author: ZEHMER, Judge.

text:
    Michael PUCCIO, Appellant, v. STATE of Florida, Appellee.
    No. AQ-335.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1983.
    Rehearing Denied Nov. 8, 1983.
    See also 424 So.2d 85.

      John W. Pafford, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   ZEHMER, Judge.

On this appeal, we review the trial court’s order denying appellant’s motion to suppress admissions that he alleges were prompted by improper inducements or promises from police officers. We affirm.

On March 30, 1981, appellant was arrested by Officer Dipera pursuant to a warrant on a burglary charge and taken to an interrogation room at the Jacksonville Police Memorial Building. Appellant was questioned by both Diperna, a uniformed policeman, and Farmer, a plainclothes detective, regarding appellant’s possible involvement in the burglary. Testimony by those police officers at the suppression hearing proved that the following took place during the interrogation.

Appellant persistently denied any participation in the burglary for which he had been arrested and was being detained. After the officers concluded their questioning on that offense, Farmer asked appellant if he had been involved in any other burglaries. The officers had no specific burglary in mind. Appellant at first denied participation in any other burglaries, but then asked what would happen to him if he did discuss the matter. Farmer told appellant that he would not be charged with any other burglaries at that time and explained that a decision to so charge him would be up to the state’s attorney and the court. Farmer, however, promised to advise the state’s attorney and the court of appellant’s cooperation. Thereafter, appellant admitted to several other burglaries. Appellant later accompanied Farmer and a second detective in a police car and pointed out the location of about eight burglaries he had committed.

The original burglary charge on which appellant was arrested was not pursued by the state. Appellant was, instead, charged with one of the admitted burglaries. He moved to suppress the admissions, alleging that they were induced by promises of favorable treatment on the charge for which appellant was being held. Appellant did not testify at the suppression hearing. The trial court denied the motion. Appellant then pled nolo contendere, specifically reserving the right to appeal this question.

On appellant’s first appeal, we held that the record contained no stipulation by the state that the order denying suppression of the confession was dispositive of the case and that the issue raised would not be reviewed. Puccio v. State, 424 So.2d 85 (Fla. 1st DCA 1982). Thereafter, with the state’s concurrence, the trial court permitted the original plea of nolo contendere to be withdrawn, and a new nolo plea was accepted with a stipulation by the state recognizing that the reserved suppression issue was, in fact, dispositive. The issue is now properly before us for review.

Appellant argues that he was arrested for the burglary of Mr. Young’s residence, that he was being held on that charge when the admissions were made, and that it was within the context of that interrogation that the officers questioned appellant about any other burglaries and advised him that they would make known his cooperation in solving other uncharged crimes. Appellant was at that time eighteen years of age and unfamiliar with the court system. Fearful that he would be prosecuted and incarcerated on the Young burglary despite his denials because the officers did not believe him, appellant reasoned that if he cooperated regarding the other burglaries on which the officers said they had no intention of bringing charges at that time, then perhaps he could avoid prosecution for the Young burglary, which he had denied committing. As a result of the promises and inducements held out by the police officers, appellant argues, he admitted the uncharged burglaries.

The state has the burden of showing that the involved confession or admission was freely and voluntarily given. The confession cannot have been obtained by any direct or implied promise of benefit or reward, however slight. Brewer v. State, 386 So.2d 232 (Fla.1980); Fillinger v. State, 349 So.2d 714, 715 (Fla. 2d DCA 1977). The confession must be excluded if the totality of the surrounding circumstances were calculated to delude the accused or to exert undue influence over him. Fillinger, at 716. A simple representation in the form of a promise to a cooperating confessor that the fact of his cooperation will be made known to the prosecuting authorities or the court, however, is insufficient to render a confession involuntary and inadmissible. State v. Williams, 358 So.2d 1094 (Fla. 1st DCA 1978); Bova v. State, 392 So.2d 950 (Fla. 4th DCA 1980)..

Determining whether a confession is voluntary requires an assessment of human motivation and behavior, and that one factor by itself is seldom determinative. United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir.1978); Bova, supra, at 952. The voluntariness of a confession presents a mixed question of law and fact to be determined, first, by the trial judge and then, should a trial be held, by the jury. Stone v. State, 378 So.2d 765 (Fla.1979). Evidence of all the circumstances of the act of confessing was before the trial judge, and his finding comes to this court clothed with a presumption of correctness. Bova, supra, at 952.

The judge below had ample opportunity to observe the officer and detective testifying at the suppression hearing and to assess their motivation and credibility. Having done so, and having found neither an implied promise nor other impermissible inducement, he ruled that appellant’s confession was admissible. It is our duty to interpret the evidence and derive reasonable inferences therefrom in a manner most favorable to the state in reviewing whether sufficient evidence sustains the trial court’s ruling. Bova, supra, at 952.

The record indicates that before appellant admitted knowledge of the other burglaries he was promised that his cooperation would be communicated to the proper authorities and that the police would not file charges at that time on any other burglaries. Although it seems unlikely that appellant would, without at least some intimation of reward or benefit by the police interrogators, incriminate himself with a voluntary confession accompany two detectives to identify the sites of eight former burglaries, the record is devoid of any such intimation. Rather, the record supports a finding that the officers clearly qualified their statements concerning appellant’s cooperation by explaining that whether or not any additional charges would be filed was ultimately up to the state’s attorney and the court. Accordingly, the admissions by appellant appear to be the product of proper police procedure rather than the product of trickery, threats, or the exertion of improper influence as contemplated in Brewer, supra, the case appellant argues is controlling.

In Brewer, the defendant was convicted of first degree murder and sentenced to death. He appealed the conviction on grounds that his confession to the police was inadmissible. The Supreme Court held that the defendant’s initial statement was made to police officers who relentlessly raised the spectre of the electric chair, repeatedly suggested that they had the power to effect leniency, and cavalierly indicated that the defendant would not be given a fair trial. This conduct was held to be sufficient to render the statement inadmissible. The record in the instant case indicates no such improper coercion, intimidation, or promise of leniency to gain appellant’s cooperation.

The trial court’s denial of appellant’s motion to suppress is AFFIRMED.

MILLS and SHIVERS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sam FOGEL, Appellant, v. STATE of Florida, Appellee.
    No. 82-1008.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    Rehearing Denied Nov. 23, 1983.
    Richard Hersch of Law Offices of Richard Hersch, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the appellant’s convictions. We find no error by the trial court in admitting appellant’s statements or in admitting evidence of appellant’s prior assault upon the victim. We also find no error by the trial court in refusing to instruct the jury on the penalties for lesser included offenses. Delap v. State, 440 So.2d 1242 (Fla.1983).

ANSTEAD, C.J., and BERANEK and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    MOTOR HOMES OF AMERICA, INC., a Florida corporation, Appellant, v. Clarence H. O'DONNELL and Georgia G. O'Donnell, and Winnebago Industries, Inc., a foreign corporation, Appellees.
    Nos. 82-46, 82-394.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 1983.
    Rehearing Denied Nov. 23, 1983.

      Kenneth M. Jones of Moody & Jones, Fort Lauderdale, for appellant.
    Robert W. Crawford, Fort Lauderdale, for appellees — O’Donnells.
    R. Fred Lewis of Magill, Reid, Kuvin & Lewis, Miami, for appellee — Winnebago Industries, Inc.
   DOWNEY, Judge.

These consolidated appeals by Motor Homes of America, Inc., seek reversal of (1) a final judgment in favor of Winnebago Industries, Inc., on a cross-claim in which Motor Homes sought indemnity from Winnebago Industries, Inc. (Case No. 82-46), and (2) an amended final judgment in favor of Mr. and Mrs. O’Donnell on their claim for rescission of a contract, damages, and attorney’s fees (Case No. 82-394).

In 1980 the O’Donnells owned a recreational vehicle with a 36 gallon gasoline tank that gave a driving range of about 200 miles. They wanted a recreational vehicle with a longer cruising range and went to Motor Homes, from which they had bought the first vehicle, to find a suitable vehicle. A Motor Homes salesman showed them a 22 foot Brave Winnebago. A brochure supplied by Winnebago described the vehicle as having a 60 gallon tank. The O’Donnells asked Motor Homes to verify with Winnebago by telephone that the vehicle had a 60 gallon tank, since such a tank was an indis-pensible prerequisite for a purchase by the O’Donnells. The Motor Homes salesman did not call the Winnebago factory; instead, he informed the O’Donnells that all Motor Homes could go by was the brochure. Motor Homes could have determined that the vehicle had a 45 gallon tank by deciphering the vehicle identification number code, but none of the Motor Homes employees did any deciphering of that code, although they were on notice that the code would reveal gasoline tank capacity. The O’Donnells entered into a sales contract with Motor Homes which contained a conspicuously displayed disclaimer' of any warranties, express or implied. Pursuant thereto the O’Donnells purchased the vehicle for $22,935 believing it had a 60 gallon gas tank. However, the vehicle in fact had only a 45 gallon tank. Moreover, the vehicle had other minor problems: water leaks, power steering problems, oil problems, fiberboard problems, as well as curtain and plumbing problems. Being dissatisfied with the unit the O’Donnells returned it to Motor Homes a few days after the purchase and thereafter brought suit against Motor Homes and Winnebago.

Counts I and II of the complaint sought rescission of the sale plus damages from Motor Homes. Counts III and IV sought damages from Motor Homes for breach of express and implied warranties. Counts V and VI sought damages from Winnebago for breach of express and implied warranties. Count VII sought attorney’s fees pursuant to the Magnuson-Moss Warranty Act (15 U.S.C.A. §§ 2301-2312 (West 1976)) from both Motor Homes and Winnebago. After a bench trial, the court awarded the O’Donnells $25,600 against Motor Homes on Count I only, holding that the plaintiffs should take nothing under the remaining six counts. The final judgment found against Motor Homes and Winnebago on their respective cross-claims. Thereafter, the O’Donnells moved to amend the final judgment to include a finding that they had prevailed on Count VII as to Motor Homes and were entitled .to attorney’s fees. The court granted that motion and entered an amended final judgment finding that the O’Donnells prevailed upon Count VII as to Motor Homes and were entitled to recover attorney’s fees. These appeals followed.

Motor Homes’ complaints on appeal are directed solely to the trial court’s failure to grant Motor Homes relief on its cross claim against Winnebago and the award of attorney’s fees to the O’Donnells against Motor Homes based upon the Magnuson-Moss Warranty Act.

With reference to the indemnity claim against Winnebago we hold that, because Motor Homes was clearly guilty of some fault in the sale of the vehicle, a finding for Winnebago on the cross-claim was proper. As the Supreme Court said in Houdaille Industries, Inc. v. Edwards, 374 So.2d 490, 493 (Fla.1979):

Indemñity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the whole fault is in the one against whom indemnity is sought.

We therefore affirm the denial of Motor Homes’ cross-claim.

The purpose of the Magnuson-Moss Act is described in one of the leading cases decided under said act, Skelton v. General Motors Corp., 660 F.2d 811, 313-14 (7th Cir.1981), cert. denied, 456 U.S. 974, 102 S.Ct. 2238, 72 L.Ed.2d 848 (1982), as:

Magnuson-Moss is, in the main, a remedial statute designed to protect consumers from deceptive warranty practices. Its draftsmen believed that consumer product warranties often were too complex to be understood, too varied to allow meaningful comparisons and too restricted to provide meaningful warranty protection. See S.Rep. No. 93-151, 93d Cong., 2nd Sess. 6-8 (1973); H.R.Rep. No. 93-1107, 93d Cong., 2d Sess. 22-29, reprinted in [1974] U.S.Code Cong. & Ad. News 7702, 7705-11. The Act’s draftsmen sought to remedy these perceived ills by imposing extensive disclosure requirements and minimum content standards on particular types of written consumer product warranties. And, to promote enforcement of these warranties, the draftsmen devised a detailed remedial apparatus, which includes optional informal dispute settlement procedures as well as private and governmental judicial actions.
Although Magnuson-Moss does not require any manufacturer or seller to extend a warranty with its product, any “written warranty” offered with a consumer product is subject to the Acts’s regulatory requirements. [Footnotes omitted.]

The court further opined that Congress did not intend “to create a federal cause of action for breach of all written express warranties” by enacting Magnuson-Moss. Skelton, supra, at 316. The court also declined to endorse the district court’s conclusion that where a written warranty is issued, other written promises made in connection with the same transaction should be enforceable as part of the written warranty. Skelton, supra, at 320.

In Count VII of the complaint, the plaintiffs specifically sought attorney’s fees and other relief under § 2304(a)(4). The trial court, without further elaboration, awarded fees on this basis. However, § 2304(a) imposes statutory obligations only upon certain suppliers; namely, “warrantor[s] warranting a consumer product by means of a written warranty” who seek to meet minimum federal standards. 15 U.S.C.A. § 2304. It is axiomatic that Motor Homes cannot be held liable for breaching a statutory duty it did not owe. The issue then is whether Motor Homes warranted the capacity of the fuel tank and other characteristics of the unit sold by means of a written warranty.

The Act defines a written warranty as follows:

(6) The term written warranty means—
(A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or
(B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.

15 U.S.C.A. § 2301(6) (1976).

As a preliminary matter, we note that the sales contract between Motor Homes and plaintiff Clarence O’Donnell contained a conspicuous disclaimer of any express warranties other than those made by the manufacturer. However, even assuming, without so deciding, that any express warranties made by Motor Homes were not effectively disclaimed, the record does not support a finding that Motor Homes issued a written warranty as to fuel tank capacity or any other aspect of the unit. Plaintiffs do not point to any writing directed to them from Motor Homes which embodied any representation or obligation within the scope of § 2301(6).

Plaintiffs do, however, advance the argument that Motor Homes adopted an express warranty by the manufacturer and may be liable thereunder. Title 16 C.F.R. § 700.4 states:

§ 700.4 Parties “actually making” a written warranty.
Section 110(f) of the Act provides that only the supplier “actually making” a written warranty is liable for purposes of FTC and private enforcement of the Act. A supplier who does no more than distribute or sell a consumer product covered by a written warranty offered by another person or business and which identifies that person or business as the warrantor is not liable for failure of the written warranty to comply with the Act or rules thereunder. However, other actions and written and oral representations of such a supplier in connection with the offer or sale of a warranted product may obligate that supplier under the Act. If under state law the supplier is deemed to have “adopted” the written affirmation of fact, promise, or undertaking, the supplier is also obligated under the Act. Suppliers are advised to consult state law to determine those actions and representations which may make them co-warran-tors, and therefore obligated under the warranty of the other person or business.

The operative provision of the regulation is

If under state law the supplier is deemed to have “adopted” the written affirmation of fact, promise, or undertaking, the supplier is also obligated under the Act.

We hold that, while the underlined language may describe an express warranty, adoption may only render a supplier liable where the affirmation, promise, or undertaking adopted is a written warranty under the Act.

Prior to the above quoted provision, the regulation states:

A supplier who does no more than distribute or sell a consumer product covered by a written warranty offered by another person or business ... is not liable for failure of the written warranty to comply with the Act ....

In addition, the title thereof is “[pjarties ‘actually making’ a written warranty,” and the above view comports with the requirement under 15 U.S.C.A. § 2310 that

(f) For purposes of this section, only the warrantor actually making a written affirmation of fact, promise, or undertaking shall be deemed to have created a written warranty, and any rights arising thereunder may be enforced under this section only against such warrantor and no other person.

Because plaintiffs have not shown, and our review of the record has not revealed, any written warranty made by Winnebago concerning fuel tank capacity, Motor Homes cannot be deemed a warrantor by adoption, and thus cannot be held liable under the Act for attorney’s fees.

In its final judgment, the trial court focused on the nonconforming fuel tank capacity as a basis for finding that plaintiffs properly revoked their acceptance of the unit. However, the final judgment also mentioned that the unit had numerous other defects, which to varying degrees would impair the value of the unit to the O’Donnells. However, we find that even if these defects were covered by a written warranty issued by Winnebago, Motor Homes did not adopt such a warranty as a matter of state law. While Motor Homes may have referred to sales and specification literature of the manufacturer in making certain representations about the unit sold, it did not take what otherwise constituted a written warranty by Winnebago as its own. See Cochran v. McDonald, 23 Wash.2d 308, 161 P.2d 305, 306 (1945). Delivering, presenting or explaining a manufacturer’s warranty, without more, does not render a dealer a co-warrantor by adoption. Kure v. Chevrolet Motor Division, 581 P.2d 603 (Wyo.1978); Wallace v. McCampbell, 178 Tenn. 224, 156 S.W.2d 442 (1942); Courtesy Ford Sales, Inc. v. Farrior, 53 Ala.App. 94, 298 So.2d 26 (1974); Hodge Boats & Motors v. King, 578 S.W.2d 890 (Tex.Civ.App.1979); Import Motors, Inc. v. Matthews, 557 S.W.2d 807 (Tex.Civ.App.1977).

In summary, we believe that Motor Homes did not issue or adopt any written warranty which would subject it to the provision of the Act allegedly violated. Furthermore, there was no basis for an implied warranty claim since the sales contract between Motor Homes and the O’Donnells contained an adequate disclaimer. § 672.316, Fla.Stat. (1981). Therefore, the O’Donnells did not establish their rights under the Magnuson-Moss Act and thus were not entitled to attorney’s fees as provided therein.

Accordingly, we affirm the judgment regarding the cross-claims and reverse the judgment allowing attorney’s fees to O’Donnells against Motor Homes of America.

Affirmed in part; Reversed in part.

BERANEK and WALDEN, JJ., concur.

      . See Skelton, supra, at 314, 316 & 320.

      . The record indicates that, as to fuel tank capacity, Winnebago made no “written affirmation of fact or written promise ... which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time”; nor did Winnebago issue “any undertaking in writing ... to repair, refund, replace or take other remedial action ... in the event [of failure] to meet the specifications set forth in the undertaking.” 15 U.S.C.A. § 2301(6)(A), (B).


author: WIGGINTON, Judge.

text:
    UNITED STATES SUGAR CORPORATION and Gallagher Bassett Insurance Service, Appellants, v. David Alfred WHITTON, Appellee.
    No. AR-190.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1983.
    Rehearing Denied Nov. 23, 1983.
    Michael A. Edwards, West Palm Beach, for appellants.
    Thomas A. Hoadley, of Law Offices of Hoadley & Gavigan, P.A., West Palm Beach, for appellee.
   WIGGINTON, Judge.

This workers’ compensation appeal challenges the deputy commissioner’s order awarding claimant permanent partial disability benefits based on the deputy’s finding that the industrial injury resulted in claimant’s sustaining a 10 percent disability of the body as a whole based on a loss of wage earning capacity. We affirm.

The evidence was sufficient from which the deputy could find causal relationship and conclude that claimant suffered some permanent impairment, on which a finding of loss of wage earning capacity is initially contingent, despite there being no impairment rating based on the American Medical Association Guides. Tampa Bay Moving Systems, Inc. v. Frederick, 433 So.2d 628 (Fla. 1st DCA 1983); Deinema v. Pierpoint Condominiums, 415 So.2d 811 (Fla. 1st DCA 1982); Racz v. Chennault, Inc., 418 So.2d 413 (Fla. 1st DCA 1982). The record reveals ample competent and substantial evidence on which to base the deputy’s finding of an adequate work search.

AFFIRMED.

ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.


text:
    Frank STUART, M.D., Appellant, v. Betty KIRBY, Appellee.
    No. AN-498.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.
    Robert S. Lyons, Fort Lauderdale, for appellant.
    Bernard F. Grail, Jr., Vero Beach, for appellee.
   PER CURIAM.

AFFIRMED. Leffler v. Grand Union Co., 409 So.2d 1145 (Fla. 1st DCA 1982).

ROBERT P. SMITH, Jr., WENTWORTH and ZEHMER, JJ., concur.


author: JOANOS, Judge.

text:
    WATER & SEWER UTILITY CONSTRUCTION, INC., a Florida corporation, and Charles F. Rodgers, Appellants, v. MANDARIN UTILITIES, INC. a Florida corporation; Jax Utilities Construction Company, Inc., a Florida corporation, and J.A. Mixon, Appellees.
    No. AO-216.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.

      Brent M. Turbow and Arthur T. Boone, Jacksonville, for appellants.
    George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, and William G. Cooper of Kent, Watts, Durden, Kent & Mickler, Jacksonville, for appellee Mandarin Utilities, Inc.
    Richard C. Stoddard of Rumph & Stod-dard, Jacksonville, for appellee J.A. Mixon.
    Paul P. Sanford, of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee Jax Utilities Const. Company, Inc.
   JOANOS, Judge.

Appellants, Water & Sewer Utility Construction, Inc. (W & S) and Charles F. Rodgers (Rodgers) appeal a summary judgment finding a qualified privilege for allegedly defamatory statements and finding no evidence of the claimed tortious interference with a business relationship or of tor-tious civil conspiracy. We affirm.

W & S is a water and sewer utility construction company, managed by Rodgers. Mandarin Utilities (Mandarin) is a public utility furnishing water and sewer service to areas of Duval County. J.A. Mixon (Mixon) is president of Mandarin and was the president of Jax Utilities Construction Company, Inc. (Jax) until he divested himself of his Jax holdings under advisement that there may be a conflict of interest.

W & S brought suit for defamation, tor-tious interference with a business relationship and tortious civil conspiracy when Mandarin communicated orally and in writing to three area developers that W & S was “not qualified,” their work was “not satisfactory,” and that they “would never be qualified.”

Specifically, one developer, Ray’s Distributing Co. (Ray’s), requested utility service from Mandarin. Mandarin furnished Ray’s with a list of acceptable contractors and a list of qualifications for acceptable contractors. The qualifications were: (1) a 100% payment and performance bond; (2) a one-year guarantee against defects; (3) letter confirming the contractor had been in business for five years; and (4) a letter listing five projects comparable in size to the proposed project. Ray’s responded that W & S had met all of the qualifications to be able to perform the work. Also, Ray’s furnished a list of references for W & S to Mandarin. Two references declined comment. Where comments were made, the references indicated W & S’s work was not satisfactory. Florida Secretary of State records revealed W & S had been incorporated for two years. Mandarin informed Ray’s that W & S was not acceptable because its work was “not satisfactory.”

It is well established that when a statement is qualifiedly privileged and made without malice, there exists no cause of action for defamation. Teare v. Local Union No. 295 of United Assn. of Journeymen and Apprentices of the Plumbers & Pipe Fitters Industry of The United States and Canada, 98 So.2d 79 (Fla.1957); See also Firestone v. Time, Inc., 305 So.2d 172 (Fla.1974); Lundquist v. Alewine, 397 So.2d 1148, 1149 (Fla. 5th DCA 1981). A statement is qualifiedly privileged if made by one who has a duty to or interest in the subject matter to another who has a corresponding duty or interest. Teare, at 83. Under Florida Administrative Code Rule 25-10.123, actual construction may be done by a utility at its option or by a constructing agency acceptable to it.

Here, Mandarin has an interest in allowing only approved contractors in order to preserve the integrity of the utility facilities. The developers to whom the statements were made had a corresponding interest in retaining approved contractors, thereby avoiding problems in tying into the established utility facilities. This relationship amply supports the trial court’s determination that a qualified privilege existed.

Where a qualified privilege exists, the plaintiff must prove express malice or malice in fact in order to recover. Lundquist, at 1149. Here, Rodgers admitted that there was no evidence that Mandarin’s statements were intentional and calculated to injure W & S’s business relationships. Absent a showing of malice, Mandarin’s qualified privilege prevails, making summary judgment for Mandarin and Mixon proper.

The elements of tortious interference with business relations of others are: (1) existence of a business relationship under which a plaintiff has legal rights; (2) knowledge of the relationship on the part of the defendant; (3) intentional and unjustified interference with the relationship by the defendant; and (3) damage to the plaintiff resulting from the breach.

Tamiami Trail Tours, Inc. v. Cotton, 432 So.2d 148 (Fla. 1st DCA 1983). W & S failed to allege a cause of action by its failure to allege any business relationships under which it had legal rights. There was no allegation of legal rights in a contract or of an advantageous business relationship with attendant legal rights.

By Rodgers’ admission via discovery deposition, there was no proof of a scheme involving Mandarin, Mixon, and Jax. Also, given the inability to state a cause of action for tortious interference with business relations of others, there can be no action for conspiring to interfere. Buckner v. Lower Florida Keys Hospital District, 403 So.2d 1025 (Fla. 3d DCA 1981); petition for rev. den., 412 So.2d 463 (Fla.1982).

Accordingly, the trial court’s summary judgments as to each of the appellees, Mandarin, Mixon and Jax is AFFIRMED.

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


text:
    SENTRY AIR FREIGHT CORP. and Insurance Company of North America, Appellants, v. Angel MENENDEZ and Division of Workers’ Compensation, Appellees.
    No. AP-58.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.
    H. George Kagan, of Miller, Hodges & Kagan, P.A., Miami, for appellants.
    No appearance for appellees.
   WIGGINTON, Judge.

The employer/carrier appeal the deputy commissioner’s order finding claimant’s knee injury to be compensable as either caused or substantially aggravated by the alleged industrial accident. We reverse.

After carefully reviewing the record, we conclude that the deputy has misconceived the evidence. For her finding of a 35 percent permanent impairment, the deputy relied solely on the opinion of Dr. Barry. However, Dr. Barry first treated claimant more than one year after the date of the alleged accident and emphasized in his deposition that his views were largely guesswork. He also stated, as did the other treating physicians, that he would defer to the opinion of the initial treating physician, Dr. Thompson, and conceded that he had never seen Dr. Thompson’s initial surgical report.

Dr. Thompson first treated claimant either the day of or day after the accident. She testified in her deposition that claimant presented to her a history of excruciating pain in his knee which he stated he had endured for the past six to eight weeks. Claimant did not mention an industrial accident, nor did the knee reveal evidence of trauma upon examination. Dr. Thompson took x-rays and performed surgery, and concluded that claimant’s condition was entirely due to a preexisting problem.

In light of Dr. Thompson’s testimony and of the fact that all the other treating physicians deferred to her opinion, there is no substantial competent evidence on which to base the deputy’s findings of causal relationship and compensability. Accordingly the order awarding benefits is reversed and the cause remanded for further proceedings consistent with this opinion.

ROBERT P. SMITH, Jr. and BOOTH, JJ., concur.


author: MILLS, Judge.

text:
    Malcolm John PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. AP-345.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.
    Michael Allen, Public Defender, David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Phillips appeals convictions for attempted burglary of a conveyance with intent to commit assault and false imprisonment. He contends the trial court erred in refusing to allow an expert defense witness to testify about experiments the expert conducted. We disagree and affirm.

Phillips was identified as the perpetrator of the crimes by two witnesses who, prior to trial, had picked his picture from a photographic lineup. At trial, the defense called Hord, a psychologist, to testify as an expert concerning the suggestiveness of the lineup and the probabilities of misidentification under the circumstances in which the lineup was presented. Hord attempted to testify about results of an out-of-court experiment he had performed using a reproduction of the photographic lineup. The trial court refused to allow testimony concerning the experiment into evidence.

The trial court did not abuse its wide discretion in this instance, especially in light of a recent holding of the Supreme Court:

We hold that a jury is fully capable of assessing a witness’ ability to perceive and remember, given the assistance of cross-examination and cautionary instructions, without the aid of expert testimony-

Johnson v. State, 438 So.2d 774, 777 (Fla.1983).

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    Joseph Donald GANDY, Appellant, v. STATE of Florida, Appellee.
    No. AQ-316.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.

      Michael Allen, Public Defender, David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Gandy appeals from his conviction for battery on a law enforcement officer. We affirm.

Gandy's defense was voluntary intoxication. He contended that he could not .form the requisite specific intent because he was drunk. The only evidence controverting this defense was the testimony of Lee, the victim. Lee was recalled by the prosecution as a rebuttal witness and, to defense counsel’s surprise, testified that Gandy did not appear intoxicated when the battery occurred. The trial court denied defense counsel’s subsequent requests to introduce further evidence of intoxication or to continue the trial pending receipt of such evidence.

Citing Fasenmyer v. State, 383 So.2d 706 (Fla. 1st DCA 1980), Gandy argues that the trial court’s denial of these requests was an abuse of discretion and reversible error.

In Fasenmyer, the prosecution violated Florida Rule of Criminal Procedure 3.220 by failing to disclose the name of a witness to the defense. In that circumstance, the trial court should inquire into whether the rebuttal testimony of the previously undisclosed witness would prejudice the defense. Richardson v. State, 246 So.2d 771 (Fla.1971).

Here, however, the prosecution did not violate any procedural rules when it recalled Lee as a rebuttal witness. The defense knew Lee would be a witness for the prosecution and had the opportunity to depose him. The trial court did not abuse its sound discretion in excluding surrebuttal evidence.

The judgment and sentence of the trial court is affirmed.

SHIVERS and ZEHMER, JJ., concur.


text:
    Michael T. FREDRICKS, Appellant, v. STATE of Florida, Appellee.
    No. AQ-500.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.

      Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Fredricks contends the trial court erred in retaining jurisdiction for the first half of four sentences pursuant to Section 947.-16(3), Florida Statutes (Supp.1982). The crimes were committed on 5 March 1982, and the statute as amended took effect on 20 April 1982. Chapter 82-171, Section 19, Laws of Florida. Nevertheless, we affirm because the issue was not raised below.

Ex post facto application of the retention statute is not fundamental error and objection must be made at the trial level to preserve the issue for appellate review. Williams v. State, 414 So.2d 509 (Fla.1982); Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983).

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    METROPOLITAN DADE COUNTY, SELF-INSURED, Appellant, v. Angel NIEVES, Appellee.
    No. AR-9.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.
    Robert A. Ginsburg, Dade County Atty., and Marilyn Strauss, Asst. County Atty., Miami, for appellant.
    Albert E. Harum, Jr., of Albert E. Ha-rum, Jr., P.A., Miami, for appellee.
   WIGGINTON, Judge.

The issue on appeal addresses the “police officer exception” to the going and coming rule. The county argues that the deputy commissioner erred in finding claimant’s injury to be compensable, as occurring in the course and scope of his employment. We affirm.

Police officer Nieves is employed by Metropolitan Dade County. On the morning of the accident, he left his home to proceed to work. He backed his van down the driveway to the edge of the street where he stopped to avoid hitting the newspaper delivery car. Deciding to save his wife some extra steps on a cold morning, officer Nieves placed his van in park, quickly jumped out to retrieve the newspaper a few feet away in the swale, and threw it over the fence to his front porch. The foregoing activity took seconds to accomplish. However, before officer Nieves could return to the van, it “popped out of gear” and began to circle slowly backwards. In his attempting to jump back into the van to stop its movement, officer Nieves was knocked down by the open door, whereupon the van rolled over his ankle.

The deputy commissioner awarded temporary total disability benefits and the payment of medical bills finding that officer Nieves, by proceeding to work, was in the course and scope of his employment, and his retrieving the newspaper, if a deviation, was not a deviation so substantial as to take him out of the course and scope of his employment.

The supreme court in the seminal case of Sweat v. Allen, 145 Fla. 733, 200 So. 348 (1941), recognized that a police officer is not representative of the ordinary workman going to work; rather, the police officer was found to be “continuously entrusted with certain duties” and “on guard twenty-four hours a day.” Id. at 200 So. 350. Therefore, the court held that a police officer’s entitlement to workers’ compensation benefits is not constrained by the general going and coming rule. Instead, an officer en route to begin the performance of his regular duties is within the course and scope of his employment, as he is “still charged with a duty or task connected therewith.” Id. 200 So. at 351; accord Warg v. City of Miami Springs, 249 So.2d 3 (Fla.1971).

In the instant case, officer Nieves was en route to begin performance of his duties and was in a place and position to discharge his primary responsibilities. Warg v. City of Miami Springs. He was, therefore, within the course and scope of his employment. Although his retrieving the newspaper did constitute a deviation, it was not so substantial as to amount to an abandonment of his employment duties. Cf. Times Publishing Co. v. Walters, 382 So.2d 720 (Fla. 1st DCA 1980) (claimant’s “horseplay” constituted a momentary deviation).

AFFIRMED.

ROBERT P. SMITH, Jr. and BOOTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    ALACHUA COUNTY, Appellant, v. Gerald A. LEWIS and Department of Highway Safety and Motor Vehicles, Appellees.
    Nos. AR-84, AS-44.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.

      Dennis R. Long, County Atty., Alachua County, for appellant.
    Michael J. Alderman, Asst. Gen. Counsel, Dept, of Highway Safety and Motor Vehicles, Tallahassee, for appellee Department of Highway Safety and Motor Vehicles.
    Walter W. Wood, Asst. Gen. Counsel, Tallahassee, for appellee Gerald A. Lewis.
   WENTWORTH, Judge.

Alachua County appeals two final orders entered by the Department of Highway Safety and Motor Vehicles and the Florida Comptroller. Each order adopted the recommended order of the hearing officer, after a consolidated hearing. The appealed orders denied the County’s petitions seeking disbursement of funds collected by it during its administration of the state motor vehicle inspection program. Section 325.11, et seq. (1979), repealed by Chapter 81-212, Laws of Florida. We affirm.

Until the abolition of the motor vehicle inspection program, Alachua County operated an inspection station under that law. As each vehicle was inspected, the County collected a $3.00 fee which it kept. If the owner of a vehicle failed to obtain inspection within the time allowed, a $1 delinquent fee was collected pursuant to § 325.-24(1), which provided in part that:

The delinquent fee shall be forwarded to the department and shall be credited against the 40-cent remittance required by this section [for the purpose of purchasing the inspection certificates].

Section 325.24(2) provided:

(2) All funds received by the department shall be deposited in the General Revenue Fund of the State through the Treasurer.

In carrying out these provisions, the department kept an account of the delinquent fees sent by the County, and forwarded the funds to the Comptroller who deposited them into the general revenue fund. When the County ordered inspection certificates, the cost of the certificates was off-set by debiting its delinquent fee account. If the County had not collected sufficient delinquent fees to off-set the cost of all certificates that it needed to purchase, the remaining certificates would be purchased with cash. At the end of a calendar year, inspection certificates that had been purchased by the County would become obsolete and unusable. If the County returned those unused certificates to the Department, the record indicates that the Department would issue a cash refund to the County for certificates that had been purchased with cash, and credit the County’s delinquent fee account for certificates that had been purchased by debiting the account. When the inspection program was abolished in 1981, the Department continued to handle returns of unused inspection certificates in the same manner that it previously had; i.e., if a county returned unused certificates that had been purchased with cash, a cash refund would be issued, if a County returned certificates that had been purchased through the delinquent fee account, the account would be credited.

After Alachua County returned its unused certificates upon the termination of the program, and received credit for those certificates which had been purchased by debiting the delinquent fee account, a substantial sum remained as a credit in its delinquent fee account. The County then initiated these proceedings on the hypothesis that the credit balance remaining in its delinquent fee account was an asset of the County to which it was entitled. The hearing officer’s recommended order concluded that the County had no legal entitlement to the fees, and the County has appealed the orders adopting that ruling. Because we find nothing in the statutes supporting appellant’s position, we affirm.

It is clear that § 324.24 was not drafted in anticipation of the abrupt end of the motor vehicle inspection program. We find, however, that under the terms of the statute the delinquent fee was a state levy, available to the counties only for the purpose specified in the statute, i.e., purchase of inspection certificates. Neither the terms of the repealed act nor the general provisions for the repayment of funds paid into the state treasury support appellant’s asserted entitlement.

The final orders denying appellant’s petitions are accordingly affirmed.

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

      . It was the County’s position below that it had received some cash refunds for stickers purchased by debiting the delinquent fee account. However, the hearing officer rejected this contention and that finding is supported by the record on appeal.

      . § 215.26, Fla.Stat. (1981).


text:
    Tommy Jay WARD, Appellant, v. STATE of Florida, Appellee.
    No. AR-98.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.
    Tommy Jay Ward, pro se.
    No appearance for appellee.
   MILLS, Judge.

Ward appeals the trial court’s order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

The motion for postconviction relief alleged ineffective assistance of trial counsel. Ward did not show that the omissions were substantial and serious deficiencies measurably below the standard expected of competent counsel or that the alleged deficiencies probably affected the outcome of the trial. Knight v. State, 394 So.2d 997 (Fla.1981).

The trial court’s denial of the motion for postconviction relief is affirmed.

SHIVERS and ZEHMER, JJ., concur.


author: NIMMONS, Judge.

text:
    Leonard J. PARKER, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Unemployment Appeals Commission, and May Cohens, Appellees.
    No. AR-176.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.
    Mark Greenberg, Miami, for appellant.
    Robert Whaley, St. Petersburg, for appel-lees.
   NIMMONS, Judge.

Parker appeals from an adverse ruling by the Unemployment Appeals Commission (UAC). We reverse that ruling.

The evidence presented before the appeals referee is summarized as follows. This 58-year-old appellant had been a janitor for May-Cohens department store for about six months when he was arrested on a felony charge apparently arising out of a domestic argument. Parker had no funds to employ an attorney and was unable to obtain release on bail. During his incarceration from August 27 to September 22, 1982, Parker communicated with his employer on three occasions, one by telephone and two by letter. He indicated to his employer that he understood a decision would be made within 21 days as to whether he would be prosecuted. Although there was testimony that company policy required that employees in such circumstances request a leave of absence and that leave requests were routinely approved for up to 30 days, Parker was never informed of such leave policy. Further, Parker’s supervisor told him during his incarceration that his job would be kept open for him.

Parker was released from custody on September 22, 1982, when the pending charges were dropped. Contrary to the referee’s findings, infra, there is no evidence in the record to indicate whether Parker was guilty of having committed the offense charged, and he steadfastly denied any guilt. Although the record is not entirely clear as to the circumstances surrounding the dropping of the criminal charge, Parker was apparently released under a “deferred prosecution” agreement with the Office of the State Attorney.

On the day of his release, Parker contacted his supervisor and advised that he was ready to return to work. Approximately one week later, he was notified by letter that he had been replaced, the employer indicating that it had held the position open as long as possible. The testimony indicated that his position had been held open for approximately two weeks after Parker’s arrest.

Parker applied for unemployment compensation benefits which were denied on October 27, 1982, by an “adjudicator” pursuant to Section 443.101(1)(a)1, Florida Statutes. Parker appealed and an eviden-tiary hearing was conducted by the appeals referee at which the above evidence was presented. The decision of the appeals referee adverse to Parker stated:

By the claimant’s actions, he was unable to report to work, since he had been placed in jail for an offense he had committed. ... It must be held that the claimant, when he failed to report to work after August 27, 1982, voluntarily left his employment and his reason for doing so was not for a good cause which was attributable to the employer.

Subsequently, the UAC affirmed the decision of the appeals referee and this appeal ensued pursuant to Section 443.151(4)(c), Florida Statutes.

Section 443.101(1)(a), Florida Statutes (1981), provides that an individual shall be disqualified for benefits when “he has voluntarily left his employment without good cause attributable to his employer or has been discharged by his employing unit for misconduct connected with his work .... ” We conclude that the appeals referee’s finding, which was affirmed by the UAC, that Parker voluntarily left his employment without good cause is not supported by competent substantial evidence. We are also of the view that Parker’s disqualification cannot be sustained upon the alternative statutory ground of misconduct connected with work.

There will undoubtedly be circumstances where an employee’s pre-trial incarceration may reach the point where he ought to be considered as having abandoned his employment. However, as long as the statutory disqualifying criteria are couched in the terms as set forth in Section 443.101(1)(a), supra, it would be at best a strained interpretation of the statute to find that a person in Parker’s circumstances had reached that point. There was, of course, nothing voluntary about Parker’s inability to go to work during the 26-day period. Nothing in the record indicates that Parker committed the offense with which he was charged. Parker kept his employer advised of his status and of his interest in returning to work as soon as possible. Although he apparently would have been granted up to a 30-day leave if requested, Parker was never informed of such policy or practice.

Appellee UAC relies upon a recent case from our sister court in Florida Sheriff's Youth Fund v. Department of Labor and Employment Security, 436 So.2d 332 (Fla. 2nd DCA 1983). There the claimant and her husband were employed to work as “cottage parents” at the Girls Villa in Bar-tow. The employer required husband and wife .teams and informed them of such when they were hired. After claimant’s husband was terminated for failure to comply with certain guidelines, claimant was also terminated, although she had been a satisfactory employee, because she was unable to comply with the employment condition requiring a husband and wife team. The court reversed the UAC’s determination in favor of claimant and held that since she “failed to meet a known condition of [her] employment,” she must be deemed to have voluntarily left her employment without good cause attributable to her employer. The court relied in part on Paschal v. Florida Department of Labor & Employment Security, 405 So.2d 1020 (Fla. 3rd DCA 1981), petition for review denied 412 So.2d 468 (Fla.1982), in which that court reached a similar conclusion where the dismissed claimant’s automobile was repossessed, he was unable to secure another and his job required an employee-furnished automobile. We cannot agree with appellee that the principle enunciated in Florida Sheriff's Youth Fund and Paschal regarding the failure of an employee to meet a known condition of employment is applicable to the type situation involved in the instant case.

Appellee urges that if the referee reached the right conclusion for the wrong reason, then the decision should be affirmed. See General Telephone Co. of Florida v. Board of Review, 356 So.2d 1357 (Fla. 2nd DCA 1978). Appellee suggests that the record supports statutory disqualification of benefits on the ground of “misconduct connected with work.” Section 443.101(1)(a), supra. The meaning of misconduct as contemplated for purposes of unemployment compensation is as follows:

“Misconduct” * * * is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute.

Tucker v. Florida Department of Commerce, 366 So.2d 845, 847 (Fla. 1st DCA 1979); see also Fredericks v. Florida Department of Commerce, IRC, 323 So.2d 286, 288 (Fla. 2nd DCA 1975); Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla. 3rd DCA 1963). It has been held that “continued absenteeism caused by personal problems for which an employee bears culpability amounts to misconduct per se.” Hillsborough County Department of Emergency Medical Services v. Unemployment Appeals Commission, 433 So.2d 24 (Fla. 2nd DCA 1983) (claimant’s incarceration was “a foreseeable consequence of his failure to pay court-ordered child support”). See also Castillo v. Florida Department of Commerce, 253 So.2d 162, 165 (Fla. 2nd DCA 1971) (continued absenteeism by claimant because of “personal problems” which “appealed] to have been of his own making”). However, as we have observed, the record in the case at bar does not support a finding of culpability on the part of Parker.

Accordingly, the order of the Unemployment Compensation Appeals Commission denying benefits to Parker is REVERSED and the cause is REMANDED with directions to enter an order allowing unemployment compensation benefits.

ROBERT P. SMITH, Jr., and SHIVERS, JJ., concur.

      . Parker’s assumption regarding this 21-day period may have derived from the Rules of Criminal Procedure which entitle a defendant to an adversary preliminary hearing where no information or indictment has been filed within 21 days after arrest. Fla.R.Crim.P. 3.131(b)(1).

      . It may be that an employee’s culpability in criminal activity could be such as to constitute an abandonment of his employment within the meaning of the statutory criteria where the natural and probable consequences of such activity are incarceration. We need not reach that question in the case sub judice.


text:
    Larry HUME, Appellant, v. Betty and Eugene THOMASON, Appellees.
    No. AR-187.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1983.
    Lawrence H. Samaha, Tampa, for appellant.
    Joseph W. Clark and Charles P. Schropp, of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellees.
   WIGGINTON, Judge.

Claimant Hume appeals the deputy commissioner’s order dismissing with prejudice Hume’s claim for benefits because he had elected to maintain an action at law for damages on account of his injury, pursuant to section 440.11(1), Florida Statutes (1981). We affirm.

When injured, Hume was working as a carpenter remodeling the Thomasons’ home. Eugene Thomason, acting as general contractor, was Hume’s employer but had failed to secure workers’ compensation insurance. Therefore, instead of filing a claim for compensation benefits, Hume pursued a civil remedy in circuit court, alleging the Thomasons had breached their duty to provide a safe work place. The court entered final summary judgment in favor of the Thomasons, but not before Hume had filed a claim with the Division of Workers’ Compensation. Upon the final disposition of his civil cause of action by the summary judgment, Hume pursued his workers’ compensation claim. The Thomasons successfully defended on the basis that Hume had elected his remedy under section 440.11(1) by way of the action at law, and was thus precluded from thereafter pursuing his claim. We agree.

Section 440.11(1) provides

that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, ..., may elect to claim compensation under this chapter or to maintain an action at law ... for damages on account of such injury ... (emphasis added).

The very language of that section presupposes an inconsistency between the two remedies, which conclusion is incontestable when one considers the very nature of the Workers’ Compensation Act which is to designate and define the employer’s responsibility to compensate the employee for his or her work related injury, regardless of fault. Section 440.10, Florida Statutes (1981); Matthews v. G.S.P. Corporation, 354 So.2d 1243 (Fla. 1st DCA 1978); Cadencio v. Thompson, 3 FCR 432 (1959). As pointed out in Matthews:

An employee may not elect to declare his injury to have been an accident occurring in the course of his employment and, thereafter, repudiate such position by alleging that the place and conditions of his employment were so dangerous that the injury was not in fact an accident.

354 So.2d at 1244. Therefore, the crux of the issue is really whether Hume’s election had matured once the circuit court had rendered final summary judgment.

It is held that an election is matured “when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other,” and “[i]t is generally conceded that to be conclusive it must be efficacious to some extent.” Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); Williams v. Duggan, 153 So.2d 726 (Fla.1963). In the instant case, the summary judgment rendered in the circuit court was obviously efficacious from the Thomasons’ point of view, as it worked to their advantage and to Hume’s disadvantage. Thus, Hume’s election matured when judgment was entered finally adjudicating the rights of the parties. He was precluded thereafter from pursuing his workers’ compensation claim. Cf. Williams v. Duggan (wherein it was held that the filing of a claim later dismissed without adjudication of its merits does not amount to an irrevocable election). As correctly observed by the deputy commissioner in his order, “[t]he employer should not be twice placed in the position of defending himself where he had had to defend either a damage suit on the one hand or a compensation claim on the other to its final conclusion.”

AFFIRMED.

ROBERT P. SMITH, Jr. and BOOTH, JJ., concur.

      . By our affirming the issue raised on appeal, we need not reach the point argued by the Thomasons on cross appeal.

      . It is evident from Hume’s complaint filed in the civil action that he had knowledge, before filing his claim for benefits, of the fact that the Thomasons had no compensation insurance, which knowledge serves to distinguish this case from the circumstances in Marta v. Continental Manufacturing Company, Inc., 400 So.2d 181 (Fla. 4th DCA 1981).

      . Hume’s alternative argument, that the election of remedies defense was not properly raised below, is without merit, as the record demonstrates that Hume’s counsel not only opened the door to the defense by introducing into evidence the trial transcript and final order, but also that the deputy, although recognizing the defense himself, allowed for oral argument and briefing on the point.


text:
    Lucille SMITH, Appellant, v. Inez WILSON, Appellee.
    No. AR-93.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1983.
    Rehearing Denied Nov. 7, 1983.

      Joann G. Slay of Johnson, Harnett, Curry & Slay, Quincy, for appellant.
    Michael F. Coppins of Douglass, Davey, Cooper & Coopins, Tallahassee, for appellee.
   MILLS, Judge.

Smith appeals from a final judgment which awarded the proceeds of a life insurance policy to Wilson. We affirm.

Aron Evans was an employee of the Waste Water Collection Division of the Underground Utilities Department of the City of Tallahassee. He was insured with the City’s group life insurance plan under a policy issued by Massachusetts Mutual. On 12 April 1974, Evans designated Lucille Smith as the beneficiary of his policy on a form entitled “Application for Survivor’s Benefit and Beneficiary Designation.” That form was kept in Evans’ file in the office of John Bramlett, an administrator with the City Retirement System.

Although not legally married, Evans and Smith had been living together as husband and wife for some time when he designated her as his beneficiary. However, in November 1974, the couple ended their relationship and never lived together again. Shortly after this separation, Evans began living with Inez Wilson.

Sometime in 1980, the Waste Water Collection Division requested its employees to fill out an “Employee Personal Data Form.” The purpose of these forms was to give the Division current information so that family members could be contacted in an emergency and so that employees could be contacted after regular working hours.

Evans filled out one of the forms. At the bottom of the form appeared the words “Designated Beneficiary.” Under these words, Evans filled in the name “Inez Wilson Evans,” identifying her as his “wife.” This form was kept in the files of the Waste Water Collection Division, not in the insurance records maintained in Bramlett’s office.

On 23 March 1982, Evans died. The record shows that he had lived with Wilson continuously since 1974. Despite the beneficiary designation on the Employee Personal Data Form, Smith was notified by the City that she was the beneficiary of Evans.’ policy and was asked to sign a claim form. Thereafter, Wilson filed her complaint against Smith, the City, and Massachusetts Mutual, alleging that she was the rightful beneficiary of the policy. Smith countered by arguing that any attempted change of beneficiary by Evans was ineffective because it failed to comply with the terms of the policy regarding a change of beneficiary.

The pertinent terms of the policy are as follows:

1. The insured employee shall have the sole right to designate the beneficiary to whom any death benefit shall be payable. Such designation shall be recorded in the insurance records maintained in accordance with the section of the General Provisions entitled Insurance Data. Any employee may at any time and without the consent of the beneficiary change said designation by making written request. Such change, when recorded, shall relate back and take effect as of the date the employee signed said written request, whether or not the employee is living at the time of such recording, but without prejudice to the Massachusetts Mutual on account of any payment made by it before such recording of the change. (Emphasis added)

At the final hearing held on Wilson’s complaint, there was unrebutted testimony from several close friends and relatives of Evans that he intended for the proceeds of his life insurance policy to go to Wilson upon his death. Final judgment was subsequently entered for Wilson, and Smith appeals.

Florida law requires strict compliance with the terms of the policy in order to effect a change of beneficiary. Shuster v. New York Life Insurance Co., 351 So.2d 62 (Fla.3d DCA 1977), quashed in part, 373 So.2d 916 (Fla.1979). This attempted change of beneficiary did not comply with the policy terms. The Employee Personal Data Form was not recorded in the insurance records which were maintained in Bramlett’s office, nor was there a date or signature on that form.

However, we decline to apply the rule of strict compliance in this case. The record makes it clear not only that Evans, a man with a sixth grade education, intended that the proceeds of this policy go to Wilson, but also that he actually thought he had done everything necessary to effectuate that intent. More importantly, any fault in failing to file the beneficiary change in the proper place or in failing to require a signature and date on the Employee Personal Data Form lies with the City, acting as agent for Massachusetts Mutual, not with Evans.

For the foregoing reasons, the judgment of the trial court is affirmed.

SHIVERS and ZEHMER, JJ., concur.


text:
    COLLIER COUNTY SCHOOL BOARD, Appellant, v. Nancy SALTER, Appellee.
    No. AO-306.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1983.
    Rehearing Denied Nov. 29, 1983.
    James H. Siesky, Naples, for appellant.
    Richard I: Cervelli, Naples, for appellee.
   PER CURIAM.

The award to the appellee of penalties on permanent total disability payments owed by the appellant is stricken from the deputy commissioner’s order of September 7, 1982. Judicial Administrative Commission v. Marks, 394 So.2d 211 (Fla. 1st DCA 1981); Ruble v. Kirk, 177 So.2d 329 (Fla.1965); Massey v. Haynie, 180 So.2d 331 (Fla.1965). The remainder of the deputy commissioner’s order is affirmed.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


author: PER CURIAM. WALDEN, Judge,

text:
    Maurice L. HOWARD, Allen Ponder and John W. French, Petitioners, v. The Honorable Carl H. HARPER, Judge of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Respondent.
    No. 83-1569.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 1983.
    Rehearing Denied Nov. 30, 1983.
    Philip G. Butler, Jr., West Palm Beach, for petitioners.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of prohibition is denied. Petitioners, defendants in the trial court, executed a written waiver of their speedy trial rights. Consequently, the strictures of Rule 3.191, Fla.R.Crim.P., are inapplicable at this stage of the proceedings. See Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); Gallego v. Purdy, 415 So.2d 166 (Fla. 4th DCA 1982).

LETTS and HURLEY, JJ., concur.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting.

I would grant the petition for writ of prohibition and prohibit Respondent from conducting a trial of petitioners because there was a non-waived violation of their rights to a speedy trial under Florida Rule of Criminal Procedure 3.191. Lowe v. Price, 437 So.2d 142 (Fla.1983), State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971) and Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).


author:
PER CURIAM.
      HURLEY, Judge,

text:
    Paul S. TROWELL, Appellant, v. STATE of Florida, Appellee.
    No. 83-2117.
    District Court of Appeal of Florida, Fourth District.
    Oct. 26, 1983.
    Paul S. Trowell, pro se.
    No brief filed for appellee.
   PER CURIAM.

AFFIRMED.

LETTS and HERSEY, JJ., concur.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring specially.

I concur in affirming the denial of petitioner’s motion for post-conviction relief without an evidentiary hearing because the petitioner failed to show that the alleged deficiency in counsel’s representation “when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings.” Knight v. State, 394 So.2d 997, 1001 (Fla.1981).


text:
    George M. KLONARIS, as administrator of the estate of Nickie Klonaris, a minor, deceased, Appellant, v. TARPON SPRINGS GENERAL HOSPITAL, James E. Thompson, M.D., Norman H. Higgins, M.D., Norman H. Higgins, M.D., P.A., and Florida Patients Compensation Fund, Appellees.
    No. 82-2159.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1983.
    Lee S. Damsker of Maney and Damsker, Tampa, for appellant.
    William E. Hahn of Shear, Newman & Hahn, Tampa, for appellee Thompson.
   PER CURIAM.

Affirmed on the authority of Lazenby v. Beisel, 425 So.2d 84 (Fla. 2d DCA 1982), petition for review filed, No. 63,216 (Fla. Feb. 9, 1983); contra Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974); Dawson v. Weems, 352 So.2d 1200 (Fla. 4th DCA 1977).

HOBSON, A.C.J., and BOARDMAN and . SCHOONOVER, JJ., concur.


author: PER CURIAM. BASKIN, Judge

text:
    STATE of Florida, ex rel., Alan R. SCHWARTZ, Joseph Nesbitt and Natalie Baskin, as Judges of the District Court of Appeal of Florida, Third District, Petitioners, v. Dick C.P. LANTZ, Judge of the Circuit Court of Florida, Eleventh Judicial Circuit, Respondent.
    No. 82-739.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.

      Robert A. Ginsburg, County Atty., and Roy Wood, Asst. County Atty., for respondent.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

This court issued a rule to show cause to Circuit Judge Dick C.P. Lantz to show why he should not be found in contempt for willfully violating its order staying proceedings in DuBois v. DuBois, 412 So.2d 23 (Fla. 3d DCA 1982).

The underlying facts are as follows: Judge Lantz was presiding over a domestic proceeding involving Robert DuBois and Gay DuBois. On February 22, 1982, the judge entered an order finding Mr. DuBois in contempt of court for failure to pay temporary support. Notice of appeal from the contempt order was filed with this court on March 2, 1982. Subsequently, the husband’s motions for stay were denied in the trial court and he filed an emergency motion for stay pending review in this court. On March 5, 1982, we issued the stay order which commanded:

Following review of appellant’s emergency motion for stay pending review, it is ordered that said motion is granted and the orders of the circuit court dated February 22, 1982 and March 5, 1982 are hereby stayed pending further order of this court. This cause is set for hearing on the emergency motion for stay, on Tuesday, March 9, 1982 at 10:30 o’clock A.M.

A decision was rendered March 23,1982. In that opinion, we reversed the trial court contempt order because it did not contain the requisite finding of a willful failure to pay, notwithstanding a present ability to do so, as required by Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); DuBois v. DuBois, 412 So.2d 23 (Fla. 3d DCA 1982).

During the pendency of the appeal, Judge Lantz conducted a hearing at which time the wife sought to amend the order adjudicating the husband in contempt so that it would properly reflect the fact that he had a present financial ability to pay temporary support. The transcript of that hearing unequivocally demonstrates that Judge Lantz was made aware that our stay order was in effect. Despite this fact, on March 22, 1982, he entered an order amending his prior order of contempt so as to include the findings required by Faircloth. At the husband’s request, we summarily quashed the amended order but nonetheless issued a rule to show cause why Judge Lantz should not be held in contempt of this court for the purpose of protecting the power of the court with respect to matters properly before it. Judge Lantz has filed a response asserting three defenses.

First, he argues that he should not be held in contempt because he did not intend to violate this court’s stay order but rather his actions resulted at most, from confusion with regard to the effect of a stay. To support the fact that he lacked the requisite intent, Judge Lantz relies upon a statement that he made at the hearing that “I believe that this court has the power to do so and so rule.”

In Ex parte Biggers, 85 Fla. 322, 95 So. 763, 769 (1923), the court stated:

If the charges duly made are admitted to be true, and they clearly constitute contempt whether so intended or not, appropriate punishment follows. If the matters charged and admitted to be true are ambiguous or do not clearly constitute contempt, and an intent to offend is duly denied under oath, a discharge from custody follows.

See also Baumgartner v. Joughin, 105 Fla. 335, 141 So. 185 (1932). Thus, if the stay order which was violated was clear as to its effect and operation, proof of intent is unnecessary. Cf. Department of Health & Rehabilitative Services, Division of Mental Health, South Florida State Hospital v. State, 338 So.2d 220 (Fla. 4th DCA 1976) (where order violated was confusing and ambiguous in its operation, proof of contemptuous intent is required).

Judge Lantz relies on Waltham A. Condominium Ass’n v. Village Management, Inc., 330 So.2d 227 (Fla. 4th DCA 1976) to reflect the confusion surrounding this area of the law. That decision, while admitting a prior uncertainty, clarified the effect of a notice of appeal upon a court’s order. In the absence of a stay, it concluded that:

[T]he trial court has full authority or jurisdiction to “proceed” while the appeal is pending, even as to the “subject matter” of the appeal, and short of final hearing and disposition on the merits such authority or jurisdiction is limited in one, and only one, very specific sense: the trial court may not alter, amend, rescind or act in such a way with respect to its previous ruling or order as will frustrate the exercise of the appellate court’s jurisdiction or render moot its labors.

330 So.2d at 233. Where a stay has been entered, the court added, there was a further limitation upon the trial court’s power: It could not enter an order tending to extend or enforce the order appealed. Since Waltham, every district court in this state has, at least once, vacated a trial court order because it altered a judgment on appeal. Bleemer v. Bleemer, 436 So.2d 273 (Fla. 3d DCA 1983); FMS Management Systems, Inc. v. IDS Mortgage Corp., 402 So.2d 474 (Fla. 4th DCA 1981); Owen v. Wilson, 399 So.2d 498 (Fla. 5th DCA 1981); Ponzoli v. Hawkesworth, 390 So.2d 784 (Fla. 3d DCA 1980); Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980); Alarm Systems of Florida, Inc. v. Singer, 380 So.2d 1162 (Fla. 3d DCA 1980); Edward J. DeBartolo Corp. v. Dryvit Systems, Inc., 368 So.2d 85 (Fla. 2d DCA 1979); Gross v. Simanonok, 366 So.2d 47 (Fla. 2d DCA 1978), cert. denied, 376 So.2d 75 (Fla.1979); Wells v. State, 362 So.2d 441 (Fla. 4th DCA 1978); General Portland Land Development Co. v. Stevens, 356 So.2d 840 (Fla. 4th DCA 1978); State ex rel. American Home Insurance Co. v. Seay, 355 So.2d 822 (Fla. 4th DCA), cert. denied, 361 So.2d 835 (Fla.1978); Stack v. Okaloosa County, 347 So.2d 145 (Fla. 1st DCA 1977).

From these decisions then, we can reach no other conclusion but that our stay order unambiguously defined the parameters of the trial court’s power with respect to its previously-entered order. It cannot be disputed that the effect of Judge Lantz’ modification was to frustrate the exercise of our appellate court’s jurisdiction. Since, by so doing, the Judge has violated an express, unambiguous order of this court, actual proof of intent is unnecessary because it may be inferred from his actions. See Ex parte Biggers, 11 Fla.Jur.2d Contempt § 17 (1979). Accordingly, Judge Lantz’ reliance on his statement at the hearing to indicate his lack of intent, will not aid him under the present circumstances.

Next, Judge Lantz asserts that a judge may not be held in contempt on the basis of a judicial ruling made by him. The power to hold a judge in contempt was traced to its English source in In re Mattera, 34 N.J. 259, 168 A.2d 38, 45 (1961):

There can be no doubt that a judge of an inferior court may be attached for disobedience of a direct order of a superior court. State v. Hunt, 1 N.J.L. 287 (Sup.Ct.1795). Blackstone (Book IY, p. 284) states the principal instances usually punished by attachment included:
“1. Those committed by inferior judges and magistrates; by acting unjustly, oppressively or irregularly, in administering those portions of justice which are intrusted to their distribution: or by disobeying the king’s writs issuing out of the superior courts, by proceeding in a cause after it is put a stop to or removed by writ of prohibition, certiorari, error, supersedeas (a command to stay or forbear doing that which ought not to be done), and the like. For, as the king’s superior courts, and especially the court of king’s bench, have a general superintendence over all inferior jurisdictions, any corrupt or iniquitous practices of subordinate judges are contempts of that superintending authority whose duty it is to keep them within the bounds of justice.” (emphasis added)

See also In re Fite, 11 Ga.App. 665, 76 S.E. 397 (1912); McFarland v. State, 172 Neb. 251, 109 N.W.2d 397 (1961); In re Pagliughi, 39 N.J. 517, 189 A.2d 218 (1963); State ex rel. Walker v. Giardina, 294 S.E.2d 900 (W.Va.1982); 46 Am.Jur.2d Judges § 85 (1969); 17 C.J.S. Contempt § 35 (1963). Consequently, we reject Judge Lantz’ contention that, because of his office, he is immune from our contempt powers.

Once these impediments to our holding the judge in contempt have been removed, the only defense available to him is the fact that our inherent contempt powers are to be exercised with care and circumspection. He relies on State v. Clemmons, 150 So.2d 231, 234 (Fla.1963) wherein the court stated:

The power to find a grand jury in contempt because of the contents of its report should be exercised with great caution and only in extreme cases. The rule is that the power to adjudge anyone in contempt is always to be exercised with care and circumspection. South Dade Farms v. Peters, Fla., 88 So.2d 891. Ordinarily, expunging the report from the court records should suffice to remedy the evil of an obnoxious and objectionable report.

From this, Judge Lantz argues that the supervisory power of the district courts of appeal is so complete as to render unnecessary the use of the contempt power against a judge of the lower court. While it is true that we vacated the erroneously-entered order, this only served to protect the interests of the parties. Contempt proceedings, by their very nature, are utilized to vindicate the power of the court. See Ex Parte Earman, 85 Fla. 297, 95 So. 755 (1923). As the court so aptly stated in Demetree v. State, 89 So.2d 498, 501 (Fla.1956):

[T]he power to punish for violation of a valid subsisting order of a court of competent jurisdiction necessarily inheres in our judicial system. This is so for the simple reason that without the power our judicial system would become a mere mockery for a party to a cause could make of himself a judge of the validity of orders which had been issued and by his own acts of disobedience set them aside, thereby ultimately producing the complete impotency of the judicial process.

Just as Judge Lantz has a right to expect that attorneys and parties before him will respect his orders until reversed or vacated, we, as the court created by the constitution for the purpose of supervising the lower court, are entitled to the same obedience.

Our responsibility under the circumstances before us is buttressed by the Florida Bar Code of Judicial Conduct, Canon 3(B)(3) which provides:

A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.

Based on the foregoing, we find that we have the power and the justification for holding Judge Lantz in contempt. However, in the exercise of our discretion and with the assurance from Judge Lantz that he will not again act so imprudently, we proceed no further.

In summary, we observe that judges are not subject to contempt citations solely by reason of acting in excess of their jurisdiction; or by entering an erroneous ruling or one that is the result of misunderstanding, inadvertence, or confusion. As evidenced by this opinion, a judge is ordinarily subject to contempt only where he acts contrary to an unambiguous order of which he has been made aware.

Finally, we observe that judges subject to the appellate jurisdiction of this court should not, by reason of this opinion, be hesitant to employ their complete and paramount authority in the exercise of their jurisdiction. To the contrary, this opinion should serve to remind judges as well as attorneys of the respect and obedience due orders entered under a legitimate exercise of authority.

The order to show cause is discharged.

BASKIN, Judge

(concurring specially).

Although I concur in the result reached by the majority, I am unable to agree with the reasoning upon which the opinion is founded. While I agree that the trial judge improperly acted in excess of his jurisdiction, I am not convinced that his conduct rose to the level of criminal contempt.

The trial court’s conduct consisted of amending an order while it was the subject of an appeal and the object of a stay by this court. By amending the order, the trial court brought its original order into conformity with existing law. The court supplied the necessary finding of ability to pay which it had omitted from its earlier order adjudging a husband in contempt; it did not attempt to enforce the order. The trial court’s amendment anticipated our opinion released the next day quashing the order.

Because counsel reminded the trial court of the existence of our stay order, and there could be no question that the court was cognizant of our directive prior to ordering the amendment, we issued a rule to show cause why the trial court should not be held in contempt for violating our stay order. It appeared to us that the trial court’s disregard of our stay constituted willful disobedience. In response, however, the trial judge advised us that he was confused about the law. He maintained that the violation was an error and that his conduct was not designed to hinder or embarrass this court.

Although proceedings undertaken by trial courts on matters pending before an appellate court generally result only in reversal or vacation of their improper orders, the majority concludes that in this case the trial court’s actions also constituted contempt of court. The majority holds that proof of intent is unnecessary because the trial court violated a clear and unambiguous order. The supreme court has ruled, however, that evidence of intent to disobey an order is a necessary component of contempt. Florida Ventilated Awning Co. v. Dickson, 67 So.2d 218 (Fla.1953); Young v. Miami Beach Improvement Co., 46 So.2d 26 (Fla.1950).

The majority cites several cases vacating trial court orders entered or altered while appeals were pending, stating that Waltham A. Condominium Ass’n v. Village Management, Inc., 330 So.2d 227 (Fla. 4th DCA 1976) clarified the effect of a notice of appeal and eliminated confusion. The number of opinions issued subsequent to Walt-ham, however, suggests that the permissible scope of judicial activity during the penden-cy of an appeal is not entirely clear. Nevertheless, in none of these cases was the trial judge held in contempt. In fact, the majority cites no Florida case holding a trial judge in contempt.

Contempt is an “exhibition of scorn or disrespect toward a court.... ” 11 Fla. Jur.2d Contempt § 1. It is defined as an offense against the authority or the dignity of a court and consists of any act calculated to lessen the authority of the court or dignity or “calculated to embarrass, hinder, or obstruct a court in the administration of justice.... ” Thomson v. State, 398 So.2d 514 (Fla. 3d DCA 1981). Contempt involves more than an error in applying the law.

There are circumstances in which a trial judge may be held in contempt of an appellate court’s order, but violation of a stay order without proof of intent to flout the authority of this court or to show disrespect is insufficient to establish contempt. It is the challenge to the authority or dignity of the court rather than the error of judgment that constitutes contempt. In re Mattera, 34 N.J. 259, 168 A.2d 38 (1961); McFarland v. State, 172 Neb. 251, 109 N.W.2d 397 (1961). The trial court’s statement that “I believe that this court has the power to do so and so rule” demonstrates ignorance of the law rather than disrespect for this court. Of course, continued failure to abide by our orders cannot in the future be explained as “confusion.”

In conclusion, I find that the trial judge’s conduct in failing to apprise himself of the limits of his jurisdiction constituted a disservice to the litigants and to counsel. The public does not benefit, however, from a rule which will inhibit the free exercise of a trial judge’s lawful deliberations by subjecting him to the threat of punishment for his errors in deciding legal questions. Despite the majority’s assertions to the contrary, I believe that threat to be implicit in today’s opinion and I therefore decline to join in the majority view.

      . While Waltham involved an interlocutory appeal, it is clear from the citations which follow in the body of this opinion that the rule is equally applicable where a final judgment has been entered. See e.g., FMS Management Systems, Inc. v. IDS Mortgage Corp., 402 So.2d 474 (Fla. 4th DCA 1981).

      . Of course, there were also decisions to this effect prior to Waltham. See e.g., Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974); Liberman v. Rhyne, 248 So.2d 242 (Fla. 3d DCA), cert. denied, 252 So.2d 798 (Fla.1971); Fulton v. Poston Bridge & Iron, Inc., 122 So.2d 240 (Fla. 3d DCA), cert. denied, 125 So.2d 879 (Fla.1960); Florida Dry Cleaning & Laundry Board v. Everglades Laundry, Inc., 138 Fla. 646, 190 So. 33 (1939).
      It should also be noted that this rule is of universal application; apparently no jurisdiction holds otherwise. Thus, it was said in United States v. Katsougrakis, 715 F.2d 769, 776 (2d Cir.1983):
      The district judge erred by engaging in factfinding after notice of appeal had been filed. It is well settled that the filing of a timely and effective notice of appeal from a final judgment divests the court of jurisdiction to amend or otherwise reconsider that judgment. See Compania Espanola de Petroleos, S.A. v. Nereus Shipping, S.A., 527 F.2d 966, 972-73 (2d Cir.1975), cert. denied, 426 U.S. 936, 96 S.Ct. 2650, 49 L.Ed.2d 387 (1976); 9 J. Moore, B. Ward, J. Lucas, Moore’s Federal Practice ¶ 203.11 (2d ed. 1983). (footnote omitted)

      . The lack of jurisdiction in a trial court to modify a final judgment being appealed also renders it without jurisdiction to entertain a motion pursuant to Florida Rule of Civil Procedure 1.540(b). Walker v. Walker, 401 So.2d 872 (Fla. 2d DCA 1981); Tosar v. Sladek, 393 So.2d 61 (Fla. 3d DCA 1981); Glatstein v. City of Miami, 391 So.2d 297 (Fla. 3d DCA 1980); Leo Goodwin Foundation, Inc. v. Riggs National Bank of Washington, D.C., 374 So.2d 1018 (Fla. 4th DCA 1979); Weinschel v. Weinschel, 368 So.2d 388 (Fla. 3d DCA 1979).


text:
    Irving ZISOOK and Jean Zisook, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee.
    No. 82-1972.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1983.
    Horton, Perse & Ginsberg, Murray Yanks, Miami, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
   PER CURIAM.

Zisook, the plaintiff below in a declaratory action involving uninsured motor vehicle limits, appeals a judgment in favor of State Farm. For the reasons which follow, we reverse and remand for a new trial.

In 1977 Zisook applied to State Farm for automobile insurance. The written application bearing his signature indicates bodily injury limits of $100,000/$300,000. The application also indicates a selection of uninsured motor vehicle limits lower than the bodily injury limits and indicates these uninsured motor vehicle limits to be $10,-000/$20,000. After sustaining injuries in a motor vehicle accident, Zisook sought a declaratory judgment that his uninsured motor vehicle limits were actually $100,-000/$300,000. A final summary judgment in favor of Zisook was reversed by this court. See State Farm Mutual Automobile Insurance Co. v. Zisook, 393 So.2d 1191 (Fla. 3d DCA 1981).

At trial, Zisook contended that he had orally requested the higher limits but that, evidently, the State Farm agent’s secretary had mistakenly indicated on the written application the lower limits. The State Farm agent testified that, per normal office procedure, he had inquired as to Zisook’s insurance needs, explained the options and taken notes and passed these on to his secretary to complete the written application for Zisook to sign. The State Farm agent’s notes were entered into evidence and are reproduced here:

The trial court instructed the jury, over Zisook’s objection, “that a party who signs his name to an instrument is bound by the terms of the instrument and cannot deny the contents of the instrument on the grounds that he signed it without reading it, unless he shows facts indicating circumstances which prevented his reading it.” The jury rendered an interrogatory verdict, finding that Zisook knowingly selected uninsured motor vehicle limits of $10,000/$20,-000.

Zisook argues that it was error for the trial court to give a “signature is binding” instruction. We agree. An informed rejection of uninsured motor vehicle coverage cannot, without extrinsic evidence, be implied from the insured’s signature on the application for uninsured motor vehicle coverage. American Motorists Insurance Co. v. Weingarten, 355 So.2d 821 (Fla. 1st DCA 1978).

Reversed and remanded for a new trial.


author: BERANEK, Judge.

text:
    Richard BAIN a/k/a Richard Menard, Appellant, v. STATE of Florida, Appellee.
    No. 82-1522.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Rehearing Denied Nov. 30, 1983.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

The defendant appeals his conviction and sentence for burglary. After considering all the points raised on appeal, we find two which merit discussion and reverse for a new trial.

The defendant was apprehended at the scene of a burglary. Prior to his arrest, he told the police that he lived in the burglarized residence. However, through other witnesses present it was determined that the defendant was not, in fact, the owner of the premises, and he was arrested. A search of the defendant revealed a gold watch allegedly taken from the home.

During the trial, the arresting police officer was questioned regarding his adminis-. tration of Miranda rights to the defendant. The conclusion of his testimony was:

Prosecutor: Q Did you read all — excuse me. Go ahead.
Officer: A And knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
I believe his answer there was, he was unsure of himself and I didn’t go any farther with him.

Defense counsel objected and asked for a mistrial, which was denied.

The officer continued to testify that after he observed that the defendant was unsure of himself and decided not to pursue questioning because of this uncertainty, he asked the defendant two more questions: his name and address. At this point, the defendant gave two different names, and he also gave his address. This evidence was crucial since at the time the officer arrived at the scene of the burglary, the defendant told the police officer that he lived in the home that had just been burglarized. Therefore, the officer elicited incriminating evidence after the defendant appeared unsure about invoking his right to remain silent.

The law is clear that a defendant’s invocation of his right to remain silent may not be used against him, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Bennett v. State, 316 So.2d 41 (Fla.1975). In Trafficante v. State, 92 So.2d 811 (Fla.1957), the Supreme Court prohibited any such comment, without regard to the character of the comment, or the motive or intent with which it is made. If such a comment is subject to an interpretation which would bring it within the constitutional prohibition, regardless of its susceptibility to a different construction, it constitutes reversible error.

The statements that were elicited in this case violated the defendant’s constitutional rights since they can easily be construed as a comment on his right to remain silent. Furthermore, the defendant’s constitutional rights were violated when the arresting officer continued questioning after acknowledging that the defendant appeared uncertain about continuing the interrogation.

REVERSED AND REMANDED.

DELL and WALDEN, JJ., concur.


author: LEHAN, Judge.

text:
    ISLAND WINDS CONDOMINIUM BATH & RACQUET CLUB ASSOCIATION, INC., and John R. Hanek, Appellants, v. Robert F. WETTINGFIELD, Trustee, Robert F. Bloomgarden, Trustee, Euclid National Bank, Trustee, Roseanne J. Lynch, Clair & Co., Trustee, Patrick B. Cestone, Trustee, John R. Burke, Trustee, Robert T. Carmen, Trustee, First National Bank of Akron, Trustee, Wilson W. Shaw, Jr., Trustee, Appellees.
    No. 83-351.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.

      Charles M. Milligan of McConnell & Milli-gan, Fort Myers Beach, for appellants.
    Gregory N. Burns, Fort Myers, and R. Allen Thomas, Meadville, Pa., for appellees.
   LEHAN, Judge.

In this suit by appellant condominium association to declare a recreation lease unconscionable, we affirm the trial court’s judgment for the appellees-lessors. The trial court was correct in finding that the requirements of section 718.122, Florida Statutes (1981), were not adequately met by proof. There was no rent escalation clause in the lease, and the amount of rent was not otherwise shown to be unconscionable under all the circumstances.

The trial court also entered judgment in favor of the appellees on their counterclaim for unpaid rent. We find without merit appellants’ contentions that the judgment on the counterclaim was erroneous and therefore affirm except to the extent that the judgment was entered against John R. Hanek, president of the condominium association. In our view the liability of Mr. Hanek was neither pleaded nor proved, and the judgment against Mr. Hanek is reversed.

We find appellants’ remaining contentions to be without merit.

AFFIRMED IN PART, REVERSED IN PART.

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


text:
    Deanna Judith KIRSCH, Appellant, v. Edward Joseph KIRSCH, Appellee.
    Nos. 82-2593, 83-580.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Gordon C. Brydger and Richard Ashe of Brydger and Levitt, P.A., Sunrise, for appellant.

      No brief filed on behalf of appellee.
   PER CURIAM.

We reverse and remand with instructions to conduct an evidentiary hearing upon appellant’s petition for upward modification of child support and upon the appellant’s request for attorney fees. Kocha v. Kocha, 349 So.2d 690, 691 (Fla. 4th DCA 1977).

We affirm as to appellant’s remaining points.

Affirmed in part; reversed in part; remanded with instructions.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


text:
    BERGMANN & BIAGIOTTI, INC., d/b/a The Communications Group, Appellant, v. TIC GROUP, LTD., Appellee.
    Nos. 83-241, 83-733.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Jack Stein and Jeffrey H. Shoostine of Bernstein, Bernstein, Bernstein, Stein & Rush, Fort Lauderdale, for appellant.
    Frank M. Marks and Daniel Mones of Daniel Mones, P.A., Miami, for appellee.
   PER CURIAM.

Reversed. We believe the trial court erred in entering summary judgment on the appellant’s claim for breach of a written agreement and in denying appellant’s motion to amend. Firestone Tire & Rubber Co. v. Thompson Aircraft Tire Corp., 353 So.2d 137 (Fla. 3d DCA 1977); Haag v. Phillips, 333 So.2d 507 (Fla. 2d DCA 1976). We also reverse the order awarding attorney’s fees.

ANSTEAD, C.J., and BERANEK and DELL, JJ., concur.