author: THOMPSON, Judge.

text:
    Walter Gale STEINHORST, Appellant, v. STATE of Florida, Appellee.
    No. AR-226.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1983.
    Wendy Snyder and Stephen D. Alexander, of Fried, Frank, Harris, Shriver & Jacobson, New York City, for appellant.
    Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Defendant appeals a trial court order denying his motion to substitute counsel for the attorney appointed by the trial court pursuant to § 925.035(4), Fla.Stat. to represent him in his application for executive clemency. We affirm.

An indigent criminal defendant does not have the right to decide which counsel the court should appoint to represent him. See Drago v. State, 415 So.2d 874 (Fla. 2d DCA 1982); Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973); Wilder v. State, 156 So.2d 395 (Fla. 1st DCA 1963). We see no reason why this same principle should not apply to counsel appointed, at the state’s expense, to represent an indigent in his application for executive clemency. Additionally, there has been no suggestion that the counsel appointed by the trial court to represent defendant in his application for executive clemency is not competent to do so.

This decision should not be considered as prohibiting the firm which sought to be substituted as defendant’s counsel from appearing pro bono in the executive clemency proceeding, absent some restriction by the Office of Executive Clemency, if defendant chooses to request the firm to appear on his behalf.

AFFIRMED.

ERVIN, C.J., and NIMMONS, J., concur.


source: Caselaw Access Project

author: WIGGINTON, Judge.

license: Public Domain

text:
    The CROWN HOTEL and Kent Insurance Company, Appellants, v. Phillip FRIEDMAN and the Division of Workers’ Compensation, Appellees.
    AR-258.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1983.
    Rehearing Denied Nov. 1, 1983.
    Donald D. Gillis of Underwood, Gillis, Karcher & Valle, Miami, for appellants.
    Ronnie Klein Witlin of Witlin & Witlin, Miami, for appellees.
   WIGGINTON, Judge.

Appellants, employer/carrier, bring this case for a second review of an order entered by the deputy commissioner in February, 1982, and for review of orders entered in January and February, 1983.

In his initial order, the deputy found claimant Friedman’s injury to be compensa-ble and awarded certain benefits but withheld determination of the patently mature issue of wage loss that was squarely in controversy. Relying on Town of Palm Beach, et al. v. Watts, 426 So.2d 1312 (Fla. 1st DCA 1982), we dismissed the employer/carrier’s appeal from the February, 1982 order, finding it to be interlocutory and non-appealable. This court’s sua sponte dismissal was without prejudice for either party to seek review of a final order. Crown Hotel v. Friedman, 420 So.2d 418 (Fla. 1st DCA 1982).

The January and February, 1983 orders entered by the deputy followed this Court’s dismissal and resolved all remaining controverted issues.

In this second appeal, employer/carrier contend in their initial point that the deputy, having established a maximum medical improvement date in the February, 1982 order, erred in reserving jurisdiction as to the wage loss issue and then, after dismissal of the first appeal holding a new hearing wherein Friedman was permitted to present evidence of a recently performed job search. It was that search which became the basis of the deputy’s finding that Friedman was permanently and totally disabled. The deputy’s reservation of jurisdiction and the allowance of further evidence on the question of wage loss earning capacity was within his discretion. In Town of Palm Beach, supra, we stated:

A deputy may also enter interim orders as to a portion of a claim before him, but by definition such a ruling is interlocutory when it disposes of less than all matters which are ripe for determination and not stipulated between the parties on the claim. The Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982); General Electric Co. v. Hawkins, 413 So.2d 836 (Fla. 1st DCA 1982).

At 1313.

In points II and IV, employer/carrier assert that the deputy erred in finding Friedman entitled to certain temporary total disability benefits and to 100 percent wage-loss benefits. Substantial competent evidence supports both findings.

The record shows that Friedman’s injury occurred on December 22, 1980 and the employer was aware of the injury on the day that it happened. Employer/carrier provided no benefits to Friedman and failed to file a notice to controvert until April 22, 1981, followed then by Friedman submitting his claim on June 1, 1981. The deputy imposed penalties on employer/carrier pursuant to section 440.20(7), Florida Statutes, for the temporary total disability, permanent total disability, and medical benefits awarded. However, in his February, 1983 order, the deputy struck the penalties as to permanent total disability and medical benefits, pursuant to a stipulation by the parties. Therefore, the only assessed penalties remaining and not obviated by the stipulation are as to temporary total disability benefits.

In point III, employer/carrier challenge the imposition of all of the penalties, arguing that no penalties may be assessed as to benefits accruing subsequent to their filing of the notice to controvert. However, section 440.20(6) requires that a notice to controvert be filed “on or before the twenty-first day” 'after the employer/carrier has knowledge of the alleged injury or, if the employer or carrier initially accepts the claim but subsequently controverts it, the notice of controversion must be filed within ten days after the date of initial cessation of benefits. Section 440.20(7) provides for the assessment of penalties on benefits awarded “unless notice is filed under subsection (6) .... ” Employer/carrier cannot rely upon that statutory exemption from penalties in this case since their notice to controvert was not filed timely under section 440.20(6). Therefore, the penalties attaching to the temporary total disability benefits are affirmed.

In their final point, employer/carrier challenge the deputy’s excusal of the nonfil-ing of medical reports required by section 440.13(1), Florida Statutes. The deputy’s articulated excusal of the nonfiling was merely that:

The employer/carrier controverted the entire claim, and as a matter of fact have not made any payments whatsoever up to date. The filing of medical reports is deemed to be excused on the basis of the law enunciated in Hardware Mutual Casualty Company v. Sutton, 197 So.2d 502.

The order contained no further elaboration of his reasons for relying on the Sutton case, in which the court excused the filing of medical bills because of the confused legal situation of whether the claimant, in that case, was an employee or an independent contractor. The only two reasons cited by the deputy in the instant case to establish good cause for the refusal to file medical bills — that employer/carrier contested the claim and has not provided any medical services — have been specifically held by this Court to be insufficient grounds alone for excusal of the section 440.13(1) requirement. See Gory Associated Industries v. Thomas, 402 So.2d 1341 (Fla. 1st DCA 1981) and Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981). As in Gory and Weiby, we reverse and remand on this point to the deputy commissioner for a further determination of whether good cause existed to excuse the filing of medical bills.

Affirmed in part, reversed in part, and remanded.

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


author: PER CURIAM.

text:
    Angus Lee CLEMMONS, Appellant, v. C.A. CARROLL and United States Fidelity & Guaranty, Appellees.
    No. AR-468.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1983.

      John L. Myrick of Kinsey, Myrick & Troxel, P.A., Pensacola, for appellant.
    Larry Hill, of Sherrill, Moore, Hill & Westmoreland, Pensacola, for appellees.
   PER CURIAM.

The order entered by deputy commissioner Michael J. DeMarko in this case is as follows:

The question involved in the claim is whether the employer/carrier can cut off benefits with a claimant who fails to provide evidence of a good faith work search along with his monthly wage-loss request. It is contended that the burden of proof is on the claimant to show a change of employment status due to his injury and further he must demonstrate through a good faith work search, he is unable to secure employment commensurate with his abilities.
The Claimant contends that the Order of July 15, 1981, finding that he was only capable of light work paying minimum wage [and on that account granting maximum available wage loss benefits by an order affirmed, without opinion, in Clemmons v. C.A. Carroll, Inc., 415 So.2d 1363 (Fla. 1st DCA 1982) ], relieves him of the practical necessity of conducting a work search. Because the Claimant’s average weekly wage as a pipefitter was high, even if he did find light work paying minimum wage he still would be entitled to wage-loss benefits at the maximum rate. It is further argued that the statute does not require a work search list to accompany a request for wage-loss. Without such statutory authority, the Employer/Carrier cannot require its submission.
This claim brings into focus two conflicting concepts under the Act. The law is supposed to be self-executing. In that context, the Employer/Carrier has a duty to investigate claims and gather facts sufficient to either pay or decline to pay a requested benefit. It is abundantly clear that a claimant must conduct a good faith work search before he or she is entitled to compensation. Even if it is shown by a later work search that the claimant is entitled to wage-loss benefits, the deputy commissioner cannot retroactively award benefits for those months in which no work search was made. Quality Petroleum Corp. v. Mihm, 424 So.2d 112 (Fla. 1st DCA 1982).
We also know that a claim cannot be denied because of the Claimant’s technical failure to properly fill out and execute a wage-loss request form. Ardmore Farms v. Smith, 423 So.2d 1039 (Fla. 1st DCA 1982).
The need for such information is dramatically shown in this case. As a matter of fact, the Claimant did not look-for work in the months of October and November of 1982. His efforts at re-employment were minimal in December. Since the Claimant was represented by counsel, the Employer/Carrier was obligated to make any inquiries about work search through Claimant’s counsel and not directly to the Claimant. As it turns out, the Employer/Carrier had a right to suspend benefits for those months.
There is no merit to the Claimant’s argument that even if he did find a job he would probably earn minimum wages, which in turn would entitle him to compensation at the maximum compensation rate. The basic thrust of the wage-loss concept is to provide compensation for injuries during a time in which the Claimant is either forced out of the labor market or undergoing rehabilitation. The idea that the Claimant should be paid compensation according to a schedule for the effects of his injury was formally rejected by the legislature in 1979. Through case law, the courts have decided that the claimant must test the labor market in order to prove entitlement. The thrust of these combined requirements is to get the claimant back into the labor market as soon as possible. Under wage-loss, even if he finds work paying far less than his pre-injury wage, he will not be penalized. His compensation goes on. The idea that a return to work would be of little practical value does not coincide with the realities of life. For the unskilled and poorly educated worker, the best path to success in the market place is to build a career through promotion or a succession of better paying jobs. The apprentice plumber usually is promoted based on job skills developed while working. He does not start making top wages. In this case, it has been determined that the Claimant is not a good candidate for rehabilitative training. His only option is to re-enter the labor market and again work his way up the ladder of success. Whether he is capable of doing this is not known but the effort must be made. He must start somewhere. In this case, the Employer/Carrier had a right to suspend benefits until such time as the Claimant resumed his efforts at re-employment. In other words, the Employer/Carrier did not resist an otherwise valid claim. Their resistance to the claim was well taken.
The decision in Ardmore Farms, supra, indicates that if a carrier withholds benefits because of some defect in the request for wage-loss benefits form, it is most likely at the carrier’s peril. If a request is received and it is regular on its face, the employer/carrier is obligated to proceed with “active effort and initiative” in order to fairly and expeditiously determine its obligation and place needed benefits in the hands of the injured worker. Florida Erection Services v. McDonald, 395 So.2d 203, 211 (Fla. 1st DCA, 1981). The purpose of the request or claim is to give the employer/carrier “knowledge” of the claim which is all that is required, Id. at 212. There is nothing in the statute nor anything in the form promulgated by the division to require that a work search list must be attached to each request.
Since the work search is a prerequisite to a claim for wage-loss, the employer/carrier does have the right to inquire of the claimant regarding his efforts. When the claimant is represented by counsel, such inquiries can be promptly directed to counsel. Any delay in the claimant’s response should not be held against the employer/carrier.
As a practical matter it would be wise for the careful claimant’s attorney to anticipate the employer/carrier’s need for work search information and supply it along with the request form. This would prevent unnecessary delays in cases where benefits are clearly due and in cases where the employer/carrier intends to controvert the request, the Claimant can take immediate steps to bring the matter before the deputy commissioner for determination. However, the law as interpreted by the First District Court of Appeal in Ardmore Farms probably does not require such a form to be filed. Therefore, if the work search information is not attached to the request for wage-loss benefits and the claimant has in fact conducted a good faith work search, the employer/carrier cannot escape liability for payment of such benefits based merely on the fact that such information was not included in the request. However, if it turns out that the claimant has not conducted a good faith work search, as in the case at bar, then no liability exists for the payment of the request.
WHEREFORE, having heard the testimony, considered the evidence, observed the candor and demeanor of the witnesses, heard the argument of counsel, and resolved all conflicts, the claim for wage-loss benefits for the months of October, November, and December of 1982 are denied because the Claimant failed to conduct a good faith work search.

Commissioner DeMarko’s order is exceptionally persuasive and it is approved. We do not reach the question of whether a carrier may reasonably require that work search information be “attached to the request for wage-loss benefits,” for that question was not briefed and is not necessarily decided in passing on this appeal.

AFFIRMED.

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


author: SCHEB, Judge.

text:
    Wayne YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 82-1090.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1983.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

The state charged Wayne Young with carrying a concealed firearm in violation of section 790.01(2), Florida Statutes (1981). The trial court denied his motion to suppress the firearm. Young then pled nolo contendere reserving the right to appeal such denial. See Brown v. State, 376 So.2d 382 (Fla.1979). The trial court withheld adjudication and placed him on probation for two years. Young now challenges the court’s denial of his motion to suppress and the imposition of a special probation condition which forbade him from living with a member of the opposite sex who is not a relative without permission of his probation officer.

We find no merit to Young’s contention that the court erred in denying his motion to suppress. We also reject his contention that the imposition of a special probation condition was improper. This latter contention, however, bears further comment.

When the trial court placed Young on probation, it imposed the standard terms and conditions enumerated in section 948.-03(1), Florida Statutes (1981). Additionally, pursuant to section 948.03(3), the court imposed four special conditions of probation. Young made no objection to any of the conditions in the trial court, but, as noted, he now contends that the condition which forbade him from living with a member of the opposite sex who is not a relative without permission of his probation officer should be stricken. He argues that the condition bears no relation to the crime charged and cites Rodriguez v. State, 378 So.2d 7 (Fla. 2d DCA 1979), and Wilkinson v. State, 388 So.2d 1322 (Fla. 5th DCA 1980).

At the outset, we note that the Fifth District has receded from Wilkinson and has held that any appeal attacking the validity of a special condition of probation must be from an adverse ruling after a defendant’s objection in the trial court. Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA), petition for review denied, 419 So.2d 1195 (Fla.1982).

We have previously recognized that a probationer cannot object to a condition of probation for the first time at a revocation hearing unless the trial court was without jurisdiction to impose probation. Wolfson v. State, 437 So.2d 174 (Fla. 2d DCA 1983); Solomon v. State, 341 So.2d 537 (Fla. 2d DCA 1977). Likewise, conditions of probation requiring the probationer to make restitution must generally be challenged in the trial court before the issue may be raised on appeal. Goodson v. State, 400 So.2d 791 (Fla. 2d DCA 1981). See also Seymour v. State, 432 So.2d 770 (Fla. 2d DCA 1983).

In some instances, however, we have ruled on a defendant’s challenge to probation conditions raised for the first time on appeal. In Rodriguez we held that certain special conditions of probation which prohibited marriage and pregnancy violated fundamental constitutional rights of the probationer, and we instructed the trial court to strike those conditions. See Burchell v. State, 419 So.2d 358 (Fla. 2d DCA 1982). Likewise, in Mays v. State, 349 So.2d 792 (Fla. 2d DCA 1977), we found that a condition stipulating that a probationer not live with a person of the opposite sex was unconstitutionally overbroad -because it prevented the probationer from living with his mother or any other female relative. We directed that the probation order be modified to allow petitioner to live with a female relative.

Even fundamental constitutional rights may be restricted by conditions of probation; however, such restrictions are subject to careful review. At a minimum, probationers should be entitled to those rights which would be guaranteed to prisoners and parolees. See United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir.1975). See also United States v. Tonry, 605 F.2d 144, 148 (5th Cir.1979); Howland v. State, 420 So.2d 918 (Fla. 1st DCA 1982); Wiggins v. State, 386 So.2d 46 (Fla. 4th DCA 1980). Here, Young’s fundamental rights were not proscribed as in Rodriguez. Nor does the condition exceed the bounds we approved in Mays.

As noted, Young made no objection to imposition of the conditions of his probation. When conditions of probation are eliminated on appeal, the trial court cannot reweigh whether probation would have been granted without such conditions. To now allow Young to raise on appeal the propriety of the special condition to which he now objects without having first objected in the trial court would frustrate the trial judge’s formulation of an order designed to accomplish the goal of probation as a viable alternative to incarceration. The trial court performed its obligation by including conditions of probation it deemed necessary to rehabilitate the probationer and to serve society in general. In granting probation the court should be able to assume that when the defendant makes no objection that he or she accepts the terms and conditions imposed. After all, probation is generally a matter of “judicial grace.”

In order to challenge on appeal the terms and conditions of probation, we hold that a defendant must state of record any objections at the time that probation is imposed. Of course, where the trial court lacks jurisdiction to impose probation, or another fundamental error occurs, then no objection of record is required. See Rodriguez and Mays.

Accordingly, we affirm defendant’s judgment and sentence.

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


author: GRIMES, Judge.

text:
    Mark Edward ALDERTON and Tywana Kay Alderton, Appellants, v. STATE of Florida, Appellee.
    Nos. 82-1725, 82-1727.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1983.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellants pled nolo contendere to charges of possession of marijuana. They preserved the right to appeal the denial of their motions to suppress evidence seized pursuant to a search warrant.

The essential facts are as follows: On April 1, 1982, Sergeant Rigsby and Detective Everroad of the Bradenton Police Department were working undercover trying to arrange a narcotics deal with one Ron Angle. After supplying Angle with $760 of marked money, Sergeant Rigsby and other undercover officers followed Angle and Detective Everroad to a location in Manatee Palms. Angle walked away and subsequently returned with a large paper bag. The paper bag contained two pounds of marijuana. Detective Everroad identified himself as a police officer and asked Angle for his assistance. Angle agreed to cooperate and directed the police to the appellants’ house where he had made the marijuana purchase with the money supplied by the officers.

The police knocked on the front door of the residence, announced that they were police officers and entered. The officers asked the appellants to cooperate and let them search the house. When the appellants refused, the officers made a cursory inspection of the house to ascertain if anyone else was present. The appellants did not attempt to run or to destroy any evidence. The appellants were then asked to sit on a couch in the living room while several officers were sent to obtain a search warrant. The affidavit for the warrant was based upon Angle’s purchase of marijuana and did not reveal that the police had already entered and secured the premises. Upon delivery of the warrant nearly three and a half hours later, the police searched the house and seized several items including marijuana.

The appellants argue that the evidence should have been suppressed because the initial entry and occupancy of appellants’ home was illegal, thereby tainting the later search and seizure pursuant to the warrant.

Initially, we note that the entry and occupancy of the house in this case constituted a fourth amendment search and seizure. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Allard, 634 F.2d 1182 (9th Cir.1980); State v. Ramos, 405 So.2d 1001 (Fla. 3d DCA 1981). Absent exigent circumstances, the police clearly may not force entry to a home without a search warrant simply because they think they have probable cause to believe evidence of crime may be found therein. United States v. Griffin, 502 F.2d 959 (6th Cir.1974), cert. denied, 419 U.S. 1050, 95 S.Ct. 626, 42 L.Ed.2d 645 (1974).

From the facts of the case sub judi-ce, it is apparent that no exigent circumstances existed. There was certainly no suggestion that the police were in pursuit of a fleeing felon. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The police also were not responding to an emergency. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). The state would ask this court to surmise that it was necessary for the officers to enter the appellants’ home and detain them while securing a search warrant in order to prevent their departure or the destruction of the marked money. The departure of the occupants of the house could have been prevented by leaving one or more officers to watch the residence while the warrant was obtained. Given the officers’ reason to believe that the occupants had sold marijuana to Angle, anyone departing the house could have been arrested without a warrant. See § 901.15(2), Fla.Stat. (1981). If this action had become necessary, there might then have been sufficient exigent circumstances for the police to enter the house before the remaining occupants were alerted to the arrest, but that did not occur here. As to the marked money, the police had no reason to believe it was in the process of being destroyed or removed from the jurisdiction.

The issue, then, is whether the illegality of the initial entry tainted the evidence found by the police pursuant to the subsequently obtained warrant. Our colleagues in the Third District Court of Appeal addressed this very question in State v. Ramos, 405 So.2d 1001 (Fla. 3d DCA 1981). In Ramos, the police received information from a confidential source that the defendant would deliver cocaine in a hollowed-out book. The police staked out the defendant’s home, observed him leaving with a book, and arrested him a few blocks away. They found both weapons and cocaine in his possession. The police immediately took the defendant to his residence, entered the house, and found three people inside. The residence was then secured while an officer was sent to obtain a search warrant. The affidavit for the warrant did not reveal that the police detained the defendant and the other occupants for three hours while the warrant was obtained. After obtaining the warrant, the officers searched the house and seized several items. The trial judge subsequently granted the defendant’s motion to suppress the items seized from the residence. On appeal, the court observed that since the state did not argue the existence of exigent circumstances, the warrant-less entry into the house was per se illegal. The court rejected the argument that the subsequent search and seizure under the warrant was purged of the illegality of the initial entry and detention. The court reasoned:

Although we appreciate the difficulties the police face in balancing effective law enforcement with complex Fourth Amendment rules, illegal entries into homes cannot be sanitized by the simple expedient of seeking warrants after the illegal entry has occurred and the police are confident that contraband can be found. Moreover, failure of the police to disclose the ongoing search and seizure in their affidavit for the search warrant frustrated the very purpose of the warrant requirement — to place a neutral magistrate between the public and police conduct. See United States v. Allard, 634 F.2d 1182 (9th Cir.1980).
... Absent exigent circumstances, when a defendant establishes that the state illegally entered his home, evidence discovered from such entry must be suppressed even though a search warrant is obtained prior to the actual discovery and seizure of the evidence. The motion to suppress evidence seized from defendant’s residence was properly granted.

Id. at 1003.

As in Ramos, we find that the subsequent search and seizure was so tainted by the prior illegal police activity that the evidence seized upon execution of the warrant must be suppressed. Accordingly, the judgments and sentences of the lower court are reversed, and the eases are remanded for further proceedings consistent with this opinion.

OTT, C.J., and SCHOONOVER, J., concur.


author: CAMPBELL, Judge.

text:
    Wayne HURLEY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee.
    No. 82-2838.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1983.

      Robert J. Shapiro of Spector & Shapiro, Tampa, for appellant.
    George A. McKendree of Miller, McKen-dree & Somers, Tampa, for appellee.
   CAMPBELL, Judge.

The appellant, Wayne Hurley, appeals from a final judgment on the pleadings entered in favor of appellee, State Farm Mutual Automobile Insurance Co. We affirm the judgment of the trial court.

The appellant was a passenger in a vehicle driven by his father, Robert Hurley. The vehicle was involved in a collision with another vehicle driven by Kathleen Eveland and owned by Richard Fero.

At the time of the accident, the appellant was emancipated, married and a father of three children. He was not a resident of Robert Hurley’s household at any time material to this cause of action.

The vehicle driven by Kathleen Eveland was insured at the time of the accident with United Services Automobile Association (USAA) for $10,000 per person and $20,000 per accident.

The appellant’s parents filed claims for personal injuries against Kathleen Eveland and USAA. They received $19,600 from USAA. This left $400 in available insurance for the appellant.

Robert Hurley was insured with State Farm Mutual Automobile Insurance Co. for $10,000 per person and $20,000 per accident. This included uninsured motorist coverage which the parties admit covered the appellant as an additional insured. State Farm denied that the uninsured motorist coverage was applicable to the appellant’s claim, arguing that their liability coverage for uninsured motorists was equal to the coverage available under the tortfeasors USAA policy-

The appellant contends that he is entitled to underinsured motorist coverage from State Farm up to the limit of $10,000 exclusive of the $400 available from USAA, since State Farm had an uninsured motorist policy for $10,000 per person and USAA had only $400 in remaining coverage available to the appellant. We disagree with the appellant’s contention.

This court in Pulley v. Security Mutual Casualty Co., 412 So.2d 2 (Fla. 2d DCA 1981), relied on Holt v. State Automobile Mutual Insurance Co., 385 So.2d 1058 (Fla. 4th DCA 1980), petition for review dismissed, 394 So.2d 1152 (Fla.1981), which held that the appellants were not entitled to recover under their uninsured motorist coverage where the tortfeasor was insured in the same amount as the insured himself. We believe these two cases control the case sub judice.

The appellant is neither an uninsured nor an underinsured motorist. The appellee admitted that appellant was insured under his father’s insurance policy. The Holt and Pulley decisions state that where the insurance available to the appellant from his own carrier is equal to the coverage carried by the. tortfeasors, the appellant recovers nothing. Therefore, there is no coverage available to the appellant since Kathleen Eveland carried insurance equal in amount to the uninsured motorist coverage of Robert Hurley. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

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


author: SCHEB, Acting Chief Judge.

text:
    Thomas STARKES, Appellant, v. STATE of Florida, Appellee.
    No. 82-2875.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

The state charged Thomas Starkes with sexual battery, aggravated assault, and kidnapping. A jury returned verdicts of guilty as charged on the sexual battery and aggravated assault counts and found him guilty of false imprisonment, a lesser-included offense of kidnapping.

We have examined each point raised by Starkes and, with one exception, we find them to be without merit. The point which merits our attention is his contention that the trial court erred by adjudicating him guilty of kidnapping, notwithstanding the jury having found him guilty of the lesser-included offense of false imprisonment.

After the jury returned its verdicts, the trial judge announced that he was adjudicating defendant “pursuant to the [jjury verdict.” Through an obvious clerical error, the court entered a conviction for kidnapping instead of false imprisonment.

It is a well-established rule of law that the judgment of the trial court must conform to the jury’s verdict. Hicks v. State, 411 So.2d 1025 (Fla. 2d DCA 1982).

Accordingly, we affirm the judgments and sentences for sexual battery and aggravated assault. We vacate the judgment and sentence for kidnapping and remand to the trial court with directions to enter a judgment for false imprisonment and impose a sentence as provided by law.

RYDER and SCHOONOVER, JJ., concur.


text:
    Joseph Scott BRADFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 83-380.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1983.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

The appellant appeals only the imposition of his sentence of thirty years imprisonment for the offense of aggravated battery with a firearm. Utilizing section 775.-087(1), Florida Statutes (1981), the trial judge enhanced the appellant’s aggravated battery conviction because of his use of a firearm from a felony of the second degree, punishable by a maximum sentence of fifteen years imprisonment, to a felony of the first degree, punishable by a maximum sentence of thirty years imprisonment.

We agree with all of our sister courts in holding that aggravated battery is already an enhanced penalty offense not subject to being further enhanced by the use of section 775.087(1). Webb v. State, 410 So.2d 944 (Fla. 1st DCA 1982); Reeder v. State, 399 So.2d 445 (Fla. 5th DCA 1981); Blanton v. State, 388 So.2d 1271 (Fla. 4th DCA 1980); Knight v. State, 374 So.2d 1065 (Fla. 3d DCA 1979).

Accordingly, we reverse the appellant’s sentence to thirty years imprisonment and remand for the trial court to impose a sentence not to exceed fifteen years for the aggravated battery. The imposition of the minimum mandatory three years pursuant to section 775.087(2) was proper.

REVERSED and REMANDED.

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


text:
    James Edward THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-684.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1983.

      Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Defendant appeals his convictions for carrying a concealed firearm, possession of a controlled substance, and possession of a firearm by a convicted felon. He raises two points, neither of which has merit, although one deserves comment.

Defendant’s conviction for possession of a firearm by a convicted felon was based on his violation of section 790.23, Florida Statutes (1981). Defendant points out that while section 944.292, Florida Statutes (1981), provides for suspension of a convicted felon’s civil rights, it does not specifically define “civil rights.” Thus, he argues, the statute should be construed in his favor by our holding that when his “civil rights” were suspended, his right to possess a firearm was not. Further, he argues that even if his right to possess a firearm was suspended, that section 790.23 is not applicable to him because his civil rights were restored when the governor’s office issued a “Certificate of Restoration of Civil Rights” on January 16, 1981. See § 790.23(2). This document restored his civil rights “except the specific authority to possess or own a firearm.”

Defendant’s arguments parallel those advanced in Williams v. State, 402 So.2d 78 (Fla. 1st DCA 1981), and France v. State, 436 So.2d 428 (Fla. 5th DCA 1983). In these cases our sister courts rejected these contentions, holding that the right to possess a firearm is a civil right and that a partial restoration of civil rights such as defendant here received is within the governor’s discretionary power of clemency under Article IY, section 8, Florida Constitution. We agree with our sister courts.

Accordingly, we affirm defendant’s convictions and sentences.

RYDER and CAMPBELL, JJ., concur.


author: DOWNEY, Judge. ANSTEAD, Chief Judge,

text:
    Jerry MARKS and Richard Hillstead, Appellants, v. STATE of Florida, Appellee.
    No. 82-42.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.

      Thomas G. Murray, Miami, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

At 7:30 on a June morning two customs officers, together with three deputized Hollywood police officers, were cruising in the Atlantic Ocean one and one-half miles from shore in an unmarked police department vessel. They observed appellants aboard a Sport Fisherman vessel at anchor motioning the officers to approach the anchored boat. As the officers drew near, appellant Hill-stead asked where the nearest fuel could be found and Officer Caperton responded that it was probably at Pier 66 in Port Everglades. However, Caperton said he would call the Coast Guard. That suggestion appeared to make Hillstead very nervous and he requested that the Coast Guard not be called. However, he did ask if he could pay Caperton to take him to get some fuel in two “jerry cans.” Caperton, becoming suspicious, took a closer look and realized this boat was very low in the water and had a great deal of salt spray on it, among other things. Thereupon, Caperton identified himself as a customs agent and prepared to board appellants’ boat. Prior thereto, he asked Hillstead to open the closed cabin door. When the door was opened Caperton could see burlap bags in the cabin, but could not identify anything as contraband. When officers boarded the boat they smelled marijuana.

Upon motion to suppress, Caperton and another officer articulated the facts that caused them to board the vessel. While they relied primarily upon their border search authority for the boarding, the articulated observations were sufficient to authorize a boarding because of a reasonable suspicion of criminal activity. Cf. United States v. D’Antignac, 628 F.2d 428 (5th Cir.1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); Lavely v. State, 422 So.2d 975 (Fla. 4th DCA 1982). In our view a reasonable person would conclude that criminal activity is afoot under circumstances which include the following: (a) hailed in the ocean one and one-half miles off Port Everglades by another boat which is out of fuel and at anchor; (b) the operator asks the location of the nearest fuel source; (c) the hailee suggests Pier 66 but offers to call the Coast Guard, whereupon the hailor becomes very nervous and declines the Coast Guard call; (d) the boat with a 600-800 gallon fuel capacity is sitting low in the water; (e) there is a great deal of salt spray on the boat. With these observations, boarding was justified and we do not feel the command to open the cabin door had any effect on that right. Caper-ton testified boats of this size are frequently armed and he wanted to make sure no one armed was in the cabin. It was stipulated at the hearing by the prosecutor that the observations made through the open door did not disclose contraband. Upon boarding, the officers smelled marijuana. The search following that observation disclosed 7,000 pounds of marijuana.

Based upon the foregoing, we affirm the denial of appellants’ motion to suppress and the judgments and sentences appealed from.

BERANEK, J., concurs.

ANSTEAD, C.J., concurs specially with opinion.

ANSTEAD, Chief Judge,

specially concurring:

I concur in an affirmance because I believe a border search was authorized under the circumstances described in the majority opinion. See United States v. Whitmere, 595 F.2d 1303 (5th Cir.1979) and United States v. Freeman, 579 F.2d 942 (5th Cir.1978).

      . We reject appellee’s contention that the facts of this case justified a border search.


text:
    Maryann MURPHY, Appellant, v. Edward F. MURPHY, Appellee.
    No. 82-1035.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Richard A. Kirsch, P.A., Fort Lauderdale, for appellant.
    Melvyn B. Frumkes and Cynthia L. Greene of Law Offices of Melvyn B. Frumkes, P.A., Miami, for appellee.
   PER CURIAM.

Affirmed. See, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

HURLEY and DELL, JJ., and SIMONS, STUART M., Associate Judge, concur.


author: BERANEK, Judge.

text:
    Keith Richard HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1549.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.

      Joseph L. Schneider of Leen & Schneider, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

The defendant appeals a conviction and sentence for attempted sexual battery, kidnapping, and possession of a weapon in the commission of a felony. We affirm.

Purporting to be a police officer, the defendant arrested an individual operating a vehicle without a license. The defendant drove the victim to a wooded area where he sexually attacked and repeatedly hit him with a bat. The victim was released and defendant ran into the woods. He was later apprehended, arrested, and convicted after a jury trial.

On appeal, the defendant asserts that the trial court erroneously denied a motion for a mistrial on grounds that the prosecutor elicited improper statements from a witness in violation of a pre-trial stipulation. We have reviewed the record and find no abuse of discretion in the procedure followed by the trial judge.

Defendant also alleges that the court erred in sentencing him for both kidnapping and attempted sexual battery. He maintains that the abduction of the victim was inherent in the attempted sexual battery. However, applying the test enunciated in Faison v. State, 426 So.2d 963 (Fla.1983), it is clear that this is not error. The abduction was not incidental to the crime, was not inherent in the sexual battery, and made the commission of the crime substantially easier.

We have considered the other points raised on appeal and find them to be without merit.

AFFIRMED.

HURLEY and DELL, JJ., concur.


author: DELL, Judge.

text:
    Sarah GOLD, Appellant, v. CHEKER OIL COMPANY and/or The Imperial Florida Oil Company, Appellees.
    No. 82-1697.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.

      Kathleen Phillips of Law Offices of Neil Chonin, P.A., Coral Gables, for appellant.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for appellees.
   DELL, Judge.

Sarah Gold appeals from a final summary judgment holding the Workers’ Compensation Statute, Chapter 440, Florida Statutes (1981) barred her claim for loss of consortium as a result of her husband’s injuries.

Appellant’s husband sustained personal injuries at work, became disabled, and received Workers’ Compensation benefits. Appellant filed suit against appellee, her husband’s employer, seeking damages for loss of consortium. Appellee moved for summary judgment and asserted that because the wife’s claim is purely derivative and the husband’s exclusive remedy is pursuant to Chapter 440, Florida Statutes, that she could not recover as a matter of law. The trial court granted appellee’s motion and this appeal followed.

Appellant contends this application of Chapter 440 unconstitutionally denies her right of access to the court for enforcement of her separate property rights.

The Supreme Court first recognized an equal right of a wife to claim for the loss of consortium in Gates v. Foley, 247 So.2d 40 (Fla.1971). However, the Court held the right to recover for loss of consortium constituted a purely derivative claim.

The rule that we now recognize is that the wife of a husband injured as a proximate result of the negligence of another shall have a right of action against that same person for her loss of consortium. We further hold that her right of action is a derivative right and she may recover only if her husband has a cause of action against the same defendant.

Id. at 45.

The Workers’ Compensation Statute provides an exclusive remedy for an employee injured at work. The statute restricts the employee’s recovery except as provided within Chapter 440 and precludes further liability of the employer to a spouse. Chapter 440.11, ■ Florida Statutes (1981) provides:

(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, ...

We find no merit in appellant’s argument that Section 440.11, Florida Statutes denies her access to the courts. The Supreme Court created her right to claim damages for loss of consortium but expressly limited it to those cases where her husband had a cause of action against the same defendant. Since appellant’s husband has no common law right against appellee, his employer, his wife’s derivative claim is also precluded.

Therefore, we affirm the final summary judgment in favor of appellee.

AFFIRMED.

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


text:
    Stanley MARKMAN, Appellant, v. Sam ZITNER and West Hollywood Kosher Meats, Inc., a Florida corporation, Appellees.
    No. 82-1891.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    Richard A. Bolton of Bolton, West & Bolton, P.A., North Miami Beach, for appellant.
    Arnold Ilovitch of Ilovitch & Manella, P.A., Hollywood, for appellees.
   PER CURIAM.

We believe the trial court erroneously concluded on summary judgment that the appellant’s claim for breach of a written employment contract was completely barred by the settlement agreement made by the appellant on his worker’s compensation claim. Cf. Grice v. Suwanee Manufacturing Co., 113 So.2d 742 (Fla. 1st DCA 1959). Accordingly, this cause is reversed and remanded for further proceedings in accord herewith.

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


text:
    Gary SOUTHWORTH, Appellant, v. Roger CREVIER and Marilyn Crevier, his wife, and Andrea Kantor, Appellees.
    No. 82-1948.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    William R. Scherer of Conrad, Scherer & James, Fort Lauderdale, for appellant.
    No brief for appellees.
   BERANEK, Judge.

The appellant is an attorney who represented the sellers in a real estate transaction. The buyer in the transaction allegedly defaulted under the terms of the note, was sued, and was granted a summary judgment because the note was deficient in its terms and thus unenforceable. The buyer then sued the sellers’ lawyer in a third-party complaint, alleging negligence. Summary judgment was granted in her favor on the third-party action and the attorney appeals. We have carefully reviewed the record and find no basis for liability against the sellers’ attorney. We reverse the order granting summary judgment. See Drawdy v. Sapp, 365 So.2d 461 (Fla. 1st DCA 1978), and Adams v. Chenowith, 349 So.2d 230 (Fla. 4th DCA 1977).

REVERSED.

HURLEY and DELL, JJ., concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Delores COOPER, Appellant, v. WINN-DIXIE STORES, INC., a corporation, Appellee.
    No. 82-2272.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    John L. Walkden, Fort Lauderdale, for appellant.
    Richard N. Blank of Vernis, Bowling, Montalto, Goodman & Blank, Fort Lauder-dale, for appellee.
   PER CURIAM.

Plaintiff appeals an order granting a directed verdict in favor of the defendant, Winn Dixie Stores, Inc. We affirm.

This is a slip and fall case. Plaintiff slipped and fell in an unknown substance in defendant’s grocery store. On appeal, she alleges that sufficient facts were adduced at trial to establish constructive notice of the dangerous condition to the store. After carefully reviewing the record, we find that the plaintiff failed to establish the requisite constructive notice and affirm the decision of the trial court granting the directed verdict. Food Fair Stores of Florida v. Patty, 109 So.2d 5 (Fla.1959); Friedman v. Biscayne Restaurant, Inc., 254 So.2d 831 (Fla. 3d DCA 1971).

AFFIRMED.

BERANEK and DELL, JJ., concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

There is evidence that a store employee was working in close proximity to the dirty, smelly puddle in which the appellant fell and that the employee was close enough to have both seen and smelled the substance prior to appellant’s fall. Based on that evidence, and other evidence of the nature and size of the puddle, it is clear that this case should have been submitted to the jury on the issue of whether the store, through its employees, knew or should have known of the puddle’s existence prior to appellant’s fall. This case is very similar to the case of Winn-Dixie Stores, Inc. v. Guenther, 395 So.2d 244 (Fla. 3d DCA 1981) wherein similar evidence was found sufficient to support a finding of liability against the store.


text:
    Susan BRASWELL, Appellant, v. A. Glenn BRASWELL a/k/a Glenn Braswell, Appellee.
    No. 82-2334.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    C. William Laystrom, Jr., of Allsworth, Doumar, Padula, Cazel & Curtis, Fort Laud-erdale, for appellant.
    Paul V. DeBianchi, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. We affirm the ruling of the trial court which denied the appellant’s request to modify a final judgment entered upon a default without prejudice to the appellant to otherwise seek enforcement of an alleged binding settlement agreement.

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


text:
    Valerie MASON, Appellant, v. USAA CASUALTY INSURANCE COMPANY, Appellee.
    No. 82-2405.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    Charles T. Becker and James V. Dolan of Chidnese & Becker, Fort Lauderdale, for appellant.
    Stephen J. Cohen of Conrad, Scherer & James, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. We do not believe the trial court erred in concluding by summary judgment that the appellant was not a resident of her mother-in-law’s household in New Jersey at the time appellant was involved in an automobile accident in Florida while appellant was employed and residing with her children in Florida. See Sembric v. Allstate Insurance Company, 434 So.2d 963 (Fla. 4th DCA 1983) and Puente v. Arroyo, 366 So.2d 857 (Fla. 3d DCA 1979).

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


text:
    Roger H. HARPER, Appellant, v. Joseph W. FORDHAM and Irene K. Fordham, his wife; Sue Harper; and Havoc Developers, Inc., Appellees.
    No. 82-2610.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    Roger H. Harper, pro se.
    James M. Painter of James M. Painter, P.A., Boca Raton, for appellees-Fordham.
   PER CURIAM.

Affirmed. See, Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977).

BERANEK, HURLEY and DELL, JJ., concur.


text:
    David Allen PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 83-100.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    Richard L. Jorandby, Public Defender, Louis G. Carres, Asst. Public Defender, and Ernest Blair, Certified Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant’s conviction is reversed and this cause is remanded for a new trial on the authority of Stang v. State, 421 So.2d 147 (Fla.1982).

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


text:
    Robin Lynn BARKER, Appellant, v. STATE of Florida, Appellee.
    No. 83-234.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.

      Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant was charged with one count of grand theft and one count of trespass. A motion to suppress physical evidence and the statements given to the arresting police officers was filed. The trial court denied the motion to suppress without granting a hearing on the motion. This procedure was objected to by defense counsel. Thereafter, appellant entered a plea of nolo contendere specifically reserving the right to appeal denial of the motion to suppress without a hearing. Florida Rule of Criminal Procedure 3.190(h) and (i) governs motions to suppress. We conclude that the court erred in failing to grant a hearing in this matter. The conviction is thus reversed and the matter remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

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


text:
    STATE of Florida, Appellant, v. Alvin KEEL, Appellee.
    No. 83-462.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Reversed. See State v. Waters, 436 So.2d 66 (Fla.1983); State v. Schwarz, 436 So.2d 436 (Fla. 4th DCA 1983).

BERANEK, HURLEY and DELL, JJ., concur.


text:
    Paul ALBERT, Janice A. Albert, and Hofco, Inc., Appellants, v. HOFFMAN ELECTRIC CONSTRUCTION COMPANY, a foreign corporation, Jerry B. Smith, Esquire, as Attorney for Hofco, Incorporated and Theodore R. Nelson, Esquire, Appellees.
    No. 83-697.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.

      David L. Kessler, Fort Lauderdale, for appellants.
    William S. Cross, Fort Lauderdale, for Appellee-Hoffman Elec. Const. Co.
   DELL, Judge.

Paul Albert, Janice A. Albert and Hofco, Inc., appeal from a final judgment based on an oral settlement announced in open court by counsel for the respective parties to this appeal.

In 1979, appellees, Hoffman Electric Construction Company and Robert S. Hoffman, filed a multi-count complaint against appellants. The original complaint sounded basically in breach of contract. Later, appel-lees filed an amended complaint in which they sought damages, injunctive relief and specific performance of the contract to purchase Hofco stock. Immediately before trial, counsel for the parties agreed to and dictated a settlement stipulation into the record in the presence of the trial judge. Counsel for the parties and the judge noted Janice Albert’s absence. The following exchange transpired between counsel and the court:

COUNSEL FOR APPELLANT: a caveat will be if Janice Albert does not execute this settlement, then there is no settlement, as she is a party defendant.
COUNSEL FOR APPELLEES: And she would have to, join and abide by all of the terms and conditions of the settlement as they apply to Hofco and to Paul Albert.
THE COURT: Absolutely. One of the preconditions and prerequisites is that Mrs. Albert join in the settlement and be bound by all its terms and conditions, and further, that the other two defendants will execute joinders as well.

Counsel for appellees prepared several drafts of a stipulation and order which appellants rejected. Approximately fourteen months later appellees filed an amended motion to enter judgment based on the settlement which counsel had earlier announced to the court. Appellant, Janice Albert, opposed the settlement and asserted among other things that her counsel had no authority to enter into the settlement agreement. The trial court entered judgment based upon the expiration of more than fourteen months after the announced settlement and his finding that the written settlement stipulation constituted only a procedural requirement of the settlement.

This appeal presents the recurring question of whether an attorney may bind a client to an agreement for settlement in the absence of the client’s express or implied authority to enter into compromise and settlement.

This court summarized the rules of law applicable to an attorney’s authority to bind his client to an agreement for settlement and compromise in Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977):

(1) A party seeking judgment on the basis of compromise and settlement has the burden of establishing assent by the opposing party. Goff v. Indian Lake Estates, Inc., 178 So.2d 910 (Fla. 2d DCA 1965). (The record affirmatively shows that Mr. Anzalone did not assent to or have knowledge of the $6,000.00 settlement offer.)
(2) The mere employment of an attorney does not of itself give the attorney the implied or apparent authority to compromise his client’s cause of action. Palm Beach Royal Hotel, Inc. v. Breese, 154 So.2d 698 (Fla. 2d DCA 1963). (The fact that Mr. Anzalone hired James Taylor to represent him in this case did not give the attorney the implied or apparent authority to compromise his client’s cause of action.)
(3) An exception to the general rule is a situation in which the attorney is confronted with an emergency which requires prompt action to protect his client’s interest and consultation with the client is impossible. Bursten v. Green, 172 So.2d 472 (Fla. 2d DCA 1965). (There is no showing of an emergency which would have required prompt action on the part of the attorney in this case to protect his client’s interest.)
(4) A client may give his attorney special or express authority to compromise or settle his cause of action, but such authority must be clear and unequivocal. Bursten v. Green, supra. (Mr. Anzalone gave no such authority to his former attorney.)
(5) An unauthorized compromise, executed by an attorney, unless subsequently ratified by his client, is of no effect and may be repudiated or ignored and treated as a nullity by the client. Palm Beach Royal Hotel, Inc. v. Breese, supra; State Department of Transportation v. Plunske, 267 So.2d 337 (Fla. 4th DCA 1972).
(There was no ratification by Mr. An-zalone. By proceeding to trial on his original complaint, he clearly repudiated the unauthorized compromise negotiated by his former attorney.)

Id. at 822-23.

The exchange between counsel and the court established that a binding settlement and compromise could only occur when Janice A. Albert signed the settlement agreement. The record does not reflect, nor does the trial judge’s order set forth any facts which would create an estoppel sufficient to support a final judgment based upon the stipulation which the parties dictated into the record. We also fail to find support in the record for the trial judge’s conclusion that the signing of an agreement by Mrs. Albert constituted only a procedural aspect of the settlement. Rather, the record compels the conclusion that Mrs. Albert’s signature was a substantive requirement of the agreement and that without her signature or evidence which would establish her ratification of the agreement, the agreement had no binding effect upon her.

We find no basis in the record to remand this cause for an evidentiary hearing to determine whether appellants’ counsel had authority to enter into the settlement stipulation. The exchange between counsel and the court leaves no doubt that her express agreement constituted a condition precedent to the settlement. Accordingly, we reverse the judgment in favor of the appel-lees and remand this cause to the trial court.

REVERSED and REMANDED.

BERANEK and HURLEY, JJ., concur.


author: ANSTEAD, Chief Judge.

text:
    GORMAN CO. OF FORT LAUDERDALE, INC., Petitioner, v. FRANK MAIO GENERAL CONTRACTOR, INC., and St. Paul Fire & Marine Insurance Co., Respondents.
    No. 83-1084.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    M. Ross Shulmister of Shulmister & Grady, Fort Lauderdale, for petitioner.
    David L. Kreider of Kaplan, Jaffe & Gates, P.A., Hollywood, for respondents.
   ANSTEAD, Chief Judge.

Gorman Co. of Fort Lauderdale, Inc., has filed this petition for writ of common law certiorari seeking review of a non-final order dismissing its action on a payment bond. The trial court granted the motion to dismiss of defendants Frank Maio General Contractor, Inc. (Maio) and St. Paul Fire and Marine Insurance Co. (St. Paul) for failure to join an indispensable party, Interstate Mechanical Corp. (Interstate).

The City of Boca Raton entered into a contract with Maio, as general contractor, to perform all work on a public construction project. Maio and St. Paul, the surety, furnished a payment and performance bond pursuant to section 255.05, Florida Statutes (1981). Maio subsequently contracted with Interstate, a subcontractor, who, in turn, entered into an agreement with Gorman to provide the plumbing materials and supplies. Gorman furnished materials to the subcontractor between May 4 and October 10, 1982. Interstate subsequently applied for bankruptcy, allegedly without having paid Gorman.

Gorman filed a four-count complaint for payment of the amounts due for materials supplied to the project. The first three counts demanded payment from Marlene and Edward Berry, owners and officers of Interstate, as personal guarantors of the debt of the subcontractor. Count four sought payment from the contractor and the surety under the bond. Maio and St. Paul moved to dismiss or, in the alternative, to add Interstate as a third party defendant. A supplement to the motion and an affidavit filed personally by Frank Maio indicated that the bankrupt subcontractor was making a duplicate claim based on the same project. The trial court held that the subcontractor was an indispensable party to the materialman’s claim against the construction payment bond and dismissed Gor-man’s action.

The major purpose of section 255.-05(1), Florida Statutes (1981), governing payment bonds on public construction projects, is to protect subcontractors and suppliers by providing them with an alternative remedy to the mechanics lien. The School Board of Palm Beach County v. Fasano, 417 So.2d 1063 (Fla. 4th DCA 1982) and Miller v. Knob Construction Co., 368 So.2d 891 (Fla. 2d DCA 1979). A subcontractor is not an indispensable party to a supplier’s action against the principal and surety under a bond required by section 713.23(l)(g) of the Mechanics Lien Law. Alpha Electric Supply v. F. Feaster, Inc., 358 So.2d 892 (Fla. 2d DCA 1978). It has also been held that a general contractor is not an indispensable party to an action by a subcontractor against an owner under the same statutory scheme. Bybee v. Stearn, 95 So.2d 529 (Fla.1957). Petitioner contends that the same rule should apply to its action under section 255.05.

Respondents attempt to negate the effect of Miller and Alpha Electric by quoting from the Second District opinion in Winchester v. Florida Electric Supply, Inc., 161 So.2d 668 (Fla. 2d DCA 1964). Although the court declared in Winchester that the public works law and the mechanics lien law deal “with two separate fields which are mutually exclusive,” the statement was made in the context of applying payment received on a public construction project. Respondents also contend that a different result is mandated because of the difference in statutory language. Section 713.23(l)(g) states:

Any lienor shall have a direct right of action on the bond against the surety.

(Emphasis added), while section 255.05(1) states:

The claimant shall have a right of action against the contractor and surety for the amount due him.

We do not believe the difference in language affects the issue before us. Section 255.05 appears to have been patterned after the Miller Act, 40 U.S.C. § 270a, which requires a bond to provide security for those who furnish labor and material in performance of construction contracts for the federal government but have no contract, direct or implied with the government. Warrior Constructors, Inc. v. Harders, Inc., 387 F.2d 727 (5th Cir.1967). Under 40 U.S.C. § 270b(a), such parties “shall have the right to sue on such payment bond ....’’ It is clear that this right is a direct one, although the language of the statute, like the language of section 255.05(1), does not say so precisely. Similarly, we believe the right under section 255.05(1) is a one of direct action against the contractor and surety without joinder of the subcontractor.

Although we believe the trial court erred in denying petitioner the opportunity to bring a direct action against the respondents, not every error justifies the invocation of our common law certiorari jurisdiction. Petitioner must also demonstrate that the remedy by appeal after final judgment would be inadequate. Ford Motor Co. v. Edwards, 363 So.2d 867, 869 (Fla. 1st DCA 1978). We believe there has been such a demonstration here.

Interstate is bankrupt, or in the course of bankruptcy proceedings. Rule of Bankruptcy Procedure 11 — 44(a) declares:

A petition filed under Rule 11-6 or 11-7 shall operate as a stay of the commencement or the continuation of any court or other proceeding against the debtor, or the enforcement of any judgment against him, or of any act or the commencement or continuation of any court proceeding to enforce any lien against his property, or of any court proceeding, except a case pending under Chapter X of the Act, for the purpose of the rehabilitation of the debtor or the liquidation of his estate.

Even if Interstate were an indispensable party, it could not effectively be joined in petitioner’s suit. Absent the possibility of joining Interstate, the May 24 order of dis- . missal is tantamount to a dismissal with prejudice of petitioner’s claim against the respondents. Under these circumstances we believe the petitioner has demonstrated a basis for invoking certiorari jurisdiction.

Accordingly, we grant the petition and quash the order of dismissal with directions that the trial court reinstate the petitioner’s cause of action and conduct further proceedings in accord herewith.

HERSEY and WALDEN, JJ„ concur.


author: SHARP, Judge.

text:
    Frank J. PARISE, Appellant, v. CITIZENS NATIONAL BANK and Arthur H. Garrecht, Appellees.
    No. 82-885.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1983.

      William C. Haldin, Jr., of Matthies & Cross, P.A., Ocala, for appellant.
    J. Pattinson, Crystal River, for appellee.
   SHARP, Judge.

Parise appeals from a final summary judgment which granted foreclosure of his contract (commonly known as a contract for deed or an agreement for deed) for the purchase of real property located in Marion County, Florida. Citizens National Bank and Garrecht are assignees of the contract from the original seller. We reverse because we think there is a question of material fact as to whether the appellees properly notified Parise of his defaults under the contract and whether they accelerated all payments under contract before Parise tendered the payments then due.

A contract for deed is treated like a mortgage, and the seller who seeks to accelerate and foreclose his interest under it must prove both default and acceleration. Mid-State Investment Corporation v. O’Steen, 133 So.2d 455 (Fla. 1st DCA), cert. denied, 136 So.2d 349 (Fla.1961). To establish a right to summary judgment in such a case, the moving party must tender pleadings and affidavits supporting his right to foreclose, and if the defending party presents a valid defense, he must counter the defense with sworn proof. It does not suffice merely to assert that the defense does not exist. Landers v. Milton, 370 So.2d 368 (Fla.1979).

TENDER OF PAYMENTS

In their action for foreclosure, the appel-lees alleged that the contract payment due September 20, 1981, and subsequent payments had not been paid. By way of an affirmative defense, Parise claimed he tendered all payments due under the contract before acceleration was declared by the ap-pellees, and before suit was filed. In affidavits filed in support of their amended motion for summary judgment, the appel-lees denied that the September 20 payment was made. Parise’s affidavit in the record claimed a check had been tendered and accepted for the September 20 payment pri- or to notice of acceleration or the filing of the suit.

Paragraph 7 of the real estate contract gives the appellees the right to accelerate payments upon default by the buyer. It provides:

If any of the sums of money herein referred to be not promptly and fully paid within thirty (30) days next after the same severally become due and payable, or if each and every [sic] the stipulations, agreements, conditions and covenants of this agreement are not duly performed, complied with and abided by, the aggregate sum mentioned herein shall become due and payable forthwith or thereafter at the option of the seller as fully and completely as if the said aggregate sum of Forty-seven Thousand Dollars ($47,-000.00) was originally stipulated to be paid on such date. (Emphasis supplied).

We construe this clause as requiring some act on the part of the seller or assignees to accelerate after a default. There is no language in paragraph 7 to indicate acceleration was automatic or self-executing as in Baader v. Walker, 153 So.2d 51 (Fla. 2d DCA), cert. denied, 156 So.2d 858 (Fla.1963). “[A]t the option of the seller” clearly indicates the seller has the right to elect or not elect an acceleration after default. He may choose not to accelerate. Sitting silently is the obvious method to exercise that alternative. The converse follows. If he opts to accelerate, he must take some steps to implement that right.

Acceleration may be set in motion by filing a pleading in a suit on the full indebtedness. Central Home Trust Company of Elizabeth v. Lippincott, 392 So.2d 931 (Fla. 5th DCA 1980). Or it may be activated by a demand and express notice to the debtor. River Holding Company v. Nickel, 62 So.2d 702 (Fla.1952). But if the delinquent payments are tendered before either occurrence, the right to accelerate is defeated. River Holding Company v. Nickel.

The record in this case shows there is a material fact question concerning whether the delinquent payments were tendered before the suit was filed and before any other method of acceleration was employed by the appellees. These facts were put in issue by affidavits and countered by other affidavits. Summary judgment was improper to resolve these factual disputes. Clark v. Munroe, 407 So.2d 1036 (Fla. 1st DCA 1981); Ernest v. Carter, 368 So.2d 428 (Fla.2d DCA 1979).

FAILURE TO INSURE AND TO REIMBURSE ASSIGNEES FOR PAYMENT OF INSURANCE PREMIUMS

The appellees also argue that Parise’s failure to procure the insurance required under the contract is another default for which acceleration was proper. In their amended complaint, the appellees alleged Parise failed to obtain the insurance (a violation of paragraph 4), and that he failed to reimburse them for the premium after demand (a violation of paragraph 6). Parise countered both allegations in his affirmative defenses and affidavit by alleging the facts that, prior to the time he was served with process in this suit (December 8,1981), the appellees did not demand reimbursement for the insurance premium, and that he did not know until December 21, 1981, about the insurance premium delinquency.

The affidavits of the appellees are insufficient to counter Parise’s defense on this point. Arthur Garrecht’s affidavit claims Parise failed to obtain the insurance and failed to reimburse Garrecht after demand. But it does not say Garrecht accelerated the contract prior to filing suit. Similarly, the affidavit of the officer for the bank, Robert Voegele, contains the same omission.

Yoegele’s affidavit contained attached letters from the bank and from Garrecht’s attorney to Parise that notified Parise a default had occurred under the contract because of his failure to maintain the insurance, but they do not declare an acceleration. Each letter ends with a request to Parise to bring the payments under the contract current. Further, the affidavit fails to establish Parise ever received any of the attached correspondence.

If the default consisted of Parise’s failure to reimburse the appellees for the insurance premium after demand, the record fails to establish that the demand was made before the suit was filed. Summary judgment was improper because the appellees failed to establish a default on this ground. Even if the affidavits covered that default, Parise’s affidavit counters it and summary judgment was improper for the same reasons stated above regarding tender of payments.

If the default consisted of Parise’s failure to maintain the insurance required under the contract, the affidavits and proof do not establish that any acceleration was effected or declared for this claimed default prior to suit being filed. The record shows the lapse of insurance occurred because the prior insurance carrier elected not to renew its coverage on the property. The record does not clearly establish that Parise was notified of the lapse. As soon as the suit was filed, he tendered the premium, together with the other claimed delinquent payments, into the registry of the court.

Where the record is not clear that a mortgagor is at fault in failing to procure insurance on the property, foreclosure is not proper for that default. Clay v. Girdner, 103 Fla. 135, 138 So. 490 (1931). Further, a mortgagor is entitled to argue that his default did not impair the mortgagee’s security. Here, the record establishes that the property was, in fact, insured at the time the suit was filed. See Brady v. Edgar, 415 So.2d 141 (Fla. 5th DCA 1982). Because Parise is in a position similar to a mortgagor, we think he is entitled to similar protections against foreclosure.

The summary judgment is reversed and this case is remanded.

REVERSED and REMANDED.

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

      . Paragraphs 4 and 6 of the contract provide:
      4. The Buyer shall keep the buildings erected, and to be erected, upon such property insured against fire in the amount of the reasonable insurable value thereof, in an insurance company to be approved by the Seller, for the mutual benefit and protection of the parties hereto, and shall place a copy of the policy representing such fire insurance with Seller.
      6. If the Buyer fails to pay such taxes, charges, assessments, or premiums for fire insurance, or fails to pay any amount due upon or fails to perform any condition or covenant of any agreement for sale required of the Buyer, before the same shall have become delinquent, the Seller shall have the right to pay or procure the same, together with necessary costs and legal fees, and the amount so advanced and such repayment thereof shall be secured hereby and shall be repaid to the Seller by the Buyer, on demand, together with interest thereon at the rate of eight percent (8%) per annum from the date advanced by the Seller until repaid, and any payment so made by the Seller shall be prima facie evidence of the necessity therefor. If the Seller institutes suit against the Buyer to enforce the Seller’s rights under this agreement and obtains a valid judgment against the Buyer, the Buyer agrees to pay all costs, expenses and attorney’s fees of the Seller.


author: ORFINGER, Chief Judge.

text:
    In re FORFEITURE OF ONE 1978 FORD F250 CUSTOM PICK UP TRUCK, VIN F26HNBF3710. Lawson L. LAMAR, as Sheriff of Orange County, Appellant, v. John L. BERGERON, Appellee.
    No. 82-1201.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1983.

      William C. Vose, Orlando, for appellant.
    No appearance for appellee.
   ORFINGER, Chief Judge.

The issue on appeal is whether an operable short-barreled shotgun, the possession or ownership of which is a third-degree felony (section 790.221, Florida Statutes, [1981]), is “contraband” under section 932.701(2)(e), Florida Statutes (1981), so as to cause the forfeiture of the pick-up truck in which that short-barreled shotgun is transported, carried, concealed, possessed, etc. § 932.702, Florida Statutes (1981).

Under the Florida Contraband Forfeiture Act, “contraband,” as pertinent here, is defined in section 932.701(2)(e) as:

Any personal property, including but not limited to, any item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, or currency which has been or is actually employed as an instrumentality in the commission of, any felony.

Bergeron admits that it is illegal to possess a short-barreled shotgun, but argues that it is not “contraband” under the statute.

The trial court granted defendant’s motion to dismiss the rule to show cause on the stated ground that the shotgun was not contraband under section 932.701(2)(e) because it was not “personal property which is ‘actually employed as an instrumentality in the commission of a felony,’ but rather is personal property the possession of which is the felony itself.” We reverse.

An “instrument,” in the context used here, is defined as “a means by which something is done; agency.” The American Heritage Dictionary of the English Language (1979). An “instrumentality” has been defined as:

A condition of being an instrument; a subordinate or auxiliary agency; agency of anything as means to an end; anything used as a means or agency; that which is instrumental; the quality or condition of being instrumental, [emphasis added].

44 C.J.S. at p. 422 (1945). The short-barreled shotgun is thus the means or instrument by which the crime of possession of that forbidden article is committed, and it is thus the instrumentality of the crime. Therefore, it is a contraband article as defined by section 932.701(2)(e).

Additionally, the complaint for forfeiture alleged that the truck itself was “contraband” under the statute and thus subject to forfeiture, and we agree that the rule to show cause could also have been sustained on this ground. Under the facts admitted to be true for the purpose of the motion to dismiss, the truck was being used as an instrumentality in the commission of, or in aiding or abetting in the commission of the felony of possession of a short-barreled shotgun. See In re: Forfeiture of 1978 Ford Fiesta, etc., 436 So.2d 373 (Fla. 4th DCA 1983); Williams v. Miller, 433 So.2d 33 (Fla. 5th DCA 1983). Cf. Crawford v. Sheriff of Orange County, Florida, 441 So.2d 646 (Fla. 5th DCA 1983).

The order dismissing the rule to show cause is reversed, and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

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

      . § 932.702, Florida Statutes (1981), provides that:
      It is unlawful:
      (1) To transport, carry, or convey any contraband article in, upon, or by means of any vessel, motor vehicle, or aircraft.
      (2) To conceal or possess any contraband article in or upon any vessel, motor vehicle, or aircraft.
      (3) To use any vessel, motor vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
      (4) To conceal or possess any contraband article.


text:
    Phillip WHITAKER, Appellant, v. BREVARD COUNTY SHERIFF’S DEPARTMENT and General Motors Acceptance Corporation, Appellees.
    No. 83-93.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1983.
    Andrew A. Graham and Marjorie E. Smith, of Reinman, Harrell, Silberhorn, Moule & Graham, P.A., Melbourne, for appellant.
    Catherine A. Riley, of Blumenthal, Schwartz & Riley, P.A., Titusville, for ap-pellee Brevard County Sheriff’s Department.
    No appearance for appellee General Motors Acceptance Corp.
   PER CURIAM.

AFFIRMED.

See City of Clearwater v. Malick, 429 So.2d 718 (Fla. 2d DCA 1983).

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


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    Peter ABBOTT, Appellant, v. STATE of Florida, Appellee.
    No. AO-150.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1983.

      Michael Allen, Public Defender, Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   THOMPSON, Judge.

Abbott appeals a conviction of grand theft upon a nolo contendere plea entered subject to a reservation of the right to appeal the denial of his motion to dismiss the indictment. Abbott argues the indictment was tainted by the state’s use of information gathered in violation of his Fifth Amendment rights. We affirm.

On August 2, 1981, Abbott was indicted on two counts of grand theft. The first count charged that on May 8, 1980, Abbott obtained a loan in excess of $15,000 from the Royal Trust Bank of Jacksonville (the Bank) by use of a financial statement which contained false representations as to his assets and financial condition. The second count charged that defendant obtained a $30,045 loan from the Bank on June 6,1980, by falsely representing to the Bank that he owned certain restaurant equipment used as collateral for the loan. Abbott moved to dismiss the indictment on grounds that he had been granted use immunity by the Federal Bureau of Investigation (FBI) and that the state indictment was obtained with the use of information he had given the FBI under his grant of immunity. If the indictment had been obtained through the use of any information given by Abbott pursuant to his grant of immunity from the FBI, we would agree that his Fifth Amendment rights had been violated. However, the state’s attorney contends he had sufficient evidence to indict and prosecute Abbott on both counts on September 8, 1980, almost a year prior to the indictment, and before the state received from the FBI any of the self-incriminating evidence Abbott supplied to the FBI.

The trial judge denied the motion to dismiss and found that as a result of a separate and independent investigation, conducted prior to receipt of any information from federal authorities, the state attorney had sufficient evidence to indict and prosecute Abbott on Count I on September 5, 1980, and had sufficient evidence to indict and prosecute him on Count II on September 8, 1980. Accordingly, the state’s material was not tainted by any information received from the federal authorities. The trial judge further found that the delay in the indictment from those dates until August 2, 1981, was the result of a request from the United States’ Attorney that the state delay the filing of charges in order that Abbott could cooperate with the Federal Government, and that the delay was not the result of any bad faith or inability to prosecute on the state’s part.

The trial judge’s finding that the indictment was not tainted should not be reversed unless clearly erroneous. See United States v. Provenzano, 620 F.2d 985, 1005 (3d Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980); United States v. Romano, 583 F.2d 1, 7 (1st Cir.1978); and United States v. Jones, 542 F.2d 186, 199 (4th Cir.1976), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 375 (1976). The findings of the trial judge herein are not clearly erroneous. On the contrary, the findings are supported by the overwhelming weight of the evidence.

United States v. McDaniel, 482 F.2d 305 (8th Cir.1973), which found the Federal Government had failed to show that tainted evidence from immunized testimony had not been used, is factually distinguishable from this case. Prior to obtaining an indictment against the defendant in McDaniel, the United States’ attorney had read a transcript of the defendant’s testimony given before a state grand jury pursuant to a grant of immunity. In this case, as a result of a separate independent investigation, the state had sufficient evidence to indict and prosecute Abbott on both counts prior to receipt of any information from federal authorities. Accordingly, unlike in McDaniel, the indictment in question was not tainted.

AFFIRMED.

WIGGINTON, J., concurs.

ERVIN, C.J., dissents.

ERVIN, Chief Judge,

dissenting.

Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), places the burden upon the government of showing, once the defendant demonstrates he has testified under a grant of immunity, that it “ ‘had an independent, legitimate source for the disputed evidence.’ ” 406 U.S. at 460, 92 S.Ct. at. 1664, 32 L.Ed.2d at 226. The burden is a “heavy burden of proving that all of the evidence [the government] proposes to use was derived from legitimate independent sources.” 406 U.S. at 461-462, 92 S.Ct. at 1665, 32 L.Ed.2d at 227 (e.s.) In all due respect to the trial court’s findings below, and the majority’s opinion of affirmance, I cannot agree that the state has met the burden required by Kastigar.

My review of the record discloses that the offense for which appellant was convicted below arose from a transaction which occurred on May 8, 1980, when the defendant presented to the Royal Trust Bank of Jacksonville a false personal financial statement on a form furnished by the Small Business Administration (SBA), and obtained a loan for the purpose of operating a restaurant. As of that date he had already begun furnishing information to government agents in a “sting” operation directed toward uncovering bribery and corruption of SBA officials and others. On July 26, 1980, and again by letter dated August 13, 1980, the United States Government agreed that its earlier offer of immunity, made on June 20, 1980, would extend to all statements made by him concerning the Royal Trust Bank loan. Pursuant to this agreement, FBI agents interviewed the defendant on July 29, August 5 and August 6, 1980, at which time he gave incriminating information relating to the details of the falsely prepared financial statement.

Based upon the information provided by the defendant to the government during these interviews, the United States attorney’s office prepared a grand jury subpoena directed to a loan officer of the Royal Trust Bank, commanding him to produce all loan documents concerning loans made to the defendant, his wife or to the restaurant. The subpoena was served on August 21, 1980. Two days before the service of the subpoena, the loan officer, one Bailey, went to the restaurant and observed furniture and equipment being loaded onto trucks and taken to another restaurant in Jacksonville. Bailey, although concerned about the removal of the equipment which was the collateral for the loans, took no action until September 5, 1980, when he went to the state attorney’s office with the subpoenaed documents in order to file a complaint for possible criminal prosecution against the defendant for defrauding the bank. Acting on the information supplied by both Bailey and the documents, the state attorney’s office that same day, September 5, 1980, was able to confirm that the defendant, contrary to his representations in the SBA financial statement, did not own a residence in Stone Mountain, Georgia, free and clear of mortgages and other encumbrances.

Before the event of September 5, the state attorney had been aware since late July or early August that the defendant was an FBI informant. In fact, a meeting was held between state and federal officials in late August, and another on September 5, 1980, for the purpose of sorting out the respective cases in which the federal and state governments were interested. Present at an interview of defendant conducted in Daytona Beach on September 16 and 17, 1980, were FBI agents, as well as two assistant state attorneys and a state investigator. The defendant then openly admitted his involvement in the Royal Trust Bank loans and his dealings with one of the bank’s loan officers, who had already been interviewed by government agents.

On or about September 20,1980, assistant state attorneys drafted indictments against defendant, including the charges pertaining to the Royal Trust Bank loans, but the indictments were not filed until September 2, 1981, primarily due to the request of the United States attorney to defer any possible state prosecution of the defendant in order to facilitate his cooperation with the federal investigation. From the fall of 1980 through the spring of 1981, FBI agent Taylor was in frequent contact with the state’s lead investigator, Russell Pardee, who was instructed to stay in contact with the FBI and encouraged to exchange information with federal investigative officers. At no time was any effort made by Taylor to segregate any of the information received directly or indirectly from the defendant, which was shared with the state.

Finally, on December 10, 1980, the defendant agreed to enter a guilty plea to Count I of a federal wire fraud indictment and agreed also to testify truthfully before all federal grand juries at any trials in connection with any matters relating to the formation, operation and termination of his restaurant. The government in turn agreed that Abbott was to have transactional immunity for any federal crime committed in the middle district of Florida from October 1, 1979 through September 1, 1980, which was either then known or under investigation by the FBI.

The state attorney’s office became aware of this plea agreement early in 1981, and the appellant later testified in federal court for the government. On August 27, 1981, six days before the return of the state’s indictment against Abbott, FBI agent Taylor gave state investigator Pardee transcribed notes of interviews conducted with certain Royal Trust Bank officials under the assumption that they would not be used against appellant, but rather against bank officials.

In my judgment the evidence discloses that as early as July, 1980, the United States Government extended both transactional immunity as well as use immunity to the defendant. Although a promise of transactional immunity is not binding on the state, see United States v. Barker, 542 F.2d 479, 482-83 (8th Cir.1976), a promise of use immunity is binding. See Murphy v. Waterfront Commission of New York, 378 U.S. 52, 77-79, 84 S.Ct. 1594, 1608-09, 12 L.Ed.2d 678 (1964); Kastigar v. United States. Both the state and the federal governments are “prohibited from making any such use of compelled testimony and its fruits.” Murphy, 378 U.S. at 79, 84 S.Ct. at 1609, 12 L.Ed.2d at 695 (e.s.).

Additionally, Bailey’s delivery of the Royal Trust Loan documents under federal subpoena to the state attorney’s office cannot be considered under Kastigar evidence obtained by the state independent of the grant of immunity. The subpoena was prepared solely on the basis of Abbott’s immunized statements, wherein he admitted the misrepresentations made by him on the financial statement in support of his request for a loan from Royal Trust. The trial testimony established that Bailey’s receipt of the federal subpoena was at the very minimum a contributing factor to his decision to take the subpoenaed documents, to the state attorney’s office. The state, accordingly, has not established that Bailey was a source independent of Abbott’s immunized statements for the purpose of Count I of the indictment, alleging grand theft by means of misrepresentations in the SBA financial statement through which the Royal Trust loan was obtained.

Even assuming that Bailey can somehow be considered an independent source, this fact would not relieve the state of its obligation to prove that all of the evidence it used to obtain the indictment was untainted. The state, under Kastigar, retains the burden of establishing that none of the immunized evidence which FBI agent Taylor shared freely with state agent Pardee was used.

As the state has failed to discharge the heavy burden imposed upon it by Kastigar, I would reverse Abbott’s conviction with directions that the trial court dismiss the indictment.

      . The trial court’s findings of fact in its oral order denying defendant’s motion to dismiss recite that defendant was offered no use immunity from federal authorities until the date of his plea agreement to federal charges on December 10, 1980. In my judgment this finding is unsupported by the evidence. The trial judge’s order relied almost exclusively on a memorandum written by an agent of the F.B.I., dated September 23, 1980, concerning an interview with defendant which occurred on September 13, 1980, and apparently ignored the testimony of federal agents given at the hearing on the motion to dismiss, stating generally that the information received from Abbott by federal agents during August and September, 1980, would not be provided by them to the state for its use against him. This testimony, moreover, did not contradict the information contained in the memorandum, which the court characterized as “nebulous” in regard to the discussions of immunity. Among other things, the memo refers to a request made by Abbott’s attorney asking that no F.B.I. witnesses appear in state cases against Abbott. The U.S. attorney agreed to this request. The lower court’s order also referred to an offer of immunity made by the F.B.I. in a letter to the United States attorney dated August 13, 1980, which the order again described as “nebulous.” This letter pinpoints Abbott’s cooperation with the government as beginning in April, 1980, and Abbott’s concern that he could be prosecuted “for ... fraud involving the SBA loan, .... ” The letter considers Abbott to be “a non-viable subject of prosecution because of his past extensive cooperation with the Government....” Finally, it concludes with the request “that no statement made by Abbott concerning the specific matters set forth above [among other things Abbott’s acquisition of the SBA loan and the restaurant] and within the jurisdiction of your office, ... be used against Mr. Abbott.” (e.s.)
      The testimony of the officers at the hearing clarified the information contained in the memorandum and the letter, by showing that the government had extended use immunity to defendant before the September 5, 1980 incident. For example, John Steele, Assistant United States Attorney, in explaining the letter of August 13, 1980, which summarized the July 26, 1980 transaction, stated:
      Essentially it’s my recollection that Mr. Abbott was told that he would not be prosecuted on the SBA matter if he provided the government with information concerning it and we would not use what he said against him.
      (e.s.)
      The lower court’s finding that no immunity was extended to defendant until he entered his plea in federal court becomes even more tenuous when it is considered that after the earlier agreements were reached, state investigators were present at the interview of defendant conducted by federal authorities on September 16 or 17, 1980.

      . Representatives of the state attorney’s office testified at the hearing that they believed they had a prosecutable case against defendant as of September 5, 1980 as to Count I relating to the loan of May 8, 1980. This is highly questionable given the later extensive relay of information between the state attorney’s office and the FBI, as discussed supra. But even accepting this statement as correct, the information the state attorney’s office received on September 5, 1980, as observed supra, derived in part from documents under federal subpoena, and the subpoena in turn was based on information supplied solely from Abbott. The subpoena, thus, served as a lead to the state that Abbott had falsified the loan application.


text:
    Carl Coleman RANDALL a/k/a Charles Franklin Randell, Appellant, v. STATE of Florida, Appellee.
    Nos. AQ-279, AQ-301.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1983.
    Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

This appeal is dismissed because Fla.R. App.P. 9.140(b)(1) prohibits a direct appeal from a judgment and sentence based on a guilty plea and because there is no indication in the record that appellant moved to withdraw his guilty pleas in the lower court. Robinson v. State, 373 So.2d 898 (Fla.1979); Massey v. State, 417 So.2d 1162 (Fla. 1st DCA 1982). This dismissal is without prejudice to appellant’s right to seek post-conviction relief pursuant to Fla.R. Crim.P. 3.850, if such presentation in the lower court has not been barred by some other limitation.

ERVIN, C.J., and NIMMONS, J., concur.


text:
    STATE of Florida, Appellant, v. Daniel C. CAMPBELL, Appellee.
    No. AR-132.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1983.
    Jim Smith, Atty. Gen., and Lawrence Ka-den, Asst. Atty. Gen., for appellant.
    J. LaDon Dewrell, Fort Walton Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s order granting Campbell’s motion to suppress evidence. The officer (a wildlife officer with the Florida Game and Freshwater Fish Commission) who stopped and detained Campbell and his vehicle did not have sufficient information that criminal activity was afoot to justify a brief investigatory stop. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Section 901.151, Florida Statutes (1981). Nor did Campbell’s operation of his vehicle justify the officer’s stopping Campbell for a traffic offense. Brown v. State, 62 So.2d 348 (Fla.1953); Bailey v. State, 319 So.2d 22 (Fla.1975); compare State v. Turner, 345 So.2d 767 (Fla. 4th DCA 1977).

AFFIRMED.

ERVIN, C.J., and THOMPSON and NIM-MONS, JJ., concur.