author: PER CURIAM.

text:
    Raymond H. WOOD, Jr., D.D.S., and John J. Morgan, D.D.S., Appellants, v. STATE of Florida, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF DENTISTRY, Appellee.
    Nos. AU-375, AU-420.
    District Court of Appeal of Florida, First District.
    July 10, 1984.
    Rehearing Denied Oct. 29, 1984.
    . Neal R. Lewis and Laurel White Marc-Charles, Miami, for appellant Raymond H. Wood, Jr.
    John R. Gierach of Gierach & Ewald, Orlando, for appellant John J. Morgan.
    Julie Gallagher, Dept, of Professional Regulation, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Rush v. Department of Professional Regulation, Board of Podiatry, 448 So.2d 26 (Fla. 1st DCA 1984).

ERVIN, C.J., and BOOTH and WENT-WORTH, JJ., concur.


source: Caselaw Access Project

author: GLICKSTEIN, Judge.

license: Public Domain

text:
    Eytan GOLD, Yachoved Gold, his wife, and Golden Bagel, Inc., Appellants, v. Alan L. PERRY and Eleanor S. Perry, his wife, Appellees.
    No. 84-80.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.
    Rehearing Denied Oct. 30, 1984.

      Charles L. Jaffee, Hollywood, for appellants.
    John W. Case, Lauderdale by the Sea, for appellees.
   GLICKSTEIN, Judge.

This is an appeal of a final judgment for the plaintiffs, Alan and Eleanor Perry, against the defendants, Eytan Gold, Ya-choved Gold, and Golden Bagel, Inc. We reverse and remand for new trial.

Plaintiffs/appellees Alan and Eleanor Perry filed a four count complaint against the defendants, Eytan Gold, Yachoved Gold and Golden Bagel, Inc. The first three counts were based on non-payment of three notes executed by the defendants. The fourth count sought to foreclose on a chattel mortgage likewise executed by the defendants. The defendants answered and filed a counterclaim. The defendants claimed the plaintiffs had fraudulently induced them to execute the three notes and the chattel mortgage.

Thereafter, the plaintiffs added a fifth count alleging injury because of Gold’s false statement of financial condition, conveyed as an inducement to the Perrys to sell him the business. Jury trial was held beginning December 5, 1983 on Counts I— III and V and on the Golds’ counterclaim apart from the count seeking rescission. A directed verdict for the defendants was entered as to Count V at the close of the Perrys’ case. The jury found for the plaintiffs, the Perrys, as to Counts I — III, and awarded them $50,750. The Perrys received final judgment on these counts and later were awarded costs and attorney’s fees. On Count IV the court issued a supplemental final judgment based upon equitable estoppel in that the jury had found for the plaintiffs in Counts I — III, where the factual predicate was the same as for Count IV. This appeal followed.

The facts show that the defendants/appellants Gold contracted to purchase from plaintiffs/appellees Perry the Bagel Village Restaurant. The Perrys told the Golds the restaurant grossed $8,000 per week and the owners netted $2,000 per week (R.24). In the contract addendum at Item 12 is stated “Subject through [sic] visual observation buyers to remain on premises for a period of one to two weeks to substantiate sales of $8,000 per week.” Paragraph 9 of the contract states “Parties acknowledge that this transaction is entered into by them in full reliance on their own independent investigations ... and it is agreed by both parties that no statements, representations or agreements made by either party ... shall be binding or constitute any obligation ... unless the same are reduced to writing and made a part of this agreement.”

Eytan Gold and his brother-in-law did observe the business for seven days. They said they were not permitted to sit directly next to the cash register, but did observe from about eight feet away an,d daily checked the cash register tapes. An employee witness for the Perrys said the buyers never requested to sit next to the cash register. The tapes added up to the $8,000 gross that the owners had represented.

Thereafter the closing on the sale occurred, and as part of the purchase price the Golds signed three promissory notes and a chattel mortgage. The next day, the Golds grossed only $550 when they had been shown a gross of $1,821 the previous day. They thereupon decided not to make payments on the notes. After he became familiar with the workings of the cash register, Mr. Gold was able to determine that during his observation of the Perrys’ business he had daily been given many more individual sale tapes to add up than there had in fact been transactions.

Evidence introduced at trial showed a monthly average gross for the Perrys’ predecessor as owner, Vincent Sand, of less than $11,500. A certified public accountant said it was not possible that business increased as sharply for the Perrys as their amended sales tax returns indicated.

The Golds’ nine month average monthly gross was $13,000, with an average of $19,-500 per month during the high season. Two employees who had worked for the Perrys and continued with the Golds testified the restaurant was busier under the Golds than it had been under the Perrys.

In March of 1982 the Perrys had spent $1,129.75 for bagels; in March 1983 the Golds spent $1,917.55 for bagels. Bagels made up a big part of the business, because it was a bagel.restaurant. The Per-rys’ ledger claimed a March 1982 gross of $36,054.50; the Golds’ gross in March 1983 was only $19,847. Other similar supplies costs were compared.

Bank deposits of the Perrys in their restaurant account showed monthly deposits ranging (in round figures) from $8,000 to $17,000. Payroll account records showed deposits of under $1,000 per month. Original sales tax returns of the Perrys in late 1981 to January 1982 ran from under $7,000 to over $8,000 per month; amended sales tax returns, filed after the lawsuit was commenced, showed much higher revenues. The Perrys claimed that the original returns erroneously reflected only the sales of the last week of each month.

The Perrys showed amended sales tax returns and fronts of checks for tax payments for February and March 1982. The state, however, had no returns for those months, and the bank had not received those cheeks for collection.

The issue is whether the trial court erred in giving instructions to the jury, because of a conflict between them and the Florida Supreme Court’s decision in Besett v. Basnett, 389 So.2d 995 (Fla.1980). We conclude there was a conflict and that the giving of the instructions constituted harmful error. Defendants/appellants Gold objected to the following instructions to the jury:

Instruction No. 8. If the jury finds that representee made an independent investigation of the matter involved, he is charged with knowledge of all facts that he might have ascertained by making a reasonably thorough investigation.
Instruction No. 9. The jury may take into consideration the business experience and success of the parties in determining whether or not the parties justifiably relied upon representations and business dealings to their detriment.

Appellees argue that Besett concerns only real property transactions and that under Besett a contracting party may be liable for misrepresentation only when the other party has relied without making an independent investigation. Appellees maintain a different line of cases containing still viable law justifies the contested instructions. This line of cases includes Hirschman v. Hodges, O’Hara and Russell Co., 59 Fla. 517, 51 So. 550 (1910) and Potakar v. Hurtak, 82 So.2d 502 (Fla.1955), among others. The law of these cases is that when a representee makes an independent investigation he is charged with knowledge of all facts he might have ascertained by making a reasonably thorough investigation.

The Supreme Court heard Besett because the Second District Court of Appeal’s decision in Basnett v. Besett, 371 So.2d 705 (Fla.2d DCA 1979), was in conflict with the above mentioned Potakar v. Hurtak, 82 So.2d 502 (Fla.1955). The Supreme Court upheld the decision of the district court, receding from Potakar. Potakar had held a person to whom false representations have been made is not entitled to relief because of them if by ordinary care and attention he could have ascertained the truth. 82 So.2d at 503. In Besett the Supreme Court adopted the principle of law expressed in Sections 540 and 541 of the Restatement (Second) of Torts (1976). The Supreme Court quoted the two sections in full as follows:

§ 540. Duty to Investigate
The recipient of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation. Comment:
a. The rule stated in this Section applies not only when an investigation would involve an expenditure of effort and money out of proportion to the magnitude of the transaction, but also when it could be made without any considerable trouble or expense. Thus it is no defense to one who has made a fraudulent statement about his financial position that his offer to submit his books to examination is rejected. On the other hand, if a mere cursory glance would have disclosed the falsity of the representation, its falsity is regarded as obvious under the rule stated in § 541.
b. The rule stated in this Section is applicable even though the fact that is fraudulently represented is required to be recorded and is in fact recorded. The recording acts are not intended as a protection for fraudulent liars. Their purpose is to afford a protection to persons who buy a recorded title against those who, having obtained a paper title, have failed to record it. The purpose of the statutes is fully accomplished without giving them a collateral effect that protects those who make fraudulent misrepresentations from liability.
§ 541. Representation Known to Be or Obviously False.
The recipient of a fraudulent misrepresentation is not justified in relying upon its truth if he knows that it is false or its falsity is obvious to him.
Comment:
a. Although the recipient of a fraudulent misrepresentation is not barred from recovery because he could have discovered its falsity if he had shown his distrust of the maker’s honesty by investigating its truth, he is nonetheless required to use his senses, and cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation. Thus, if one induces another to buy a horse by representing it to be sound, the purchaser cannot recover even though the horse has but one eye, if the horse is shown to the purchaser before he buys it and the slightest inspection would have disclosed the defect. On the other hand, the rule stated in this Section applies only when the recipient of the misrepresentation is capable of appreciating its falsity at the time by the use of his senses. Thus a defect that any experienced horseman would at once recognize at first glance may not be patent to a person who has had no experience with horses.

389 So.2d at 997. The Supreme Court went on to say:

A person guilty of fraud should not be permitted to use the law as his shield. Nor should the law encourage negligence. However, when the choice is between the two — fraud and negligence— negligence is less objectionable than fraud. Though one should not be inattentive to one’s business affairs, the law should not permit an inattentive person to suffer loss at the hands of a misrepre-senter.

Id. at 998.

The court stated that a recipient may rely on the truth of a representation, even if investigation would have revealed its falsity, unless the recipient knew the representation was false or the representation’s falsity was obvious to him. Id.

It is true, as appellees maintain, that Besett involved no investigation by the rep-resentees at all, whereas the appellants here conducted an investigation of sorts. The Golds’ investigation was, however, limited by the fact the Perrys claimed they had no regular business records for the Golds to examine, and that the Golds essentially had to rely on the register tapes provided by the Perrys. These tapes may have been contrived or amplified, according to some of the testimony.

Logically, extrapolating from Besett and applying particularly the paragraph last quoted above, a negligent investigation should no more leave the representee to suffer loss at the hands of a misrepresent-er than one who investigates not at all. From society’s standpoint, fraud is more offensive than negligence, and the defrauder should not be shielded by his victim’s negligence.

Both from the fact that the sections from the Restatement quoted in Besett are not restricted to real estate transactions, and from later cases relying on Besett, it is clear that Besett is applicable to sale of a business. Kalb v. International Resorts, Inc., 396 So.2d 199 (Fla.2d DCA), pet. for rev. denied, 407 So.2d 1104 (Fla.1981), concerns sale of a motel wherein the seller allegedly misrepresented gross income of the motel, and Foxfire Inn of Stuart, Florida, Inc. v. Neff, 433 So.2d 1304 (Fla.2d DCA 1983), concerns sale of all outstanding shares in an inn, where failure to disclose certain material facts, false entries in records, and false statements of fact about net worth, profit and satisfaction of employees with conditions of employment were alleged.

While we have found no post-Re-sett cases in which the representee made any investigation, we believe the following statement in Besett should be applied in fraudulent misrepresentation cases even where an investigation was made, so long as the falsity of the representation was not revealed thereby:

We hold that a recipient may rely on the truth of a representation, even though its falsity could have been ascertained had he made an investigation, unless he knows the representation to be false or its falsity is obvious to him. We recede from Potakar v. Hurtak insofar as it is inconsistent with our present holding, and we disapprove all other decisions inconsistent with our holding in this case.

389 So.2d at 998. If this is not done, one who does no investigating is favored over one who attempts to investigate. The rule of Besett being applicable in the present case, it was improper to instruct the jury that one who has made an investigation is charged with knowing whatever a reasonably thorough investigation would have revealed, and that a party’s business experience and success may be considered in determining whether reliance was justifiable. Absent these instructions the jury might well have come to different verdicts.

DOWNEY and DELL, JJ., concur.


author: PER CURIAM. HUBBART, Judge

text:
    Jerrell BRESLIN, Appellant, v. The STATE of Florida, Appellee.
    No. 84-7.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1984.
    Rehearing Denied Oct. 31, 1984.

      Black & Furci and Marcia Silvers, Miami, for appellant.
    Jim Smith, Atty. Gen. and Renee S. Rus-ka, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., HUBBART, J., and WINIFRED J. SHARP, Associate Judge.
   PER CURIAM.

We find no error in the adjudication of criminal contempt entered against a criminal defense lawyer as a result of grossly improper remarks made and repeated during a trial despite specific warnings to the contrary given by the trial judge to the attorney both in a previous proceeding and in the instant one. Ward v. State, 354 So.2d 438 (Fla. 3d DCA 1978); Kleinfeld v. State, 270 So.2d 22 (Fla. 3d DCA 1972), cert. denied, 275 So.2d 251 (Fla.1973); cf. Carroll v. State, 327 So.2d 881 (Fla. 3d DCA 1976).

Affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would reverse the criminal contempt conviction under review because, in my view, counsel’s two comments, which were made during opening statement to the jury in a murder trial and upon which counsel was found in contempt, did not individually or in combination constitute an “act which [was] calculated to embarrass, hinder, or obstruct the court in the administration of justice or which [was] calculated to lessen its authority or its dignity,” Ex parte Crews, 127 Fla. 381, 389, 173 So. 275, 279.(1937), and therefore cannot constitute a criminal contempt under the law of this state. Clein v. State, 52 So.2d 117, 119 (Fla.1950); Thomson v. State, 398 So.2d 514, 517 (Fla. 2d DCA 1981).

Counsel’s first alleged contemptuous comment was, “I know who killed Pat Ian-nuzzi” (the homicide victim in the murder case being tried). The court below concluded in its judgment of contempt, and this court agrees, that this was a contemptuous comment solely because it was uttered in violation of an alleged specific warning by the court to refrain from making such comments. This claimed warning, however, was not given at any time during the course of this trial, compare Kleinfeld v. State, 270 So.2d 22 (Fla. 3d DCA 1972), cert. denied, 275 So.2d 251 (Fla.1973); it was given to counsel in an unrelated case involving the same defendant, which case had been tried before the court six months prior to the instant case. This circumstance alone, I think, should take counsel’s comment out of the category of a criminal contempt, as it is perfectly obvious that admonitions of this nature made to counsel during the trial of a prior case do not rise to the level of perpetual court orders binding counsel forever after as to all future trials in all future cases conducted before the same judge. See Carroll v. State, 327 So.2d 881 (Fla. 3d DCA 1976) (improper voir dire questions by counsel did not rise to the level of a criminal contempt in the absence of a specific prior warning by the court in that trial to refrain from such questions).

Beyond that, the exact wording of the court’s six month old warning is not revealed by this record and, in any event, was given solely in response to the following comment made by counsel in the prior case, “I believe my client to be innocent.” (contempt judgment, p. 1 n. 1). By way of contrast, the offending comment in the instant case did not constitute a personal opinion on the guilt or innocence of counsel’s client, as was true in the prior case; instead, the offending comment was, as the trial court found in the judgment of contempt, “an assertion of personal knowledge of the facts in issue.” (contempt judgment, p. 1). It is, therefore, clear that counsel did not violate any prior warning of the court, even assuming the warning was still viable six months hence in an unrelated case.

After counsel had uttered the first comment, the trial court immediately admonished counsel in the presence of the jury by stating that the comment was “slightly improper.” Whereupon, counsel immediately stated, “Oh, Judge, I am sorry.” The court then held a sidebar conference with counsel, informed counsel that the above comment was an improper remark, that counsel knew “from the past” that this was an improper remark, that the court was holding counsel in contempt for making the remark, and that a hearing on the contempt charge would be held later. When counsel attempted to justify the comment, the court responded that the remark was improper, that counsel was being held in contempt, and that a hearing would be held following the trial. The court then concluded, “You are not to state any opinions. It is irrelevant and improper and you know it.” This statement is contrary to the court’s later conclusion in its judgment of contempt that the comment was improper because it constituted an “assertion of personal knowledge of the facts in issue.” (contempt judgment, p. 1). When counsel, quite properly pointed out that he had expressed no personal opinions, the court stated, “Well, I take it to be an opinion.” Counsel responded that he had been cut off; whereupon the court stated that these matters would be taken up later in a contempt hearing. The bench conference concluded at this point.

Counsel then went back before the jury and attempted to clear up what he had been erroneously told by the court was improper about his prior comment, namely, that he had expressed a personal opinion about the case. Counsel stated to the jury as follows:

“MR. BRESLIN: Let me straighten out that statement I just made.
I said I know who killed Pat Iannuz-zi. Obviously I wasn’t there. I don’t mean to indicate to you any opinion that I have, because that is totally improper, and please don’t take it that way. What I was going to say to you, is that I know because I have been told — well, I have been told by my client what happened.
MR. GILBERT: Objection, your Hon- or. He is testifying.
THE COURT: I will sustain the objection.
MR. BRESLIN: My client in this case, Mr. Alex Hoyas, knows what happened in this case and, obviously, throughout the course of my investigations, he and I have talked. He is going to tell you about the facts. He’s going to take that witness stand and tell you what happened that night. Now, when you hear what happened that night from Mr. Alex Hoyas, and you look at all of the evidence in this case, where everything was located, where everybody was, and after you listen to all the witnesses that have testified on behalf of the State and you compare that testimony to the testimony of Mr. Hoyas, you are going to know who killed Mr. Pat Iannuzzi. You are going to know why Pat Iannuzzi was killed, and you will know why exactly every one of these witnesses testified the way they did.”
(Appendix at 209-10) (emphasis added).

Counsel’s second alleged contemptuous comment is the italicized portion of the above-stated comments, although counsel was not so informed at the time. The court below concluded in its judgment of contempt, and this court agrees, that this comment was contemptuous because it was uttered in violation of the same above-stated warning given to counsel six months prior to this trial in an unrelated case. For the reasons already developed with reference to the first alleged contemptuous comment, this determination was plainly erroneous.

This court also concludes that the second comment was contemptuous because it violated a prior warning given by the court in this case, presumably at the bench conference discussed above. The trial court, however, made no such determination, as it is quite clear from the record that counsel was merely attempting, in a respectful way, to clear up what the court had erroneously criticized concerning his first comment, and was in no way attempting to defy the court’s prior ruling in the case. Indeed, the court in its judgment of contempt stated that counsel was being held in contempt as to both of the offending comments solely because of the warning given by the court six months ago in an unrelated case, and not for defying court rulings in the case being tried, (contempt judgment, p. 1).

I agree that minor ethical infractions may have been committed by counsel in making the above-stated comments, see Fla.Bar Code Prof.Resp. D.R. 7-106(C)(3), but I am unwilling to elevate these minor infractions to the level of a criminal contempt. I think it entirely unauthorized under the law of this state as it is plain that counsel committed no act which was calculated to embarrass, hinder or obstruct the court in the administration of justice or to lessen the court’s authority or dignity. Thomson v. State, 398 So.2d 514 (Fla. 2d DCA 1981); Litus v. McGregor, 381 So.2d 757 (Fla. 5th DCA 1980); Krueger v. State, 351 So.2d 47 (Fla. 3d DCA 1977); Carroll v. State, supra; see also Fisher v. State, 248 So.2d 479, 487 (Fla.1971).

I would reverse.


author: SHIVERS, Judge.

text:
    Angela EMIG, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AW-340.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1984.
    Rehearing Denied Oct. 29, 1984.

      Frank W. Goddard and Michael E. Seelie, Penland, Seelie, Morgan & Penland, Jacksonville, for appellant.

      Richard L. Randle, Slater & Randle, Jacksonville, for appellee.
   SHIVERS, Judge.

Emig appeals the order of the trial court which dismisses with prejudice her second amended complaint. Appellant contends that the trial court erred in determining that the doctrine of sovereign immunity applies to the instant case. We reverse and remand.

Appellant filed a complaint against the appellee, State of Florida, Department of Health and Rehabilitative Services (HRS) which was subsequently twice amended. The second amended complaint (complaint) charged HRS with negligence stemming out of an alleged incident on May 12, 1979, when three juvenile delinquents escaped from an HRS facility, the “Youth Detention Center” (Center). After the escape the juveniles allegedly entered Emig’s home and assaulted, battered and robbed her. It is alleged that HRS ran the Center, that HRS had a duty to exercise reasonable care in the operation and supervision of the facility and its inmates, that the three juvenile delinquents were in the direct custody, control and supervision of HRS, and that HRS well knew the criminal propensities of the juvenile delinquents.

In Count I of the complaint appellant alleged the following negligent acts or omissions: (1) failing to have security measures at the Center so that the whereabouts of inmates could be ascertained on an hourly basis; (2) failing to have an emergency method of notifying authorities in the event of escape; (3) failing to have a procedure for the employees of the youth detention center in the event of an escape; (4) failing to notify appropriate authorities or take any action after the escape. In Count II the complaint alleged negligence in HRS’s failure to warn the public, particularly the public living in the immediate vicinity of the Center, of a known hazardous condition, i.e., the custody of dangerous delinquents.

The law concerning the doctrine of sovereign immunity and its limited waiver in Florida is set forth in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). To determine whether the doctrine is applicable or waived in a given case our Florida Supreme Court in Commercial Carrier adopted the analysis of Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), and distinguished between governmental decisions made at the “planning level” and those made at the “operational level.” Planning level decisions involve discretionary governmental functions which remain immune from tort liability. Whether an alleged negligent act involves the planning or operational level of decision-making is a question to be determined on a case by case basis. In general, the object of this analysis is to isolate those governmental decisions which are so basic to the act of governing that to subject the decision to judicial review would amount to a violation of the separation of powers. “[Cjertain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance.” 371 So.2d at 1022. This planning level decision-making is to be distinguished from the operational level which involves ministerial functions for which the State should be responsible under ordinary tort principles just as any private individual would be under like circumstances. In the instant case, we think that all but one of the allegations of negligence set forth in Count I fall into the operational level category.

• Under Commercial Carrier, the starting point for analysis is to consider the allegations of negligence in light of a four question test derived from Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). The questions are:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?
(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?
(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?
(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission or decision?

371 So.2d at 1019 (quoting from Evangelical, 407 P.2d at 445). If these preliminary questions can clearly and unequivocally be answered in the affirmative, the challenged act or omission is discretionary and immune. If one or more of the questions results in a negative answer, however, further inquiry may be necessary.

In the instant case, only one of the allegations of negligence in Count I results in four affirmative answers. Appellant alleges negligence in that HRS failed to have a security measure at the Center to determine the whereabouts of inmates at least every hour. This decision involves a basic governmental policy, i.e., a policy decision must be made to determine how tight security is to be made at any particular facility. This is a decision which requires the exercise of discretionary judgment and expertise on the part of HRS. A decision in regard to the type of security measures employed is essential to the accomplishment of HRS policy in regard to the Center, and HRS has the lawful authority to make such a decision. Therefore, sovereign immunity should apply to bar appellant’s claim based on this allegation.

Appellant’s other allegations of negligence, however, result in mostly negative answers to the Evangelical questions. None of those allegations involve basic governmental policies, programs, or objectives. For example, we doubt that any HRS decision-maker weighed the pros and cons of whether to notify authorities after the escape sub judice and decided, as a matter of governmental policy, that HRS should not notify appropriate authorities. A decision as to whether to notify proper authorities after an escape of dangerous delinquents does not involve the exercise of agency expertise on the part of HR.S, nor would a decision to notify authorities jeopardize the youth detention center program. In short, it would be difficult to characterize these alleged omissions of HRS as other than operational, ministerial, or housekeeping functions. We do not think that the judicial branch of government would be sitting in judgment of the executive branch on a basic policy consideration if a court or jury were to determine, for example, that HRS employees should have notified authorities or taken some in-house action after the escape. We think that all of the allegations in Count I, except for the first, more clearly involve decisions at the operational level than did the allegations in Smith v. Department of Corrections, 432 So.2d 1338 (Fla. 1st DCA 1983), and Bellavance v. State, 390 So.2d 422 (Fla. 1st DCA 1980), rev. denied, 399 So.2d 1145 (Fla.1981).

Harrison v. Escambia County School Board, 434 So.2d 316 (Fla.1983), relied upon by appellee, is distinguishable from the instant case based on the nature of the allegations of negligence involved. In Harrison, the gravamen of the complaint was that the County negligently decided to locate a school bus stop on one street rather than another. The court found that in deciding upon the location of a school bus stop, a school board makes a policy or planning level decision. The court quoted approvingly the conclusion of the District Court of Appeal that the school board’s function in selecting school bus stop sites is not one that should be subject to scrutiny by judge or jury as to the wisdom of the board’s performance. Id. at 319. As discussed supra, we do not think this same conclusion can be reached as to most of the allegations of negligence in Count I here.

As to the allegation contained in Count II of appellant’s complaint, concerning the failure to warn, we find that City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982), is controlling. Collom held that when a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational level arises to warn the public or protect the public from the known danger. In the instant case, the complaint clearly alleges that the danger was one well known to HRS. The complaint, however, does not allege that the known dangerous condition is not readily apparent to persons who could be injured by the condition. Therefore, it was not error to dismiss this count. We think that this count should not have been dismissed with prejudice, however, at this stage of the pleadings, and that appellant should have the opportunity to further amend her complaint to allege proper ultimate facts if she can. Cf. Kirkland v. State, Department of Health and Rehabilitative Services, 424 So.2d 925 (Fla. 1st DCA 1983) (error to enter final judgment without granting leave to amend where plaintiff might allege ultimate facts to find waiver of sovereign immunity).

Accordingly, the order of dismissal with prejudice is REVERSED and this cause is REMANDED for proceedings consistent with this opinion.

ZEHMER, J., concurs.

THOMPSON, J., dissents without written opinion.


author: COWART, Judge.

text:
    David R. FIELDS, et al, Petitioners, v. Alva L. CANNADY, etc., Respondent.
    No. 84-765.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.
    Rehearing Denied Oct. 11, 1984.
    Delia Doyle Rose of Haas, Boehm, Brown, Ridgon and Seacrest, P.A., Daytona Beach, for petitioners.
    L. Edward McClellan, Jr., of McClellan & Vostrejs, P.A., Ocala, for respondent.
   COWART, Judge.

Petitioners seek review by certiorari of an interlocutory order compelling production of seven exhibits claimed by the petitioners to be privileged. The exhibits, as described, appear to be materials privileged under the work product doctrine or at least prepared by or for petitioners or their representatives in anticipation of litigation or for trial. The seven exhibits were examined by Clayton Morrison, an expert witness employed by the petitioners. However, it does not affirmatively appear from a reading of Morrison’s deposition that he used information from any of these exhibits to form his opinion testimony. Therefore, the writ is granted and the order compelling production is quashed.

SHARP, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents without opinion.

      . Florida Rules of Appellate Procedure 9.030(b)(2)(A). See also Haddad, Certiorari in Florida, 29 U.Fla.L.Rev. 207, 224 n. 133, et seq. (1977).


text:
    James HACKNEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1725.
    District Court of Appeal of Florida, Fifth District.
    Sept. 7, 1984.
    Rehearing Denied Oct. 15, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

This is another sentencing guidelines case.

Defendant, age 19, entered a negotiated plea to grand theft (§ 812.014, Fla.Stat.) and elected guideline sentencing. The appropriate guideline sentence score sheet (Form 3.988(f), Category 6) resulted in a recommended or presumptive guideline sentence in the lowest range, i.e., any non-state prison sanction.

The trial judge found that the defendant met the statutory criteria to be sentenced as a youthful offender under section 958.-05, Florida Statutes, and sentenced him to four years imprisonment to be followed by two years of community control, explaining the reason as follows:

THE COURT: James [defendant], looking at your record, son, this is absolutely the best thing that I or any others of us here can try to do to help you. The institution that you will go to under this sentence has all kinds of programs to train you to earn a living, and help you get along in the free world ... we are trying, not trying to send you to the penitentiary; trying to send you some place where you can get some help that will help you survive when you come out.

The State argues this appeal should be dismissed because a guilty plea cannot be appealed under section 924.06(3), Florida Statutes, and Florida Rule of Appellate Procedure 9.140(b)(1), and because defense counsel made no objection at the time the sentence was imposed. The statutory and rule bar to direct appeal from a judgment entered upon a guilty plea relates to the issue, and adjudication, of guilt and not to errors in sentencing which is imposed after the guilty plea. Section 924.06(3), Florida Statutes, and Rule 9.140(b)(1), do not limit the right under section 924.06(l)(e) and 921.001(5), Florida Statutes, and Rule 9.140(b)(1)(E) to appeal a sentence imposed outside the range recommended by the sentencing guidelines. In Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984), this court considered a guideline sentencing issue on an appeal taken after a guilty plea. The contemporaneous objection rule.does not relate to sentencing errors. See State v. Rhoden, 448 So.2d 1013 (Fla.1984).

Sentencing under the Florida Youthful Offender Act (ch. 958, Fla.Stat.), is expressly acknowledged by the sentencing guidelines to be a statutory alternative to a guideline sentence. The committee notes to Rule 3.701d.ll. of the original sentencing guidelines (which were effective and applicable when Hackney was sentenced in this case) explicitly stated that sentences under the Youthful Offender Act (ch. 958) “need not conform to the guidelines.” In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 852 (Fla.1983). Effective July 1, 1984 (and after the sentencing in this case) the legislature adopted, pursuant to section 921.-001(4)(b), Florida Statutes, the amendment to the sentencing guidelines previously approved by the Florida Supreme Court (see Ch. 84-328, Laws of Florida, and The Florida Bar: Amendment to the Rules of Criminal Procedure (3.701; 3.988—(Sentencing Guidelines), 451 So.2d 824 (Fla.1984). The previous committee note to 3.701d.ll., relating to sentencing under the Youthful Offender Act, was deleted and the supreme court stated that “while these statutory alternatives are acknowledged, the sentencing court is required to explain the guideline departure when an alternative program is used.” 451 So.2d at 824. Of course, this amendment cannot be applied retroactively. Carter, 452 So.2d at 954, n. 3.

We agree with Massaro v. State, 449 So.2d 1010 (Fla. 2d DCA 1984), that under current law the Youthful Offender Act (ch. 958), when applicable, is a lawful statutory alternative to a recommended guideline sentence, although it may authorize a more severe disposition, and the reasons for imposing a sentence under the Youthful Offender Act constitute sufficient reasons for departing from the guideline sentence.

We also observe, as noted by Judge Erwin, specially concurring in Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984), that the legislature has, by. section 921.005, Florida Statutes (1983), explicitly authorized the sentencing court to exercise discretion as to factors outside of the sentencing guidelines when sentencing all persons who committed crimes before October 1, 1983.

Although the amendment to the sentencing guidelines, which appears to require the sentencing court to make a written statement explaining reasons for the guideline departure when imposing a sentence complying with the Youthful Offender Act, are not applicable retroactively to the sentence in this case, nevertheless, we hold that the above quoted explanation of the trial judge made orally when imposing the sentence in this case, and transcribed and made a part of the appellate record, is sufficient in substance and form to comply with the requirements of the sentencing guidelines, as amended. See Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984).

AFFIRMED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . See Ch. 921, Fla.Stat., and Fla.R.Crim.P. 3.701 and Form 3.988.

      . See Robinson v. State, 373 So.2d 898 (Fla.1979); Smith v. State, 358 So.2d 1164 (Fla. 2d DCA 1978); Walton v. State, 360 So.2d 50 (Fla. 2d DCA 1978); Robbins v. State, 413 So.2d 840 (Fla. 3d DCA 1982).


author: PER CURIAM. BASKIN, Judge

text:
    Wendell LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1313.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1984.
    Rehearing Denied Oct. 31, 1984.
    Bennett H. Brummer, Public Defender, and Richard T. Preira, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

Appellant was found guilty by a jury of armed robbery and sentenced by the trial court to thirty years imprisonment in the state penitentiary.

Appellant has appealed the judgment and sentence. The grounds relied on by appellant for reversal are: (1) the improper and prejudicial remarks of the prosecutor; (2) the court’s admission into evidence of a prejudicial photograph from police files; and (3) the court’s restriction upon defense counsel’s closing argument and the limitation of his cross-examination of a state’s witness.

An appellant, in an appeal in a criminal case, has the burden of showing that the trial proceedings were so infected with prejudicial error as to compel a reversal of the judgment. Such error must be clearly demonstrated by appellant.

The grounds relied on by appellant for reversal have been considered by us in the light of the record, briefs and arguments of counsel and we find that no reversible error has been shown. The record discloses that the verdict is supported by the evidence and that the several rulings of the trial court challenged by the appellant do not on the record constitute harmful error. Duncan v. State, 450 So.2d 242 (Fla. 1st DCA 1984); Betsy v. State, 368 So.2d 436 (Fla. 3d DCA 1979).

Therefore the judgment and sentence appealed are affirmed.

Affirmed.

BASKIN, Judge

(specially concurring).

The right to a fair trial is embodied in due process of law. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, rehearing denied, 382 U.S. 875, 86 S.Ct. 18, 15 L.Ed.2d 118 (1965). The standard to be applied by a court reviewing error of a constitutional dimension is whether, considering the entire record, the error was harmless beyond a reasonable doubt. United States v. Hastings, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). Applying that standard, I agree that affirmance is proper.


author: CAMPBELL, Judge.

text:
    Robert G. PASTORI, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 84-1393.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1984.
    Rehearing Denied Oct. 16, 1984.
    Robert L. Paver of Osborne & Ciareiagli-no, St. Petersburg, for petitioner.
    James T. Russell, State Atty., and Ross B. Ward, Jr., Asst. State Atty., Clearwater, for respondent.
   CAMPBELL, Judge.

This is a petition for writ of certiorari to review an order of the circuit court reversing the county court’s order granting petitioner’s motion to suppress the results of chemical breath tests, field sobriety tests and any statements petitioner may have made. We grant in part and deny in part the petition for certiorari.

On August 25, 1983, petitioner, Robert G. Pastori, Jr., was involved in an automobile accident in St. Petersburg. When the investigating officer arrived on the scene, petitioner was seated in his vehicle. Pursuant to the officer’s request, petitioner exited his vehicle to sign a citation. At that point, he was read his Miranda rights and asked to perform a series of field sobriety tests. Petitioner responded by requesting an attorney. While being transported to the police station, he again asked when he could make a phone call to his attorney.

At the police station, petitioner was required to submit to a chemical breath test and additional field sobriety tests. He was then read his rights under Miranda for a second time and questioned pursuant to an alcohol influence report form. Thereupon, a second chemical breath test was administered.

Petitioner filed a motion in county court to suppress any statements he made as well as the results of the field sobriety and chemical breath tests. The court granted petitioner’s motion and the state appealed to the circuit court which reversed the county court’s order. Petitioner now seeks review in this court by certiorari. We deny certiorari as it relates to the suppression of the field sobriety and chemical breath tests, and grant certiorari in regard to any statements made by petitioner after he invoked his Miranda rights.

The case of Brackin v. Boles, 452 So.2d 540 (Fla.1984) dealt with the admissibility of blood alcohol tests in a civil proceeding. The trial court and district court of appeal held that the results were inadmissable as being privileged under section 316.066, Florida Statutes (1981). The supreme court reversed and held that results of blood alcohol tests are not privileged since the statute only applies to communications “made by persons involved in accidents.” Brackin at 544. Further, the court held that there is no federal or state constitutional prohibition against the admissibility of a blood sample, in either criminal or civil proceedings, and that the taking of a blood sample does not violate the fourth or fifth amendment.

Thus, on the authority of Brackin, we hold that the results of the field sobriety and chemical breath tests are admissible and the circuit court was correct reversing the county court’s order in granting petitioner’s motion to suppress those tests.

However, we find that the circuit court departed from the essential requirements of law in reversing the county court’s order suppressing petitioner’s statements because any statements which were made by petitioner after he requested an attorney and was taken into custody are inadmissible under Berkemer v. McCarty, — U.S. —, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In Berkemer, the Supreme Court held that mere roadside questioning of a motorist detained for a traffic stop does not constitute “custodial interrogation” for purposes of Miranda. However, if the motorist is subjected to treatment that renders him “in custody,” then he is entitled to the protection provided by Miranda.

Moreover, any statements made by petitioner to a police officer for purposes of completing an accident report would be privileged and, thus, inadmissible. Brac-kin. See § 316.066(4), Fla.Stat. (1981).

Therefore, we grant certiorari concerning the suppression of the statements made by petitioner and deny certiorari regarding the suppression of the chemical breath tests and field sobriety tests.

GRIMES, A.C.J., and SCHOONOVER, JJ., concur.


author: SHIVERS, Judge. JOANOS, Judge,

text:
    Patricia P. DIFFENDERFER, Appellant, v. Richard L. DIFFENDERFER, Appellee.
    No. AV-79.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1984.
    Rehearing Denied Nov. 1, 1984.
    Cynthia S. Tunnicliff, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for appellant.
    Keith J. Kinderman, Tallahassee, for ap-pellee.
   SHIVERS, Judge.

In this dissolution of marriage, the wife appeals the granting of various awards to the husband, and the failure to grant certain awards to her. We affirm awards to the husband of half the parties’ Eastman Kodak stock and half the wife’s savings account, and do not disagree with the trial court’s directive that the wife pay her own attorney’s fees and costs. We remand for reconsideration the failure to award the wife permanent periodic alimony, the award to the wife of rehabilitative alimony, and the award to the husband of the Alligator Point property.

The parties involved in this appeal were married in 1953, with four children born of this marriage, none now minors. Both the husband, now 54, and the wife, now 52, worked throughout the marriage at jobs outside the home and continue to do so. The husband works as a federal engineer, as he has done for the past thirty years, now earning a salary of $44,000 a year. The wife works as a full time registered nurse earning $23,000 a year, although she worked only part-time during the marriage earning half this salary. In addition, the husband is entitled to retirement benefits pursuant to a federal retirement plan. At trial, evidence was introduced that, assuming the husband retired in February of 1984, and further assuming the husband lives to his normal life expectancy of seventy-six years of age, the present value of the husband’s retirement benefits is $297,000. The husband testified that he had paid in approximately $44,000 during the course of the marriage towards this retirement plan.

The husband is in good health. The wife’s health is in dispute. Nevertheless, it is undisputed that the wife has varicose-vein problems in her legs and that the wife has had the pectoral muscle under her left arm removed as a consequence of cancer surgery.

The contribution of each of the parties is also in dispute. Our review persuades us that the husband has contributed at least his fair share to the marital relationship. This determination seems especially true while the husband attended engineering school, since both parties agree that then the husband went to school full time, worked part-time, and performed half the household chores. Moreover, the husband testified that he continued to perform at least half the household chores throughout the marriage and that he contributed more than the wife in the raising of the parties’ children. This testimony of the husband does not seem unreasonable in view of the wife’s problem of consumption of alcoholic beverages to excess beginning approximately ten years before the parties’ separation in 1981. The extent of this problem is disputed.

During the marriage, the parties maintained a joint savings account. When the husband threatened to leave his wife, the wife systematically withdrew, without her husband’s consent, sums totalling approximately $10,000 from this account. The wife used these funds for her personal expenses. During the parties’ marriage, the wife’s mother gave to the husband and wife 22 shares of Eastman Kodak stock which is titled in the parties’ joint names.

The trial court directed the wife to pay the husband $5,000, representing half of the funds withdrawn by the wife from this savings account, and directed that the wife transfer to the husband half of the Eastman Kodak stock. The appellant/wife contends these awards were error. We disagree. See Beaty v. Beaty, 177 So.2d 54 (Fla. 2d DCA 1965) (that court holding that if joint checking accounts were owned by the husband and wife as an estate by the entireties, and if portions thereof were removed by one of the parties for a purpose not consistent with their joint interests, the chancellor could properly require a return of such portion as would do equity); Landay v. Landay, 429 So.2d 1197, 1200 (Fla.1983) (the Florida Supreme Court stating that in the absence of any claim for special equity on either spouse’s part, record title bespeaks an equal division of property, with a tenancy by the entireties automatically becoming a tenancy in common upon divorce).

The parties jointly own two parcels of property with houses thereon. The Tallahassee parcel (marital home) is valued at $119,500 with encumbering mortgages to-talling approximately $51,000. The other parcel (the Alligator Point beach house) is valued at $60,000 with an encumbering construction mortgage in the amount of $17,-100. Also on the Tallahassee parcel is an apartment that yields $180 monthly rental income.

The husband testified that he built the Alligator Point beach house at nights, weekends, and during his annual leave, with the help of two friends, and that a substantial amount of the work on this house was done subsequent to the parties' separation. The two friends of the husband worked on the beach house in exchange for the husband helping them with their construction projects, and, additionally, the husband paid one friend approximately $500 or $600.

The beach house property was purchased by the husband by borrowing $5,000 in his sole name from a bank. This loan was repaid by the husband to the extent of $3,000 from the husband’s half share of the parties’ income tax returns, according to the husband, with the remainder apparently being repaid through refinancing of some property. Additionally, the parties secured a loan of $40,000 by mortgaging their marital home and used $10,000 of the proceeds from this loan towards construction costs on the beach house. The parties’ family corporation, Derferprice, Inc., apparently repaid this $10,000 loan upon the sale of some of its property.

The wife testified she contributed to the beach house by assisting her husband in picking out some of the materials to decorate the house. The husband testified that, in addition, the wife spent part of a two week vacation working on the beach house.

The trial court awarded to the husband the wife’s undivided half interest in the beach house property by virtue of the husband’s special equity claim. This award was conditioned that the husband pay off the remaining balance, approximately $38,-000, of the mortgage taken on the marital home. Here, since it appears that the husband contributed most, but not all of the consideration, in acquiring the Alligator Point property, we remand for reconsideration of the husband’s special equity claim. See Landay v. Landay, 429 So.2d 1197 (Fla.1983) (the Supreme Court holding that the correct formula to be used in situations where a spouse furnishes some but not all of the consideration for entireties property is: in addition to that spouse’s automatic half share, the contributing spouse acquires a special equity in the property equal to half the ratio which that spouse’s contribution bears to the entire consideration).

Before turning to the crux of this appeal, that is, the treatment to be given to the husband’s interest in his retirement plan, we mention that we are not unmindful of the Supreme Court of Florida’s recent pronouncements on the scope of appellate review with respect to dissolution cases. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983). We agree with the Fourth District Court of Appeal that these cases have created doubts as to the proper scope of appellate review in dissolution cases. See McSwigan v. McSwigan, 450 So.2d 284 (Fla. 4th DCA 1984); Marcoux v. Marcoux, 445 So.2d 711 (Fla. 4th DCA 1984). We therefore join the Fourth District in certifying the following question to the Supreme Court of Florida as one of great public importance:

DO CONNER v. CONNER, AND KU-VIN v. KUVIN LIMIT THE SCOPE OF APPELLATE REVIEW ENUNCIATED IN CANAKARIS v. CANAKARIS, 382 So.2d 1197 (Fla.1980)?

Although not cognizant of Kuvin and Conner, appellant’s counsel urged at oral argument that we are not precluded from appellate review of the trial court’s judgment since, it is argued, the trial court erred as a matter of law in the treatment of the husband’s retirement plan. Specifically, appellant argues that the trial court erred in ruling that only the funds contributed by the husband to the retirement plan during the course of the parties’ marriage, i.e., $44,000, should be considered as marital assets. The wife contends that the husband’s interest in his retirement plan, reduced to present value after assuming certain contingencies, should have been treated as a marital asset subject to equitable distribution.

The judgment on review gives no indication as to how the trial judge treated the husband’s retirement plan and the record is confusing. Under these circumstances, we agree that appellate review is appropriate, since we cannot say that the trial court’s judgment is clearly reasonable and equitable in light of our disposition of how the husband’s interest in his retirement plan should be treated.

We find and hold that the husband’s interest in his retirement plan should have been considered as a source of payment by the husband in providing for the care and maintenance of the wife. We reject the wife’s argument that the husband’s retirement plan should have been treated as part of the marital estate, subject to division by the trial court. On this point, we find the reasoning of the Supreme Court of Nebraska in Witcig v. Wit-cig, 206 Neb. 307, 292 N.W.2d 788 (Neb. 1980) persuasive and quote the following from that decision:

We recognize ... that there are jurisdictions that treat pension interests as marital assets, subject to division by the court. See, for example, Hutchins v. Hutchins, 71 Mich.App. 361, 248 N.W.2d 272 (1976); Pinkowski v. Pinkowski, 67 Wis.2d 176, 226 N.W.2d 518 (1975); Foster & Freed, Spousal Rights in Retirement and Pension Benefits, 16 J. Family L. 187 (1977-78). However, we are not persuaded by these authorities that our presently adopted rule should be changed. See Ellis v. Ellis, 191 Colo, 317, 552 P.2d 506 (1976). Problems inherent in the determination of the value of pension interests and the contingent nature of such interests convince us that the rule we adopted in Howard is correct and cause us to reject the cases holding to the contrary. We, therefore, reaffirm our position that pension interests may be considered on the question of alimony allowances, but not in the determination of the division of marital property.

Id. 292 N.W.2d at 793 (emphasis in original). We disagree with the Witcig decision to the extent that we hold that spousal interests in retirement plans should be considered on the question of an allowance of alimony: the weight to be given such by the trial judge is dependent on the particular facts and circumstances of the case.

Applying our holding to the facts of this case, we find and hold that the trial court erred in not awarding the wife permanent periodic alimony. Here, the husband’s earning capacity is assured through his retirement plan — the husband, if he was to retire in 1984, would receive $25,000 his first year. By contrast, the wife’s earning capacity is questionable due to her physical problems and her age, while these same factors, among others, establish her need for permanent periodic alimony. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Accordingly, we find and hold that the trial court erred in not awarding the wife permanent periodic alimony and direct that upon remand the trial judge award the wife permanent periodic alimony-in an amount to be determined by the trial judge after considering the interests enunciated in Kuvin v. Kuvin, supra, at 205. Cf. Marshall v. Marshall, 445 So.2d 706 (Fla. 4th DCA 1984) (that court modifying the trial court’s judgment by awarding permanent periodic alimony in lieu of lump sum alimony, after noting that the husband’s future security was assured by his retirement pay, while the wife’s chances to obtain self-supporting employment appeared more unlikely).

Upon remand, we also direct the trial court to reconsider its award of rehabilitative alimony to the wife. In his judgment, the trial judge awarded the wife rehabilitative alimony in the form of exclusive use and possession of the marital home together with first mortgage payments by the husband, including taxes and insurance, on the marital home (amounting to $261.00 a month), so long as the wife resides there and remains unmarried. The wife is also entitled, as rehabilitative alimony, to receive the rents from the apartment located on the marital home property, approximately $180 a month, for the same period of time. We fail to see, however, the need for rehabilitative alimony in this case, since at the age of 52, with some 30 years of nursing experience, and a present earning capacity of $23,000 a year, it is unlikely that the wife needs to establish a capacity for self-support through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills. Canakaris, supra, at 1202. Moreover, the wife did not elaborate on a desire to acquire new skills, but instead, the essence of her argument as regards her vocation was that she could only continue working as a nurse part-time, as opposed to the husband’s argument that she could work full time. Accordingly, we direct that the trial court reconsider its award of rehabilitative alimony in light of our comments and our reversal of the trial court’s failure to award the wife permanent periodic alimony.

Finally, in the judgment on review, the trial judge awarded the wife half of the husband’s undivided half interest in the marital home as lump sum alimony. Additionally, the wife was awarded approximately $20,000 in personal property and the husband approximately $1,000 in personal property. Although we do not disturb these awards, the trial judge may wish to reconsider these awards, if he so chooses, since our modifications of the final judgment may in turn impact the trial court’s overall distribution plan.

We also do not find error in the trial court’s directive that the wife pay her own attorney’s fees and costs. However, the trial court should revisit this issue if any redistribution of property should materially change the parties’ abilities to bear their own or the other party’s attorney’s fees. See Conner v. Conner, supra.

Our decision with respect to the treatment to be given the husband’s retirement plan is in apparent conflict with decisions from other courts in this state. See Clarke v. Clarke, 443 So.2d 486 (Fla. 2d DCA 1984) (that court stating that it did not find an abuse in the trial court’s discretion in considering the husband’s pension plan to be a part of the husband’s property); see also Hurtado v. Hurtado, 407 So.2d 627 (Fla. 4th DCA 1981). We therefore certify the following question to the Supreme Court of Florida as one of great public importance:

HOW SHOULD A TRIAL JUDGE TREAT A SPOUSE’S ENTITLEMENT TO RETIREMENT BENEFITS IN FASHIONING AN EQUITABLE DISTRIBUTION OF PROPERTY IN DISSOLUTION PROCEEDINGS?

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

BOOTH, J., concurs.

JOANOS, J., dissents with an opinion.

JOANOS, Judge,

dissenting.

I respectfully dissent from the majority opinion. The final judgment on appeal should be affirmed.

The circuit judge in a dissolution proceeding is clothed with a great amount of discretion.

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

What the trial judge did in this situation did not fail to satisfy the test of reasonableness set forth above. Viewed in their totality, the various provisions of the final judgment together with the stipulations of the parties add up to an overall disposition of the assets of this marriage which are affirmable under the Canakaris standard.

The majority states that the judgment on appeal gives no indication as to how the trial judge treated the husband’s retirement plan and that the record on that point is confusing. However, it is clear that the trial judge allowed the husband to keep the retirement benefits. I know of no requirement in the law that requires the judge in a dissolution proceeding to state that he is not transferring an asset from one party to another.

The majority opinion goes on to fault the circuit judge for not awarding the wife permanent periodic alimony. I totally disagree. The wife was receiving a salary of $23,000 per year at the time of the dissolution. Granted, the husband was making $44,000 per year. However, the trial judge should be commended rather than reversed for seeking a way through the division of assets rather than through continuing alimony to provide for the future of these two individuals. One or both of the parties was desirous of a permanent parting of the ways. We should not fault the trial judge’s discretion in devising a method by which the marriage could be truly ended rather than prolonged through financial dependence ad infinitum. In situations where one spouse is unemployed or where the assets are insufficient, permanent periodic alimony may be a necessity. But that is not the situation here.

The majority, on the other hand, also questions the trial judge’s decision in granting rehabilitative alimony to the wife. Again, this was a discretionary act on the part of the trial judge. Viewing it from the judge’s vantage point, it could be justified as being a reasonable way to give the wife some time following the dissolution to adjust and establish herself.

The majority also remands for reconsideration, the award of the beach house property to the husband. Again, after employing the Canakaris standard set forth above, I believe that the award is affirma-ble. It appears to be a reasonable trade off when one considers that: the husband was ordered to pay off the mortgage of the marital home; the wife was given 75% ownership of the marital home; and the wife was given exclusive use of the marital home so long as she lives there and remains unmarried.

      . For example, the trial judge initially ruled that the funds contributed by the husband to his retirement plan were a marital asset, but subsequently, over the husband’s counselor’s repeated objections, allowed the wife’s expert witness to testify at length as to the present value of the husband’s potential receipt of retirement benefits under various contingencies. Moreover, the trial judge specifically overruled the husband’s counselor’s objections to the expert witness’ testimony as to the present value of the wife’s retirement benefits.

      . In Witcig, the Nebraska Supreme Court quoted the following from Howard v. Howard, 196 Neb. 351, 242 N.W.2d 884 (1976):
      A pension of one party to a marriage, unless its terms provide otherwise, is not a joint fund for the benefit of the other party and is not ordinarily subject to division as part of a property settlement.... There are situations where retirement income must be considered in providing for the care and maintenance of the divorced wife. In those situations, it is considered as a source for the payment of alimony, not as a part of a property settlement. Such a situation is found in Albrecht v. Albrecht (1973), 190 Neb. 392, 208 N.W.2d 669.

        Witcig, 292 N.W.2d at 793. We concur in this reasoning.


author: ERVIN, Chief Judge. WENTWORTH, Judge,

text:
    Thomas A. LeDEW, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, and Suwannee County School Board, Appellees.
    No. AV-435.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1984.
    Rehearing Denied Nov. 1, 1984.

      Howell L. Ferguson of Ferguson & Sher-rill, Tallahassee, for appellant.
    William R. Slaughter, II of Slaughter & Slaughter, Live Oak, Geri Atkinson-Hazel-ton, Gen. Counsel, and Richard S. Córtese, Unemployment Appeals Gom’n, Tallahassee, for appellees.
   ERVIN, Chief Judge.

The appellant appeals an order of the Unemployment Appeals Commission, finding that the appellant/claimant voluntarily left employment without good cause attributable to the employer, and was therefore disqualified for unemployment benefits as provided for under Section 443.101(l)(a), Florida Statutes (1981). We disagree with the Commission’s conclusion that claimant voluntarily left his employment, and therefore reverse with directions.

This case has had a rather curious history. Two hearings were held before the appeals referee and two orders entered, each with conflicting recommended conclusions. The claimant, employed as a lunchroom director/personnel director/teacher certification administrator for the Suwan-nee County School Board, was advised in the early part of February 1982 that his non-tenured position had been deleted for the coming academic year. Later, on March 4, 1982, when the superintendent confronted claimant with having made reports to the state attorney’s office regarding the superintendent’s official misconduct, claimant admitted doing so, and the superintendent then asked for his resignation on the ground of gross insubordination, which was submitted in writing effective that date. Based on the evidence before him, the appeals referee determined that the record showed that the claimant was discharged for reasons other than misconduct connected with his work and he was therefore not barred from receiving benefits under the provisions of section 443.101(l)(b).

After reviewing the record, the Unemployment Appeals Commission vacated the decision of the appeals referee, holding that the referee failed to inquire whether the school superintendent, in his capacity as the employer’s executive officer, was vested by statute (section 230.33(7)(e)) with the authority to dismiss the claimant. The Commission observed that the statute empowers a school superintendent with the authority only to recommend employees for dismissal, not dismiss them; that such power abides only with a school board. It also noted that it appeared from the record that claimant was aware that he had the right to take the matter of his resignation before the school board and had failed to do so. Accordingly, the Commission directed the referee to determine whether the claimant voluntarily left his employment without good cause attributable to his employer under the provisions of section 443.-101(lXa).

On remand to the referee, the latter found that the record showed that “the claimant voluntarily quit his job. He did this because his immediate supervisor demanded his resignation on the grounds of gross insubordination.” As a result, the referee concluded that the claimant was disqualified for unemployment benefits for having voluntarily left his employment without good cause attributable to the employer. This conclusion was approved by the Commission. There appears to be a facial inconsistency in the referee’s order. One might well ask how one can be said to have voluntarily resigned when he does so in the face of a demand to resign? The answer in this case depends upon the Commission’s application of public school law to the facts. The referee found that because the school superintendent had no authority to discharge the claimant, the latter had an avenue available to him before the board to grieve his resignation;' that as he failed to take advantage of this method of relief, of which he was aware, he must be considered to have voluntarily resigned his position; therefore he was disqualified from benefits.

The order before us is a mixed blend of law and facts. Although it is not our province to reverse a final administrative order which is amply supported by competent, substantial evidence, the same standards of review do not apply to an erroneous application of the law to the facts. If we find “that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action,” we may, among other things, “[s]et aside or modify the agency action, _” Section 120.68(9)(a), Florida Statutes. The interpretation placed by the Unemployment Commission on the superintendent’s powers, given him by chapters 230 and 231, was far too limited. Of course the superintendent has the statutory power only to recommend dismissals, and the final decision to discharge abides with the school board. Section 231.36(6). Clearly there were procedures available to the appellant, of which he was aware, permitting him to grieve his resignation before the school board. See Rules 6GX61-3.13, 6GX61-3.14, and 6GX61-3.15P of the Su-wannee County School Board. Nevertheless, claimant testified the reason he did not go before the board was because he sincerely believed it would have been an act of futility. The appeals referee himself made a finding to that effect, which the Commission on appeal discarded as only “thinly veiled conjecture.” The finding, however, is supported by the record. The superintendent admitted that his personnel recommendations were routinely approved by the board. Indeed, before LeDew had been asked to resign on March 4, 1982, the school board had on the month preceding voted to delete the claimant’s job for the coming academic year. Additionally, a school board member testified that the claimant’s appearance before the board would have availed him nothing: “Because you and I know that the attitude prevailing in the county office was one of all the administrators, get rid of LeDew. You know that. You know that three or more board members [out of the total number of five board members] had already made up their mind before it was recommended.” Can it be said then that one has voluntarily abandoned his employment when he resigns in the face of an order to resign, and then fails to pursue administrative remedies which the record reveals would be a fruitless avenue of relief? We think not.

On more than one instance this court has looked beyond the de jure authority vested in the superintendent and examined instead the factual relationship existing between the superintendent and the board. For example, we have refused to hold a school board immune from an unfair labor practice charge when it argued that it acted in good faith on a superintendent’s recommendation not to rehire a non-tenured refrigeration mechanic. We observed that when the board routinely accepted the superintendent’s hiring recommendations, it was sufficient proof of an unfair labor practice if the recommendations were tainted by the impermissible motives of the superintendent or other responsible subordinate. See Columbia County Board of Public Instruction v. Public Employees Relations Commission, 353 So.2d 127 (Fla. 1st DCA 1977). In another case, we sustained a trial court’s order permitting a blind person the opportunity to demonstrate that he could function as a teacher in physical education at public school, and rejected the school board’s argument that its refusal to hire the applicant was justified because the superintendent subordinate had not recommended the applicant’s employment, holding, under the circumstances, that both “the board and superintendent share ... vicarious responsibility for any unlawful purpose of the subordinate.” Zorick v. Tynes, 372 So.2d 133, 142 (Fla. 1st DCA 1979). Again, in Hollis v. School Board of Leon County, 384 So.2d 661, 664 (Fla. 1st DCA 1980), we recognized that

[t]he district school system is a hydra-headed organization whose day-to-day operations are overseen by its chief administrator, the school superintendent, but whose control is technically vested in the school board. Dual control, then, is placed in both the superintendent and the school board for the operation of the administration of the district school system in Florida.

It is not enough, then, for the school board to insulate itself from the impermissible motives of its superintendent by arguing that the superintendent has no legal authority to discharge when it routinely accepts his personnel recommendations. As we stated in Zorick v. Tynes: “Where ... the board and superintendent have effectively delegated recommending power to a subordinate, ..., and that subordinate is shown to have exercised de facto power to employ, the board and superintendent share, for the purposes of an action such as this, vicarious liability for any unlawful purpose of the subordinate.” 372 So.2d at 142.

The Commission appears to have been persuaded by Board of County Commissioners, Citrus County v. Florida Department of Commerce, 370 So.2d 1209 (Fla. 2d DCA 1979), in deciding to remand the case to the hearing officer for further findings on the question of whether the employee could be said to have voluntarily resigned his position without good cause attributable to the employer. There the court held that “[w]hen an employee, in the face of allegations of misconduct, chooses to leave his employment rather than exercise his right to have the allegations determined, such action supports a finding that the employee left his job without good cause.” Id. at 1211. The operative word in the opinion is, however, “chooses”. The word “implies the exercise of judgment in settling upon a thing or course from among those offered. ...” Webster’s New World Dictionary of the American Language (2d College ed. 1980). By its very nature, the term connotes some volitional decision. In the context of unemployment appeals, the test for determining whether an employee left his employment without good cause attributable to his employer is stated as follows: “To voluntarily leave employment for good cause, the cause must be one which would reasonably impel the average able-bodied qualified worker to give up his or her employment.” Uniweld Products, Inc. v. Industrial Relations Commission, 277 So.2d 827, 829 (Fla. 4th DCA 1973) (e.s.). There was sufficient evidence that a voluntary choice without good cause attributable to the employer was exercised by the claimant in Board of County Commissioners, Citrus County in that the employee was informed at a county commission meeting of certain improprieties that had been alleged against him, and his rights under the county’s personnel rules were explained to him. The county attorney, moreover, suggested that the commission consider suspending him, at which point the employee asked to speak, saying: “I come before the board on my own volition and say, gentlemen, I am guilty, fire me now, and end it.” On this and other evidence the appeals referee found that the employee was not discharged by the county for misconduct, and he was therefore ineligible for unemployment benefits because he had voluntarily left his employment without good cause attributable to the employer. On appeal, the Board of Review held that the referee erred in finding that Britt had voluntarily left his employment. The Board thus displaced a factual finding made by the deputy on which there was competent, substantial evidence, and its decision in turn was reversed by the appellate court.

No such evidence of a volitional choice exists in the present case. The appeals referee below inconsistently determined that the claimant voluntarily resigned his job for the reason that the school superintendent demanded his resignation. His determination of a voluntary resignation was made by reference to the school superintendent’s limited de jure authority to suspend, but not to discharge, without consideration of the superintendent’s de facto powers. Under federal case law appellant’s resignation would be considered a constructive discharge, meaning that a person may be deemed discharged if the words and actions of the employer would logically lead a prudent person to believe his tenure had been terminated. NLRB v. Trumball Asphalt Company, 327 F.2d 841 (8th Cir.1964); Jack Thompson Oldsmobile v. NLRB, 684 F.2d 458 (7th Cir.1982); Young v. Southwestern S & L Association, 509 F.2d 140 (5th Cir.1975).

The final order of the Unemployment Appeals Commission is reversed with directions that it grant to appellant unemployment benefits during the applicable period of time involved.

BOOTH, J., concurs.

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting.

I respectfully dissent because I am unable to distinguish the decision here from that reached in Board of County Commissioners, Citrus County v. Florida Department of Commerce, 370 So.2d 1209 (Fla. 2d DCA 1979). The majority acknowledges that appellant was aware of procedures available to him by which he could grieve his controversy. Likewise, appellant was aware that the superintendent did not have authority to demand his resignation. Under these circumstances, cases that look beyond the de jure authority of the superintendent are not pertinent. What is pertinent in my opinion is that in this case, as in Citrus County, appellant was fully aware of his right to have the allegations against him determined administratively and declined to exercise that right. While the referee indicated that claimant would probably have been unsuccessful in defending himself before the school board, he also noted that one of the board members encouraged appellant to try. In any event, I fail to see the importance of appellant’s subjective belief regarding the outcome of a confrontation with the board when the conceded fact was that he knew that only the board had the authority to demand his resignation. The standard is not, of course, whether there is competent substantial evidence supporting a result contrary to that reached by the appeals referee and the commission, but whether there is competent substantial evidence to support their findings. In my opinion, the order below is so supported, and I would affirm.

      . The record discloses the following:
      REFEREE: Have they ever bucked you on personnel?
      STANKUNAS: A few, but they always went with my recommendations. I would say its 100% right now on personnel, when I recommend somebody. It’s be sin — two years. It’s been 100% with the board. Not — not going 5-0, but may be 4-1, 3-2, but—
      REFEREE: Oh, okay.
      SLAUGHTER: Would — for clarification, what he’s talking about is the vote of the board.
      REFEREE: I understand.
      SLAUGHTER: There are five members on the board.


author: WENTWORTH, Judge. ERVIN, Chief Judge,

text:
    Dan CLEMMONS, Appellant, v. STATE of Florida, Appellee.
    No. AW-318.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1984.
    Rehearing Denied Nov. 2, 1984.

      Michael E. Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of judgments of conviction and sentences entered after nolo pleas. Concurrent terms of probation were imposed for each of the offenses, with the further requirement that appellant pay court costs and make restitution to the City of Havana for investigative expense. On .appeal appellant challenges the requirement that he make restitution; we find that the issue was not preserved for appellate review, and we therefore dismiss the appeal.

When challenging a condition of probation a defendant “should clearly state of record his objections _” Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982), en banc. And “for an argument to be cognizable on appeal [to show reversible error], it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Steinhorst v. State, 412 So.2d 332 (Fla.1982). In the present case at the sentencing hearing appellant’s attorney said:

... I was advised in chambers about the court costs going to Havana, and I object to that.
THE COURT: If you can show me where its illegal I’ll reconsider, and put something else in.... I’ll just increase the amount he pays the county. [APPELLANT’S ATTORNEY]: Judge, I have no objection. What I’m trying to get to is the precedent being set .... Appellant stated no other legal ground or specific objection on the record. We therefore conclude, pursuant to Steinhorst and Bentley, that the asserted issue regarding restitution was not preserved for appellate review, and we do not consider the merits of appellant’s challenge here of the particular costs as restitution.

The appeal is therefore dismissed, without prejudice to appellant’s right to file a Fla.R.Crim.P. 3.850 motion for post-conviction relief.

BOOTH, J., concurs.

ERVIN, C.J., dissents with opinion.

ERVIN, Chief Judge,

dissenting.

I dissent from the order of dismissal on the same grounds I expressed in my dissent in Cofield v. State, 453 So.2d 409 (Fla. 1st DCA 1984), and would reach the merits of the appeal.

      . While the Florida Supreme Court has recently expanded the scope of sentencing errors which are cognizable on appeal without objection below so as to include the failure to comply with a mandatory sentencing duty imposed by statute, see State v. Rhoden, 448 So.2d 1013 (Fla.1984), the present case involves no such mandatory duty and Rhoden is therefore inapplicable. See generally, Cofield v. State, 453 So.2d 409 (Fla. 1st DCA 1984).


author: HENDRY, Judge.

text:
    Alejandro HOYAS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2389.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Rehearing Denied Oct. 26, 1984.

      Jerrell A. Breslin, Miami, and Kurt Mar-mar, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and Renee Ruska, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   HENDRY, Judge.

Appellant, Alejandro Hoyas, was charged by indictment in June, 1981 with one count of first degree murder and one count of armed robbery, based upon an incident which occurred in late March, 1980. Appellant pled not guilty. He was tried before a jury, which found him guilty of first degree (felony) murder and robbery with a firearm. Judgment and sentence of imprisonment were entered and appellant took this appeal following denial of his post-trial motions.

On appeal, appellant raises several points, only one of which we find merits discussion. It is contended that where appellant’s former attorney was compelled to testify as a state witness to rebut and impeach appellant’s trial testimony, appellant was denied a fair trial, as guaranteed under the fifth and fourteenth amendments to the United States Constitution and section 90.502, Florida Statutes (1981), governing the attorney-client privilege. We find that this contention is not substantiated by the particular facts of this case, and affirm. The facts relevant to this issue are as follows.

Prior to trial appellant’s former attorney sought a protective order quashing a trial subpoena. The subpoena required his testimony, as a state witness, regarding his attempt to negotiate a surrender of appellant to law enforcement authorities, allegedly at appellant’s request, and appellant’s subsequent flight to avoid prosecution. The subpoena additionally referred to another matter which is not presented for appellate review. The motion for protective order stated that the information sought to be elicited by the state comprised privileged attorney-client communications and was not subject to any exception which would allow its disclosure. The motion further asserted that the Florida Bar had responded to the attorney’s request for an ethical opinion by stating that the matters described were privileged and should not be revealed. Following consideration of the motion, the state’s response and the parties’ memoranda of law, a hearing was held at which testimony of the former attorney was taken. The court ruled that the attorney-client privilege did not apply to the communication between appellant and his former attorney in connection with arranging Hoyas’ surrender to the police.

At trial appellant testified in his own behalf. His defense was that a friend of his, not he, had committed the offenses charged. This defense was countered by the testimony, as court witnesses, of three other young friends of appellant who were with him at his home around the time of the alleged offenses. Defense counsel asked appellant during his testimony, on direct examination, whether he ever made an effort with his former attorney to turn himself in, and if so, what he did. Hoyas testified that when he found out the police were looking for him, he hired an attorney to find out what was going on and that when his attorney told him he was wanted on suspicion of first degree murder, “I told my attorney I hadn’t done it.” (This communication took place in his attorney’s car, on the way to the police station.) The court then ruled at a bench conference that Hoyas had waived any right to assert the attorney-client privilege as to what he had told his former attorney on this subject matter during their referred-to conversation, and had done so in order to give information beneficial to himself. Subsequently, the court ruled that appellant had opened cross-examination on that conversation and impeachment by the attorney should that become necessary, and further, that the attorney would be subjected to a jail sentence for contempt if he should refuse to testify.

During appellant’s cross-examination, the trial court allowed the state to question him, over objection and motion for mistrial, regarding the entire communication, which Hoyas admitted had included some of the details of the crime. Further questions were asked relating to whether Hoyas had told his then-attorney that the victim had begged for his life, to which he replied in the negative. (Appellant’s earlier testimony on direct examination was that this “friend” told him he first shot the victim accidentally, during a struggle over his gun.) Appellant also testified on cross-examination that in their conversation, he had told his attorney someone got killed near a lake, “over drugs,” and that when his attorney asked him why anyone would kill anybody for $300, he shrugged his shoulders, indicating he did not know.

The former attorney was called as a rebuttal witness and testified, under threat of imprisonment for contempt and after unsuccessfully attempting to invoke the privilege, that Hoyas had told him the victim had been killed in a kneeling position after pleading for his life and that other persons accompanying the killer could not dissuade him. Additionally, the attorney testified that he had asked Hoyas why he would kill anybody for $300 and that Hoyas had shrugged his shoulders. On cross-examination, however, he said he may have asked, “How did it happen?” or, “How did the victim get killed?” On redirect examination he stated that Hoyas had never told him someone else committed the crime. Thus, his testimony generally served to rebut and impeach that of appellant as to the foregoing matters.

We now examine, in the light of the applicable law, appellant’s more specific contentions that the substance of the former attorney’s testimony was privileged communication under the attorney-client privilege, that any waiver which may have occurred through the appellant’s testimony on direct examination was necessarily limited and that, accordingly, the scope of both the state’s cross-examination of appellant and the former attorney’s rebuttal testimony was impermissibly broad.

The attorney-client privilege has historically been recognized in the common law as an exception to the right of testimonial compulsion. 8 Wigmore, Evidence, § 2290 (McNaughton rev. 1961). The privilege arises under the following circumstances:

(1) Where legal advice of any kind is sought (2) from a professional legal ad-visor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.

8 Wigmore, Evidence, supra, § 2294, at 554. The privilege is well-established in the case law of this state, Seaboard Air Line R. Co. v. Timmons, 61 So.2d 426, 428 (Fla.1952); Keir v. State, 152 Fla. 389, 11 So.2d 886 (1943); Lee v. Patten, 34 Fla. 149, 15 So. 775 (1894); Dionise v. Keyes Co., 319 So.2d 614 (Fla. 3d DCA 1975), and has been codified in section 90.502, Florida Statutes (1981). In addition, the attorney’s responsibilities regarding confidentiality of attorney-client communications are set forth in the Fla. Bar Code of Professional Responsibility, Ethical Canon 4, EC 4-1— EC 4-6, and Disciplinary Rule DR 4-101. The privilege is said to apply in a case, such as this one, where a confidential communication is made to an attorney with a view toward his employment, regardless of whether the attorney is subsequently retained, see Keir v. State, supra; 3 Wharton’s Criminal Evidence § 557 (C. Torcía, 13th ed. 1973), and it endures even after the attorney-client relationship terminates. 3 Wharton’s Criminal Evidence, supra, § 560; Fla. Bar Code of Prof.Resp., EC 4-6. The policy behind the privilege is to promote freedom of consultation with legal advisors without fear of compelled disclosure, however, it has been said that the privilege, being an “exception to the general duty to disclose” and an “obstacle to the investigation of the truth,” “ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.” Anderson v. State, 297 So.2d 871, 872 (Fla. 2d DCA 1974), quoting from 8 Wigmore, Evidence, supra, § 2291. See also State v. Sandini, 395 So.2d 1178 (Fla. 4th DCA), pet. for rev. denied, 408 So.2d 1095 (Fla.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982).

We assume, for the sake of argument, that the initial communication in question does not fall within the exception to confidentiality for a communication which is intended [when made] by the client to be disclosed to third persons other than those necessary to render legal services or to transmit such communication. §§ 90.-502(l)(c), 90.507, Fla.Stat. (1981); see, e.g., Mobley v. State, 409 So.2d 1031 (Fla.1982); Dees v. Scott, 347 So.2d 475 (Fla. 1st DCA 1977). Nonetheless, we believe the record herein fully supports the trial court’s determination that the attorney-client privilege, if applicable, was waived by appellant’s voluntary disclosure, during his testimony at trial, of a significant part of the communication wherein he told his attorney he ‘didn’t do it.’

The relevant rules with regard to waiver of the privilege are stated by Wigmore, as follows:

(4) The client’s offer of his own or the attorney’s testimony as to a specific communication to the attorney is a waiver as to all other communications to the attorney on the same matter. This is so because the privilege of secret consultation is intended only as an incidental means of defense, and not as an independent means of attack, and to use it in the latter character is to abandon it in the former.
(5) The client’s offer of his own or the attorney’s testimony as to a part of any communication to the attorney is a waiver as to the whole of that communication, on the analogy of the principle of completeness....

8 Wigmore, Evidence, supra, § 2327 at 637 (emphasis in original). Accord: McCormick, Evidence, § 93 at 224 and cases cited n. 6 (E. Cleary, 3d ed. 1984); 3 Wharton’s Criminal Evidence, supra, § 561 at 83. In the case upon which the trial court principally relied in ruling on the waiver issue sub judice, it is stated that

the privilege was intended as a shield, not a sword. Consequently, a party may not insist upon the protection of the privilege for damaging communications while disclosing other selected communications because they are self-serving.

International Tel. & Tel. Corp. v. United Tel. Co. of Florida, 60 F.R.D. 177, 185 (M.D.Fla.1973). Accord: Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 24 (9th Cir.1981); Smith v. Alyeska Pipeline Service Co., 538 F.Supp. 977 (D.Del.1982); Handgards, Inc. v. Johnson & Johnson, 413 F.Supp. 926 (N.D.Cal.1976).

The Florida statutes similarly provide that the privilege may be waived by voluntary disclosure. In the only analogous Florida case, Seaboard Air Line Ry. v. Parker, 65 Fla. 543, 62 So. 589 (1913), the supreme court held that no waiver occurred where a client/plaintiff testified on cross-examination, without objection, that he had not made a certain statement to his then-attorney (i.e., that he was “ruptured” before the accident which gave rise to his negligence action). We find distinguishable the Parker court’s bare conclusion of non-waiver. It has been criticized as contrary to the usual rule that the client waives the privilege when he testifies regarding a privileged communication either on direct or cross-examination (absent facts showing the client was surprised or misled). McCormick, Evidence, supra, § 93 at 224. An “arguable” basis for distinguishing Parker’s result, “that a layman might not realize when he anticipated making such an answer [denying a particular communication on cross-examination], that there was any occasion to claim privilege[,]” McCormick, Evidence, supra, § 93 at 224, n. 9, is not present in the instant case. Here, appellant made an affirmative statement in response to a question from his own counsel during direct examination, thus belying any claim that he was surprised or misled. His statement regarding what he told his attorney was gratuitous — he was merely asked what he did, in making an effort with his attorney to turn himself in. Appellant’s self-serving statement was given under circumstances which required waiver of the attorney-client privilege in order to allow cross-examination, rebuttal and impeachment of appellant’s testimony, in the interest of fairness. We note also that the diligent attempts of appellant’s trial counsel to invoke the privilege on behalf of his client, after the statement was made, could not suffice in the face of his client’s previous waiver. See § 90.507, Fla.Stat. (1981).

Finally, we reject appellant’s contention that the waiver was necessarily limited and thus the scope of appellant’s cross-examination and the former attorney’s rebuttal and impeachment of appellant’s testimony was impermissibly broad. Having testified on direct examination to part of the privileged communication, appellant was not entitled to object to disclosure of the remainder of his conversation with his attorney on the subject of what he told him about the crime and his role in it.

We have carefully considered appellant’s remaining points and find that no reversible error is demonstrated thereby. Accordingly, the judgment appealed is affirmed.

Affirmed.

      . The attorney had previously testified at trial on behalf of the state, without objection, regarding appellant's effort to have him negotiate a voluntary surrender and the results thereof.

      . The trial court may have concluded otherwise in its pre-trial ruling. However, this issue is not dispositive, since we view the controlling question to be that of appellant’s waiver of the privilege at trial.

      . Section 90.507, Florida Statutes (1981), provides, in pertinent part, as follows:
      90.507 Waiver of privilege by voluntary disclosure. — A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if he, or his predecessor while holder of the privilege, voluntarily discloses or makes the communication when he does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication.

      . The "objective consideration” of fairness, together with the element of implied intention, constitute the "double elements that are predicated in every waiver.” 8 Wigmore, Evidence, supra, § 2327 at 636.