will set another on fire or otherwise intentionally injure him. On the other hand if the custodial authority is on notice that one inmate “has it in for” another inmate then such a possibility becomes less remote and approaches probability.

Id. at 1093.

The Spann opinion and many of the eases relied upon by Spann contained in the annotation at 41 A.L.R.3d 1021 appear to approach the problem more in terms of whether the causation chain, created by the agency’s negligent failure to warn, was broken by an active, intervening cause, rather than whether there was no duty, because the decision not to warn was a discretionary-level function. In my' judgment, the Spann approach is the more reasonable one to follow in those situations disclosing that a "governmental entity has knowledge that its actions have created or contributed to the existence of a latent hazard, dangerous to others. A duty to use reasonable care under such circumstances should be held to exist, and if injury results from the intentional act of another, the question of proximate causation could then be determined by applying the rule of foreseeability. See Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980).

Following the rule requiring the responsible authorities to use reasonable care to persons in their charge, some jurisdictions have held that the fact of placing a person arrested on a drunkenness charge in the same cell with a convicted murderer, who injured the former, was sufficient to bring the case to the jury’s attention, once it was also shown that the jailer had prior knowledge of the assailant’s dangerous propensities. Glover v. Hazlewood, 387 S.W.2d 600 (Ky.1964). Accord, Murphy v. United States, 653 F.2d 637 (D.C.Cir.1981); Doe v. City of Albuquerque, 96 N.M. 433, 631 P.2d 728 (App.1981). Additionally, a complaint, alleging that a county had knowledge of the unsafe condition of jail facilities and of assaults on appellant, was held to have stated a cause of action in a case seeking damages for injuries inflicted upon an inmate by other prisoners. White v. County of Palm Beach, 404 So.2d 123 (Fla. 4th DCA 1981).

The Department, in maintaining custody over both Freeman and Davis, occupied a special relationship with both. Its responsibilities to them included not only their custody, but their government, care, supervision and discipline. See §§ 944.031(3), 944.09(1) and 944.14, Fla.Stat. Davis, the assaulted inmate — unlike the public at large — had no choice over where he was housed. He was placed, at the Department’s direction, immediately next to a convicted murderer, one who the Department knew had not only past, but continuing propensities toward violence. Moreover, it was while plaintiff was within his own cell that he was brutally attacked by Freeman. By analogy, California courts have recognized that when a governmental agent maintains a special relationship with the offender or to the potential victim, a duty arises from such relationship to warn a named or readily identifiable victim or group of victims. Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976); Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728 (1980).

Having said the above, I can readily understand the result reached by the majority, given the present amorphous standard of reviewing governmental tort action. Although the Neilson standards can be simplistically stated, unfortunately their application, as today’s opinion exemplifies, is an altogether different matter. A little more than two years ago I wrote in dissent in Harrison v. Escambia County School Board, 419 So.2d 640 (Fla. 1st DCA 1982), affirmed, 434 So.2d 316 (Fla.1983), after surveying a number of appellate court decisions on the subject which post-dated Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), that the opinions were in hopeless and irreconcilable conflict. I then advanced the view that unless the analysis of Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), were adopted for gauging the two levels of governmental activity, the decisions were likely to remain unreconciled. Shortly thereafter the Florida Supreme Court decided the Neilson trilogy (Department of Transportation v. Neilson; Ingham v. State, Department of Transportation, 419 So.2d 1081 (Fla.1982); City of St. Petersburg v. Collom). Three basic rules appear to have emerged from these opinions: (1) Defects that are inherent in the overall plan of a capital improvement project are not actionable under section 768.28. (2) Defects not inherent in the overall plan of the project are actionable. (3) Regardless of whether the defect is inherent in the overall plan, if the governmental entity creates a known dangerous condition which is not readily apparent to persons who could be injured by the condition, a duty at the operational-level arises to warn the public of, or protect them from, the known danger.

In the two years following the modification of the Commercial Carrier rules by the Neilson trilogy, we see the same general lack of consistency in the various appellate court opinions applying the rules that pre-dated Neilson. Thus, the Second District Court of Appeal has held that a law enforcement officer who fails to take into custody an obviously inebriated motorist, whose condition later causes injury to others, does so in a lawful exercise of discretion and simply implements a basic planning level activity. See Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983); City of Cape Coral v. Duvall, 436 So.2d 136 (Fla. 2d DCA 1983). The Fifth District Court of Appeal, however, has reached the opposite result, holding that because the complaint alleged the officer knew the motorist was intoxicated, yet failed to detain or arrest him, there was no ground for a finding of immunity, and, under such circumstances “the police officer is merely implementing policy by enforcing the laws, and cannot be said to be exercising a discretionary governmental function.” Huhn v. Dixie Insurance Company, 453 So.2d 70, 77 (Fla. 5th DCA 1984). The Second District Court of Appeal, in a case involving the alleged negligence of certain law enforcement officers caused by their failure to protect a member of the public from a sexual assault, notwithstanding the officers’ knowledge of the inmate’s record of assaultive behavior, adhered to its former decisions in Everton and City of Cape Coral, and held that sovereign immunity barred recovery. Ursin v. Law Enforcement Insurance Co., Ltd., 450 So.2d 1282 (Fla. 2d DCA 1984).

The supreme court’s opinions on the subject have hardly been models of clarity. In Harrison v. Escambia County School Board, 434 So.2d 316 (Fla.1983), the court upheld a dismissal of a complaint with prejudice, despite factual allegations stating “that the defendant School Board knew or should have known that its designated school bus stop ... was attended by unusual traffic hazards which created a dangerous condition for the children approaching or congregating in the vicinity of this school bus stop in anticipation of being picked up by school buses operated by the School Board.” Id. at 318, n. 2. Although the court reiterated what it had said in Neilson, that “the failure to warn of a known danger created by the governmental body is a negligent omission at the operational level which may serve as the basis for a cause of action,” it held that Harrison’s complaint alleging “unusual traffic hazards” did not comply with the requirements in Collom and Neilson that specific allegations of a known trap or a known dangerous condition be pled. 434 So.2d at 320, 321.

Two weeks following the Harrison decision, the court in Perez v. Department of Transportation, 435 So.2d 830 (Fla.1983), observed that the plaintiffs had attempted in their complaints to allege a failure of a duty to warn of a known dangerous condition existing on a bridge whose steel grating over the years since the bridge’s construction had become travel worn and therefore hazardous to motorists. The Perez court then remanded the case with directions that the plaintiffs be allowed to amend their complaints by alleging a failure of a duty to warn. Apparently the court had concluded in its earlier opinion in Harrison that there was no allegation of fact that could have been sufficiently alleged to state a cause of action. Perhaps the court’s decision in Harrison, holding the complaint so deficient as to be unable to survive a motion to dismiss, can be explained by the reason that the known danger arose from the inherent design itself and, regardless of the passage of time from the government’s knowledge of the hazard, before subsequent steps are implemented to correct the hazard, the original decision was unaffected by such later condition and is therefore immune. This was the conclusion reached by the Fourth District Court of Appeal in regard to a governmental entity’s failure to install a traffic signal at an intersection near a school, which allegedly contributed to an accident killing a student. Broward County v. Payne, 437 So.2d 719 (Fla. 4th DCA 1983), approved, 461 So.2d 63 (Fla.1984). Thus any delay between the decision to install a traffic light and the actuality of the installation extended the planning immunity cloak during such hiatus. And, notwithstanding the knowledge the governmental officials had of the dangers attending the intersection, sovereign immunity attached, in that the “circumstances failed to create a known danger not readily apparent to potential victims, or a trap, and there was no such hidden danger or trap.” 461 So.2d at 66.

Less than two months following the Fourth District’s decision in Payne, the supreme court decided Department of Transportation v. Webb, 438 So.2d 780 (Fla.1983), holding that the failure to upgrade a railroad intersection known to be dangerous was a planning level function and immune, but a decision not to place warning signs at the crossing was an operational-level function. Thus, one may conclude from the above cases, that notwithstanding the knowledge of the governmental entity that a capital project which it had created was attended with dangers, the failure to upgrade the project or to install traffic control devices is not activity sufficient to give rise to liability, since such decisions inhere in the original plan — nevertheless, a conscious decision not to place warning signs, assuming the project created latent dangers, is an operational-level function and constitutes negligence. Such distinctions, when applied to a specific factual situation — particularly when the decision as here does not involve a capital project — are the stuff from which inconsistency abounds. The narrow, restricted construction placed upon section 768.28 by Neilson and the court’s later cases is moreover at variance with the legislative purpose, which, in the words of Commercial Carrier, “evinces the intent ... to waive sovereign immunity on a broad basis .... ” 371 So.2d at 1022 (e.s.).

Justice Sundberg, dissenting in Neilson, was critical of the standards adopted by the majority, commenting “that the majority has simply exchanged one set of result descriptive labels for another. Hence, the irreconcilable results among the several district courts of appeal are not harmonized, but rather the confusion is compounded.” 419 So.2d at 1079. He concluded it should make little difference for liability purposes, once the public entity possessed knowledge of the capital improvement’s capacity for danger, whether the government failed to upgrade the project, install traffic signals or warning signs. Neither did it make any difference, from his summary of out-of-state cases, whether the danger was latent or patent. In his view the existence of a danger open to the public does not obviate the need of the responsible agency to remedy a hazard which is caused by changed conditions occurring after the design of a capital project. See also Baldwin v. State, 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d 1121 (1972).

Justice Sundberg’s prophesy that the Neilson rule would compound the confusion among the appellate courts has now been realized. The Second District Court of Appeal, in affirming the dismissal of a complaint against the Department of Environmental Regulation, which had alleged that DER was negligent in failing to construct a fence or warning devices around a sewage treatment tank into which a child had fallen and drowned, commented: “The circumstances here present another ‘square peg that will not fit either the “operation,” “planning,” or “discretionary-non-discretionary” tests as set forth in Commercial Carrier or its progeny.’ ” Neumann v. Davis Water and Waste, Inc., 433 So.2d 559, 563 (Fla. 2d DCA 1983). The Fourth District Court of Appeal in Carter v. City of Stewart, 433 So.2d 669 (Fla. 4th DCA 1983), observing that the Florida case law on the subject of what constitutes a planning or operational level function is in “disarray,” then announced its intention in every case in which the issue was raised to certify the question to the Florida Supreme Court in an effort to “let our superiors show us the way until the law is clarified or Commercial Carrier is receded from.” Id. at 670.

Another jurist, Judge Glickstein, in a well-reasoned, specially concurring opinion in Manors of Inverrary XII v. Atreco-Florida, 438 So.2d 490, 494 (Fla. 4th DCA 1983), has called for the adoption of the three-pronged test postulated in Hendry v. United States, 418 F.2d 774 (2d Cir.1969), to determine the level of governmental activity when the issuance of permits or licenses is involved. Without reiterating in detail the Hendry test, I think it can safely be said that it depends in large measure on the application of the operational-discretionary level standards of review. My criticism of such standards is much the same as that of the Oregon Supreme Court:

The difficulty with all these attempts to state the distinction between “discretionary” and “ministerial” is that all, or almost all, acts performed by government employees involve some judgment or choice; that is, the employees have more than one alternate course of performance and they make a decision to follow one of the several alternatives. The issue is really, how much “discretion” must be involved in the performance so as to render the employee immune? This means that at some point along the continuum of discretion a division must be made with liability on one side and immunity on the other and this division must necessarily be arbitrary.

Smith v. Cooper, 256 Or. 485, 475 P.2d 78, 85 (Or.1970). Other out-of-state commentators voice similar complaints: “The distinction between activities at the ‘operational level’ and those at the ‘planning level’ is susceptible of no greater precision in definition than the distinction between activities which are ‘governmental’ and those which are ‘non-governmental’ or ‘proprietary’.....” Peck, The Federal Tort Claims Act — A Proposed Construction of Discretionary Function Exception, 31 Wash.L.Rev. 207, 219 (1956). Again, “[t]he fundamental difficulty with the planning-operational approach is that it is likely to become a mere labeling approach .... As with the case of the older governmental-proprietary test of municipal liability, it is evident that either term may be applied in a given situation, depending on how expansively or narrowly one interprets the problem or on the result desired....” Note, The Discretionary Exception in Municipal Tort Liability: A Reappraisal, 52 Minn.L.Rev. 1047, 1062 (1968).

By following what is in effect a modification of the discretionary function exception to the Federal Tort Claims Act (28 U.S.C. § 2680(a)), Florida courts face the same inconsistent results that have plagued the federal judiciary since that act’s inception nearly forty years ago; for example, a decision not to place culverts under a highway was considered to be an omission at the planning stage, Mahler v. United States, 306 F.2d 713 (3d Cir.1962); while a failure to install a handrail stairway in a public building was considered an omission at the operational level. American Exchange Bank of Madison, Wis. v. United States, 257 F.2d 938 (7th Cir.1958). Given the experience of out-of-state and federal courts, as well as our inconsistent track record, I doubt that any standard of review which depends upon the discretionary-operational level dichotomy will ever result in being uniformly applied.

I therefore respectfully invite the Florida Supreme Court to revisit its prior opinions on the subject, rescind their holdings, and simply give effect to the legislative directive expressed in section 768.28(5): to impose liability upon the state and its subdivisions “in the samé manner and to the same extent as a private individual under like circumstances....” In issuing this invitation I am not unaware that both Commercial Carrier and Neilson strongly intimated, while not expressly stating, that without the limiting construction, section 768.28 would be violative of the separation of powers clause. Thus Commercial Carrier, although recognizing that “Section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis,” continues with the statement that “certain ‘discretionary’ governmental functions remain immune from tort liability. This is so because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performances.” 371 So.2d at 1022. Neilson echoes the same concern, stating that Commercial Carrier “recognized that there are areas inherent in the act of governing which cannot be subject to suit and scrutiny by judge or jury without violating the separation of powers doctrine.” 419 So.2d at 1075.

Both opinions relied largely upon Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), and Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960), which had placed the same construction on their own states’ broad waiver of immunity acts, as a means of barring the substitution of a decision by a judge or a jury in place of the decision of the governmental body as to the reasonableness of the planning activity conducted by that body. Commercial Carrier, 371 So.2d at 1018. Neither Evangelical United Brethren Church nor Weiss — or indeed Commercial Carrier or Neilson —considered the question of the constitu-

tionality of a statute which had been enacted pursuant to a specific grant of constitutional power authorizing the legislature to establish the method by which suit could be brought against the state. Article X, Section 13 of the Florida Constitution states that “[provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating.” (e.s.) This constitutional provision has traditionally been interpreted as providing absolute sovereign immunity for the state and its agencies absent waiver by legislative enactment or constitutional amendment. E.g., Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958); Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976). Article X, Section 13 thus limits the method for the exercise of the legislative power to the passage of general laws. 28 Fla.Jur., Governmental Tort Liability § 6 (1981). However, once the constitution provides that the legislature may consent for the state to be sued, the general rule is that the legislature is authorized to prescribe such modes, terms and conditions it sees fit, subject to any limiting restriction of its own constitution. 72 Am.Jur.2d, States, Territories and Dependencies § 124 (1974). Thus, “when the Constitution prescribes the manner of doing an act, the manner prescribed is exclusive .... ” Weinberger v. Board of Public Instruction, 93 Fla. 470, 112 So. 253, 256 (Fla.1927). Certainly there does not exist any express constitutional provision precluding the legislature from enacting, as it has, a broad waiver of immunity. Contrast Sullivan v. Askew, 348 So.2d 312 (Fla.1977), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (pardon power is exclusively vested in the executive branch by the constitution and cannot be exercised by another arm of government).

Does then a statute exhibiting a broad grant of waiver, one that is enacted pursuant to an explicit constitutional provision, necessarily collide with another constitutional provision, the separation of powers doctrine, found in Article II, Section 3 of the Florida Constitution, providing that “the powers of the state government shall be divided into legislative, executive and judicial branches”? The test for determining whether a statute is violative of the separation of powers doctrine has been stated thusly:

“In construing, interpreting, and applying the Constitution of the state, the guiding star should be to effectuate its primary purpose, viz., the welfare of the people in the preservation and exercise of the rights of sovereignty and of individuals. The division of governmental powers into Legislative, executive, and judicial is abstract and general, and is intended for practical purposes. There has been no complete and definite designation by a paramount authority of all the particular powers that appertain to each of the several departments. Perhaps there can be no absolute and complete separation of all the powers of a practical government.”
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A clear violation of the constitutional provisions dividing the powers of government into departments should be checked and remedied; but where a reasonable doubt exists as to the constitutionality of a statute conferring power, authority, and duties upon officers, the legislative will should be enforced by the courts to secure orderly government and in deference to the Legislature, whose action is presumed to be within its powers, and whose lawmaking discretion within its powers is not reviewable by the courts.

State v. Johnson, 345 So.2d 1069, 1071-1072 (Fla.1977) (e.s.) (quoting from State v. Atlantic Coastline Railroad Co., 56 Fla. 617, 47 So. 969, 975 (1908)).

I would think, given the fact that section 768.28 represents a direct implementation of Article X, Section 13, that the statute would ordinarily be deemed constitutionally valid. The statute can hardly be considered “a clear violation of the constitutional provisions dividing the powers of government into departments.” In my judgment it represents an action which should properly be presumed to be within the legislature’s powers. Courts in other jurisdictions that have dealt with similar statutes have upheld their validity notwithstanding such statutes’ apparent infringement of other constitutional provisions. Thus in Dickson v. State, 1 Wis. 22 (1853), the Wisconsin Supreme Court upheld an act permitting suit to be filed against the state in the supreme court, although a provision of the state’s constitution limited the court to appellate jurisdiction only, except in cases otherwise provided by the constitution. The act was the direct implementation of a constitutional provision permitting “the legislature ... [to] direct, by law, in what manner, and in what courts, suits may be brought against the state....” Accord, Northwestern Mutual Life Insurance Co. v. State, 163 Wis. 484, 155 N.W. 609, 158 N.W. 328 (1915), aff'd., 247 U.S. 132, 38 S.Ct. 444, 62 L.Ed. 1025 (1918).

If the supreme court has in part based its decisions barring liability for discretionary governmental acts on policy considerations, then I would suggest a balancing of all such considerations would not be an inappropriate means of judging the act’s constitutionality. A reason frequently assigned for the creation of sovereign immunity is that it is a rule of social policy, one that protects the state from burdensome interference from the performance of its governmental functions and preserves its control over state funds, property and in-strumentalities. State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (Fla.1930). The diversion of public funds for purposes other than those appropriated by law has long been considered a policy factor upholding the state’s immunity from suit. See Bragg v. Board of Public Instruction, 160 Fla. 590, 36 So.2d 222 (1948). Certainly the legislature, in passing the broad grant of waiver authorized by section 768.28, must have taken all such traditional policy arguments into consideration. It was certainly aware that the state and its subdivisions could purchase liability insurance to cover their risks. See section 768.28(10). It was also aware that the act was not intended to compensate fully injured persons for their damages.

The remedies furnished by the act are far from generous. They presently limit the recovery in court to no more than $200,000 per incident and $100,000 per person. Punitive damages are forbidden, as is prejudgment interest. Attorney’s fees are restricted to no more than 25% of any judgment, and the state is not liable for acts of its agents when committed in bad faith, malicious purpose or in a manner displaying wanton and willful disregard of safety. Thus the act itself has built-in safety devices amply protecting an indiscriminate raid on the public treasury.

The legislature must also have known of the significance of its use of the words, subjecting the state to liability “in the same manner and to the same extent as a private individual under like circumstances _” The statutory waiver enacted in 1969 contained an explicit exception for a “discretionary function,” section 768.15(1), Florida Statutes (1969), which was not included in the 1973 enactment.

The current national trend of legislative and judicial action has been toward the abandonment of the sovereign immunity-doctrine. Indeed, Professor Davis, writing in 1980, reports that the courts of 30-33 states have abolished “chunks” of sovereign immunity, whereas 30-34 states have enacted statutes which at least to some extent involved unconditional waivers of immunity, and an additional 12 have waivers conditional upon insurance. See, Davis, Administrative Law of the Seventies, Supplementing Administrative Law Treatise and 1980 Supplement to Administrative Law Treatise §§ 2518 and 25.00. See also collection of jurisdictions waiving sovereign immunity listed in Cauley v. City of Jacksonville, 403 So.2d 379, 386-87, n. 14 (Fla.1981), and see 72 Am.Jur.2d, States, Territories and Dependencies, § 101 (1974). The national movement toward abolition of immunity is a reflection of what is perhaps the strongest policy argument favoring one’s unrestricted right to bring suit, except as limited by statute, and it is expressed by the legal maxim that when an individual sustains an injury by the neglect of another, the law gives him a remedy. This maxim finds support in our constitution authorizing “courts ... [to] be open to every person for redress of any injury_” Article I, Section 21, Fla. Const.

If the legislative intent, expressed in section 768.28, subjecting the state to liability in the same manner as a private person were followed, traditional tort principles would then guide a court’s judgment when considering liability. Take, for example, the standard used in the private sector to determine an architect’s liability for injuries caused by his negligence in the preparation of plans and specifications:

“An architect may be liable for negligence in failing to exercise the ordinary skill of his profession, which results in the erection of an unsafe structure whereby anybody lawfully on the premises is injured. Possible liability for negligence resulting in personal injuries may be based upon their supervisory activities, or upon defects in the plans or both. Their possible liability is not limited to the owner who employed them. Privity of contract is not a prerequisite to liability. They are under a duty to exercise such reasonable care, technical skill and ability, and diligence as are ordinarily required of architects in the course of their plans, inspections and supervisions during construction for the protection of any person who foreseeably and with reasonable certainty might be injured by their failure to do so.”

Conklin v. Cohen, 287 So.2d 56, 61 (Fla.1973) (quoting with approval, Geer v. Bennett, 237 So.2d 311, 316 (Fla. 4th DCA 1970)).

Subjecting the state and its subdivisions to liability to the same extent as non-governmental persons would not mean that all discretionary acts of government, resulting in injury, necessarily give rise to actionable claims. For example, a decision by a physician in private practice to prescribe a controlled drug to a known addict does not, absent a showing that such decision was made in bad faith or beyond the scope of his practice, render the physician liable to third parties injured as a result of the addict’s abuse of the drug. Forlaw v. Fitter, 456 So.2d 432 (Fla.1984).

Admittedly, the facts in the case at bar— involving the governmental entity’s allegedly negligent decision not to warn foreseeable victims of an inmate’s dangerous propensities for violence — find no exact parallel in the private sector; nevertheless it is somewhat analogous to the liability subjected upon a privately owned institution for the negligent release of a dangerous person in its custody. See Burroughs v. Board of Trustees of Alachua General Hospital, 328 So.2d 538 (Fla. 1st DCA 1976).

Although there are no doubt strong policy arguments, as recognized in Commercial Carrier Corp. and in Neilson, concerning why tort liability should not be imposed on discretionary governmental functions, I submit that these arguments are best left addressed to the wisdom of the legislature — not the courts, and should not be given the imprimatur of constitutional prohibition. Finally — and certainly not the least of the policy considerations favoring simple acceptance of the legislative directive — following the law of the private sector would have as its salutary purpose the promotion of the rule of stare decisis, a rule which is designed to promote uniformity, certainty and stability in the courts of law, Waller v. First Savings and Trust Company, 103 Fla. 1025, 138 So. 780 (1931). As long as the standard for determining governmental liability remains dependent upon degrees of discretion, uncertainty and confusion will persist, with the result that no one will be reasonably able to anticipate the possible consequences of an action brought under the act.

      . See Note, Sovereign Immunity Trilogy: Commercial Carrier Revisited But Not Refined, 10 Fla.St.U.L.Rev. 702 (1983).

      . I am no more confident that this invitation will be accepted than was Hotspur, regarding Glendower’s boast of summoning forth spirits:
      GLENDOWER. I can call spirits from the vasty deep.
      HOTSPUR. Why, so can I, or so can any man, But will they come when you do call for them?
      Henry IV, Part I, act 3, scene 1, The Complete Works of William Shakespeare (Cambridge Univ. Press 1983).

      . The four-pronged test of Evangelical United Brethren Church v. State, commended by Commercial Carrier as a preliminary means of identifying the levels of decision-making activity by governmental agencies, has been further refined by the Washington Supreme Court in King v. City of Seattle, 84 Wash.2d 239, 525 P.2d 228, 233 (1974), now requiring "the state ... to make a showing that ... [its] policy decision, consciously balancing risks and advantages, took place. The fact that an employee normally engages in ‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a considered decision.”

      . It should be observed that the second sentence to Article II, Section 3 states: "No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein." (e.s.)

      . The statute of course permits the injured person to file a claims bill in the legislature for any excess amount.

      . Of course five regular legislative sessions have now come and gone since Commercial Carrier imposed judicially the discretionary function exception, but I do not believe it can be logically argued that later legislative inactivity reflects an acquiescence by it in the court’s holding. The legislature could hardly be expected to amend the act further to reflect explicitly its intent that a discretionary function exception was not a cause for excluding the state from liability, given Commercial Carrier's strong intimation that any such provision imposing liability would be violative of the separation of powers clause.

      . A recent law review comment echoes the same concerns:
      The current state of Florida law regarding the waiver of sovereign immunity for tort liability remains fragmented and disordered, as evidenced by the recent decision in Webb. After Commercial Carrier set out an exception to the waiver for "planning,” as opposed to "operational," functions, the Neilson trilogy amended this exception to the waiver doctrine to provide a cause of action for the creation of a known dangerous condition, but the elements of proof were not adequately defined. Courts were not certain how to merge the “known danger” component into the planning-operational scheme. As a result, that cause of action has proven difficult to isolate and identify. The Neilson trilogy not only fell short of clarifying the Commercial Carrier doctrine, it further confused it. Instead of adding to that obscurity, the supreme court should have taken the opportunity presented by Webb to provide definitive guidelines for the court-created waiver doctrine exception.
      Comment, Sovereign Immunity — Revisited But Still Not Refined, 12 Fla.St.U.L.Rev. 401, 421 (1984).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald W. WAGNER and Travis Hunold, Trustee of International Trade Building, Inc., Appellants, v. Diane BIRDMAN, Trustee, Nottingham Associates, Inc., a General Partnership consisting of Henry Spiegel, Ann Spiegel, and Walter Wekstein, Trustee of the Diane Birdman Irrevocable Trust, Appellees.
    No. 84-868.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1984.
    Koppen & Watkins and George J. Lott, Miami, for appellants.
    Norman Malinski, Miami, for appellees.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

After the trial court discharged a lis pen-dens, it assessed attorney’s fees in favor of the property owner. We find this error, there being no specific authority in the statutes providing for such fees. Section 48.23(3), Florida Statutes (1983). Therefore we reverse such order. See Kittel v. Kittel, 210 So.2d 1 (Fla.1968).

Reversed and remanded.


text:
    Nelson KUSNER and Manmex, Inc., a Texas corporation, and NK Industries, Inc., Appellants, v. AMERICAN MINERALS, INC., Appellee.
    No. 84-1523.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1984.
    Taylor, Brion, Buker & Greene and Jeffrey M. Bell, Miami, for appellants.
    Dubbin & Berkman and Arnold M. Weiner, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the preliminary injunction under review because the non-competition agreement purportedly enforced below does not extend to preclude any competitive activities undertaken, as in this case, by the appellants after the termination of their employment with the appellee.

      . This holding has no effect upon any claims by the appellee for damages arising out of an alleged breach of the agreement or of any fiduciary relationship between the parties.

      . The controlling provision of the contract is paragraph 7(a), which states that the corporate appellant, Manmex, "... will not directly or indirectly engage in any form or branch of the manganese business, except as representative for American Minerals during the term of this agreement." [e.s.]
      The appellee argues that paragraph 7(c) applies to the individual appellant, Kusner. That provision states that Manmex "... will include in all contracts of employment with any salesman restrictive covenants as permitted by law prohibiting such salesman from engaging in any business in competition with American Minerals during his employment, and for a reasonable period after the termination of his employment." [e.s.] This contention is incorrect. It is obvious that Manmex and Kusner, who is specifically described as "the President and sole shareholder of Manmex" and who executed the agreement both individually and as Manmex’s representative, are entirely inseparable as parties to the contract and that Kusner thus may not be considered a "salesman" of Manmex under paragraph 7(c).


author: HURLEY, Judge.

text:
    George A. BRESCHER, as Sheriff of Broward County, Appellant, v. ASSOCIATES FINANCIAL SERVICES , COMPANY, INC., Appellee.
    No. 83-673.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.

      Richard S. Bernstein of Fred J. Berman, P.A., Fort Lauderdale, for appellant.
    Bertram A. Sapurstein of Ingraham & Sapurstein, P.A., Miami, for appellee.
   HURLEY, Judge.

This appeal presents the question whether a secured party, upon default by a debtor, may recover possession of a chattel by replevin from a sheriff who has taken possession thereof under execution. We answer in the affirmative.

George and Dorothy Guzzo borrowed $5,940.00 from Associates Financial Services Company of Florida, Inc. to purchase a 1979 Lincoln automobile. They promised to repay the loan in thirty monthly installments of $198.00 and granted a security interest in the automobile in favor of Associates. Thereafter, the appropriate steps were taken to perfect the security interest.

During the thirty-month repayment period, a third party obtained a judgment against George Guzzo. This judgment creditor caused an execution to issue which authorized the Sheriff of Broward County to levy upon the Guzzos’ automobile. Accordingly, the Sheriff took possession of the vehicle. Before the execution sale could be held, however, Associates (the secured lienholder) filed a complaint for re-plevin. It alleged that the Guzzos had defaulted under the note, that they owed $3,760.80, that the provisions of section 78.-02, Florida Statutes (1983), did not exempt the automobile from replevin, and that Associates was entitled to immediate possession. The trial court entered summary final judgment in favor of Associates and this appeal ensued.

The sheriff argues that because he was holding the Guzzos’ property pursuant to a valid execution, it was impossible for Associates, the secured party, to prove “wrongful detention” which is a necessary predicate for replevin under section 78.01, Florida Statutes (1983). This argument, however, overlooks the Supreme Court’s decision in Bloch v. Frick, 152 Fla. 554, 12 So.2d 604 (Fla.1943), which involved a near identical statute. There, the court permitted a creditor to replevy goods from a sheriff, ruling that “a stranger to an execution may either replevy the property or file a claim for the same.” Bloch, of course, was decided prior to Florida’s adoption of the Uniform Commercial Code in 1967 and, thus, we must determine whether it has been superseded.

Section 679.311, Florida Statutes (1983), expressly indicates that a creditor may attach goods even though they are subject to a security interest. That section states:

The debtor’s rights in collateral may be voluntarily or involuntarily transferred (by way of sale, creation of a security interest, attachment, levy, garnishment or other judicial process) notwithstanding a provision in the security agreement prohibiting any transfer or making the transfer constitute a default.

In turn, section 679.306(2), Florida Statutes (1983), protects the secured party by providing that:

Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange, or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.

It is important to recall that prior to the adoption of the U.C.C., some states prohibited creditors from proceeding by attachment or other judicial process against a debtor's interest in personal property covered by a conditional sale contract or other security device. Section 9-311 was intended to change this rule. The comment to section 9-311 notes that its purpose is “[t]o make clear that in all security transactions under this Article, the debtor has an interest ... which he can dispose of and which his creditors can reach.... [I]n all security interests the debtor’s interest in the collateral remains subject to claims of creditors who take appropriate action.” See Platte Valley Bank of North Bend v. Kracl, 185 Neb. 168, 174 N.W.2d 724 (1970).

The court relied upon section 679.311 in Altec Lansing v. Friedman Sound, Inc., 204 So.2d 740 (Fla. 3d DCA 1967), and held that a secured creditor could not dissolve a writ of execution and take possession of the collateral merely because of the pend-ency of a judicial sale. The court stated:

A security agreement under § 679.9-203, Fla.Stat., F.S.A., has the same effect as did a chattel mortgage prior to the adoption of the Uniform Commercial Code, i.e., it may create a prior lien in favor of the person named in the agreement as creditor on the chattels involved but does not exempt them from a forced judicial sale. Said chattel may still be sold by an execution creditor subject to the lien provided in the security agreement.

Id. at 741. See also First National Bank v. Sheriff of Milwaukee County, 34 Wis.2d 535, 149 N.W.2d 548 (1967). Note, however, that Altec Lansing did not involve an allegation of default on the part of the debtor. In our view, that is the crucial distinction in the case at bar.

The rights of a secured party upon default are set forth in section 679.503, Florida Statutes (1983), which provides in pertinent part:

Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.

The statutory term “action” was defined in Midland-Guardian Co. v. Hagin, 370 So.2d 25 (Fla. 2d DCA 1979), to include replevin. Although Midland-Guardian did not involve replevin against a sheriff, other cases have permitted replevin against a sheriff or other officer. See, e.g., City of Miami Beach v. Millpin, Inc., 389 So.2d 283 (Fla. 3d DCA 1980); Mechanicks National Bank v. Parker, 109 N.H. 87, 242 A.2d 69 (1968); State v. Weber, 76 N.M. 636, 417 P.2d 444 (1966); Ford Motor Co. v. City of New York, 14 UCC Rep.Serv. 211 (Sup.Ct.1974); William Iselin & Co. v. Burgess & Leigh, Ltd., 52 Misc.2d 821, 276 N.Y.S.2d 659, 3 UCC Rep.Serv. 1168 (Sup. Ct.1967); Harrison Music Co. v. Drake, 43 Pa. D.&C.2d 637, 5 UCC Rep.Serv. 417 (C.P.1967); White & Summers, Uniform Commercial Code § 26-7, at 1104 (2d ed. 1980). But see First National Bank & Trust Co. v. Berry, 44 Fla.Supp. 159 (Fla. Palm Beach Cty.Ct.1976).

One commentator has suggested that the practical effect of permitting a secured party, upon default by the debtor, to replevy goods from the sheriff is to insulate the debtor’s equity in the collateral from all creditors other than the secured party. See Justice, Secured Parties and Judgment Creditors — The Courts and Section 9-311 of the Uniform Commercial Code, 30 Bus.Law. 433 (1975). This may be true, but if so, it is an acceptable consequence of a considered legislative decision. Given the importance of security interests in a credit economy, the legislature enacted section 679.503, Florida Statutes (1983), to provide secured parties, upon default, with the most effective remedy available: the right to take possession of the collateral. The statute contains no time constraints. Rather, it suggests the greatest availability by listing two all-encompassing methods, self-help and judicial process. See generally Northside Motors of Florida, Inc. v. Brinkley, 282 So.2d 617 (Fla.1973). Replevin, of course, is the classic legal mode for gaining possession of goods. See Honstein Trucking Co. v. Sandhills Beef, Inc., 209 Neb. 422, 308 N.W.2d 331 (1981); Midland-Guardian Co. v. Hagin, supra. Thus, it becomes significant that section 78.02, Florida Statutes (1983), which exempts certain property from replevin, does not preclude a secured party, who is a stranger to the pending execution sale, from seeking replevin against a sheriff.

Accordingly, we conclude that Florida’s adoption of the U.C.C. has not altered the availability of replevin; indeed, it has enhanced it. As between the general provision of section 679.311, Florida Statutes (1983), and the more specific provision of section 679.503, Florida Statutes (1983), we hold that section 679.503 is entitled to precedence. “[T]he general rule is that specific statutes on a subject take precedence over another statute covering the same subject in general terms.” Littman v. Commercial Bank & Trust Co., 425 So.2d 636, 639 (Fla. 3d DCA 1983). Since section 679.503, Florida Statutes (1983), expressly confers the right to take possession, we hold that a secured party, upon default by a debtor, may recover possession of a chattel by replevin from a sheriff who has taken possession thereof under execution. Consequently, the judgment on appeal is

AFFIRMED.

DOWNEY and DELL, JJ„ concur.


author: DELL, Judge.

text:
    HEWITT, COLEMAN & ASSOCIATES, Appellant, v. William LYMAS and Alice Lymas, his wife, Appellees.
    No. 83-2329.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.
    Rehearing Denied Jan. 4, 1985.
    Eugene N. Betts of Pomeroy, Betts & Pomeroy, Fort Lauderdale, for appellant.

      Jack D. Warner of Herbert W. Abramson & Assoc., P.A., Miami, for appellees.
   DELL, Judge.

Hewitt, Coleman & Associates appeal from an order denying its claim for full reimbursement of worker’s compensation benefits paid to or on behalf of appellee.

On September 29,1979, appellee, while in the course and scope of his employment, suffered personal injuries when a motor vehicle ran over his foot. Appellant paid $3,518.19 in medical and other compensation benefits. Appellee settled his third party claim for $6,500 less attorney’s fees of $2,600 and costs of $305.75 (resulting in a net recovery of $3,594.25). Appellee filed a sworn motion for equitable distribution. At the hearing on appellee’s motion, appellant stipulated to the admissibility of appel-lee’s sworn motion and did not object to the admission of certain medical bills, medical reports and the accident report. Appellee offered no other evidence. Appellee’s counsel argued that the full value of the claim ranged between $15,000 and $18,000 but that comparative negligence caused him to accept a settlement of $6,500. After hearing argument of counsel, the trial court awarded appellant $1,250.

Appellant contends that the trial court erred because it failed to comply with the requirements of Section 440.39(3)(a), Florida Statutes (1981). We agree and reverse. Section 440.39(3)(a) provides in part:

The employer or carrier shall recover from the judgment, after attorney’s fees and costs incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collecti-bility. The burden of proof will be upon the employee.

Appellee agreed that no issue existed as to limits of insurance coverage and collecti-bility. Although there is some evidence in the record which would support appellee’s counsel’s argument that the case had a value greater than $6,500, there is no evidence in the record to show that appellee accepted less than full value of his damages because of comparative negligence. The only evidence in the record is appel-lee’s sworn motion for equitable distribution which contains appellee’s assertion that “this case is being compromised for less than the full value of the case, .... ” Appellee relies on the argument of his counsel to carry his burden that comparative negligence reduced the value of his claim. This court has clearly and unequivocally stated that argument of counsel does not constitute evidence.

[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.

Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1016-17 (Fla. 4th DCA 1982); see also, Chrysler Corp. v. Miller, 450 So.2d 330 (Fla. 4th DCA 1984). Appellee’s failure to introduce competent evidence or testimony to establish that comparative negligence reduced the full value of his claim requires us to reverse the trial court’s order which awarded appellant less than 100% of its lien. See § 440.39(3)(a); Whitely v. United States Fidelity and Guaranty Co., 454 So.2d 63 (Fla. 1st DCA 1984).

Therefore, we reverse and remand this cause to the trial court with directions to enter judgment for appellant, Hewitt, Coleman & Associates in the amount of $3,518.19.

REVERSED and REMANDED.

HERSEY and GLICKSTEIN, JJ., concur.


author: BARKETT, Judge. GLICKSTEIN, Judge,

text:
    STATE of Florida, Appellant, v. Stephen BIVONA, Jr., Appellee.
    No. 84-95.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1984.
    Rehearing and/or Certification of Conflict Denied Jan. 9, 1985.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellant.
    Robert D. Jones, Royal Palm Beach, for appellee.
   BARKETT, Judge.

This is an appeal by the State of an order discharging criminal defendant Stephen Bivona, Jr., under the speedy trial rule. We affirm.

On June 29, 1983, Stephen Bivona, Jr., was arrested at a Sears store in Bakersfield, California, for petty theft (shoplifting) and assault and battery (altercation with a Sears security officer). He refused to give the Sears security officer his name, and the Bakersfield police were called. The police officer who responded indicated that Bivona would have to identify himself to be released. Bivona refused, and was taken to jail. Upon arrival, he volunteered his name, and indicated that the reason he had not identified himself at the Sears store was because he was wanted in Florida for a bank robbery and for violation of probation. He then advised the police officer of the details of the bank robbery which had occurred in West Palm Beach, Florida.

Most of the information relative to the Florida crime was communicated by Bivona even after the police indicated that there were no outstanding warrants for his arrest. The probable cause affidavit for the West Palm Beach bank robbery was executed the day after Bivona’s arrest in California as a direct result of his confession. The Bakersfield police report reflected that after further investigation by the Bakersfield police regarding the Florida bank robbery, the West Palm Beach Police Department orally requested a “hold” on the defendant which was confirmed later by a teletype. Bivona was held in the California jail until he was collected by the West Palm Beach Police Department on August 4, 1983. He did not fight extradition, and there is no explanation in the record as to why the Florida authorities waited for approximately thirty-four days to pick him up in California.

On August 9, 1983, Bivona was arraigned, and on January 3, 1984, he filed his motion for discharge under the speedy trial rule. The motion was granted.

The State contends error in two ways. First, that the speedy trial period does not run from Bivona’s California.apprehension on June 29, 1983, but from his coming into the custody of the West Palm Beach police on August 4, 1983. Second, that even if the speedy trial period is triggered by the California arrest, Bivona waived the time limit by delaying the trial date.

Bivona contends that he was held by the California authorities from June 29, 1983, solely as a result of the Florida criminal charges, and that this holding on a Florida detainer constituted a “taking into custody” within the context of Rules 3.191(a)(1) and (a)(4), Florida Rules of Criminal Procedure, which provide, in relevant part:

Rule 3.191. Speedy Trial
(a)(1). Speedy Trial Without Demand. Except as otherwise provided by this Rule, and subject to the limitations imposed under (b)(1) and (b)(2), every person charged with a crime by indictment or information shall without demand be brought to trial ... within 180 days if the crime charged be a felony, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion, shall make the required inquiry under (d)(3). The time periods established by this section shall commence when such person is taken into custody as defined under (a)(4)....
(a)(4). Custody. For purposes of this Rule, a person is taken into custody, (i) when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, or (ii) when the person is served with a notice to appear in lieu of physical arrest.

The State argues that Rule 3.191(b)(1) should apply instead:

(b)(1). Prisoners Outside Jurisdiction. A person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this State or a subdivision thereof, or who is charged with a crime by indictment or information issued or filed under the laws of this State, is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of this fact is filed with the court and served upon the prosecutor.

To support its position, the State calls our attention to the case of Hawkins v. State, 451 So.2d 903 (Fla. 1st DCA 1984), which has interpreted Florida Rule of Criminal Procedure 3.191(b)(1), supra, to apply to fugitives who are being held in another jurisdiction solely on the basis of the charges pending in this State. We cannot agree with the majority opinion in Hawkins, and agree rather with the dissent of Chief Judge Ervin in that case as the better-reasoned view.

We suggest that the facts of this case establish the danger of interpreting Rule 3.191(b)(1) as the majority does in Hawkins, rather than as Chief Judge Ervin interprets that rule in his dissent and as we interpret that rule now. Unlike the situation in Hawkins, where apparently the defendant deliberately made himself unavailable for trial during a portion of the 180-day period of time, Bivona cooperated fully with the arresting authorities. He awaited extradition, and did nothing to thwart the State’s efforts to bring him to Florida to face the charges against him. Yet he was incarcerated in California for 34 days waiting for the Florida authorities to extradite. Under the Hawkins majority view, the Florida authorities could perhaps have left him there for 60, 90, or even 360 days without a trial. This hardly seems to comport with the intention of the speedy trial rule. When Rule 3.191 is read as a whole, it appears clear that subsection (b)(1), supra, must be interpreted to apply when a defendant is incarcerated in jails outside the jurisdiction of this state on charges pending in the other state. Otherwise, the provisions of subsection (a)(4) of Rule 3.191 become totally meaningless.

The only question remaining is whether the trial court correctly determined that Bivona was “taken into custody ... as a result of the ... criminal episode which gave rise to the crime charged .... ” under Florida Rule of Criminal Procedure 3.191(a)(4). The sole and unrebutted evidence before the trial court indicated that but for the incarceration request from West Palm Beach, he would have been free. Indeed, the State apparently conceded the point when asked by the trial court if there was any conflicting evidence regarding the reason for Bivona’s detention:

THE COURT: [The California report] clearly says that when the gentleman gave his correct name that he was going to be released on the charges out there. Do you have any evidence to rebut that? THE PROSECUTOR: Not at the present time, judge.

At this point Bivona fell within the ambit of Florida Rule of Criminal Procedure 3.191(a)(1) and (a)(4). The State had the burden of showing that he was being held in California on the California charges. It made no effort to produce any evidence to support that contention.

We find no merit in the second point proposed by the State. Accordingly, the order of the trial court is affirmed.

AFFIRMED.

ROBERT C. SCOTT, Associate Judge, concurs.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting.

I would reverse and remand.

The issue is whether the trial court erred by granting appellee’s motion for discharge, in that 180 days had not run from appellee’s coming into the custody of Florida authorities. I agree with the state’s argument that the speedy trial period commenced, not upon appellee’s California apprehension or at the time of his detainer there at the request of Florida authorities, but at the time he came into the custody of the West Palm Beach police.

Appellee contends that he was held by the Bakersfield, California, police from June 29, 1983, solely as a result of the Florida criminal charges, and that the Bakersfield authorities’ holding of appellee on a detainer requested by Florida authorities constituted a taking into custody in the context of rule 3.191(a)(1), Florida Rules of Criminal Procedure. The trial court agreed with appellee.

The pertinent facts show that on June 29, 1983, appellee was arrested in Bakersfield, California, on charges of petty theft and assault and battery. After his arrest, he told the Bakersfield police that he was wanted in Florida for bank robbery and violation of probation and further told the police the details of the Florida crime. The Bakersfield authorities contacted West Palm Beach authorities, who requested ap-pellee be held on the Florida charges. On June 30, 1983, appellee was charged by information with armed robbery and a warrant for his arrest was obtained. Appellee was transferred to West Palm Beach authorities on August 4, 1983.

My bases for disagreement with the trial court’s order are the language of the appropriate rule of criminal procedure coupled with the additional record. Florida Rule of Criminal Procedure 3.191(b)(1) provides in part:

A person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this State or a subdivision thereof, and who is charged with a crime by indictment or information issued or filed under the laws of this State, is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which .the Florida charge is pending and until written notice of this fact is filed with the court and served upon the prosecutor.

Besides the fact that appellee was apprehended in California for petty theft and assault and battery, the additional record shows that he violently resisted efforts to apprehend him when confronted with that theft by the security officer, and refused to identify himself. A logical inference therefrom, I respectfully suggest, is that after that episode California authorities would not discharge appellee without bond nor disregard his criminal conduct in that state; the trial court’s conclusion that appellee had been released from incarceration with respect to the California charges and was being held by authorities there solely because of their learning of the armed robbery in Florida is not supported by the additional record’s narrative of the offenses and surrounding facts of the California episode. There is no compelling inference that the California crimes were insufficiently serious to support appellee’s continued incarceration until the posting of bond addressed to the episode there.

It is a truism that to a society weary of armed robbery, discharge of a confessed armed robber because of a purported speedy trial rule violation is repugnant. Those involved in the judicial process should meticulously scrutinize the record and the law to determine whether the speedy trial period has indeed run. The dialogue between the prosecutor and the trial judge in this case reflects that adequate scrutiny of the record may not have occurred. The public has a right to expect that the speedy trial rule does not become a sword when it was intended as a shield. It becomes a sword when those charged slip through the cracks or, as here, when the prosecution does not carefully call to the trial court’s attention the relevant contents of the record and the reasonable inferences therefrom. Trial judges may reasonably expect prosecutors to be as enthusiastic about prosecuting alleged felons as defense counsel are about setting them free.

Subsequent to the trial court’s order in this case, the First District decided Hawkins v. State, 451 So.2d 903 (Fla. 1st DCA 1984), wherein the majority held that because of a change of language in the foregoing rule of criminal procedure, the first sentence of 3.191(b)(1) would include fugitives who are in custody of another state solely on the basis of the charges pending in this state. Were we to rely upon such holding, that reliance alone would warrant reversal, being mindful, however, that neither the prosecutor nor the trial court here could have known of the First District’s .decision. Judge Ervin, concurring in part and dissenting in part, takes issue with the Hawkins majority’s analysis. I opt not to rely upon our companion court’s analysis nor to adopt the dissenting view at this time. However, both the majority decision and the dissent in Hawkins provide authority and reasons for reversal.

The Florida cases of State v. Bassham, 352 So.2d 55 (Fla.1977), Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982), and Cameron v. State, 376 So.2d 248 (Fla. 5th DCA 1979), involving “intrastate,” not “interstate,” matters, make clear that when a detainer for a second offense is placed on one already in custody for a first offense, the speedy time period does not begin to run from the date of custody for the first offense or from the beginning of the de-tainer for the second. Instead, it commences when the defendant is freed on the first offense and formally arrested on the second. Reversal here would be consistent with those cases.


author: RYDER, Chief Judge.

text:
    BAYONET POINT HOSPITAL MEDICAL CENTER, Appellant, v. STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF UNEMPLOYMENT COMPENSATION, Appellee.
    No. 84-180.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1984.
    Gerald A. Figurski of Martin, Richmond, Booth, Cook & Figurski, New Port Richey, for appellant.
    Alex D. Littlefield, Jr., Tallahassee, for appellee.
   RYDER, Chief Judge.

Bayonet Point Hospital Medical Center (Bayonet Point) appeals an administrative order of the Department of Labor and Employment Security, Division of Unemployment Compensation, setting its rate of contribution for unemployment compensation. On March 12, 1981, Bayonet Point filed with the Division a report to determine its status, indicating that it was subject to the Unemployment Compensation Law, had begun hiring employees on October 1, 1980, and would begin operation on March 23, 1981. The Division assigned Bayonet Point the standard tax rate for a new employer of .0270 pursuant to section 443.131(3)(c), Florida Statutes (1981).

The following year, on March 30, 1982, Bayonet Point filed an application for partial transfer of experience records pursuant to section 443.131(3)(g)(3). That statute allows the Division to provide by rule for a successor employer who has received an identifiable and segregable portion of its payroll and business by transfer from a previous employer to also receive the previous employer’s lower rate of contribution. Bayonet Point claimed that it was the successor employer to Community Hospital of New Port Richey (Community). Community and Bayonet Point are both wholly owned subsidiaries of Hospital Corporation of America. Community, which is located approximately fifteen miles from Bayonet Point, began operation in 1978 and continues to be an active hospital. Bayonet Point claimed to be the successor employer to Community based on the transfer of four employees from Community to Bayonet Point prior to Bayonet Point’s opening. The Division granted Bayonet Point’s application on September 14, 1982, and lowered its contribution rate from .0270 to .0010.

Four months later on January 6, 1983, the Division issued a redetermination that Bayonet Point had not acquired an identifiable and segregable portion of its business from Community and was not entitled to the lower rate. The Division reinstated Bayonet Point’s higher, new employer rate. Bayonet Point protested and a hearing was held before a special deputy who found that although there had been a transfer of an identifiable and segregable portion of the payroll from Community to Bayonet Point, there had been no transfer of an identifiable portion of Community’s business. The special deputy recommended that the redetermination of Bayonet Point’s contribution rate be affirmed. The Division adopted the special deputy’s findings of fact and conclusions of law and affirmed the redetermination.

We agree with the Division that there was competent, substantial evidence to support the special deputy’s findings of fact. We also agree that there was competent, substantial evidence to support the special deputy’s conclusion of law that Community transferred an identifiable and segregable portion of its payroll but not of its business to Bayonet Point. We disagree, however, with the special deputy’s conclusion of law that section 443.131(3)(i)(l) does not limit the Division’s power to redetermine an employer’s contribution rate after the initial fifteen-day period except when there has been a computational error.

Section 443.131(3)(i) provides that the Division’s determination of an employer’s rate of contribution for any calendar year shall be conclusive and binding on the employer fifteen days after the Division mails the notice to the employer but that the Division may redetermine the rate after the fifteen-day period if it made a computational error. Taxing statutes should be construed strictly against the state and doubts resolved in the taxpayer’s favor. Florida Industrial Commission v. Growers Equipment Co., 152 Fla. 595, 12 So.2d 889 (1943). Construing section 443.131(3)(i) strictly, we hold that after the fifteen-day period has run, the determination of an employer’s contribution rate is binding both on the employer and the Division and the Division may not redetermine the rate absent a computational error until the following calendar year.

The Division’s granting of Bayonet Point’s application for partial transfer of experience records was proper because Bayonet Point applied for the transfer in the calendar year following the initial determination. The Division’s redetermination of its decision four months later, however, was not proper because the fifteen-day period after the notice was mailed to Bayonet Point had elapsed, there was no computational error, and the redetermination was binding on both the Division and Bayonet Point during the ensuing calendar year.

Accordingly, the order affirming the Division’s redetermination of Bayonet Point’s entitlement to the lower contribution rate is reversed. Bayonet Point was entitled to the lower rate based on the Division’s granting of its partial transfer application. We emphasize that competent, substantial evidence supports the special deputy’s findings of fact and conclusion of law, as adopted by the Division, that there was no transfer of business from Community to Bayonet Point. Because a year has now elapsed, the Division may now redetermine Bayonet Point’s entitlement to the lower rate.

Reversed.

BOARDMAN and CAMPBELL, JJ„ concur.

      . Section 443.131(3)(g)(3) provides:
      The division may provide by rule for partial transfer of experience rating where an employer has transferred at any time an identifiable and segregable portion of his payrolls and business to a successor employing unit. As a condition of such partial transfer of experience, the rules shall require an application by the successor, agreement by the predecessor, and such evidence as the division may prescribe of the experience and payrolls attributable to the transferred portion up to the date of transfer. The rules shall provide that the successor employing unit, if not already an employer, shall become an employer as of the date of the transfer and that the experience of the transferred portion of the predecessor's account shall be removed from the experience-rating record of the predecessor, and for each calendar year following the date of the transfer of the employment record on the books of the division, the division shall compute the rate of contribution payable by the successor on the basis of his experience, if any, combined with the experience of the portion of the record transferred. The rules may also provide what rates shall be payable by the predecessor and successor employers for the period between the date of the transfer of the employment record of the transferred unit on the books of the division and the first day of the next calendar year.

      . Section 443.131(3)(i)(l) provides:
      The division:
      Shall promptly notify each employer of his rate of contributions as determined for any calendar year pursuant to this section. Such determination shall become conclusive and binding upon the employer unless within 15 days after the mailing of notice thereof to his last known address, or, in the absence of mailing, within 15 days after the delivery of such notice, the employer files an application for review and redetermination setting forth his reasons therefor. No employer shall be allowed, in any proceeding involving his rate of contributions or contribution liability, to contest the chargeability to his account of any benefits paid in accordance with a determination, redetermination, or decision pursuant to s. 443.151, except upon the ground that the services on the basis of which such benefits were found to be chargeable did not constitute services performed in employment for him and then only in the event that he was not a party to such determination, redetermi-nation, or decision or to any other proceedings provided for in this chapter in which the character of such services was determined.


text:
    Stephen F. GURCHICK, Appellant, v. STATE of Florida, Appellee.
    No. 84-226.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1984.

      Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The only question on this appeal is the right of appellant to be sentenced under the guidelines upon his request where his original sentence (vacated on appeal) occurred prior to application of the sentence guidelines. We hold he is entitled to elect resentencing under the guidelines and therefore reverse.

Appellant was originally sentenced to fifteen years in prison on his plea of guilty to the offense of burglary. This court vacated the original sentence on an earlier appeal and ordered appellant to be resen-tenced by the trial court. 439 So.2d 1002, appeal after remand 428 So.2d 738.

At the resentencing hearing on January 12, 1984, the defendant requested sentencing under the guidelines, Florida Rule of Criminal Procedure 3.701, which became effective October 1, 1983. The prosecutor argued, however, that the defendant was not entitled to be sentenced under the guidelines because a plea had been negotiated in his case two years previously, as a result of which the defendant had received the benefit of the state’s not proceeding on the charge of sexual battery on a child eleven and one-half years of age.

The trial judge refused to sentence under the guidelines for several stated reasons. First, the burglary category under the guidelines did not include first degree punishable by life, whereas the offense the defendant committed — burglary with an assault — was so punishable at the time of original sentencing. Second, sentence originally had been imposed on the defendant prior to the effective date of the guidelines. The judge further stated that, if the guidelines did apply, there were clear and convincing reasons for departure.

Even though the defendant had been sentenced once prior to the effective date of the guidelines, that sentence was vacated on constitutional grounds. In effect, January 12, 1984, became the first date on which sentence could legally be imposed on the defendant. We recently visited this question in the case of Reid v. State, 460 So.2d 921 (Fla. 2d DCA 1984), and found that there is no exception in the guidelines for cases that have been reversed and remanded for resentencing.

Second, even though the guidelines, prior to their amendment by the supreme court in The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988—Sentencing Guidelines), 451 So.2d 824 (Fla. 1984), did not specify a point assessment for first-degree burglary punishable by life, the guidelines were nevertheless applicable. The offense should have been scored as a burglary felony of the first degree. Vileta v. State, 454 So.2d 792 (Fla. 2d DCA 1984).

Finally, the trial judge stated in the record that, if the guidelines did apply, he would impose a sentence outside the guidelines. We simply observe that this appeal does not present us with a review of that action. We are not unaware of our decision in Green v. State, 460 So.2d 378 (Fla. 2d DCA 1984) [9 F.L.W. 2037], wherein we held a negotiated plea may be valid and sufficient reason for departure.

REVERSED AND REMANDED FOR RESENTENCING.

GRIMES, A.C.J., and SCHEB and OTT, JJ., concur.


author: DANAHY, Judge.

text:
    Christopher Leon JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 84-532.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1984.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

In this sentencing guidelines case, the question we must resolve is whether the appellant affirmatively selected to be sentenced under the guidelines. We hold that he did not, and reverse for resentencing.

The appellant was charged by information in 1982 with burglary of a structure and resisting or obstructing an officer. He entered a plea of guilty and was placed on six years’ probation. On October 11, 1983, an affidavit was filed alleging that the defendant had violated the terms of his probation in several respects. • The appellant admitted to the violations of probation. The trial judge announced that he would sentence the appellant outside the guidelines if the appellant chose to be sentenced under the guidelines. The appellant thereupon was sentenced to five years’ imprisonment on the burglary charge. No sentence was imposed on the charge of resisting or obstructing an officer. This timely appeal followed.

Section 921.001(4)(a) provides that the sentencing guidelines shall be applied to all felonies, except capital felonies, committed on or after October 1, 1983, and to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced pursuant to the provisions of chapter 921. In the instant case, since the offense for which the appellant was sentenced occurred prior to October 1, 1983, the question is whether the appellant affirmatively selected to be sentenced under the guidelines. The significance of the question to the appellant is that if he was not sentenced pursuant to the guidelines, he is eligible for parole.

There is no doubt that the trial judge intended to, and in fact did, utilize the guidelines in imposing a sentence. The record, however, does not indicate that the appellant affirmatively selected to be sentenced under the guidelines. He asserts that he never did so. We have studied the record and find confusion on this. Obviously the trial judge believed the appellant had selected sentencing under the guidelines. The following colloquy is the sole portion of the record to which we can look for guidance:

THE COURT: I feel Mr. Jordan’s history is such that should he elect to go under the guidelines I will — I have plenty of evidence here to go outside the guidelines and will do so.
MR. ATKIN [defense counsel]: May I have a minute?
THE COURT: Uh, huh.
MR. ATKIN: Mr. Jordan will admit to violation of probation.
THE COURT: Very well.
THE COURT: .... I will tell you at this time that should you plead guilty to violating your terms and conditions of probation, I will sentence you to consecutive State Prison time to be served after you have served two years in Youthful Offender. This will probably be outside the recommended guidelines, but your prior report is such that I feel that the guidelines are inappropriate in sentencing you.

On the basis of the above-quoted portion of the record, the state argues that the appellant acquiesced in the use of the guidelines and by his actions he “implicitly” made the selection. We disagree. We do not believe that in all cases a defendant must announce “I do” when asked if he or she selects the guidelines for sentencing. It is unnecessary for a defendant to file a written statement of selection, nor are “magic words” on the record always necessary. Nevertheless, there must be a clear and unequivocal choice made on the record. Rodriguez v. State, 458 So.2d 899 (Fla. 2d DCA 1984). We do not believe that is the case here. While we think that even acquiescence by a defendant can be sufficient, the record before us is, at best, unclear and confusing.

Therefore, we believe it will best serve the interest of justice to return this case to the trial court for another sentencing hearing. The appellant may affirmatively select to be sentenced under the guidelines. If he does not, the trial judge will resentence him according to procedures in effect prior to the adoption of the sentencing guidelines. Rodriguez v. State. Cf. Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984) (defense counsel stated in the record “we have chosen to be sentenced under the guidelines, even though the crime was committed before October 1”).

REVERSED AND REMANDED.

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


author: SHARP, Judge.

text:
    James Robert WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 84-524.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.

      James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Williams argues that the trial judge improperly calculated his score sheet in sentencing him pursuant to the Sentencing Guidelines, Florida Rule of Criminal Procedure 3.701, by scoring two of his prior convictions for violation of municipal ordinances as misdemeanors. The score sheet totaled 77 points, which included 4 points for four misdemeanor convictions. If the two points for municipal ordinance violations were deleted, the scoresheet would total 75 points, and Williams would fall into the next lower sentencing bracket of “any non-state prison sanction.” The judge imposed a sentence of 26 months in prison, which was within the parameters of the possible sentences in the second bracket or cell, pursuant to a 77 total point count. We affirm.

Williams argues that section 775.08(2), Florida Statutes (1983) should be read in pari materia with the sentencing guidelines. It provides:

(2) The term “misdemeanor” shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by a term of imprisonment in a county correctional facility, except an extended term, not in excess of 1 year. The term “misdemeanor” shall not mean a conviction for any violation of any provision of Chapter 316 or any municipal or county ordinance.

The statute predates the sentencing guidelines, and if literally applied as Williams argues, it would prevent scoring for any municipal ordinance violations — a result we think contrary to the intent of the guidelines.

Williams’ two municipal ordinance convictions were for disorderly conduct and resisting arrest. Both of these offenses have parallel state law crimes. Both are misdemeanors under state law.

The guidelines define “prior record,” to be used as the basis for scoring, as follows:

5. a) “Prior record” refers to any past criminal conduct on the part of the offender, resulting in conviction, disposed of prior to the commission of the instant offense. Prior record includes all prior Florida, federal, out-of-state, military, and foreign convictions.
⅜ ⅝ % ⅝ ⅜ #
(4) Prior record shall include criminal traffic offenses, which shall be scored as misdemeanors.
(5) Convictions which do not constitute violations of a parallel or analogous state criminal statute shall not be scored. (Emphasis supplied).

Fla.R.Crim.P. 3.701(d)(5)(a). The guidelines’ all encompassing language, plus its exclusion of convictions which do not constitute violations of a parallel or analogous state criminal statute, persuade us that convictions for violations of municipal ordinances, which do have parallel state criminal statutes, were intended to be considered and scored as part of a defendant’s “prior record.”

Accordingly, the judgment appealed is

AFFIRMED.

COBB, C.J., and FRANK D. UPCHURCH, Jr., J., concur.

      . §§ 843.02, 877.03, Fla.Stat. (1983).


author: GRIMES, Acting Chief Judge.

text:
    STATE of Florida, Petitioner, v. Nicholas CASTELLANO, Respondent.
    No. 84-312.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for petitioner.
    Richard D. Mars of Edmund, McDaniel & Mars, Bartow, for respondent.
   GRIMES, Acting Chief Judge.

The state seeks to appeal an order denying its motion to quash respondent’s deposition subpoena of Roger Mallory. Since this is a nonappealable order, we treat the matter as a petition for writ of certiorari.

The respondent was charged with attempted first degree murder. In responding to a demand for discovery, the state listed Mallory as a person having information about the case. The respondent subpoenaed Mallory for the taking of his deposition. Mallory is a mediator in the Citizens Dispute Settlement Program (CDSP) in the Tenth Judicial Circuit. The respondent asserts that Mallory will be able to testify that during the course of mediation the person who became the victim of the alleged attempted murder made life-threatening statements to the respondent. He maintains such testimony will support his contention of self-defense. The state filed a motion to quash the deposition subpoena urging that statements made to CDSP mediators were privileged. The court denied the motion to quash.

At the outset, we note that section 90.501, Florida Statutes (1983), provides:

90.501 Privileges recognized only as provided.—Except as otherwise provided by this chapter, any other statute, or the Constitution of the United States or of the State of Florida, no person in a legal proceeding has a privilege to:
(1) Refuse to be a witness.
(2) Refuse to disclose any matter.
(3) Refuse to produce any object or writing.
(4) Prevent another from being a witness, from disclosing any matter, or from producing any object or writing.

Thus, privileges in Florida are no longer creatures of judicial decision. Marshall v. Anderson, 459 So.2d 384 (Fla. 3d DCA 1984).

In this case, the state argues for privilege on two grounds. First, the state contends that communications made by parties in the CDSP are privileged as being in the nature of offers of compromise. However, the rule protecting offers of compromise appears to be one more of admissibility than privilege. C. McCormick, McCormick on Evidence § 274 (2d ed. 1972); 4 J. Wigmore, Wigmore on Evidence § 1061 (rev. ed. 1972). The admissibility of offers to compromise is addressed in section 90.408, Florida Statutes (1983):

90.408 Compromise and offers to compromise.—Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.

The plain language of the provision only excludes evidence of an offer of compromise presented to prove liability or the absence of liability for a claim or its value. Therefore, even if the admissibility of such evidence could be equated with the privilege not to disclose the evidence, there is nothing in the statute remotely applicable to the testimony sought herein. This section is simply not relevant to the situation where a mediator testifies in a criminal proceeding regarding an alleged threat made by one party to another in a prior CDSP setting.

Alternatively, the state asserts that since the CDSP is an investigatory arm of the state attorney, the privilege accorded to statements made to a prosecuting attorney .should be extended to those made to a CDSP mediator. See Widener v. Croft, 184 So.2d 444 (Fla. 4th DCA), cert. denied, 192 So.2d 486 (Fla.1966). We know of no rationale to make such an extension. The parties to a CDSP program are simply attempting to resolve a dispute so that a criminal prosecution will be unnecessary. All statements are made voluntarily by persons under no legal compulsion to attend. The record reflects no authority for the mediator s statement that the parties communications were confidential. The fact that he may have so advised the parties that their communications would be held confidential does not now excuse him from being compelled by respondent to testify concerning what was said.

There is no legal basis for a privilege which would prevent the respondent from obtaining Mallory’s testimony. If confidentiality is essential to the success of the CDSP program, the legislature is the proper branch of government from which to obtain the necessary protection.

Certiorari denied.

SCHEB and DANAHY, JJ., concur.

      . In essence, this program offers an alternative to a formal prosecution for enumerated misdemeanors.