text:
    THE FLORIDA BAR, Petitioner, v. Arthur G. McDONNELL, Respondent.
    No. 65868.
    Supreme Court of Florida.
    Nov. 21, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee; and Richard B. Liss, Bar Counsel, Fort Lauderdale, for petitioner.
    Arthur G. McDonnell, in pro. per.
   PER CURIAM.

This matter is before the Court on respondent’s Petition for Leave to Resign Pending Disciplinary Proceedings, pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Petition is conditioned upon acceptance by the Board of Governors of the following terms and conditions:

1. Respondent is, albeit temporarily suspended, and at all times hereinafter mentioned was, a member of The Florida Bar subject to the jurisdiction of the Supreme Court of Florida;

2. That at all times incident to The Florida Bar’s investigation of allegations made against him, respondent has been aware of his right to counsel, his right to confront his accusers, his right against self-incrimination, his right to call witnesses on his own behalf, his right to a hearing before a referee appointed by the Supreme Court of Florida, and acknowledges his knowing and voluntary waiver of all such rights should this Petition be granted;

3. Respondent received a private reprimand which became final on or about June 9,1983. Said disciplinary sanction was occasioned by the complaint of Ann M. Rinzel (The Florida Bar Case No. 20B83M10) and involved neglect of an estate matter and failure to properly obtain leave to withdraw from the representation in violation of Disciplinary Rules 2-110(A)(l) & (2) and 6-101(A)(3) of the Code of Professional Responsibility;

4. The following are disciplinary proceedings pending against respondent:

a. Supreme Court Case Nos. 64,272, 64,468 and 64,847 which reflect a total of twelve (12) separate findings of probable cause by a grievance committee of The Florida Bar contained in three (3) separate complaints; and
b. The Florida Bar Case Nos. 20B84F22, 20B83F58, 20B84F07 and 20B84F10;

5. There are presently pending criminal proceedings against respondent involving Grand Theft and Assault and there are also pending proceedings involving Failure to Appear at Trial and Contempt of Court.

6. Respondent neither admits nor denies the veracity or accuracy of the pending disciplinary and criminal proceedings as hereinbefore set forth;

7. Respondent agrees to cooperate with any Clients’ Security Fund investigation conducted by The Florida Bar;

8. Respondent will utilize his best efforts to make full restitution to any person or entity that legitimately claims any loss of funds entrusted to respondent in his capacity as attorney or entrusted to him in any other capacity;

9. Respondent will utilize his best efforts to make full restitution to the Clients’ Security Fund in the eventuality that any claim is paid as a result of respondent’s actions or was paid in the past;

10. Respondent freely and voluntarily submits this petition with the full understanding and awareness, that by its terms, he will be forever barred from the practice of law in this jurisdiction should the petition be granted;

11. Respondent is aware that certain costs have been incurred by The Florida Bar in the prosecution of all cases at Referee level and that said costs are represented by The Florida Bar to total $10,192.32;

12. Respondent acknowledges, upon the issuánce of an order approving this Petition, that he will be obligated to pay the costs of pending disciplinary proceedings to The Florida Bar. Respondent has undergone personal bankruptcy and does not currently possess the financial ability to satisfy this obligation but respondent will make his best efforts to satisfy said obligation;

13. Respondent avers that the public interest will not be adversely affected by the granting of this Petition, and that granting this Petition will not adversely affect the purity of the courts nor hinder the administration of justice nor the confidence of the public in the legal profession in that a permanent resignation will forever bar him from the practice of law in this jurisdiction; and

14. Respondent offers this resignation on condition that by acceptance hereof, all disciplinary proceedings now pending will be forever dismissed against respondent. Respondent further conditions that none of the statements or allegations contained in the Petition shall constitute an admission which can be used against respondent in any court of law. This resignation is submitted for the convenience of respondent and The Florida Bar to avoid further litigation and expense to both parties.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign Pending Disciplinary Proceedings on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.-08(3) are fully satisfied, the Petition for Leave to Resign without leave to apply for readmission is hereby approved effective immediately.

Costs in the amount of $10,192.32 are hereby taxed against respondent.

It is so ordered.

ADKINS, Acting C.J., and ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jessie Joseph TAFERO, Appellant, v. STATE of Florida, Appellee.
    No. 66156.
    Supreme Court of Florida.
    Nov. 21, 1984.

      Marc Cooper and Sharon L. Wolfe of Greene & Cooper, Miami, and Geoffrey C. Fleck of Weiner, Robbins, Tunkey & Ross, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joy B. Shearer and Penny H. Brill, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

A jury convicted Tafero of two counts of first-degree murder, the trial court sentenced him to death for each homicide, and this Court affirmed the convictions and sentences. Tafero v. State, 403 So.2d 355 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982). Tafero later petitioned the Court for permission to file a writ of error coram nobis, alleging newly discovered evidence, which we denied. Tafero v. State, 440 So.2d 350 (Fla.1983), cert. denied, — U.S. —, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984). The governor recently signed a death warrant on Tafero, effective for the week of November 23 through November 30, 1984. Tafero then filed motions to vacate his judgment and sentence and for a stay of execution. After a two-day evidentiary hearing, the trial court denied the motions, and Tafero now appeals to this Court. We affirm the trial court’s orders.

As his first point on appeal, Tafero claims that his death sentences violate the eighth amendment per Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3386, 73 L.Ed.2d 1140 (1982), because his jury did not specifically find that he killed anyone, attempted to kill anyone, or intended that anyone be killed. To start, we find Enmund to be such a change in the law as to be cognizable in post-conviction proceedings under Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). Turning to the merits, however, we find that no relief is warranted.

Tafero relies on Bullock v. Lucas, 743 F.2d 244 (5th Cir.1984), Jones v. Thigpen, 741 F.2d 805 (5th Cir.1984), and Reddix v. Thigpen, 728 F.2d 705 (5th Cir.), clarified on rehearing, 732 F.2d 494 (5th Cir.1984), to support this point, but we find these cases inapposite here. We find no merit to Tafero’s argument that, because the felony-murder instruction given to his jury does not conform to Enmund and that because the jury could have convicted him of either premeditated or felony murder, the general verdict rendered by the jury requires a new sentencing hearing. The cases cited by Tafero all deal with true felony murders. Here, on the other hand, the state charged Tafero with two counts of first-degree premeditated murder, and the jury found him guilty as charged. On appeal we stated: “The evidence shows beyond a reasonable doubt that Tafero is guilty of the premeditated murder of both Irwin and Black.” 403 So.2d at 359.

We see no reason to alter this observation. The jury, as was its right, obviously believed the testimony of the state’s chief witness, Rhodes, that Tafero and- Jacobs did all the shooting, rather than Tafero’s theory of defense that Rhodes shot the victims. We reject Tafero’s claim that this verdict may have rested on insufficient grounds and that Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), requires vacating his death sentence.

In his motion to vacate Tafero cited numerous incidents which, he claimed, demonstrate his counsel’s ineffectiveness during both the guilt and penalty stages of his trial. By denying that motion the trial court obviously found Tafero’s trial counsel not to have been ineffective. Tafero urges that the trial court erred on this point.

We disagree. Tafero’s trial counsel testified at the evidentiary hearing and explained why he had or had not done the acts complained about. His testimony establishes that defense counsel’s performance resulted from considered deliberation and performance and was based on tactical decisions. Tafero’s claims do not meet the requirements of Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because he has not shown less than professionally competent assistance and prejudice due to his counsel’s performance.

As an aggravating factor, the trial court found that Tafero had previously been convicted of a violent felony! Tafero asserts that another person later confessed to the crimes underlying this aggravating factor and that, therefore, he is entitled to resen-tencing because the court should have found a lack of previous criminal history in mitigation. In 1979 Tafero brought these confessions to a trial court as newly discovered evidence. The trial court found “that neither the third party confessor nor the third party witness was worthy of belief,” and the district court affirmed the denial of Tafero’s motion to vacate. Tafero v. State, 406 So.2d 89, 93 n. 9 (Fla. 3d DCA 1981).

At the instant evidentiary hearing Tafero’s trial counsel admitted knowing about this alleged confession and stated that he did not introduce it at sentencing because doing so would have allowed the state to delve into the incidents. This claim, therefore, does not constitute newly discovered evidence. Tafero’s counsel’s tactical decision not to bring up this matter does not constitute ineffective assistance of counsel, and we hold that Tafero waived introducing this confession. Applying the cause and prejudice rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), to this state procedural default, we find that Tafero has demonstrated only the possibility, rather than the actuality, of prejudice. See Ford v. Strickland, 696 F.2d 804 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983). We therefore reject this claim.

Tafero also makes a double claim regarding the alleged improper restriction of the jury’s consideration of mitigating evidence. First, in spite of this claim having been previously decided (Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Ford v. Strickland; Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 S.Ct. 796 (1979)), he argues that the jury instruction improperly restricted mitigating evidence to those circumstances listed in the statute. Tafero could and should have raised this point on appeal, and his failure to do so precludes making this claim now.

As the second part of this claim, Tafero argues that the trial court’s belief that only statutory mitigating circumstances could be considered requires resentenc-ing before a more enlightened judge. Again, the cause and prejudice test of Wainwright v. Sykes has not been met because the defense presented nothing, either statutory or nonstatutory, in mitigation. Conjecture about what the court might have done if presented with nonstat-utory mitigating evidence is merely that— conjecture. When coupled with trial counsel’s statement that he believed he could introduce nonstatutory mitigating evidence, the hypothetical failure to consider the testimony that Tafero now urges as being crucial does not create a substantial likelihood of actual and substantial prejudice. Ford v. Strickland.

Tafero had two accomplices in these murders. One, Rhodes, pleaded guilty and received several life sentences and testified against the others at their trials. The second, Jacobs, was convicted and sentenced to death in spite of the jury’s recommendation of life imprisonment. Finding that the trial court should have followed the jury’s recommendation, we reduced her sentence on appeal. Jacobs v. State, 396 So.2d 713 (Fla.1981).

Tafero now claims that his death sentences are arbitrary and capricious in light of his accomplices’ sentences. We discussed the proportionality of these three persons’ sentences in Tafero’s and Jacobs’ appeals. 403 So.2d at 362; 396 So.2d at 718. This claim is, therefore, improperly brought on this appeal.

As a final argument, Tafero alleges that Florida’s death penalty has been unconstitutionally imposed on the basis of race and sex. Starting with Spinkellink v. Wainwright, this claim has been rejected numerous times. E.g., Martin v. State, 455 So.2d 370 (Fla.1984); Jackson v. State, 452 So.2d 533 (Fla.1984); Adams v. State, 449 So.2d 819 (Fla.1984). We refuse to reconsider the issue here.

We hold that the trial court properly denied Tafero’s motions to vacate and to stay execution and affirm the trial court’s orders. We deny his motion for stay of execution in this Court. No petition for rehearing will be entertained.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.


author: ALDERMAN, Justice.

text:
    PROTECTIVE CASUALTY INSURANCE COMPANY and Christopher Wehage, Petitioners, v. Dennis KILLANE, individually and as Guardian for Florence Killane, his wife, Respondent.
    No. 64959.
    Supreme Court of Florida.
    Nov. 29, 1984.

      Gerald E. Rosser of Gerald E. Rosser, P.A., Miami, for petitioners.
    Ricci & Roberts, P.A., and Larry Klein, West Palm Beach, for respondent.
   ALDERMAN, Justice.

We review the decision of the District Court of Appeal, Fourth District, in Protective Casualty Insurance Co. v. Killane, 447 So.2d 316 (Fla. 4th DCA 1984), which expressly and directly conflicts with Insurance Company of North America v. Pasakarnis, 451 So.2d 447 (Fla.1984), and Allstate Insurance Co. v. Lafferty, 451 So.2d 446 (Fla.1984).

Relying on its decisions in Lafferty v. Allstate Insurance Co., 425 So.2d 1147 (Fla. 4th DCA 1982), and Insurance Company of North America v. Pasakarnis, 425 So.2d 1141 (Fla. 4th DCA 1982), the Fourth District, in the present case, held that the seat belt defense is not available to a defendant. Since the Fourth District’s decision in the present case, we have quashed its decisions in Pasakarnis and Lafferty, and we have held that evidence of failure to wear an available and fully operational seat belt may be considered by the jury in assessing a plaintiffs damages where the “seat belt defense” is specifically pled and where it is shown by competent evidence that failure to use the seat belt produced or contributed substantially to producing at least a portion of the damages.

In the present case, the trial court ruled that petitioners could not introduce evidence on the seat belt because it was not specifically pled and the issue was not presented in the pretrial stipulation. The order of the trial court directing pretrial procedure required that all issues of law and fact for determination at trial be listed in the pretrial stipulation. The seat belt defense was not mentioned as a defense until the first day of trial.

The trial court correctly denied the proffer of evidence on the basis that it was not properly pled nor ever presented as an issue prior to trial. After hearing argument from both sides on this matter, the trial court explained:

[Speaking to plaintiff’s counsel who objected to the proffer.] Well, I have indicated that my feeling on that is that you would be prejudiced to the extent that if you had desired to obtain an expert and now that the Jury has been sworn and we are into the last portion of the trial, it would be well nigh impossible for you probably to obtain one.
[Speaking to defense counsel.] Let me suggest to you, Counsel, just for your own practice, at least as far as this division is concerned, if you ever have another case here and want to raise that issue, I think you could raise it, but you should raise it with specificity so everybody knows what is going on in that area.

The trial court’s denial is consistent with our holdings in Pasakarnis and Lafferty. We disapprove the district court’s finding that the pleading set forth in defendant’s answer was adequate to support introduction of evidence on the question. The seat belt defense was not mentioned in the pleadings.

Accordingly, although we disapprove the rationale of the district court’s decision as it relates to the seat belt issue, we approve the result of the district court’s decision affirming the judgment of the trial court.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, McDonald, EHRLICH and SHAW, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Barbara Morales MARTINEZ, Appellee.
    No. 83-1136.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We reverse the order suppressing the contraband found in an airport search of the defendant’s shoulder bag upon our conclusion that where, as here, the record indisputably reflects that the defendant was advised by the police of her right to withhold her consent to the search, the taint of the initial unlawful stop of the defendant (assuming, arguendo, one occurred) is dissipated, and the defendant’s otherwise free and voluntary consent to the search renders the search lawful, see State v. Henry, 390 So.2d 92 (Fla. 3d DCA 1980); Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979); accord, State v. Milwood, 430 So.2d 563 (Fla. 3d DCA 1983); Jones v. State, 412 So.2d 38 (Fla. 3d DCA 1982). The fact that the defendant was not advised of her right to withhold her consent when her consent was first sought does not change this result, since it is clear, as the defendant herself concedes, that such advice was given moments later and before any search took place.

Reversed.


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Lavon W. HOLLAND, James Edward Donlon, Jr., Jacqueline Regan Kiernan, Tommy Charles Ross, Randy Riverburg, Mark Zumberg, and John Henry Walsingham, Appellees.
    No. 83-667.
    District Court of Appeal of Florida, Second District.
    June 13, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellees.
   GRIMES, Judge.

The state appeals from' a county court order granting appellees’ motion to suppress evidence of their refusal to submit to a chemical breath test and declaring unconstitutional a portion of section 316.-1932(l)(a), Florida Statutes (1982 Supp.), the “implied consent law.” The lower court held that the statutory provision was violative of federal and state due process as well as appellees’ privilege against self-incrimination. The court struck the last line of section 316.1932(l)(a) which stated:

The refusal to submit to a chemical breath or urine test upon the request of a law enforcement officer as provided in the section shall be admissible into evidence in any criminal proceeding.

We have previously addressed the constitutionality of section 316.1932(l)(a) and rejected these contentions. In State v. Pagach, 442 So.2d 331 (Fla. 2d DCA 1983), we held that in the 1982 revision of the implied consent statute, the legislature acted clearly within its prerogative when it added the section providing that refusal to submit to a chemical test is admissible evidence in any criminal proceeding. We also found that admission of the refusal evidence at trial without previously advising the driver that his refusal could be introduced against him was not violative of either federal or state constitutional rights.

The authority and reasoning of Pagach are equally applicable to the case before us. On the basis of Pagach, we again declare that section 316.1932(l)(a) is constitutional.

Reversed and remanded for proceedings consistent herewith.

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


author: SMITH, Judge.

text:
    DOCTORS’ OSTEOPATHIC MEDICAL CENTER, INC., d/b/a Gulf Coast Hospital, Inc., Petitioner, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Office of Community Medical Facilities, Respondent.
    No. AZ-348.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1984.

      Leonard A. Carson, James W. Linn, and John D.C. Newton, II, Tallahassee, for petitioner.
    Jay Adams, Tallahassee, for respondent.
   SMITH, Judge.

On the eve of the day the Department of Health and Rehabilitative Services (HRS) proposed to issue a certificate of need (CON) to Manasota Osteopathic General Hospital (Manasota), Doctors’ Osteopathic Medical Center, Inc. (Gulf Coast) filed an Emergency Petition for Writ of Prohibition in this court. The petition sought to prohibit HRS from issuing a CON to Manasota on the grounds that such issuance would violate this court’s mandate in Gulf Coast Hospital, Inc. v. Department of Health and Rehabilitative Services, 424 So.2d 86 (Fla. 1st DCA 1982). After considering HRS’s response to our order to show cause and hearing oral argument in the matter, we have determined that a writ of prohibition would be inappropriate under the circumstances and instead issue this order to enforce our mandate in Gulf Coast Hospital, Inc., supra.

Six years ago Gulf Coast applied for. and was denied a CON to construct a 120 bed acute-care osteopathic hospital in Ft. Myers. Gulf Coast requested an administrative hearing. The hearing officer’s recommended order of denial was adopted by HRS. On appeal, this court held that HRS had applied the wrong criteria to Gulf Coast’s application, and that Gulf Coast had proved the criteria necessary for the issuance of a CON. This court determined that a CON for the osteopathic facility should have been granted, but because there was insufficient statistical evidence adduced to establish bed need, this court remanded with directions that HRS “authorize such sized facility as the evidence already adduced or further evidence which may be adduced establishes.” Gulf Coast Hospital, Inc., 424 So.2d at 93.

On remand, HRS granted Gulf Coast leave to amend its application. However, on May 31, 1983, HRS denied Gulf Coast’s amended application. Gulf Coast petitioned for a formal administrative hearing and at the same time sought a writ of mandamus from this court to compel HRS to issue the certificate. Because Gulf Coast had an administrative remedy, this court denied the writ stating:

In view of the present posture of the case, the court will accord HRS the opportunity to support and, if necessary, to correct its position, and the issues raised in these proceedings will be considered on appeal, if any, from the agency’s final order.

Doctors’ Osteopathic Medical Center v. Department of Health and Rehabilitative Services, Case No. AT-335, order dated October 26, 1983.

However, subsequent to this court’s opinion in Gulf Coast Hospital, Inc., supra, Manasota applied to HRS for a CON to construct an osteopathic hospital in Sarasota County, Florida. HRS denied Manaso-ta’s application and Manasota requested a formal administrative hearing. Gulf Coast moved to intervene in this administrative proceeding. On June 6, 1984, counsel for Gulf Coast learned that HRS intended to issue a CON to Manasota. The petition for prohibition now before us was filed the next day, and this court temporarily stayed the issuance of a CON to Manasota. Meanwhile, Gulf Coast’s formal administrative hearing before HRS was scheduled to (and did) take place on June 26, 27, and 28, 1984.

Since Sarasota County and Lee County, which encompasses the Ft. Myers area, are in the same service district, District VIII, Gulf Coast became seriously concerned that issuance of a certificate of need to Manasota would satisfy the need for osteopathic beds in District VIII, thus preempting the issuance of a CON to Gulf Coast; hence, Gulf Coast’s petition for writ of prohibition in this court to prevent the issuance of a CON to Manasota. Gulf Coast contends in its petition that the issuance of a CON to Manasota would result in the denial of a CON to Gulf Coast, which is in direct contravention of this court’s mandate, thus justifying the issuance of a writ of prohibition forbidding any action but compliance with the mandate. Robbins v. Pfeiffer, 407 So.2d 1016 (Fla. 5th DCA 1981). HRS, on the other hand, urges denial of prohibition on three grounds: That issuance of a CON to Manasota will not prejudice Gulf Coast’s application (see footnote 2, supra)-, that Gulf Coast has an adequate remedy at law (by appeal from the administrative proceedings); and that HRS would not be acting in excess of its jurisdiction by issuing a CON to Manasota. But for the as yet unfulfilled command of our prior mandate, we would be persuaded to deny relief in this proceeding based on the holding of this court in Florida Convalescent Center v. State Department of Health and Rehabilitative Services, 445 So.2d 631 (Fla. 1st DCA 1984), under which an applicant for a CON under ordinary circumstances would have an adequate remedy by appeal from any adverse administrative order. The past history and present posture of this controversy is such that guidance from this court at this time seems advisable.

By way of observation, we note, as Gulf Coast correctly argues, that a party does not have jurisdiction to disobey a mandate of this court. We also note that counsel for HRS has assured this court, both by written response and in oral argument, that the issuance of a CON to Mana-sota will not affect Gulf Coast’s application because the number of beds granted to Manasota in its CON proceeding will not be taken into consideration in the determination of bed need in connection with Gulf Coast’s application. Furthermore, counsel for HRS has represented to this court that a CON will be issued to Gulf Coast, and that the only question that remains is a determination of the number of beds the certificate will issue for. Moreover, counsel stated, and counsel for Gulf Coast tacitly agreed, that Gulf Coast’s administrative hearing on its amended application, which was conducted during the pendency of this proceeding, was restricted to an inquiry into the number of beds which should be issued to Gulf Coast, and the number of beds intended to be issued to Manasota did not enter into the hearing. Accordingly, we find that the facts do not necessitate the issuance of the extraordinary writ of prohibition. Instead, we find it sufficient to grant the alternative relief requested by petitioner, which is also consistent with the representations made by HRS’s counsel, by ordering that a CON be granted to Gulf Coast in conformance with the mandate of this court in Gulf Coast Hospital, Inc., supra, for the number of beds which the evidence supports, such evidence not to include the number of beds intended to be issued to Manasota, or to any other entity within the same district. See Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp., 328 So.2d 825 (Fla.1975). Further, we deem that the mandate of this court in Gulf Coast Hospital, Inc., supra, requires that Gulf Coast’s application for a CON be given priority over any other osteopathic facility’s application for a CON ⅛ the District VIII service district.

It is so ordered.

BOOTH and JOANOS, JJ., concur.

      . See Section 20.19(4)(a), Florida Statutes (1983).

      . See, Osteopathic Medical Hospital, Inc. v. Department of Health and Rehabilitative Services, 5 FALR 2294-A (October 13, 1983). In fairness, we note that in its response to the petition for prohibition in the case before us, HRS represents that osteopathic need is determined in the community, or service area, as opposed to on a district-wide basis, citing Section 381.494(2), Florida Statutes (1983). Our disposition of the present controversy does not require resolution of this point of contention between the parties.


author: DELL, Judge.

text:
    STATE of Florida, Petitioner, v. Frank GARAFOLA, Respondent.
    No. 84-1086.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1984.
    Rehearing and Rehearing En Banc Denied Dec. 21, 1984.
    Michael J. Satz, State Atty., Seventeenth Judicial Circuit, and Teresa Beazley Wid-mer/ Asst. State Atty., Fort Lauderdale, for petitioner.
    Craig K. Satchell, Hollywood, for respondent.
   DELL, Judge.

The State petitions this court for a writ of common law certiorari to review an order of the circuit court acting in its review capacity. The circuit court affirmed an order of the county court suppressing breathalyzer test results. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B) and 9.100.

The State charged Frank Garafola by information with driving while under the influence. The breathalyzer indicated a blood alcohol level of 0.10% or above. At the time the officers administered the test, respondent did not request that another breath test, urine or blood test be done; and the officers did not preserve an additional breath sample. Respondent moved to suppress the results of the breathalyzer test and alleged that the denial of an opportunity to examine a separate sample of breath constituted a denial of his right to a fair trial and a denial of due process. The county court granted respondent’s motion and ruled that:

[I]t was ... fundamentally unfair and violative of due process not to preserve an additional sample of defendant’s breath when available means to do so exist, are relatively inexpensive, and such a procedure should be followed.

Petitioner appealed to the circuit court which affirmed the order of the trial court. This petition for certiorari followed.

After the circuit court reviewed the trial court’s order suppressing the breathalyzer sample, the Supreme Court of the United States held that the failure to preserve breathalyzer test samples does not constitute a violation of the Federal Constitution.

Given our precedents in this area, we cannot agree with the California Court of Appeal that the State’s failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents’ breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the officers here were acting “in good faith and in accord with their normal practices.” Killian v. United States, supra [368 U.S. 231] at 242, 82 S.Ct. [302] at 308 [7 L.Ed.2d 256 (1961)]. The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.
More importantly, California’s policy of not preserving breath samples is without constitutional defect. Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S. [97] at 109-110, 96 S.Ct. [2392] at 2400 [49 L.Ed.2d 342] evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

California v. Trombetta, — U.S. —, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984) (footnote omitted). We join with the First District Court of Appeal in adopting the holding of California v. Trombetta. See State v. Plawchan, 453 So.2d 496, (Fla. 1st DCA 1984).

Accordingly, we grant this petition for writ of certiorari and quash the orders of the circuit court and county court suppressing the evidence of the breathalyzer test results.

CERTIORARI GRANTED.

DOWNEY and HURLEY, JJ., concur.


author: LEHAN, Judge. LEHAN, Judge.

text:
    Ronald Dean JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 83-2547.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1984.
    Rehearing En Banc Denied Dec. 5, 1984.

      Walter 0. Hobbs, II, of Harry M. Hobbs, P.A., Tampa, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen. and Richard L. Greco, Asst. State Atty., Tampa, for respondent.
   LEHAN, Judge.

This case involves the constitutionality of an arrest made at a police roadblock maintained for the purpose of stopping motorists to ascertain and apprehend those to be charged with driving while under the influence of alcohol. At issue is whether the Fourth Amendment exclusionary rule should be applied to evidence obtained at the roadblock. This appears to be a case of first impression in this state.

Petitioner was arrested for driving while under the influence of alcoholic beverages (DUI), a violation of section 316.193, Florida Statutes (1983). He filed a pretrial motion to suppress all evidence obtained as a result of what he contends was an illegal seizure of him. The county court denied the motion. Petitioner then pleaded nolo contendere, reserving the right to appeal the denial of the motion to suppress. He appealed to the circuit court, which affirmed. He has petitioned this court to issue a writ of certiorari. We grant the petition, quash the circuit court’s, affirmance, and reverse the judgment of conviction. See Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977). We hold that the police roadblock at which petitioner was apprehended and on the basis of which evidence against him was obtained was an unconstitutional invasion of his rights under the Fourth Amendment to the United States Constitution proscribing unreasonable searches and seizures.

On July 4, 1982, at about 2:30 a.m., the City of Tampa Police Department established a roadblock near the intersection of Dale Mabry Highway and Columbus Drive. The undisputed purpose of the roadblock was to apprehend DUI drivers. The three northbound lanes of Dale Mabry were blocked off to form a “funnel” requiring all traffic to travel in one lane and to pass by a police officer stationed on the roadway. That officer was instructed to stop every fifth automobile when traffic was heavy and to stop every third automobile when traffic was light. The stopped cars were directed off the roadway into an otherwise unused parking lot.

Waiting in the parking lot were five police officers who were to determine if the drivers were DUI. The only specific instruction given to those officers was to request the driver’s licenses of the drivers of cars diverted from Dale Mabry into the parking lot. Each officer was left to his own method to determine whether he believed a driver was DUI.

Petitioner was the driver of a car that was diverted into the parking lot. The arresting officer requested petitioner’s driver’s license and began his investigation of petitioner’s sobriety. The officer decided petitioner was DUI and arrested him.

We summarize our conclusions as follows:

(1) We hold that the arrest of petitioner at the roadblock was an improper seizure in violation of the Fourth Amendment.

(2) Our principal concern is not only with petitioner but with the rights of the vast bulk of those innocent citizens who may in the future be stopped at roadblocks like that involved in this case with the resulting loss of their Fourth Amendment rights to security and privacy.

(3) The subject of the validity of roadblocks, and roadblock arrests, is extremely difficult. The governing test — balancing the public interest in apprehending DUI violators against motorists’ rights to security and privacy — may produce legitimate arguments either way.

(4) In arriving at our holding we follow guidelines which we believe have been set forth by the U.S. Supreme Court, although there is no controlling U.S. Supreme Court or Florida Supreme Court holding which is in point as to the precise issue of this case.

(5) Of the five cases in point in the courts of other states involving DUI roadblocks of varying descriptions, three (Massachusetts, with one dissent, South Dakota and Arizona) have held such roadblocks to be violative of the Fourth Amendment, and two (Kansas, with one dissent, and New Jersey) have held them to be proper. None of the five courts disagreed that the state has the burden of proof to show that a roadblock arrest is constitutional. Due to the scarcity of evidence in the record in the case before us, we believe that even the approaches taken by the New Jersey and Kansas courts would produce a holding that petitioner’s arrest in this case was unconstitutional.

(6) Although our principal task is only to decide this case, which we have done as indicated in (1) above, we undertake in this opinion to provide at least general guidance to law enforcement authorities as to what types of DUI roadblocks may and may not produce valid arrests.

At the outset we should emphasize what our holding does not mean. It does not mean that petitioner’s conduct is condoned. The issue is not to decide from hindsight whether or not the petitioner in this case was drunk and deserving of constitutional safeguards. “[HJindsight [should not be] coloring the evaluation of the reasonableness of a search or seizure.” United States v. Martinez-Fuerte, 428 U.S. 543, 565, 96 S.Ct. 3074, 3086, 49 L.Ed.2d 1116, 1133 (1976). That type of erroneous approach to the issue would misconceive constitutional ramifications of cases of this kind. Since views seem to be espoused by some persons that to set free one person who has obviously committed a crime is wrong under any circumstances, we take pains at the outset of this opinion to point out what the fundamental issue does involve.

The fundamental issue here involves those motorists who are stopped by law enforcement authorities and who are driving while not under the influence of alcohol. Those motorists comprise the vast bulk of those who have been subjected to roadblocks of this kind in the past and who would be subjected to them in the future if we were to approve the roadblock in question here. Our holding is not keyed to any special concern for petitioner’s individual sensibilities. He is the fortuitous vehicle for our consideration of the liberties of others — although also of his liberties in this case and in the future hopefully under circumstances potentially less adverse to him. We have substantial concern for the vast numbers of innocent motorists. We agree with Arizona Supreme Court Justice Feldman in State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 663 P.2d 992 (1983), a case more fully discussed below, that

[T]he issue here ... is whether the Fourth Amendment permits officers to stop and question persons whose conduct is innocent, unremarkable and free from suspicion.

663 P.2d 997. The following additional portion of Justice Feldman’s concurring opinion puts the basic constitutional aspects in perspective and is deserving of reflection by those who are concerned about criminal law enforcement:

The question has frightening implications. The thought that an American can be compelled to “show his papers” before exercising his right to walk the streets, drive the highways or board the trains is repugnant to American institutions and ideals. If roadblocks can be maintained to stop all persons, regardless of how innocent their conduct, for the purpose of investigating or apprehending drunk drivers, then presumably similar stops of all citizens could be undertaken for questioning and surveillance with regard to other crimes .... It might be argued that if the law did permit such stops, we would have less crime. Nevertheless, our system is based on the idea that the risk of criminal activity is less of a danger than the risk of unfettered interference with personal liberty. The concept was succinctly expressed by a newspaper columnist who recently used these words in describing his opposition to roadblock stops for apprehension of drunk drivers:
“I ... have ofteh thought that getting killed by some intoxicated idiot who crossed the median divider and hit me head-on would be the worst and most senseless way to die.
I mourn for the parents of children who have died at the hands of drunk drivers. But none of this makes a police state acceptable. Freedom doesn’t come risk-free. I’m willing to take some risks in exchange for my freedom.”

663 P.2d at 997.

At the- same time we do not question the good faith of the police officers involved in this case nor their doubtless commendable motivations. We do not doubt their desire to do their jobs — to apprehend criminals and protect the public — in the best ways they can. In their dealings with matters involving this area of the law they have not had the benefit of clear-cut guidance in all respects from the case law as to the proper parameters of their conduct. This has been and still is a developing area of the law. We undertake in this opinion to provide some measure of additional guidance. For that guidance we must use as the parameters of our authority interpretations placed upon the Fourth Amendment by the United States Supreme Court. We are aware of no case in which the issue here has been presented to the Florida Supreme Court.

The precise issue presented in this case— whether a warrantless police roadblock to apprehend DUI drivers by stopping cars without any articulable suspicion of illegal activity is constitutional under the Fourth Amendment — has not been widely addressed by American courts. We have found no federal or Florida case which addresses the precise issue. We have found only the above-referenced opinions of five other state courts dealing with it.

A stop of an automobile is a “seizure” under the Fourth and Fourteenth Amendments to the U.S. Constitution. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, supra; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The constitutionality of a particular seizure is judged by balancing the degree of its intrusion on the individual’s Fourth Amendment interests in privacy and personal security against the seizure’s promotion of legitimate governmental interests. Delaware v. Prouse, supra; Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

The U.S. Supreme Court has held unconstitutional the “roving patrol” type of war-rantless stop, where an officer stops cars on the road at random with no probable cause to perceive criminal activity and even without meeting the “reasonable suspicion” standard established in Terry v. Ohio, supra; United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); United States v. Brignoni-Ponce, supra; Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).

In contrast, in United States v. Martinez-Fuerte, supra, the Supreme Court approved of a border patrol “checkpoint” type of permanent roadblock which was for the purpose of apprehending illegal aliens and which stopped all vehicles for brief questioning of occupants. The Court emphasized certain characteristics of the roadblock as supporting its validity, including its permanency, the decision to establish it having been made by officials on a higher level than patrol officers, lighted warning signs and signals commencing a mile before the checkpoint, official vehicles with red lights flashing, floodlights used at night, and the presence of uniformed officers. The Court reasoned that motorists would be less frightened when stopped under these circumstances than when stopped on the road by a single patrol car. “[T]he subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of a checkpoint stop.” Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083, 49 L.Ed.2d at 1128. The Supreme Court, quoting from United States v. Ortiz, explained that

“[a]t traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.”

Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083, 49 L.Ed.2d at 1129. Permanent checkpoints were found to be less objectionable than roving patrol stops because

[f]irst, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops.

Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. at 3083, 49 L.Ed.2d at 1129. In addition to indicating that the permanency of a roadblock or checkpoint involves the lessening of surprise to innocent motorists, the Court pointed out that permanency, and therefore advance notice of a checkpoint on a heavily traveled road, may force other motorists onto less heavily traveled roads where they would be “more vulnerable to detection by roving patrols” who may stop a motorist for probable cause. 428 U.S. at 557, 96 S.Ct. at 3082, 49 L.Ed.2d at 1128.

The Supreme Court, in Martinez-Fuerte, pointed out that “the need for this enforcement technique is demonstrated.” 428 U.S. at 562, 96 S.Ct. at 3085, 49 L.Ed.2d at 1131. Apparently this meant that comparably adequate alternative methods of apprehending illegal aliens were not available. The Court explained that the record in that case provided “a rather complete picture” of the effectiveness of the permanent checkpoint. 428 U.S. at 554, 96 S.Ct. at 3081, 49 L.Ed.2d at 1126. The Court decided that the government’s interest in detecting illegal aliens outweighed the “minimal” intrusion at the roadblock. Most importantly, the Court in Martinez-Fuerte said that its holding approving checkpoint or roadblock stops was “limited to the type of stops described in this opinion. ‘[A]ny further detention ... must be based on consent or probable cause.’ 428 U.S. at 567, 96 S.Ct. at 3087, 49 L.Ed.2d at 1133-34. (emphasis added). Accordingly, an issue in the case before us is whether the roadblock in the case at hand resulted in any further detention than that which existed in the types of stops involved in Martinez-Fuerte. The state had the burden of proof to show that it did not.

In Delaware v. Prouse, supra, the U.S. Supreme Court held that random stops for driver’s license checks were unconstitutional because, for one thing, there were more acceptable, alternative means by which to seek to assure highway safety. In dicta the Court suggested that a roadblock to check driver’s licenses might be constitutional. “This holding does not preclude the State of Delaware or other states from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.” 440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673-74. Nothing in Delaware v. Prouse suggests, however, that the criteria for constitutionally permissible roadblocks as indicated in Martinez-Fuerte were relaxed.

The Court in Delaware v. Prouse articulated the Fourth Amendment purpose for invalidating unconstitutional seizures involved in automobile stops:

[T]o impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents, in order ‘to safeguard the privacy and security of individuals against arbitrary invasions ...' thus ... balancing ... intrusion ... against ... promotion of legitimate governmental interests.

440 U.S. at 653-54, 99 S.Ct. at 1396, 59 L.Ed.2d at 667.

The above referenced five reported cases from state courts concerning temporary roadblocks established to apprehend DUI drivers, all decided after Martinez-Fuerte, vary in their conclusions and in the factual situations involved. They.are not consistent as to the significance of lack of permanency of a roadblock.

In State v. Olgaard, 248 N.W.2d 392 (S.D.1976), a roadblock was found to cause constitutional violations. Therefore evidence obtained at the roadblock was found to be inadmissible, and the conviction of defendant was reversed. Olgaard concerned a roadblock conducted in connection with South Dakota’s Alcohol Safety Action Program, concededly for the primary purpose of investigating alcohol-related offenses. There were several patrol cars with red lights flashing, a large stop sign set up in the road, and four highway patrolmen. All traffic in both directions was stopped. If an officer believed that a driver had been drinking, the driver was asked to pull over to the side of the road for further investigation. The officers relied upon their sense of smell, their observation of the driver’s actions and appearance, and any presence of alcohol containers in the vehicle.

The South Dakota Supreme Court found that the roadblock violated the Fourth Amendment to the U.S. Constitution. The court recognized the state’s interest in detecting drunk drivers and conceded that the need for investigative stops to apprehend drunk drivers “is surely as clear as that which was sufficient to justify the checkpoint stops in the Martinez-Fuerte case.” Nonetheless, the court found that not all of the other factors found to justify stops in Martinez-Fuerte were present in Olgaard.

The South Dakota court believed that the Martinez-Fuerte decision turned upon the permanency of the checkpoint. In contrast, the court noted that drivers in South Dakota had had no warning of the DUI roadblock which “by its very nature” was set up to surprise motorists. Id. at 394.

The Olgaard court also referred to Martinez-Fuerte’s emphasis on the point that the staff responsible for setting up a roadblock must be planning-level administrative staff rather than field officers. The record did not reveal who made the decision to set up the DUI roadblock, and the roadblock was found to have characteristics of a roving patrol.

In State v. Coccomo, 177 N.J.Super. 575, 427 A.2d 131 (N.J.Super.Ct.Law.Div.1980), the constitutionality of evidence obtained and arrests made at a roadblock was upheld by a New Jersey appellate court. The written policy of the Roxbury Township Police Department for conducting roadblocks was to stop every fifth vehicle during light traffic hours to check for driver’s license, registration, insurance card, and outward signs of intoxication. On the date in question, a roadblock was set up at 1:30 a.m., flares were placed on the road, a marked police car was parked by the side of the road, and a uniformed officer was standing under a street light waving every fifth vehicle off the road and into a parking lot. Other uniformed officers conducted questioning of the drivers.

The New Jersey court recognized the state’s vital interest in promoting public safety by detecting drunk drivers. Balancing that interest against a motorist’s interest in his expectation of privacy, the court found the roadblock procedure to be a reasonable and valid infringement on the expectation of privacy. The court described the intrusion on privacy as “minimal.”

In reaching its decision, the Coccomo court particularly discussed the physical set-up of the roadblock and found adequate “safeguards for protection” of the physical safety of motorists. The court also noted that the police followed “specific, defined standards” in conducting the roadblock, with no discretion allowed to individual officers.

Although the facts of Olgaard and Coc-como are somewhat different, we do not believe the two holdings basically can be reconciled. The principal factor relied upon for the unconstitutionality of the roadblock in Olgaard — lack of permanence — existed in Coccomo. It is true that in Coccomo the factor of planning level supervision, which had been absent in Olgaard, existed. Nonetheless, the impermanency of the Coc-como roadblock was similar to that in Ol-gaard, in contrast to the roadblock/checkpoint permanency which the Supreme Court stressed in Martinez-Fuerte. The Coccomo opinion is very persuasive for validity of the type of roadblock involved. Due to what the New Jersey court referred to in Coccomo as “specific, defined standards” for the officers to follow in conducting the roadblock in that case, it did not appear to have roving-patrol characteristics as did the roadblock in Olgaard and therefore seems to us to be very close to the line between constitutional and unconstitutional roadblocks.

We have no quarrel with the self-evident truth that there may be surprise from a temporary roadblock, and the more surprise from a roadblock, the more effective the roadblock may be for the legitimate and important governmental purpose of reducing alcohol-related accidents. But we believe there is also substantial merit in the Olgaard opinion which, while finding that “the hazard to the public created by drunk drivers is so terrifyingly real as to require no extensive statistical demonstration,” 248 N.W.2d at 394, nonetheless felt constrained to declare the roadblock a Fourth Amendment violation. No matter how bad the crime may be which law enforcement officers are trying to stop, they may not abandon Fourth Amendment concerns in their efforts, however commendable in purpose, to stop all citizens, including the vast bulk of them who are innocent, in order to sift out and apprehend violators.

State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 663 P.2d 992 (1983), declared evidence seized and arrests made at an Arizona roadblock to be unconstitutional. A roadblock to detect drunk drivers had been set up on two days for southbound traffic on a highway near Kingman, Arizona. The stop was conducted at a “port-of-entry” which consisted of a building, lanes covered by an awning, lighting, and traffic control devices flashing yellow and red. Pylons and lighted flares were placed in the road about 150 yards before the port-of-entry to channel all traffic into the roadblock. No warning signs or advance flashing lights announced the roadblock or its purpose, nor was there any advance publicity or warning to the public that a roadblock would be operated in that area on those dates.

The roadblock was conducted by officers and agents of the Arizona Department of Public Safety (D.P.S.), the Motor Vehicle Division of the Department of Transportation, and a drug enforcement unit. The decision to operate the roadblock was made by the D.P.S. lieutenant in charge of the D.P.S. district with headquarters in King-man. He decided when, where and how to conduct the operation. He gave the twelve police officers conducting the roadblock no instructions regarding the procedure to be followed.

While agreeing that in theory a roadblock is less intrusive than the impermissible roving patrols which stop motorists without any reasonable suspicion of illegal activity, the Arizona Supreme Court, citing Martinez-Fuerte, found that the intrusion at the Kingman roadblocks was not minimal and was constitutionally impermissible. The court noted that the roadblocks involved discretionary law enforcement activity, were set up at the discretion of a local highway patrol officer, and were operated without specific directions or guidelines. The court also said motorists were taken by surprise, having had no prior notice of the roadblock.

The state argued in Ekstrom that, even if the intrusion was significant, the public interest in stopping drunk drivers outweighed the intrusion. The court rejected that argument because (1) the record disclosed no statistics concerning the extent of the drunk driver problem in Arizona, and (2) the record did not indicate whether the roadblocks were more effective in dealing with the problem than traditional roving patrols stopping cars upon reasonable suspicion. “If there is an adequate method of enforcing the drunk driving statute, there is no pressing need for the use of an intrusive roadblock device.” 663 P.2d at 996.

In a special concurring opinion in the Ekstrom case, Justice Feldman agreed with the result but disagreed with his interpretation of the majority opinion that a properly instituted roadblock could not be upheld. Justice Feldman took judicial notice of statistics showing the extent of drunk driving and numbers of ■ accidents and casualties caused by drunk driving. He concluded that these statistics made it obvious that traditional law enforcement methods (arrests upon reasonable suspicion by roving patrols) were inadequate to satisfy society’s compelling interest in enforcing drunk driving laws. Therefore, he reasoned, more intrusive methods, such as properly conducted roadblocks, might be considered reasonable.

We also disagree that no DUI roadblock is constitutionally permissible. We do not believe that the Fourth Amendment calls for the shackling of efforts to enforce the criminal laws when necessary to interdict serious crime if basic rights of innocent citizens are not thereby seriously jeopardized. We believe that such roadblocks can be implemented to avoid unduly serious jeopardy to those rights, as indicated further below.

Justice Feldman in Ekstrom recognized the intrusion at a roadblock as a “substantial infringement upon liberty of movement” but analogized it to the restraints imposed at airports to deal with the serious dangers of bombings and hijackings. He felt that the intrusion could be kept to a minimum by adoption of standards and plans to lessen the amount of discretion of the field officers who conduct the roadblock. Justice Feldman stated that he would legitimatize roadblocks of that type as being based upon deterrent, rather than investigative or apprehension, purposes. 663 P.2d at 998, 1001. He did agree with the majority that the roadblock in question was illegal because it lacked executive-level planning and procedural standards.

We find ourselves in agreement with the majority result in Ekstrom and in general agreement with views expressed by Justice Feldman. Justice Feldman also advocated as a goal of “a deterrent roadblock ... advance publicity in the media and on the highways.” 663 P.2d at 1001. We would be inclined to think that such advance publicity may well provide a meaningful substitute for the type of permanency, and therefore advance knowledge by motorists, of the roadblock in Martinez-Fuerte. Advance publicity would seem to lessen questions as to whether a roadblock constitutes an unwarranted intrusion upon innocent motorists who would, with such publicity, anticipate and understand the circumstances. While, admittedly, advance notice would reduce chances of catching some criminals, it might well at the same time have some tendency to dissuade motorists from driving while drinking without unduly violating the interests of the vast majority of innocent drivers.

In State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983), the Kansas Supreme Court, with one dissent, upheld the constitutionality of a roadblock. The roadblock had been set up at 10:00 p.m. at an intersection in Topeka, ostensibly to check drivers’ licenses. However, the state conceded that its purpose was to catch drunk drivers and that the checking of licenses was a facade. The roadblock was operated by 35 to 40 state, county and city police officers. The officers were briefed by supervisory personnel who also selected the location of the roadblock. The roadblock was in a well-lighted area, and a police car with flashing lights was placed at each of the four corners of the intersection. All vehicles in both directions were stopped. The officers were in uniform, and there was a sufficient number of them present to ensure that the length of an intrusion was kept to a minimum.

After reviewing the U.S. Supreme Court border patrol cases and the foregoing DUI roadblock cases from other states, the Kansas Supreme Court set out conditions and factors to be considered in determining whether the balancing test tipped the scale in favor of the validity of a DUI roadblock. These were: (a) degree of discretion left to field officers; (b) location, time and duration of the roadblock; (c) standards set by superior officers; (d) advance notice to public; (e) warning to approaching motorists; (f) degree of fear or anxiety caused; (g) length of detention of each motorist; (h) safety conditions; (i) physical factors of the method of operation; (j) availability of less intrusive methods for combating the problem; (k) effectiveness of the procedure; and (l) any other relevant circumstances. The court stated that not all of the factors need be favorable to the state but noted that some (such as unbridled discretion) would be fatal regardless of the existence of other favorable conditions. The court, after comparing the roadblock in question with the foregoing conditions and factors, found it to be constitutional.

Justice Prager dissented, noting that the controversy was a difficult one. Reviewing the conditions and factors listed by the majority opinion, Justice Prager felt that the Kansas roadblock was deficient in the following ways: (1) the record showed no specific standards or procedures set up by supervisory personnel to govern the operation of the roadblock and no limitations on the discretion of the officers at the scene; (2) the roadblock was not at a permanent location; and (3) there was no advance warning to approaching motorists.

Another factor upon which Justice Prager focused most closely was the effectiveness of the roadblock and the availability of other methods by which to apprehend DUI violators which are less intrusive and equally or more effective. Thirty-five officers were on duty for the four hours of the roadblock (presumably 140 man hours). Between 2,000 and 3,000 vehicles were stopped. Only 15 DUI arrests were made. Justice Prager pointed out that, while roadblocks for license checks and for illegal aliens have been approved, there is a distinction between those violations and drunk driving: an officer cannot watch a car traveling down the road and determine that its driver has no license or that the car contains illegal aliens, but he can spot drunk drivers that way. Therefore, because there was an alternative and less intrusive method to detect drunk drivers and because the roadblock was not shown to be more effective than the alternative and traditional method, Justice Prager concluded that the DUI roadblock was unconstitutional.

We find much merit in Justice Prager’s dissent in Deskins. It seems to us that the Deskins majority stressed the “enormous magnitude,” 673 P.2d at 1181, of the drunk driving problem, as did the Coccomo court, in justification for disregarding what can be perceived as the dictates of the U.S. Supreme Court in Martinez-Fuerte concerning Fourth Amendment rights of innocent motorists. A basic key to these cases is whether the governmental interest in curtailing drunk driving by the use of roadblocks is actually so “overwhelming” as the Kansas Supreme Court in Deskins characterized it, 673 P.2d at 1181, as to justify serious intrusions into the security and privacy of innocent citizens who constitute the overwhelming majority of those stopped at these types of roadblocks. In answering that question, we must take into account, as did Justice Feldman in Ek-strom, the ramifications of approving these types of intrusions upon innocent citizens in law enforcement efforts to apprehend suspected violators of a broad range of other criminal laws.

The issue involved is extremely difficult. There is no question that, as Justice Prager wrote, “there is a wide difference of opinion on this issue held by reasonable persons of good faith.” 673 P.2d at 1186. In this opinion we are indicating some agreement or disagreement with various views expressed in other states. But we have no doubt of the closeness of the balance of the arguments on one side or the other. Again, as Justice Prager said, the basic balancing challenge is, “Does the public interest in a DUI roadblock ... outweigh the individual’s right to be free from intrusion on his or her right of privacy?” 673 P.2d at 1186. However, we would again clarify and expand upon the foregoing statement of the issue by stressing that “the individual’s right to be free” refers also to the rights of individuals whose conduct is innocent and is not centered on the rights of the individual DUI arrestee alone.

In the final analysis we are inclined to agree with Justice Prager concerning the unconstitutionality of the roadblock stops in Deskins for the same principal reasons, outlined in more detail further below, for which we find the roadblock stop in this case to be unconstitutional: The point is not whether drunk drivers are a danger and a serious threat to public safety. That must be conceded by any reasonable person of good faith. The point is that the public interest in apprehending drunk drivers does not justify the use of any indiscriminate law enforcement methods of investigation and apprehension. As an admittedly extreme example for the purpose of illustrating that point, no reasonable person of good faith would disagree that house to house searches of arbitrarily selected neighborhoods to discover which citizens are drunk and are about to drive or might drive, which would terrorize the citizenry in the process, would be wrong. That that example is absurd in this country today may serve to emphasize what the Fourth Amendment has accomplished relative to the disregard for individual rights which had existed under British colonial rule not long before the Bill of Rights was adopted.

In Commonwealth v. McGeoghegan, 389 Mass. 137, 449 N.E.2d 349 (1983), the main purpose of a roadblock conducted by a city police department was to detect drunk drivers. The plan was formulated earlier the same day by the police chief and four subordinates. The trial judge found that the roadblock was poorly illuminated and unsafe, the mechanics of the roadblock were left to the discretion of the officers at the roadblock, the officers used their own discretion in deciding which cars to stop, and traffic backed up for at least two-thirds of a mile.

The Massachusetts court found that the temporary roadblock in question was unconstitutional because of insufficient police presence, inadequate lighting and warning, arbitrariness, and undue delay. Without specifically saying that a DUI roadblock could ever be constitutional, the court set out “some observations” relevant to the lawfulness of roadblocks. The court said that selection of vehicles to be stopped must not be arbitrary, safety must be assured, motorists’ inconvenience must be minimized, and the procedure must be conducted pursuant to a plan devised by law enforcement supervisory personnel. The court further stated, “While we do not suggest that advance notice is a constitutional necessity, advance publication of the date of an intended roadblock, even without announcing its precise location, would have the virtue of reducing surprise, fear, and inconvenience.” 449 N.E.2d at 353.

One judge dissented because he felt that many of the trial judge’s findings about the conditions of the roadblock were unsupported by the record. He believed that the majority’s guidelines were met in the case.

We find ourselves in agreement with the McGeoghegan majority result and with much of its rationale. Our reasoning is much the same as what we have said above with reference to the other state cases.

We have accomplished our primary task of deciding the case before us. The roadblock did not meet the types of criteria which we believe to be important as referred to in our foregoing discussion of Martinez-Fuerte and cases in other states. In our view, on the record before us the roadblock involved in this case would not even have passed muster under the less rigorous New Jersey and Kansas criteria. The state either introduced no evidence at all as to, or presented insufficient evidence to meet, the relevant criteria which might support a roadblock. See Tibbs v. State, 397 So.2d 1120 (Fla.1981).

To further explain why we believe those criteria were not met, and in an effort to provide more specific future guidance, we refer to what we view as the most important of the criteria as follows:

First, was the roadblock conducted pursuant to a plan set up by supervisory personnel and was little or no discretion in the method of operation and selection of vehicles left to the officers conducting the roadblock? We have before us no evidence as to what level of law enforcement personnel made the decision to set up the roadblock or made the decisions regarding location and method of operation. The record does show that the officers who were to participate in the roadblock were briefed by a sergeant. The officers in the parking lot were told to ask for driver’s licenses but were given no further instructions. At deposition, the officer who made the arrest in this case stated that he received no instructions as to what to look for, saying, “[Tjhat’s my discretion.”

Second, was the safety of motorists assured by proper means, including adequate lighting, warning signs or signals, and clearly uniformed or otherwise identifiable police officers? Although the record shows barricades and traffic cones channeling traffic from three lanes to two lanes to one lane, the record contains no evidence as to any safety features, such as flares, flashing lights or signs. Whether we should assume that the city police officers at the scene were in uniform we need not decide. The record does not say.

Third, was the degree of intrusion upon motorists and the length of detention of each motorist minimized? Although the record shows that five officers were in the parking lot, the record does not indicate whether or not this was a sufficient number to handle expeditiously the volume of vehicles or how long the average motorist waited. Although there were three officers on Dale Mabry Highway, the record does not indicate whether this number was actually adequate to expeditiously maintain the traffic flow with minimum intrusion upon motorists who were not stopped.

Fourth, was that roadblock procedure for apprehending criminal law violators significantly more effective to combat an egregious law enforcement problem of very serious proportions than other available less intrusive means? The question of whether some of these aspects may be established by judicial notice or must be shown by evidence at trial has not been presented or argued to us. The procedural requirements at trial for both methods of proof are well established. The arresting officer testified that between 100 and 200 cars were stopped and 5 or 6 DUI arrests were made. There is no evidence as to how this figure compares with the number of DUI arrests which can be anticipated from using the same number of officers to conduct another type of operation, such as roving patrols acting upon reasonable suspicion, to combat the DUI problem.

Also, the record indicates that the roadblock was temporary but contains no evidence as to whether or not there was advance warning or notice to the public. We have referred above to the Martinez-Fuerte factor of permanency, or, as we have noted, the possible substitution of advance notice of a roadblock for permanency of a roadblock. It may well be that that factor is not as significant in a DUI roadblock as in an illegal alien roadblock of the type considered in Martinez-Fuerte. It is possible that the Supreme Court’s concern in that regard was related to alleviation of unjustified discrimination by roving patrols against Americans bearing the same physical characteristics as illegal aliens in that area of Southern California. We tend to agree with McGeoghegan that advance notice may not be an absolute constitutional necessity for all DUI roadblocks. Nonetheless, “advance publication of the date of an intended roadblock, even without announcing its precise location, would have the virtue of reducing surprise, fear, and inconvenience.” 449 N.E.2d at 353. Fulfillment of other criteria noted above may also have the same type of virtue. To the greater extent that factors surrounding a particular roadblock reduce surprise, fear and inconvenience, the greater tendency there will be for a roadblock to not have Fourth Amendment problems.

Other criteria discussed in the cases cited above are, of course, also relevant. Just as in this case of first impression the lack of a more descriptive record may be understandable, we trust the need for a more complete record is clear.

As noted at the outset of this opinion, Justice Feldman expressed in Ekstrom concerns as to Americans having to “show their papers” before exercising their rights. A similar type of concern was expressed by Justice Prager in Deskins: “If each of [the] political subdivisions [in Kansas] decides to maintain a roadblock, we could have ‘Checkpoint Charley’ at the boundary of every city and every county.” 673 P.2d at 1188. Similarly, if the Tampa police can set up a temporary roadblock of this kind for DUI purposes on Dale Mabry Highway, why could not the Tampa Police have also set up other such DUI roadblocks at various other locations in Tampa at the discretion of other sergeants (however much sergeants do deserve and have earned respect and authority)? For that matter, why could not they set up still other roadblocks for a variety of other law enforcement purposes? And if the Tampa police could do so, why not the Hillsborough County sheriffs department, the Pinellas County sheriffs department, the City of St. Peters-burg police, and law enforcement authorities of all the various small municipalities in the area, with the end result being “Checkpoint Charleys” for innocent motorists to encounter perhaps even multiple times in the course of a drive? We, as Justice Prager, could not accept this as a way of life in our constitutional democracy.

We do not suggest that law enforcement authorities in Florida contemplate a scenario that might be indicated by the foregoing questions. We expect that the judgment of law enforcement supervisory personnel in establishing proper roadblocks, if the foregoing criteria are fulfilled, would take into account those concerns expressed by Justices Feldman and Prager which we agree are valid and important. Even a valid roadblock within the foregoing criteria should be employed with reasonable circumspection. Our democratic form of free government continues to exist because our laws do not permit restraints of that kind upon our freedoms. As is sometimes also attributed to Thomas Jefferson, “Eternal vigilance is the price of liberty.” John Philpot Curran, Speech Upon the Right of Election (1790).

We do not have before us for decision the application of the Fourth Amendment to other types of police roadblocks, e.g., those to apprehend fleeing felons believed to be in the vicinity.

We should add that if a roadblock is established in a constitutionally permissible way, arrests of individual motorists ensuing therefrom should nonetheless be based upon probable cause. Only if an officer, based upon his observations following a proper stop of a vehicle, has probable cause to believe that the driver is DUI could the officer conduct a more extensive investigation, such as asking the motorist to exit the car for a roadside sobriety test. See, e.g., United States v. Miller, 608 F.2d 1089 (5th Cir.1979), cert. denied 447 U.S. 926, 100 S.Ct. 3020, 65 L.Ed.2d 1119 (1981); United States v. Prichard, 645 F.2d 854 (10th Cir.), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110 (1981); Peoples v. Carlson, 677 P.2d 310 (Col.1984).

The petition for writ of certiorari is granted, the decision of the circuit court is quashed, and the judgment of conviction by the county court is reversed. Petitioner shall be discharged.

We have recognized that the subject of this opinion is susceptible to legitimate debate. There is no doubt that the subject is of substantial importance to the public and to law enforcement authorities. We feel confident of the correctness of our holding and our opinion as providing proper guidelines, however general, for the trial courts of this state as well as law enforcement authorities. Nonetheless, we feel it would be consistent with the constitutional provisions establishing district courts of appeal and with the tenet that the Florida Supreme Court is the paramount policy-making Florida court that the Florida Supreme Court pass upon this matter which is so important and which has not previously been addressed in Florida, whether on review of this case or in another DUI temporary roadblock case. Whether the state will seek Florida Supreme Court review in this particular case we will not speculate. In any event, we certify to the Florida Supreme Court as a matter of great public importance the following question: Can a warrantless temporary roadblock which is established to apprehend persons driving while under the influence of alcohol and which stops automobiles without any artic-ulable suspicion of illegal activity produce constitutionally permissible arrests?

RYDER, C.J., and DANAHY, J., concur.

ON MOTION FOR REHEARING EN BANC

LEHAN, Judge.

In its motion for rehearing en banc the state contends for the first time that this court should not have granted the petition for writ of certiorari because the circuit court’s decision contained no “violation of a clearly established principle of law resulting in a miscarriage of justice,” which is the standard set out in Combs v. State, 436 So.2d 93 (Fla.1983). The state contends that since, as our opinion points out, this case is one of first impression in Florida and since cases from other states appear to be split on matters of this type, the circuit court’s decision could not have been a violation of a clearly established principle of law.

We disagree. While it is true that the law applicable to the particular factual issue in this case — the constitutionality of a roadblock to apprehend DUI drivers — is still developing, the framework of constitutional principles in the area of unreasonable searches and seizures has been established. Our opinion applied those constitutional principles to the facts of this case and found this particular roadblock lacking. Consistent with Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977), cited in our opinion, we concluded that there had been a departure from the essential requirements of law. The error was of “such magnitude that the aggrieved party [was] effectively ... denied his day in court,” Clermont, 347 So.2d at 841, and was one “resulting in a miscarriage of justice.” Combs, 436 So.2d at 96.

The state refers to the split of authority among five other state courts whose opinions were discussed in our opinion. (Not all of those cases had been decided at the time of the lower courts’ decisions in this case; of those five cases, two had been decided prior to the county court’s decision in this case; those two and a third case had been decided prior to the circuit court’s decision.) We pointed out in our opinion that we believe that all five of those state courts would have found the roadblock in this case to have been unconstitutional.

The split arises regarding fact situations different from the situation here but which could well exist in other DUI roadblock cases in Florida. We addressed those situations to make it clear that our opinion should not be construed as saying that all DUI roadblocks are ipso facto either constitutional or unconstitutional and as future guidance for the trial courts to promote consistency of decisions.

The motion for rehearing en bane is denied.

RYDER, C.J., and DANAHY, J., concur.

      . Our lack of doubt as to the good faith of the police in this case does not bring into play the "good faith exception” to the exclusionary rule which was created by United States v. Leon, — U.S. —, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and followed in Massachusetts v. Sheppard, — U.S. —, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).

        Leon is not applicable. It involved police implementation of a deficient search warrant issued by a magistrate. On the other hand, the issue before us involves applying to warrantless police activity the balancing test referred to below in this opinion. Also in the case before us, resolution of the central issue is necessary to guide future action by law enforcement agen-cíes. As Leon says, “If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers ... nothing will prevent reviewing courts from deciding that question before turning to the good faith issue.” Leon, — U.S. at —, 104 S.Ct. at 3422. Also, Justice Blackmun’s concurring opinion in Leon points out that the Court’s holding is limited to search warrant situations: “[T]he Court has narrowed the scope of the exclusionary rule because of an empirical judgment that the rule has little appreciable effect in cases where officers act in objectively reasonable reliance on search warrants .... [T]he Nation’s law enforcement officers ... must continue to observe the Fourth Amendment in the wake of today’s decisions " Leon, — U.S. at —, 104 S.Ct. at 3424. Justice Brennan's dissent in Leon states that "the Court’s decisions are clearly limited to the situation in which police officers reasonably rely upon an apparently valid warrant in conducting a search ... Leon, — U.S. at —, 104 S.Ct. at 3446. Similarly, Sheppard, which concerned application of the principles announced in Leon, involved a search warrant which was "subsequently invalidated because of a technical error." Sheppard, — U.S. at —, 104 S.Ct. at 3426. ”[T]he exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges." Sheppard, — U.S. at —, 104 S.Ct. at 3429. In the case before us, we deal with a search by police, not with an action of a magistrate or judge.


author: GLICKSTEIN, Judge. GLICKSTEIN, Judge.

text:
    GATES LEARJET CORPORATION, Bass Aviation, Inc., a foreign corporation, and The Insurance Company of the State of Pennsylvania, a foreign corporation, Petitioners, v. Linda MOYER, etc., et al., Respondents. GATES LEARJET CORPORATION, Bass Aviation, Inc., foreign corporation, and The Insurance Company of the State of Pennsylvania, a foreign corporation, Petitioners, v. Margarita HERNANDEZ, etc., et al., Respondents.
    Nos. 83-2495, 83-2566.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1984.
    Rehearing Denied Dec. 19, 1984.
    Kathleen M. O’Connor of Thornton, David & Murray, P.A., Miami, for petitioner-Gates Learjet Corporation.

      Donna S. Catoe of Peters, Pickle, Flynn, Niemoeller & Downs, Miami, for petitioners-Bass Aviation, Inc., and Insurance Company of the State of Pennsylvania.
    Michael K. McLemore of Kimbrell, Ham-ann, Jennings, Womack, Carlson & Knis-kern, P.A., Miami, for respondent, Linda Moyer.
    Sandra S. Barker of Squire, Sanders & Dempsey, Miami, for respondent, Margarita Hernandez.
   GLICKSTEIN, Judge.

Gates Learjet Corporation was a defendant in two suits alleging the aircraft manufacturer’s negligence, strict liability, and breach of warranty in connection with the death of the pilot and co-pilot of a Learjet that crashed. It petitions for writ of certio-rari to quash the Broward County Circuit Court’s partial summary judgments granted the respective plaintiffs, the decedents’ personal representatives, on the petitioner’s crossclaims and counter-crossclaim for contribution. We deny the petition.

The facts show that on March 3, 1982, the subject Learjet crashed approximately thirteen nautical miles north-northeast of Port-au-Prince. Both the pilot, Glenn Charles Moyer, and the co-pilot, Rafael Hernandez, were killed. In September, 1981, Moyer's personal representative and in March, 1982, Hernandez’ personal representative filed suits against Gates Learjet, the airplane’s manufacturer; the personal representative of the other pilot; and the lessor of the aircraft, Bass Aviation, see 453 So.2d 447 (Fla. 4th DCA 1984); as well as other defendants. In each case Gates Learjet’s answer denied the allegations against it, set forth as an affirmative defense the comparative negligence on the part of the pilot whose personal representative was suing, and crossclaimed for contribution against the estate of the other pilot that was the codefendant. In each case the estate defendant moved and obtained partial summary judgment on the Gates Learjet crossclaim. In the Hernandez suit Moyer’s estate had filed a crossclaim for contribution against Gates Learjet and Gates Learjet had also counter-crossclaimed against Moyer’s estate. Moyer’s personal representative obtained partial summary judgment on the counter-crossclaim as well. The basis for the partial summary judgments was that Section 733.702(l)(a), Florida Statutes, barred the claims against the estates except insofar as they were covered by insurance, if any.

The issue here is whether the trial court departed from the essential requirements of law when it granted estates/codefend-ants partial summary judgment on the crossclaims and a counter-crossclaim of petitioner/defendant. We conclude that it did not.

In granting the subject partial summary judgments the trial court properly relied both on the “non-claim” statute and on this court’s opinion in Koschmeder v. Griffin, 386 So.2d 625 (Fla. 4th DCA 1980).

In the present case the appellant contends that section 733.702(1) applies only to claims or demands against the decedent’s estate that arose before the decedent’s death, and that its counterclaims and cross-counterclaim did not arise until after the respective decedents’ deaths. It seeks to rely on the holding in May v. Vann, 15 Fla. 553 (1876), a suit against an intestate’s estate filed after the non-claim statutory period had elapsed and after the intestate’s co-surety had been sued on a note by the noteholder, and been adjudicated against. Our Supreme Court held the co-surety’s suit was not barred by the non-claim statute, because the relation between the co-sureties was not that of a debt, demand, or claim, and a claim or demand did not accrue until one of co-sureties paid the note. The Court analogized to the settled application of the ordinary statute of limitations in the case of co-sureties. The Court said, “where even a claim does not arise except upon the happening of a contingency, and that contingency is in doubt and uncertainty, then there is no claim, debt or demand within the meaning of this [non-claim] stat-ute_” Id. at 557-558. We conclude that under the present statute, Vann is no longer viable. In Simpson v. First National Bank and Trust Company of Lake Worth, 818 So.2d 209 (Fla. 4th DCA 1975), this court distinguished the then existing legal circumstances from those that had existed at the time of Gibson v. Mitchell, 16 Fla. 519, 520 (1878). In Gibson a co-surety of the decedent was allowed to bring action against the estate’s beneficiaries, to whom the estate had already been distributed, for a claim which matured after the non-claim time limit had run. In Simpson this court said the co-signer’s claim was of the kind that had to be presented within the non-claim time limit, because now the non-claim statute comprehended the filing of contingent claims, whereas at the time of Gibson the statute did not do so.

Appellant also contends that “claims” as referred to in the non-claim statute means debts or pecuniary demands that could have been enforced against the decedent while he was still alive and could have been reduced to a simple money judgment. This is obviously not helpful nor correct, since the non-claim section itself mentions the inclusion within its scope of claims whether due or not, direct or contingent, or liquidated or unliquidated, and also claims for damages, including but not limited to actions founded on fraud or other wrongful act or omission of the decedent. At section 731.201(4), in the definitions portion of our probate law, claims are defined as “liabilities of the decedent, whether arising in contract, tort, or otherwise, and funeral expenses.” The definition explicitly excludes administration expenses and estate, inheritance, succession, or other death taxes.

At times pertinent to the case of Van Sciver v. Miami Beach First National Bank, 88 So.2d 912 (Fla.1956), the non-claim statute “specifically applie[d] to any ‘claim or demand, whether due or not, direct or contingent, liquidated or unliqui-dated.’ ” Id. at 914. The former Mrs. Van Sciver’s separation and trust agreement reached prior to divorce, called for the ex-husband’s supplementation of the annual trust income of the ex-wife so that total income would be $3,000. The trial court found her claim for the deficiency during the year after her ex-husband’s death time-barred because she had not filed it within the non-claim statute’s time limit. The Supreme Court affirmed, writing:

“contingent claim” within the meaning of this section is one where the liability depends on some future event, which may or may not happen, which renders it uncertain whether there ever will be a liability. Such a claim must be filed within the statutory period, as any other claim. American Surety Co. of New York v. Murphy, 151 Fla. 151, 9 So.2d 355.

Id.

We acknowledge the harshness of the holding in this case, as the court in Koschmeder admitted. It is especially harsh when the party affected is the manufacturer, who may not even have known of the accident. Nevertheless the policy basis for the non-claim statute, recited in Kos-chmeder, makes clear that the legislature intended broad application of the non-claim statute. This reasoning is fortified by appellees’ proposition that inasmuch as a common law tort claims perished with the tortfeasor, and laws in derogation of that law should be narrowly construed, the opportunity to make claims against deceased tortfeasors’ estates should be no broader than statutory law clearly requires.

In the case of Toney v. Adair, 120 So.2d 622 (Fla. 3d DCA 1960), the appellate court, in upholding the dismissal of a claim filed against decedents’ estates for wrongful death in an automobile accident, because the non-claim statute’s time limit had not been observed, stated the non-claim statute takes precedence over the wrongful death statute’s limitation period, and bottomed its affirmance on the very specific language of the non-claim statute that makes the statute apply to claims for damages founded on a wrongful act of the decedent. Gates Learjet’s counterclaims are clearly such damage claims.

There are cases in foreign jurisdictions which, while not on all fours with the instant situation, come closer than most of the Florida cases, and have the same result. In Hurliman v. Bank of American National Trust and Savings Association, 141 Cal.App.2d 801, 297 P.2d 682 (1956), it was held that a similar non-claim statute barred a malpractice suit against a deceased physician where the tort was not discovered until the non-claim period had expired. In Lewis v. Knight, 144 N.E.2d 551 (Ohio App.1955), a belatedly discovered unliquidated claim for loss of earning capacity due to a progressive physical disability was similarly held time-barred. On the other hand, in Pitzer v. Smith, 123 Cal. App.3d 73, 176 Cal.Rptr. 407 (1981), the court held presentation of the claim under the non-claim statute was not a prerequisite to maintaining an action against the decedent’s executor where the liability arose after the decedent died. Pitzer is distinguishable in that the suit was occasioned by the death of a child cared for by following instructions in the deceased author’s book. The child died more than three years after the statutory claim period had expired. Clearly, the claim in Pitzer did not exist until the child died.

If the deceased tortfeasors had liability insurance — which is not clear — the statute and the trial court’s order allow counterclaims to the extent of such coverage. The statutory provision to this effect reinforces the policy objectives of the non-claims statute.

ANSTEAD, C.J., and LETTS, J., concur.

Thomas R. Trompeter, South Miami, for respondent-Margarita Hernandez on motion for rehearing.

ON MOTION FOR REHEARING

GLICKSTEIN, Judge.

Petitioner Bass Aviation, Inc., seeks rehearing of this court’s opinion in Gates Learjet Corporation v. Moyer, 459 So.2d 1082 (Fla. 4th DCA 1984). In that opinion this court denied the petition for writ of certiorari, thus affirming the trial court’s entry of partial final summary judgment in favor of the plaintiffs/countercrossdefen-dants — the personal representatives of the aviators who died in the crash of Bass Aviation’s airplane. Our authorities were section 733.702, Florida Statutes (1983), and Koschmeder v. Griffin, 386 So.2d 625 (Fla. 4th DCA 1980).

Petitioner accurately points out the potentiality of a harsh result in the instant case. Should it be found that the negligence of each of the aviators contributed to the death of the other, while one or more of the defendants were also tortfeasors; and should the liability of each aviator exceed in amount the applicable liability insurance he carried, if any, the surviving tortfeasors will be held for damages in excess of their pro rata shares. Thus, by applying the nonclaim statute, we frustrate the objective of the joint tortfeasors contribution statute, section 768.31, Florida Statutes (1983).

We acknowledged in our opinion that the result could be harsh. We reiterate, however, that at common law tort claims against decedents died with them, and a statutory provision in derogation of that principle should be read narrowly. The nonclaim statute permits tort claims against a decedent if filed within three months of first publication of the notice of administration; it cannot be construed to allow such filings at other times. If the legislature should find it in the interest of the people to roll back, further than the nonclaim statute has done, the common law stricture on tort claims against decedents, it can do so, but this court cannot overlook the existing statutory law.

We acknowlege that the law may affect the petitioner harshly, but rehearing could not produce a different result. Rehearing is denied.

ANSTEAD, C.J., and LETTS, J., concur.

      . The court quoted from In re Brown's Estate, 117 So.2d 478, 480 (Fla.1960):
      Public policy requires that estates of decedents be speedily and finally determined. It is pursuant to this policy that statutes of non-claim have been enacted by the legislature. It is not the purpose of the Probate Act to unreasonably restrict the rights of creditors, but the object of the Act is to expedite and facilitate the settlement of estates in the interest of the public welfare and for the benefits of those interested in decedent's estates.
      386 So.2d at 627 (omitting footnote).