text:
    Daniel Ray SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1753.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    Rehearing Denied Sept. 14, 1984.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

This case involves the sufficiency of circumstantial evidence.

On the evening of January 13, 1983, someone burglarized a store in St. Augustine, Florida, and stole a brass antique French clock with a tarnished spot on the back and a back door that did not fully open.

Charged and tried, the defendant was acquitted of the burglary of the store but convicted of grand theft of the clock on the testimony of one William Haltiwanger, who testified that on the morning of January 14, 1983, in Jacksonville, Florida, the defendant offered to sell him, for $2,000, a clock of the same description as the one that was stolen.

The defendant testified and admitted that he offered to sell a clock to Haltiwan-ger but denied the burglary and theft and testified that he had bought the clock he offered to Haltiwanger “up north” and that he later sold it to a Doctor Evans in Jacksonville. The stolen clock was never recovered.

Defendant argues on appeal that the trial court erred in denying his motion for a judgment of acquittal because his testimony constituted a reasonable hypothesis of innocence with which the State’s case was not inconsistent.

I concur in an affirmance of defendant’s conviction because the trial judge was correct in declining to rule as a matter of law on the defendant's credibility or the probability of his guilt or the reasonableness of the possibility of his innocence and in submitting those issues to the jury for evaluation and weighing as questions of fact. See Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984); Newberry v. State, 442 So.2d 334 (Fla. 5th DCA 1983); Bouler v. State, 389 So.2d 1197 (Fla. 5th DCA 1980).


source: Caselaw Access Project

author: COWART, Judge.

license: Public Domain

text:
    John M. CANAKARIS, et al., Petitioners, v. The Honorable Kim HAMMOND, etc., et al., Respondents.
    No. 84-1071.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    Rehearing Denied Sept. 13, 1984.
    James A. Fischette of Fischette, Parrish, Owen & Held, Jacksonville, for petitioners.
    No appearance for respondents.
   COWART, Judge.

After a state court final judgment of foreclosure was entered the mortgagors, acting through the federal bankruptcy court, caused a stay of the foreclosure sale for about eighteen months. As soon as the mortgagee’s attorneys had caused the bankruptcy stay to be lifted, the mortgagee moved the state court to amend the original foreclosure judgment to include additional expenses and attorney's fees incurred in the bankruptcy action. The mortgagors then paid all sums due under the original foreclosure judgment plus interest to the date of payment into the registry of the court and moved the trial court to enter an order satisfying the original foreclosure judgment contending that the payment into the registry satisfied the original foreclosure judgment under section 55.141, Florida Statutes, and, in effect, that the trial court did not have jurisdiction to amend the original foreclosure judgment to include the additional expenses and attorney’s fees. The trial court denied the mortgagor’s motion. The mortgagors in this mandamus proceeding seek to have this court direct the trial judge and the clerk of the circuit court to satisfy the original judgment.

We deny the writ of mandamus. We express no opinion as to the merits of the mortgagee’s motion to amend the original foreclosure judgment to include additional expenses and attorney’s fees. However, the trial court has jurisdiction in that cause and discretion to act on the mortgagee’s motion and that jurisdiction and discretion is not divested or defeated by the payment of the sums previously adjudicated to be due under the mortgage into the registry of the court under section 55.141, Florida Statutes.

DENIED.

COBB, C.J., and ORFINGER, J., concur.


author: DANÁHY, Judge.

text:
    Dennis C. BROWN and Cary A. Brown, Appellants, v. GOLDBERG, RUBENSTEIN & BUCKLEY, P.A., and Auto-owners Insurance Company, Appellees.
    No. 83-2243.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 1984.
    Rehearing Denied Sept. 4, 1984.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
    Michael F. Tew and Curtright C. Truitt of Tew & Truitt, Fort Myers, for appellees.
   DANÁHY, Judge.

Dennis C. Brown, appellant, was severely-injured when he was struck by an automobile. The vehicle which struck appellant, a pedestrian, was a rental car driven by Michael Edwards, a client of appellee Goldberg, Rubenstein & Buckley, P.A. (the law firm), who was then seventeen years old.

In this action, appellants seek to hold the law firm and its automobile insurance carrier responsible for the damages sustained by the appellants. Michael Edwards was driving a car rented from Ranker Motors, which had an unwritten agreement with the law firm under which rental vehicles were provided to the firm’s clients and paid for by the firm. The issues in this case concern the nature of the arrangement between the law firm and Ranker Motors. The trial judge, apparently considering these issues not to be in dispute and that they established nonliability on the part of the law firm, rendered a final summary judgment in favor of appellees. We reverse.

We hold that the evidence concerning the arrangement between Ranker and the law firm gives rise to conflicting inferences which require that a jury resolve the issue whether the law firm was in fact a bailee of the automobile and thus liable for damages inflicted by the negligent operation of that automobile by one permitted by the firm to use it. It is settled that a bailee may be held liable for negligent operation of the bailed vehicle by one to whom the bailee gives permission to operate it. That liability rests on the doctrine of dangerous instrumentality and does not require a showing of gross negligence or bad faith on the part of the bailee. Martin v. Lloyd Motor Co., 119 So.2d 413 (Fla. 1st DCA 1960). Appellees vigorously argue that there was no evidence that the law firm actually ever had possession of the vehicle and, absent such possession, the law firm could not be deemed a bailee. We find authority for the proposition that a person for whose benefit a vehicle is rented and who pays the expense thereof can be found to be a bailee of the vehicle. Hertz Corp. v. Ralph M. Parsons Co., 419 F.2d 783 (5th Cir.1969). It may well be that a jury would find, on the evidence, that the law firm was in fact a bailee of the motor vehicle who gave permission for its use by Michael Edwards.

In sum, we find that there exist in this case genuine triable issues and thus the entry of summary judgment was error. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

REVERSED AND REMANDED.

RYDER, C.J., and CAMPBELL, J., concur.


author: WENTWORTH, Judge. ERVIN, Chief Judge,

text:
    Steven Lawrence BORGESS, Appellant, v. STATE of Florida, Appellee.
    No. AT-100.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    Rehearing Denied Oct. 2, 1984.

      Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant was charged and convicted on two counts of lewd and lascivious assault in violation of § 800.04, Florida Statutes, with consecutive sentences of 15 and 10 years. In this appeal, he contends that the trial court erred in denying his motion for new trial. We affirm but find that the issues raised by appellant warrant explanation.

The state’s evidence at appellant’s jury trial consisted primarily of the testimony of the two victims, appellant’s ten year old stepdaughter and her playmate who was visiting overnight. The two girls testified that they were playing in the bedroom when appellant came in, began tickling and wrestling with them, and then started rubbing them on their “private parts.”

After the trial, appellant’s ex-wife went to the office of appellant’s attorney and told him that several weeks prior to trial her daughter had told her that she was “playing a game on her daddy” and that he had not really done anything to her. At the hearing on appellant’s previously filed motion for new trial, defense counsel sought and was granted leave to amend the motion to include an allegation of newly discovered evidence. When the trial court discovered the nature of the new evidence, he appointed a guardian ad litem for appellant’s stepdaughter and continued the hearing to a later date. The hearing on the motion for new trial was finally concluded several months later. At that time the child was placed on the stand and questioned by defense counsel. He asked her if she remembered testifying at the trial and she said “no.” He then asked her whether her father had ever touched her private parts, and again she answered “no.” On cross examination the state attorney unsuccessfully attempted to refresh the child’s memory of her trial testimony. Appellant’s ex-wife then testified that after the trial she had voluntarily gone to defense counsel’s office with the information of her daughter’s pretrial recantation. She also testified that several weeks before trial, soon after she heard the statement, she had taken her daughter to the police station and the daughter had told the Springfield police that she was playing a game on her daddy. The motion for new trial based on newly discovered evidence was denied, and appellant raises two points on appeal.

First, appellant argues that the denial was an abuse of discretion because the recanted testimony probably would have changed the outcome of the trial. Appellant correctly points out that this is not a case where the witness recanted, then reaffirmed her trial testimony. See Weston v. State, 351 So.2d 75 (Fla. 1st DCA 1977); Mollica v. State, 374 So.2d 1022 (Fla. 2d DCA 1979). However, the standard for determining whether a new trial should be ordered on the basis of recanted testimony was set out in Henderson v. State, 136 Fla. 548, 185 So. 625 (1939), where the Court stated:

A material error or misstatement in the testimony of the witness for the prosecution may constitute ground for a. new trial ... But recantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question of whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true.

Id. 185 So. at 630.

In this case, the trial judge was in the best position to evaluate the credibility of the child’s conflicting stories, and we cannot conclude that, he was required to find that the true version was the one told at the post trial hearing. Since the court was not satisfied that the recanting testimony was true, the motion for new trial was properly denied.

Appellant next argues that the testimony of the victim’s mother shows that the state failed to disclose evidence which was material and favorable to the defense in violation of Fla.R.Crim.P. 3.220 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While the statement in question apparently rises to the degree of materiality requiring disclosure under Brady and its progeny, we cannot, from the present record, determine whether or not a Brady violation in fact occurred. We have only the mother’s testimony that her daughter made the statement to the Springfield police prior to trial. There are no specifics in this record pertaining to the circumstances of the report, because defense counsel never apprised the trial judge of the possibility of a Brady violation. On the contrary, each time the witness referred to the pretrial trip to the police station, defense counsel either ignored the testimony or actively attempted to cut the answer short.

Thus, there has never been a factual determination that a Brady violation occurred, and the state has not had an opportunity to rebut the allegation before a proper finder of fact. This court will not, of course, make initial factual determinations, and we therefore will not reverse on the basis of the alleged Brady violation. Cf, Delmarco v. State, 406 So.2d 1169 (Fla. 1st DCA 1981). However, our affirmance is without prejudice to the right to raise the issue of a Brady violation in conjunction with any allegation of ineffective assistance of counsel pursuant to Fla.R.Crim.P. 3.850.

Affirmed.

BOOTH, J., concurs.

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

ERVIN, Chief Judge,

specially concurring.

I concur without reservation as to the second point raised in that it appears that the asserted Brady violation was not brought to the attention of the lower court. The first point raised — whether the trial court abused its discretion in denying the motion for new trial, presented on the ground of newly discovered evidence — is far more troubling. This is an issue which in the past has been met with mixed results. The usual rule, as stated by the majority, quoting from Henderson v. State, 135 Fla. 548, 185 So. 625, 630 (1939), is that the granting of a new trial depends upon all of the circumstances of the case. Accord, Bell v. State, 90 So.2d 704 (Fla.1956). A more recent variation of the rule is that in deciding whether a motion for new trial should be granted for the reason of newly discovered evidence, the trial judge is required to weigh both the evidence presented at the trial and the evidence offered on the motion in order to determine whether the evidence, if it had been introduced at trial, would probably have changed the jury’s verdict. Jent v. State, 408 So.2d 1024 (Fla.1981). In making this determination the trial judge is allowed broad discretion.

Notwithstanding the rule announced in Henderson v. State, the Second District Court of Appeal in Solis v. State, 262 So.2d 9 (Fla. 2d DCA 1972), following its earlier opinion in O’Brien v. State, 206 So.2d 217 (Fla. 2d DCA 1968), opted in favor of an automatic grant of new trial on circumstances disclosing that the sole material prosecuting witness had recanted her testimony following trial, stating: “It is not within the province of the trial judge at that juncture [at hearing on motion for new trial] to determine on which of the two occasions the witness was telling the truth. To do so would be preempting the function of a trial jury.” Id. at 1011. This court, in Weston v. State, 351 So.2d 75 (Fla. 1st DCA 1977), declined to follow Solis. Yet, as pointed out by the majority, the facts in Weston are distinguishable from those before us in that the witness there recanted, then reaffirmed her trial testimony. Later, the Second District Court of Appeal in Mollica v. State, 374 So.2d 1022 (Fla. 2d DCA 1979) receded from its former opinions in Solis and O’Brien, reaffirming the traditional rule holding that such issues are the kind in which the trial court should be-accorded broad discretion, after determining all of the circumstances of the case.

The facts in the present case are closer to those in Solis in that one of the two victims not only recanted, but, after being advised of the consequences of perjury, also adhered to her recanting testimony. If the conviction of the appellant depended solely on the testimony of the minor prosecuting witness, I would be inclined to the view that a denial of a motion for new trial would constitute an abuse of discretion under the circumstances presented. Yet, there was a second victim who neither recanted her testimony, nor maintained close family ties with the defendant. Her testimony paralleled and indeed corroborated much of the other witness’s trial testimony. Given this additional evidence I am unprepared to say that the court’s denial of the motion was an abuse of discretion.

This case is admittedly a troubling one and I thoroughly agree with the Third District Court of Appeal’s observation in Hanson v. State, 187 So.2d 54, 55 (Fla. 3d DCA 1966), recognizing that “it is better to bend a rule of procedure than to use the rule to convict an innocent person .... ” See also Jackson v. State, 416 So.2d 10 (Fla. 3d DCA 1982). Nevertheless, because of the distinguishing facts in this case, I concur with the majority in affirming the denial of the motion for new trial.

      . Appellant and the victim’s mother were divorced at the time of the incident, but appellant was staying with his ex-wife for a few days because, as she testified, they were still good friends. The transcript also showed that the victim thought of appellant as her father, rather than as her stepfather.

      . Our review of the transcript shows that the victim’s trial testimony was precise and specific, but her testimony at the hearing on motion for new trial was hesitant and reluctant. Thus, even without the trial court’s inherent advantage in being able to personally observe the candor and demeanor of the witness, the record supports the finding that she was telling the truth during the trial rather than after.

      . The following excerpts from the transcript of the hearing on the motion for new trial demonstrate defense counsel's apparent failure to recognize the significance of the mother’s testimony that the statement was reported to the police prior to trial:
      Q. Now, Mrs. Borgess, let me ask you this, after your husband, Mr. Borgess was convicted in September 30th, there I believe 1982, did you or did you and your daughter or both of you come to my office?
      A. Yes, we did.
      Q. Under what circumstances did you come to my office?
      A. Well, I had made that statement, I mean, she had made the statement it weren’t so. So I went ...
      Q. She is who?
      A. My daughter.
      Q. You are talking about [your daughter]? A. Yeah, [she] had made the statement that she was playing a game on her Daddy. So we had went to the Springfield police because I couldn’t get up town, of course, and we ... Q. My question was ...
      A. I'm telling you why I went to your office. Q. Okay.
      A. If it is all right.
      Q. Go ahead but don’t stray too far. Let’s just ...
      A. I went to tell you the same thing I had ... Q. You went to my office then freely and voluntarily?
      A. Yes.
      Q. To talk to me about the case.
      A. To talk about the case.
      Q. In other words, you just, this was her imagination or do you understand why she’s made the statement she did in court?
      A. I have no idea why she made the statement in the first place and I don’t know why she made the second one.
      Q. In other words, you didn’t induce her in any way or coerce her or threaten her or ... A. In fact ...
      Q. Promise her anything to say that she made this up, I did not tell the truth and, you know, I want to change and now I want to tell the truth; is what I’m asking you?
      A. No, sir, it was just as much surprise to me as anybody. She just fell down on the floor on the footstool and started crying and admitted this what she said about making it a game and, of course, naturally when she said that I had my doubts that it weren’t so, you know. And I carried her back to the investigations office to make that statement that she made to me. But I hadn’t mentioned it to her.
      Q. I’m asking you though you hadn’t threatened her or promised her or anything of that nature?
      A. No, sir.


author: BAKFIELD, Judge.

text:
    STATE of Florida, Appellant, v. Lawrence Joseph KOCH, Appellee.
    No. AW-226.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    Rehearing Denied Sept. 17, 1984.

      Jim Smith, Atty. Gen., and Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellant.
    Michael Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellee.
   BAKFIELD, Judge.

In this appeal the State seeks reversal of the trial court’s order granting the defendant’s motion to suppress evidence. The issues are whether the police had a well-founded and reasonable suspicion of criminal activity justifying their stopping of defendant’s car, and if so, were the ensuing search and arrest lawful.

At approximately 2 a.m. on July 1, 1983, Officers Soloman and Vellis of the University Police Department observed a white Monte Carlo parked in the vicinity of Lake Alice, located on the campus of the University of Florida. The officers, in plain clothes occupying an unmarked car, were parked approximately ten yards away from the Monte Carlo. Although the ear was parked in a secluded spot known as the “hole”, it was legally parked, and it was not unusual for people to park their cars at Lake Alice at that time of night.

Officers Vellis and Soloman observed ap-pellee attempt to light something for a period of several minutes. They could not determine if the object appellee was attempting to light was machine rolled or hand rolled. Officer Vellis described what he saw “... was the person in the driver’s seat with his hands cupped to his face with a lighter in which he was lighting for a period of several minutes.” Since cannabis is not normally as dry as cigarette tobacco, the officer suspected that what appellee was attempting to light was marijuana. It was also noted that the looser packing of a hand-rolled cigarette makes it more difficult to light. However, Officer Vellis admitted on cross-examination that if someone were trying to light a regular cigarette in a car with air conditioning running, that person would experience difficulty lighting the cigarette. The record is silent as to whether the windows to appellee’s car were up or down at this time. Officer Vellis did not hear the engine running.

Appellee successfully lit the object because the officers could see a glow. The glow, and therefore the lit object, was observed being apparently passed several times between appellee, who occupied the driver’s seat, and his passenger. Since it was very dark, the officers could not tell by what manner or method the object was being smoked. Neither officer detected the odor of cannabis.

The officers felt cannabis was being smoked in appellee’s car and they radioed for a marked unit. At about this point, appellee drove the car away. Officer Louis Wilkerson, operating a marked unit, heard Soloman’s and Vellis’ call for assistance and stopped appellee’s car.

Wilkerson testified that the windows on appellee’s car were down when he stopped it. Wilkerson stood two feet behind the driver’s door and obtained appellee’s driver’s license. He did not detect the odor of cannabis. Wilkerson obtained appellee’s license and immediately gave it to Officer Vellis who, along with Officer Soloman, had by this time arrived.

Soloman testified that he approached ap-pellee’s car from the passenger’s side and saw a partially smoked hand-rolled cigarette in the ashtray. As he approached the window, he detected the odor of cannabis. Soloman thought the object was cannabis because of his experience and because it was hand rolled. Vellis, too, saw the hand-rolled object in the ashtray and detected the odor of cannabis.

The above events triggered a full search of appellee’s car. Cannabis and narcotics paraphernalia were seized. After the search, appellee made incriminating statements.

Both officers testified that they were familiar with the odor of burning marijuana. They also stated that they had made prior arrests where a “shared cigarette” at that location ultimately proved to be marijuana.

We hold that the officers had a well-founded and reasonable suspicion that criminal conduct had occurred, and therefore the stop was justified. Once the stop was made, the officers’ detection of the odor of marijuana was probable cause for the search. A comprehensive statement of the legal principles involved in testing the legality of a stop is found in State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978). It has also been held that otherwise innocent factors, considered in combination, may give rise to a reasonable suspicion that justifies a stop. State v. Lawson, 446 So.2d 202 (Fla.3d DCA 1984). There is no dispute that two of the officers detected the odor of burning cannabis. This was probable cause for the arrest. State v. Schneider, 401 So.2d 865 (Fla.3d DCA 1981). The lawful stop and probable cause to arrest validated the search. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Wright v. State, 418 So.2d 1087 (Fla. 1st DCA 1982).

REVERSED.

THOMPSON and NIMMONS, JJ., concur.


author: PER CURIAM.

text:
    Karl W. GREEN, M.D. and Karl W. Green, M.D., P.A., a Florida Professional Association, Appellants, v. HARRY SAVIN, P.A., a Florida Professional Association; Harry Savin, C.P.A. and Beverly Savin, Appellees.
    No. 83-3010.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.
    Rehearing Denied Sept. 18, 1984.

      Stanley Jay Bartel, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Douglas C. Broeker, Miami, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Plaintiffs, a medical doctor and his professional association, commenced this action against their accountants and financial advisors for an alleged unauthorized release of confidential financial data to the doctor’s wife. The data was used by the wife and her attorney in the subsequent trial of a dissolution of marriage between the doctor and his wife. The accountants are the wife’s mother and step-father and their professional association.

The complaint sets forth five causes of action: (I) breach of contract, (II) breach of fiduciary duty, (III) unauthorized disclosure of confidential information, (IV) civil conspiracy, and (V) a claim for punitive damages. Counts III and IV were dismissed by order of the trial court. Summary judgment was later entered for the defendants as to the remaining counts. This appeal is brought from both the order dismissing Counts III and IV, see Allen v. Leybourne, 190 So.2d 825 (Fla. 3d DCA 1966), and from the order on summary judgment.

Our examination of the complaint shows no pleading deficiency as to Count III. The only determination a court undertakes in considering a motion to dismiss for failure to state a cause of action is whether, upon examination of the four corners of the complaint, the allegations are sufficient to sustain a claim for relief. Augustine v. Southern Bell Telephone & Telegraph Co., 91 So.2d 320 (Fla.1956); Bricker v. Kay, 446 So.2d 1151 (Fla. 3d DCA 1984).

We affirm the summary judgment and order of dismissal as to Counts I, II, and IV. We reverse the order of dismissal as to Counts III and V, and remand for further proceedings.


author: SMITH, Judge.

text:
    Joseph ROUX, Appellant, v. STATE of Florida, Appellee.
    No. AW-357.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    Rehearing Denied Sept. 28, 1984.

      Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

The sole issue in this appeal is whether the trial court erred in imposing sentences exceeding the range permitted under the sentencing guidelines without giving written reasons for the departure. Appellant was sentenced on two counts of robbery with a firearm. He received a sentence of four years’ incarceration for each offense, followed by a period of probation of five years on one count and ten years’ probation on the other, both sentences to run concurrently.

The state concedes error in that under rule 3.701(d)(12), In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983), the total sentence “cannot exceed the total guideline sentence unless a written reason is given.” We find the position of the appellant and the state to be correct. At the time appellant was sentenced (November 7, 1983), committee note (d)(12) provided, as a specific limitation on the permissible total length of a split sentence i.e., a combination of state prison and incarceration, that “the total sanction imposed cannot exceed the maximum guideline range” without giving written reasons for the departure. 439 So.2d at 852. The maximum guideline range for each of appellant’s offenses is four and one-half years. No reasons for departure were given.

Accordingly, the sentences appealed are reversed and the cause is remanded for resentencing.

WENTWORTH and WIGGINTON, JJ., concur.

      . The amended committee notes, which have been adopted as a part of the rules, now provide in pertinent part: "The total sanction (incarceration and probation) shall not exceed the terms provided by general law.” The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984). According to the view previously expressed by this court, the amended rule cannot be applied retroactively to appellant. Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984).


author: HERSEY, Judge.

text:
    Robert C. ROY and Joyce S. Roy, his wife, Appellants, v. BARNETT BANK OF PALM BEACH COUNTY, Appellee.
    No. 83-2067.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    Rehearing Denied Sept. 27, 1984.
    James M. Tuthill of Christiansen, Jacknin & Tuthill, West Palm Beach, for appellants.

      Robert M. Gross of Moyle, Jones & Flani-gan, P.A., West Palm Beach, for appellee,
   HERSEY, Judge.

Robert C. Roy and Joyce S. Roy, (the Roys), appeal a final judgment entered in favor of appellee, Barnett Bank of Palm Beach County (Barnett Bank or bank) in the amount of $86,712.27, representing amounts due under a promissory note upon which they were guarantors.

On August 13, 1982, Robert, C. Roy Agency, Inc., (corporation) executed a promissory note in the amount of $65,000 payable to Barnett Bank on or before February 9, 1983. The note obligated the corporation to make six monthly payments. The bank was given the right to accelerate the indebtedness upon default in any monthly payment or upon the insolvency or bankruptcy of the corporation. The Roys in their individual capacities guaranteed payment of the note. In pertinent part, the guaranty provided as follows:

FOR VALUE RECEIVED the undersigned jointly and severally, (if more than one) irrespective of the genuineness, validity, regularity or enforceability of this note, hereby indorses this note and unconditionally guarantees to any holder full payment of the indebtedness evidenced by this note when due by acceleration or otherwise and all other sums due hereunder, agrees to all the terms and conditions of this note, and consents that from time to time, without notice to the undersigned and without affecting any liability of the undersigned, (a) any collateral for payment of this note may be exchanged, released, surrendered, sold (by foreclosure or otherwise) applied or otherwise dealt with at the election of the holder, and (b) any time of payment under this note may be extended or accelerated in whole or in part, and this note may be renewed in whole or in part. The undersigned waives presentment, notice of dishonor and protest.

While not technically correct, we will use the terms insolvency, Chapter 11 arrangement and bankruptcy as synonyms for purposes of the following analysis.

In November of 1982 the corporation entered into bankruptcy under Chapter 11 of the United States Code. Thereafter, in March, the bank sued the Roys individually as guarantors because the corporation had not made any payments on the note.

In the bankruptcy proceedings a plan of reorganization had been accepted by Barnett Bank as one of the corporation’s creditors. The plan was approved by the bankruptcy court. Under the terms of the plan of reorganization, which went into effect the day prior to the final hearing in the present case, the corporation was to pay $3,500 per month for the first year and $4,500 per month thereafter until payment had been made in full.

The Roys’ attorney argued to the trial court that the debt was not yet due because according to the plan of reorganization partial payments only were due on a monthly basis. It was argued that the bank’s approval of the plan of reorganization extended the due date. On the other hand, Barnett Bank’s attorney argued that the Roys’ obligations are separate and distinct from the corporation’s obligations. After considering the arguments of counsel, the trial court entered a final judgment in favor of Barnett Bank basing its ruling on Anderson v. Tradewinds Enter. Corp., 241 So.2d 174 (Fla. 4th DCA 1970).

The question, then, is whether a creditor may accelerate an indebtedness (for nonpayment) as to a guarantor while extending the time for payment as to the principal debtor. It is also necessary to consider whether the fact that the extension results from the coercive effect of bankruptcy proceedings requires any different result.

We have no difficulty in resolving the initial inquiry based upon the law pertaining to contracts to guaranty performance of some obligation. The liability of a guarantor is activated by an event of default which cannot occur presently where the debtor has been given an extension of time which has not yet expired. This leaves the more difficult issue of the effect of an arrangement in bankruptcy upon this fundamental principle. We do not find, and would not expect to find, its resolution in the bankruptcy statutes. Nor do we find a satisfactory answer in the Commercial Code.

Here the debtor-promisor-corporation became insolvent. This event of default activated the creditor-holder-bank’s right to accelerate and to proceed on the guaranty. The bank then proceeded alternatively (and in one sense inconsistently) to (1) attempt to accelerate as to the guarantors, while at the same time (2) granting an extension of time to pay (albeit under the coercion of imminent actual bankruptcy) to the principal obligor.

Some of the factors which appear to support a holding that the bank should be able to proceed immediately against the guarantors are these: (1) a creditor becomes involved in a Chapter 11 arrangement at the behest of the debtor and while the creditor may protest vigorously throughout, he may well be ultimately bound to a new and different scheme of payment of the indebtedness than was contemplated by the original intent of either party; (2) one purpose of a guaranty, particularly where closely held, newly formed, paper corporations are concerned, is to protect the creditor against the very eventuality which occurred here, insolvency and bankruptcy; (3) if the guaranty is to serve the purpose for which it was originally required by the creditor, then the guarantor, by subrogation to the rights of the creditor (after paying the indebtedness), should be the one to suffer the vicissitudes of an arrangement or ultimate bankruptcy rather than the creditor who exercised the foresight to require a guaranty.

It is true that under a contrary rule the creditor would eventually be entitled to recover from the guarantors any amount outstanding in the event of failure of the arrangement, but such a scheme of repayment is not what the creditor bargained for when the extension of credit was made.

It also seems to us that the guarantors have no cause for complaint. If there were no Chapter 11 arrangement the indebtedness would go into default and the guarantors would immediately be required to repay under the terms of their agreement. It is to be assumed that the consideration they received in exchange for their guaranty contained an element of value to compensate for the very eventuality which developed here: insolvency and acceleration. (The consideration was the loan to the corporation of which guarantors were the principals.)

Thus, we adopt the rule and hold in this case that an extension of time for the repayment of an indebtedness resulting from a Chapter 11 arrangement (whether or not the creditor expressly consents to the terms of the arrangement) has no effect upon the maturity of a preexisting guaranty of payment pertaining to that indebtedness absent a clear expression of contrary intention in the guaranty agreement.

We therefore affirm.

AFFIRMED.

LETTS, J., and RIVKIND, LEONARD, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    In re The FORFEITURE OF 1975 MERCEDES BENZ 450 SL; VIN #1070441Z023269; TAG #IJA-605. CITY OF POMPANO BEACH and The Pompano Beach Police Department, Appellants, v. John Joseph BARDUA, Appellee.
    No. 84-233.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    Rehearing Denied Sept. 24, 1984.

      Philip J. Montante, Jr., Pompano Beach, for appellants.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

This is a timely appeal from a final order denying the appellants’ “Amended Complaint for Rule to Show Cause and Final Order of Forfeiture” and ordering that the subject matter of the litigation, a 1975 Mercedes 450 SL, be returned to the appellee. The Amended Complaint for Rule to Show Cause was dismissed for failure to establish probable cause that the vehicle was used as an instrumentality or to facilitate the commission of a felony, or that it was used to transport contraband.

We believe a reversal of the order is required because the ultimate decision was premature, no doubt due to the absence of a clearly established procedure to be followed in forfeiture proceedings. The cases have only recently fleshed out the forfeiture statutes so that the procedure is elucidated. In In Re U.S. Currency in Amount of $5,300.00, 429 So.2d 800 (Fla. 4th DCA 1983), which was followed by In Re App. 48,900 Dollars in U.S. Currency, 432 So.2d 1382 (Fla. 4th DCA 1983), this court clarified the procedure and provided proposed measures to be followed in forfeiture cases under Chapter 932, Florida Statutes (1981).

In the present case appellant filed an amended complaint for issuance of a rule to show cause and for forfeiture of a Mercedes Benz automobile. A hearing was scheduled pursuant to notice “for the purpose of requesting the issuance/filing of a Rule to Show Cause why the described property should not be forfeited to the use of, or sold by, the Pompano Beach Police Department upon producing due proof that same was used in violation of Florida laws dealing with contraband, pursuant to Section 932.701 through 932.704 of Florida Statutes (1981).” However, instead of issuing a rule to show cause, the hearing turned into what might be called a final hearing on the merits of the amended complaint. We now know that a hearing was not necessary to procure issuance of a rule to show cause. As pointed out in the aforementioned cases, the rule to show cause should have issued upon the amended complaint if the court found that it was sufficient to state a cause of action. Our examination of the amended complaint indicates it was sufficient to support issuance of the rule. Thereafter, a response should have been filed, thereby framing the issues to be tried. The failure to follow this orderly procedure, we believe, caused the premature consideration of issues not properly framed by pleadings.

Appellee contends that appellant undertook to prove probable cause at the hearing in question and cannot now complain. However, we do not believe that undertaking to prove more than is required should militate against a party, if the matters presented are sufficient to meet the burden required at that stage of the proceeding. Furthermore, although the complaint itself was not sworn to as suggested in the foregoing cases, the sworn affidavit of the police officer on the scene of the crime was attached to the complaint, verifying the most essential allegations of the complaint. Although we hold the complaint was sufficient to support issuance of a rule, upon remand appellant should be allowed the opportunity to amend the complaint if it be so advised.

The order appealed from is reversed and the cause is remanded with instructions to allow appropriate amendments and thereafter follow the procedures laid out in the two cases cited in this opinion.

REVERSED AND REMANDED, with directions.

GLICKSTEIN, J., and GUNTHER, BOBBY W., Associate Judge, concur.


text:
    Phillip S. GERARD, et al., Appellants, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. AV-327.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1984.

      Joseph P. Mawhinney & R. Kent Lilly, of Frost, Purcell & Lilly Bartow, for appellants.
    Alan E. DeSerio, Dept, of Transportation, Titusville, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a final summary judgment entered upon a motion therefor by the Department of Transportation (DOT) which asserted that the monetary limits of the state’s waiver of sovereign immunity had previously been reached. We affirm the order appealed.

Appellant filed a negligence action in Polk County against the City of Lake Wales and its insurer; other defendants, including DOT, were thereafter joined. DOT obtained a transfer of the action against it to Leon County, and appellant settled his claim against the City of Lake Wales upon payment of $530,000 by the city’s insurer. DOT then moved for summary judgment, arguing that the state’s statutory limit of liability precludes any judgment against DOT for further damages. The trial court initially denied DOT’s motion, but subsequently rescinded and vacated its earlier order and entered a final summary judgment in favor of DOT “upon the issue of exhaustion of limits of liability

Section 768.28(5), Florida Statutes (1979), establishes that the state “shall be liable for tort claims in the same manner and to the same extent as a private individual _” However, such language is qualified by the provision’s further limitation that:

... Neither the state nor its agencies or subdivisions shall be liable to pay ... any claim or judgment, or portions thereof, which when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $100,000....

Appellant contends that this $100,000 limitation applies independently to each governmental entity involved in the litigation, without regard to monies paid by other governmental entities. But a statutory waiver of sovereign immunity must be clearly expressed and strictly construed, see Rabideau v. State, 409 So.2d 1045 (Fla.1982); State ex rel. Division of Administration v. Oliff 350 So.2d 484 (Fla. 1st DCA 1977), and we do not discern any legislative intention to sanction disparate recoveries dependent upon the number of tortious governmental entities involved. Section 768.28(5) expressly provides that the specified governmental entites shall not be liable for any claim or judgment, arising out of a single incident, which exceeds $100,000 “when totalled with all other claims_” This language imposes a cumulative per-incident limitation on aggregate recovery regardless of whether the source of payment is a single governmental entity or multiple governmental entities.

Appellant also suggests that insurance proceeds should not apply toward the $100,000 limitation on recovery. But public funds were presumably expended by the city for payment of its insurance premiums, and § 768.28(13), Florida Statutes (1979), expressly provides for the purchase of liability insurance by governmental entities “in anticipation of any claim, judgment, and claims bill which they may be liable to pay pursuant to this section.” We therefore conclude that such insurance proceeds may be applied to satisfy the liability limitation of § 768.28(5).

Appellant further argues that the action below should be allowed to proceed so as to establish a predicate for a possible legislative claim request. Section 768.-28(5), Florida Statutes (1979), provides that, despite the statute’s limitation on governmental liability:

... a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act ... and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.

While this provision does authorize an excess judgment as a predicate for a legislative claim request, such authorization appears to contemplate an accompanying judgment otherwise allowed by § 768.28(5). Since a waiver of sovereign immunity must be clear and unequivocal, as well as strictly construed, see Rabideau, supra; Oliff, supra, the above-quoted provision should not be construed as providing any basis for an independent action which could be compensated only by subsequent legislative approval. We therefore conclude that an excess judgment is statutorily permitted only when accompanying a claim which is otherwise authorized by § 768.28.

We hereby certify the following question to be one of great public importance:

WHETHER SATISFACTION OF A CLAIM BY PAYMENT OF THE STATUTORY AMOUNT SPECIFIED IN § 768.-28(5), FLORIDA STATUTES, PRECLUDES A FURTHER CLAIM, OTHERWISE AUTHORIZED, IN EXCESS OF THE SPECIFIED STATUTORY AMOUNT?
The order appealed is affirmed.

BOOTH, J., concurs.

ERVIN, C.J., concurs and dissents with opinion.

ERVIN, Chief Judge,

concurring in part and dissenting in part.

I concur in all aspects of the majority’s opinion, except that portion holding that appellant’s action cannot be allowed to proceed in the circuit court in order for him to establish a predicate for a possible claim request before the legislature. If I correctly understand the majority’s position, it has adopted the appellee’s argument that once the statutory cap authorized by subsection (5) has been exhausted by payment, the circuit court then has no subject matter jurisdiction to enter a judgment for any additional amount. I find nothing in the act barring an injured claimant from seeking a judgment for such excess sum as a preliminary step to filing a claims bill. Section 768.28(10) recognizes that laws exist permitting the state or its agencies to buy insurance “and are not restricted in any way by the terms of this act.” (e.s.) Indeed, this subsection has been interpreted as permitting municipalities that have purchased liability insurance in amounts more than those authorized by section 768.29(5) to have waived its immunity to that extent. Ranger Insurance Co. v. Travelers Indemnity Co., 389 So.2d 272, 276 (Fla. 1st DCA 1980), and compare Ingraham v. Dade Co. School Board, 450 So.2d 847 (Fla.1984).

If one’s right to recover a judgment against a tortfeasor is not restricted in any way by the terms of section 768.28, under circumstances in which a greater amount of liability insurance is available, then I see no reason why a claimant may not seek a judgment establishing all of his damages as a means of reporting the same to the legislature. Indeed, the very language of subsection (5) permits the interpretation that multiple judgments may be recovered, under the terms specified, in excess of $100,000: “However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of the judgment [or judgments] that exceeds these amounts may be reported to the legislature, but may be paid in part or in whole only by further act of the legislature.” (e.s.) The act’s provisions place no restriction on bifurcated proceedings — such as here — in which separate judgments may be recovered.

If the Department of Transportation had not insisted on its venue privilege by having the case transferred as to it to Leon County, the cause would in all probability have proceeded in an orderly fashion against all defendants in Polk County. Of course, at the time the Polk County Circuit Court entered its order transferring venue to Leon County, it did not have the benefit of the Florida Supreme Court’s opinion in Board of County Commissioners of Madison County v. Grice, 438 So.2d 392 (Fla.1983), recognizing that the state’s home venue privilege is not absolute in those instances in which a governmental body is sued as a joint tortfeasor, and that a trial judge may, in the exercise of discretion, retain the entire case. If ever a case cried out for the application of the Grice rule, this is it. The unfortunate result below could have been avoided had the case remained unparsed against all defendants in Polk County. Considerations “of justice, fairness, and convenience”, Grice at 395, now reveal that the entire case should have remained there.

It is of course a longstanding rule that the jurisdiction of the court with respect to the amount involved does not depend upon the amount of damages actually recoverable as a matter of law, but is determined by the sum demanded in good faith or actually placed in controversy. Sumner Lumber Co. v. Mills, 64 Fla. 513, 60 So. 757 (1913); Hutchinson v. Courtney, 86 Fla. 556, 98 So. 582 (1923). Thus, if the jurisdictional amount of the circuit court is satisfied by the amount asserted in the complaint, jurisdiction is not lost even if before trial the plaintiff is reimbursed by his insurance company for the bulk of the damages he seeks to recover. Narula v. Orange Motors of Miami, Inc., 337 So.2d 1001 (Fla. 3d DCA 1976). The court there stated, quoting 16 Couch, Cyclopedia of Insurance Law, § 61.18 (2nd ed. 1964):

[A] wrongdoer who is legally responsible for the harm should not receive the windfall of being absolved from liability because the insured had the foresight to obtain, and had paid the expense of procuring, insurance for his protection ....

Id. at 1002.

In my judgment the same reasoning should apply here. One of two joint tort-feasors who is legally responsible for harm should not receive the windfall of being absolved from liability because another tortfeasor had the foresight to obtain insurance in excess of the maximum amount provided for in subsection (5), and in fact paid such excess sum before the case proceeded to trial against the other tortfeasor.

What the trial judge below and the Department of Transportation have overlooked is the fact that the provisions of subsection (5), placing a cap on the amounts to be recovered, should be read in pari materia with other provisions of the subsection, making the state its agencies and subdivisions “liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, ...” (e.s.) As authorization exists within the provisions of section 768.28 itself, permitting an aggrieved claimant to satisfy a judgment in excess of the statutory cap provided in subsection (5), as a means of reporting the same to the legislature, the rule of strict construction of statutory waiver of sovereign immunity is inapplicable to the facts of this case. If, then, an action had been brought against two or more non-governmental joint tortfeasors, and one had entered into a settlement agreement with the injured plaintiff, the fact of a release against one of the tort-feasors would not serve to release or discharge the liability of any other person who might be liable for the balance of the claim. See Section 46.015, Florida Statutes (Supp.1980), and Stephen Bodzo Realty, Inc. v. Willits International Corporation, 428 So.2d 225 (Fla.1983). Nevertheless, a release given to one tortfeasor in partial satisfaction of the damages sued for is required to be set off by the court from the amount of any judgment which the plaintiff would be otherwise entitled at the time of the rendering of the judgment. See Section 46.015(2).

There is no reason why the provisions of section 46.015 should not have the same effect upon governmental joint tortfeasors as any other persons, particularly in view of the provisions of section 768.28(5), making the state liable to the same extent as any private person. Given the extraordinary amount of injury that was involved in this case — the deaths of plaintiff’s wife and his two minor children, as well as his own personal injuries — this case should proceed to judgment against the Department of Transportation in Leon County for the full amount of plaintiff’s damages, subject to any right of set off by reason of the amounts previously paid.

      . Section 286.28, Florida Statutes (1979), formerly numbered section 455.06, provides that to the extent a state agency purchases liability insurance, the defense of sovereign immunity and the statutory cap on recovery is removed. The statute by its terms excludes incorporated cities and towns, however the statute long antedated section 768.28 which first went into effect on July 1, 1974 as to the executive departments of the state. See § 1, Chap. 74-235 (Laws of Fla.). There should, however, be little doubt now that section 286.28 applies to municipalities as well as all other state agencies or subdivisions. Long before the enactment of the state’s Tort Claims Act, the common law recognized that as to those municipal activities falling into the category of proprietary functions, a municipality was subject to the same tort liability as a private corporation. Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979). Indeed, municipalities commonly purchased such insurance before the Tort Claim Act's passage to protect themselves against any negligent proprietary functions. Although there was some confusion as to whether section 768.-28, when first enacted, applied to municipalities, see Attorney General's opinion 076-41, February 23, 1976, the legislative omission was clarified by the 1977 legislative amendment. See preamble, Chapter 77-86, Laws 1977. Moreover the ceiling on money damages recoverable in tort against municipalities has been held constitutional. Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.1981). That portion of section 286.28, excluding municipalities from its application, therefore could be said to have been amended by implication by the provisions of section 768.28. Cf. DeBolt v. Department of Health and Rehabilitative Services, So.2d 221 (Fla. 1st DCA 1983).

      . Section 768.28(1), Florida Statutes (1981), provides, inter alia, that an action for negligence against an agency of the state may be brought "where the cause of action accrued.” The application of this provision, however, is limited by section 768.28(14) "only to causes of action which accrue on or after October 1, 1981.” As the injury occurred before October 1, 1981, the amended provisions are inapplicable to appellant’s claim. See Florida Department of Transportation v. Lopez, 415 So.2d 116 (Fla. 3d DCA 1982).


author: JOANOS, Judge.

text:
    NORWOOD SHELL, INC. and American Home Assurance Company, Appellants, v. Percy L. FORBING, and the Department of Labor and Employment Security Division of Workers’ Compensation, Appellees.
    No. AV-465.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1984.
    Rehearing Denied Sept. 28, 1984.

      David A. Crowley of Harold C. Knecht, Jr., P.A., Coral Gables, for appellants.
    Lloyd W. Jabara, Miami, for appellees.
   JOANOS, Judge.

In this workers’ compensation appeal the employer and carrier contend that the deputy commissioner erred in finding that the two year period in which a claimant may petition for modification of a previously entered order begins to run from the last date of the compensation period determined in the order, rather than the date of the last check. Under the circumstances of this case, where the employer and carrier expedited payment of the periodic compensation benefits, we find no error and affirm.

The initial order of October 24, 1980, awarded claimant compensation for a 48% permanent partial disability of the left eye entitling claimant to 84 weeks of compensation beginning June 8, 1979. The last check for compensation paid by the employer and carrier pursuant to the order was sent on December 11, 1980, and reflected that it was for the period December 21, 1980, to January 4, 1981. Notification of suspension of benefits by the carrier sent to the Bureau of Workers’ Compensation reflects that compensation was suspended January 4, 1981, due to payment in full of 84 weeks compensation as per the October 24, 1980, order. However, the deputy commissioner found that the carrier expedited the payments of compensation to the claimant by sending him advance payments without order of the deputy commissioner or request of the claimant. The deputy commissioner determined that the last payment of compensation pursuant to his previous order should have paid the claimant compensation until January 16, 1981. Claimant’s petition for modification was received by the Bureau of Workers’ Compensation on January 3, 1983. Employer and carrier raised the two-year statute of limitations set forth in Section 440.28, Florida Statutes as a bar to claimant’s petition, arguing that the date of the last check controls.

The employer and carrier should not be able to determine the date of payments by advancing payments neither requested by the claimant nor ordered by the deputy commissioner when the compensation order sets the time for periodic payments. Where Chapter 440 is susceptible to disparate interpretations, such as in Section 440.-28, the “most favorable remedy doctrine” requires a construction most favorable to the employee claimant. Kerce v. Coca-Cola Company—Foods Division, 389 So.2d 1177 (Fla.1980). We, therefore, find that the deputy commissioner correctly found that under the circumstances of this case, the last payment of compensation pursuant to a compensation order was determined by the compensation period set forth in the order requiring payments rather than the date of the last check sent to claimant.

Accordingly, the deputy commissioner’s order is AFFIRMED.

ERVIN, C.J., and NIMMONS, J„ concur.


author: BARFIELD, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Allen L. FOWLER, Enterprise Leasing Company, Inc., and Travelers Insurance Company, and Kendra Morrison, Appellees.
    No. AW-219.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1984.
    Rehearing Denied Sept. 19, 1984.
    Harris Brown, of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellant.
    William S. Burns, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for Travelers Insurance Company, appellee.
   BARFIELD, Judge.

Allstate Insurance Company appeals a final summary judgment entered on behalf of Travelers Insurance Company. The issue on appeal is the proper method of determining priority among insurers where the insureds are different entities.

In April of 1982, Allen Fowler was struck while riding his motorcycle by a vehicle operated by Kendra Morrison and leased from Enterprise Leasing Company. Mr. Fowler brought an action for his personal injuries. Allstate Insurance Company, Ms. Morrison’s insurer through a policy issued to her parents, brought a declaratory judgment action to determine priority of coverages. It is from a summary judgment adverse to Allstate in that action that this appeal was taken. We reverse and remand for further proceedings.

There were three insurance policies in issue. The first is a business automobile policy issued by Travelers to Enterprise with a policy limit of $10,000. Because that policy did not comply with section 627.-7263, Florida Statutes (1981), the court found that this policy must provide the first layer of coverage. This finding is not appealed. The only issue is the priority of the two remaining policies.

Allstate does not dispute that its policy, which provides $250,000 bodily injury coverage per person, insures Ms. Morrison; rather, its argument is based on policy language:

If a person insured is using a substitute private passenger auto or non-owned auto, our liability insurance will be excess over other collectible insurance.

The third policy is one issued by Travelers to Enterprise for excess liability to a limit of $500,000. This policy contains no language concerning its relation to other insurance. Travelers relies on the fact that it insures only Enterprise, which would be held vicariously liable to Mr. Fowler under Florida’s dangerous instrumentality doctrine, to support its claim that the Allstate policy should provide the second layer of coverage.

Allstate moved for summary judgment. The court denied the motion, relying on Hartford Accident & Indemnity Co. v. Kellman, 375 So.2d 26 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 755 (Fla.1980) and Insurance Co. of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977). Travelers countered with its own motion for summary judgment, which was granted.

The controlling principle in this cause is that if Enterprise is only vicariously liable to Fowler because of the dangerous instrumentality doctrine, its insurer is entitled to be subsequent in coverage to that of the negligent driver regardless of policy language. If, however, Enterprise was in any way negligent, it would be a joint tort-feasor and “in the same class” with Morrison, and policy terms would control. Since there was no finding regarding the nature of Enterprise’s liability, the summary judgment entered for Travelers was improper.

Florida case law on this question is confusing, at the very least. In IN A v. Avis, supra, the Florida Supreme Court held that the parties were free to contract among themselves to determine priorities of coverage and ruled that policy language controlled. We note, however, that the dispute was between insurers whose insureds were both apparently vicariously liable only (the tortfeasor’s employer and the lessor of the vehicle). The opinion is not explicit as to whether contract terms apply only where insureds are “in the same class” (i.e., joint tortfeasors or both vicariously liable or the same insured), but we believe it should be properly so restricted. Hartford v. Kellman, supra, by contrast, cited the correct rule but applied it to an inappropriate factual circumstance (all policies covered the same individual). Other Florida cases involved insurers who insured the same individuals or those in the same class, and are not dispositive of the question presented by this appeal.

Other jurisdictions have noted the proper rule of law to be applied where one insurer insures an active tortfeasor and the other insures one who is only vicariously liable:

... An insurer providing extended coverage is ultimately liable as against an insurer providing coverage only to the named insured, where the named insured’s liability is vicarious only, and that named insured has a right of recovery over against the person or persons primarily liable, to whom coverage has been extended only by the extended coverage provision of the first insurer.

Pacific Employers Insurance Co. v. Hartford Accident & Indemnity Co., 228 F.2d 365, 371 (9th Cir.1955), cert. denied, 352 U.S. 826, 77 S.Ct. 38, 1 L.Ed.2d 49 (1956). The purpose of the rule is to avoid circuity of action, Dairyland Insurance Co. v. Concrete Products Co., 203 N.W.2d 558, 564-65 (Iowa 1973). See also Barrois v. Service Drayage Co., 250 So.2d 135 (La.Ct. App.), application denied, 259 La. 805, 253 So.2d 66 (1971); United States Fire Insurance Co. v. National Union Fire Insurance Co., 107 Cal.App.3d 456,165 Cal.Rptr. 726 (1980); Maryland Casualty Co. v. New Jersey Manufacturers (Casualty) Insurance Co., 48 N.J.Super. 314, 137 A.2d 577 (App.Div.), affd, 28 N.J. 17, 145 A.2d 15 (1958).

The cases cited above all rely on proven or stipulated facts that the insured party was only vicariously liable and therefore entitled to indemnity. Here, Allstate correctly points out that Enterprise’s right to indemnity has not been proven and suggests that Enterprise may have been negligent in leasing the vehicle to Ms. Morrison. If Enterprise was negligent and its negligence was a proximate cause of Fowler’s injuries, it would not be entitled to indemnity under Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979). Rather, in such a case Enterprise and Morrison would be joint tortfeasors as to Fowler and in the same class and the terms of the policies would control under the rationale of IN A v. Avis, supra.

In order to prevail on its theory, Travel- ■ ers must prove that its insured was not negligent and its liability to Fowler vicarious only. This is obviously a question of fact and precludes the granting of summary judgment in this case. The adjudication of this fact question, however, is possible in this declaratory judgment action. In noting that Enterprise’s complaint did not plead its right to indemnity, we believe the avoiding of circuity of action would be appropriate and all matters should be disposed of in this single action.

The summary final judgment is REVERSED and the case REMANDED for pleadings and proof on the issue of whether Enterprise’s liability to Fowler is solely vicarious.

We recognize the apparent conflict between this decision and Sentry Insurance Co. v. Aetna Insurance Co., 450 So.2d 1233 (Fla. 2d DCA 1984). That case involved a dispute between Aetna and Sentry over who would provide the second layer of insurance in a $91,500 settlement. Aetna insured the vehicle involved, while Sentry provided excess insurance for the driver’s employer. Travelers, who insured the driver, conceded that it provided the first layer and paid its policy limits, and was not a party to the appeal.

The Second District discussed Hartford v. Kellman, supra, at length and declined to follow it on three grounds: the result relied on by the parties was dictum; the factual distinction; and simply refusing to follow it. It relied on IN A v. Avis, supra, and instructed the trial court to decide the issue based on provisions in the two policies.

We believe that the Sentry v. Aetna, supra, opinion misses the controlling rule of law, as did the Hartford v. Kellman, supra, court. Sentry alleged that Aetna’s policy insured the negligent driver, while Sentry insured her (vicariously liable) employer. If this allegation were true, it would appear that Sentry was entitled to summary judgment under the rationale expressed in Pacific Employers, supra, and the other cases cited herein.

We certify the following question as being one of great public importance:

Is the controlling law of Florida that if a party is only vicariously liable by way of the dangerous instrumentality doctrine, its insurer is entitled to follow that of the negligent driver regardless of policy language?

THOMPSON and NIMMONS, JJ., concur.


author: WIGGINTON, Judge.

text:
    Richard L. BEAN, Appellant, v. Janis Bean THIBAULT as Personal Representative of the Estate of Katherine A. Bean, deceased, Appellee.
    No. AV-135.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1984.
    Rehearing Denied Sept. 17, 1984.

      Michael E. Seelie, of Penland, Seelie & Penland, P.A., Jacksonville, for appellant.
    Lacy Mahon, Jr., of Mahon, Mahon & Farley, P.A., Jacksonville, for appellee.
   WIGGINTON, Judge.

This is an appeal from the final judgment of dissolution of marriage awarding to the wife both periodic and lump sum alimony. The husband raises three points for our consideration. With the exception of our striking two provisions, we affirm the final judgment in its entirety.

The parties resided together as husband and wife for thirty-one years prior to their separation. Four children were born of the marriage, and at the time of dissolution all had reached the age of majority. They continued to reside in the marital home at the invitation of their parents, though employed or attending college.

The marital home is a mansion located on the St. Johns River in Jacksonville, Florida, having an appraised value of approximately $500,000 and a mortgage debt of $60,000. Other than the home and furnishings, the parties’ only jointly held asset was an adjacent vacant lot, valued at between $45,000 and $50,000.

The husband, fifty-two years of age at the time of dissolution, is a diagnostic radiologist with a yearly income from his professional association (P.A.) of approximately $255,000. In addition, by the time of the dissolution proceedings, the husband had a vested interest to an accumulated $470,000 in the P.A.’s pension and profit sharing plan should he determine to retire.

The wife was fifty-five years of age and-had not worked outside the home since the husband began his Jacksonville medical practice in 1963. Instead, she became active in various civic organizations, her predominant involvement being with the prestigious Jacksonville Garden Club, in which organization she gained the office of president. During the marriage, the wife suffered from cancer, requiring extensive surgery. In addition, she suffered various ailments which prevented her from engaging in strenuous activity of any kind. It was undisputed at the hearing that the wife was unemployable and had no independent income source.

By its final judgment, the trial court awarded to the wife $4,000 per month permanent periodic alimony, $300,000 lump sum alimony payable in $2,500 monthly installments, and the marital home. The court restricted the husband’s sale or encumbrance of his solely owned stock interest in the P.A. and his interest in the P.A. pension and profit sharing plan without the consent of the wife or the court, and ordered the husband to maintain life insurance policies of $100,000 and $200,000, the wife to be the irrevocable beneficiary, during the time he is required to pay permanent periodic alimony. The court also ordered the husband to provide an automobile equal to the wife’s Datsun 280Z-X, and payment of the wife’s attorney’s fees and costs. On appeal, the husband challenges the lump sum awards of the marital home and $300,000, the restrictions placed on his interests in the P.A. stock and pension and profit sharing plan, and the life insurance provision. He also argues that the trial court erred in permitting evidence of the husband’s adultery to become the feature of the hearing.

In regard to the lump sum awards of the marital home and $300,000, we hold that the trial court did not abuse its discretion. The record justifies the awards as necessary to meet the wife’s support needs. Stelk v. Stelk, 442 So.2d 351 (Pla. 1st DCA 1983); Lynch v. Lynch, 437 So.2d 234, 235 (Fla. 5th DCA 1983). The evidence of the parties’ respective financial situations certainly indicates the wife’s need and the husband’s ability to pay. That portion of the final judgment is affirmed.

However, we find the portion of the final judgment in paragraph 3, prohibiting the husband from selling, encumbering or otherwise disposing of his stock interest in the P.A. and his interest in the pension and profit sharing plan, without the wife’s or the court’s approval, to be unduly restrictive and an abuse of the trial court’s discretion. We therefore strike that provision from the judgment. But cf. Clarke v. Clarke, 443 So.2d 486 (Fla. 2d DCA 1984), and cases cited therein, for the proposition that a trial court may deem a spouse’s vested interest in a pension and profit sharing plan as an asset to be taken into consideration when fashioning a dissolution plan.

We also strike the provision in paragraph 8 requiring the husband to maintain the two life insurance policies for the wife’s benefit. Normally a husband’s common law obligation to support his wife ceases upon his death, and there is nothing in this record which justifies an award of alimony after death. Watterson v. Watterson, 353 So.2d 1185, 1189 (Fla. 1st DCA 1978); but cf. Noe v. Noe, 431 So.2d 657 (Fla. 2d DCA 1983).

Finally, we disagree with the husband’s contention that the trial court’s consideration of evidence of the husband’s extramarital involvement with another woman was the basis for the court’s alleged “punitive and unfair treatment” of the husband’s personal and property rights. At no time did the court’s admitting evidence on the adultery issue transcend the bounds established by the supreme court in Williamson v. Williamson, 367 So.2d 1016 (Fla.1979). Nor has the husband shown that the trial court’s alimony awards are punitive due to the evidence of the husband’s infidelity. Indeed, we hold that the awards are not punitive to any extent.

AFFIRMED, with the exception that the provisions in paragraph 3 regarding the husband’s ability to “sell, encumber or otherwise dispose of his stock interest” in the professional association and the pension and profit sharing plan without the consent of the wife or the court, and in paragraph 8 regarding the husband’s obligation to maintain the life insurance policies of $100,000 and $200,000 with the wife as beneficiary are hereby STRICKEN.

SMITH, L., and WENTWORTH, JJ., concur.


author: SHIVERS, Judge.

text:
    Dwyer Frank WETZLER, Appellant, v. STATE of Florida, Appellee.
    No. AV-276.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1984.
    Rehearing Denied Sept. 19, 1984.
    J. Victor Africano, Live Oak, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Wetzler appeals his conviction and sentence for possession of more than 20 grams of cannabis. Appellant contends that the evidence was insufficient to support this conviction. We affirm.

On the morning of March 23,1983, appellant drove his pickup truck, which was towing a padlocked U-Haul trailer, into the agricultural inspection station off 1-10 in Suwannee County. Agricultural Inspector Silas told appellant that he would like to look in the trailer. Appellant told Silas that he did not have the key to the padlock. Silas told appellant that he had a pair of bolt cutters for that purpose and requested appellant to cut the lock with them. Appellant voluntarily cut the padlock, and Silas opened the trailer, observing what he thought to be marijuana plants. Silas told appellant to close the trailer and come into the station. Silas then called the Suwan-nee County Sheriff.

The Sheriff arrived, looked into the trailer, and observed the marijuana plants. After receiving Miranda warnings, appellant told the Sheriff that he had been given $400 to come to Sarasota, rent a U-Haul trailer and leave it hooked to his truck. He told the Sheriff that for a period of time the truck and trailer were out of his possession. The rig was taken, brought back, and he was supposed to have received another $400 when he got back to Atlanta, Georgia. Appellant told the Sheriff that he knew it was a “shady deal” by the way “they wanted to do things by being secret.” Appellant denied any knowledge that there was marijuana in the trailer and asked the Sheriff if the charge was serious. The Sheriff later counted 164 potted, growing marijuana plants in the trailer with a total dry weight of 32 or 36 ounces.

Appellant testified in his own defense. He stated that he was living in Atlanta, Georgia, but that his family lived in Bra-denton, Florida. He had met a man named Bill in an Atlanta bar who struck up a conversation with appellant about Braden-ton and about appellant’s new truck. After talking for approximately 45 minutes, appellant agreed to go to Bradenton, rent a trailer, and pick up some furniture for Bill. Bill advanced appellant $400 and told him he would receive another $400 upon delivery. Appellant was to go to Bradenton and park the truck and rented trailer in a certain shopping mall at a certain time. He was to leave the truck key under the floor mat and go inside the mall for two hours. Although appellant was somewhat suspicious about this arrangement and thought it was “just a little bit” shady, he testified that he did not think he was doing anything illegal. He denied any knowledge of the marijuana in the trailer. Appellant did not head directly back to Atlanta because he heard that there was a snowstorm there. Instead, he headed for Tallahassee to see an old girlfriend and thereby ended up at the I — 10 agricultural inspection station.

Appellant was in constructive rather than actual possession of the marijuana. Cases of this kind generally turn on whether the constructive possession is determined to be exclusive or joint. This is so because that determination dictates the State’s burden of proof on the issue of a defendant’s guilty knowledge. As this court said in Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967):

[T]he State must establish beyond a reasonable doubt that the accused knew of the presence of the narcotic drugs on premises occupied and controlled by him, either exclusively or jointly with others. If the premises on which the drugs are found are in the exclusive possession and control of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over them may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused, the inference of knowledge is rebuttable and not conclusive. If the premises on which the drugs are found is not in the exclusive but only in the joint possession of the accused, knowledge of the drugs’ presence on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge by the accused of the drugs’ presence on the premises.

Id. at 120-121. Appellant contends that the instant case involves joint possession because of claimant’s uncontradicted testimony that the trailer was out of his presence and control when it was loaded by others.

Appellant relies on Sindrich v. State, 322 So.2d 589 (Fla. 1st DCA 1975). Sindrich involved a somewhat similar fact situation, and this court held that the evidence did not permit an inference of knowledge sufficient to sustain a verdict of guilt. Appellee, on the other hand, argues that Brayton v. State, 425 So.2d 88 (Fla. 1st DCA 1982), rev. denied, 434 So.2d 886 (Fla.1983), should control the instant case. Brayton also involved a somewhat similar fact situation, but Brayton distinguished Sindrich on the issue of exclusive control or access and affirmed Brayton’s conviction. We find the facts of the instant case distinguishable from both Sindrich and Brayton because, inter alia, appellant here admitted that the transaction involved was “shady.”

The doctrine of “willful blindness” (also called “deliberate ignorance”) is well established in federal criminal law. See, e.g., United States v. Aleman, 728 F.2d 492 (11th Cir.1984); United States v. Del Aguila-Reyes, 722 F.2d 155 (5th Cir.1983). An extensive discussion of the doctrine and its derivation is contained in United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). “[T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.” 532 F.2d at 700 (quoting from G. Williams, Criminal Law: The General Part, § 57 at 157 (2d Ed.1961)).

Although our research has uncovered no Florida cases addressing or utilizing the doctrine of willful blindness, we think this doctrine is applicable to constructive possession cases. In the instant case, appellant’s admissions make it clear that his suspicion concerning the transaction was aroused. We think that these admissions together with the other circumstances present in this case indicate that appellant deliberately chose to remain in ignorance. See United States v. Suttiswad, 696 F.2d 645 (9th Cir.1982); United States v. Murrieta-Bejarano, 552 F.2d 1323 (9th Cir.1977). Thus, we find that there was sufficient evidence for the jury to find knowledge on the part of appellant, and that this is true whether the constructive possession involved in the instant case is described as exclusive or joint.

AFFIRMED.

MILLS and WIGGINTON, JJ., concur.

      . In distinguishing Sindrich, the Brayton court stated:

        Sindrich v. State, 322 So.2d 589 (Fla. 1st DCA 1975), on which appellant places particular emphasis, is distinguishable on the issue of exclusive control or access. In that case "[t]he uncontradicted evidence before the jury was that the truck was loaded out of [defendants'] presence, that they did not have a key to the locked cargo area, and that they did not know of the contents." 425 So.2d at 89.

      . The scope and outer limits of the doctrine of willful blindness are nicely summed up by Professor Williams:
      The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.
      532 F.2d at 700 n. 7 (quoting from G. Williams, supra, at 159).


text:
    Robert Lee BAKER, Appellant, v. STATE of Florida, Appellee.
    No. AW-32.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1984.
    Rehearing Denied Sept. 17, 1984.
    Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
    John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Carwise v. State, 454 So.2d 707 (Fla. 1st DCA 1984).

SMITH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Riley STOKER/ASHLAND and Insurance Company of North America, Appellants, v. Albert G. DOUGLAS, Appellee.
    No. AW-127.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1984.
    Rehearing Denied Sept. 28, 1984.
    Mark E. Hungate of Fowler, White, Gil-len, Boggs, Villareal & Banker, St. Peters-burg, for appellants.
    William P. Levens of Barrs, Williamson & Levens, Tampa, for appellee.
   ERVIN, Chief Judge.

In this workers’ compensation appeal, the employer/carrier (e/c) appeals awards of temporary partial disability and wage-loss benefits. We affirm all awards entered with the exception of one, finding that they are otherwise supported by competent and substantial evidence.

We agree with the e/c’s argument that the deputy erred in failing to offset the wage-loss award by the amount of unemployment compensation benefits which claimant received for the weeks of July 23 through September 4, 1983. Claimant concedes in his answer brief that such an offset is required by the provisions of Section 440.15(10)(b), Florida Statutes. Accordingly, the award of wage-loss benefits for such period of time is reversed and the cause remanded to the deputy with directions that he allow the e/c to recover an appropriate offset for the time involved.

Affirmed in part, reversed in part and remanded.

JOANOS and NIMMONS, JJ., concur.


text:
    LAUDERDALE TITLE INSURANCE CORPORATION and T & T Co. Holding Company, Appellants, v. PENINSULAR LIFE INSURANCE COMPANY and Peninsular Fire Insurance Company, the Successor in Interest to Peninsular Abstract Company, Appellees.
    No. AW-302.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1984.
    Rehearing Denied Sept. 28, 1984.

      Ronald L. Gaffney of Barnett & Alagia, Palm Beach and Peter D. Webster of Be-dell, Dittmar, Devault, Pillans & Gentry, Jacksonville, for appellants.
    Dudley D. Allen of Wilbur & Allen, Jacksonville, for appellees.
   WIGGINTON, Judge.

Before us is an appeal from the final judgment of the trial court decreeing specific performance of an agreement for the sale of 50 percent of a joint venture. After carefully reviewing the voluminous record, we hold that the final judgment is supported by competent and substantial evidence. We decline to reinterpret the intentions, innuendoes and implications of the parties and the agreement, and matters of pure semantic purport. The trial court commendably resolved those conflicts in its well-reasoned opinion; we will not now reweigh the evidence.

AFFIRMED.

SMITH and WENTWORTH, JJ., concur.


text:
    DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellant/Cross-Appellee, v. Zia DURRANI, Appellee/Cross-Appellant.
    No. AX-329.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1984.
    Rehearing Denied Oct. 2, 1984.

      Jim Smith, Atty. Gen., and John E. Griffin, Asst. Atty. Gen., Tallahassee, for appellant/cross-appellee.
    William M. Barley and John Barley of John A. Barley & Associates, Tallahassee, for appellee/cross-appellant.
   ERVIN, Chief Judge.

Florida Department of Professional Regulation, Board of Medical Examiners (the Board), appeals a final order of the hearing officer of Florida Department of Administrative Hearings declaring Rule 21M-29.-01(2), Florida Administrative Code (1983), to be an invalid exercise of delegated legislative authority. Appellee, Durrani, cross-appeals, challenging the hearing officer’s determination that deficiencies in the Economic Impact Statement (EIS), accompanying promulgation of the rule, did not impair the fairness of the rulemaking proceeding. We reverse the order on appeal and affirm as to the issue raised on cross-appeal.

Durrani was licensed in Illinois on the basis of having achieved a weighted average score of 75% following two separate searings while he was taking the examination of the Federation of State Medical Boards of the United States (FLEX). Illinois applies the general formula, rejected by the subject rule, of considering the highest score obtained on any of the three FLEX parts in multiple searings in computing the weighted average scores of candidates who have taken any part more than once. Durrani’s Illinois FLEX scores did not meet the criteria of Rule 21M-29.01(2) and his application for licensure in Florida was denied by the Board. Durrani challenged the rule in an administrative hearing, resulting in the order which found the rule to be an invalid delegation of legislative authority in that it adds substantive requirements to section 458.313(l)(d).

In Florida, medical licensure may be secured either “by examination” of previously unlicensed persons or “by endorsement” of persons licensed elsewhere. Licensure by endorsement is provided for in Section 458.313(l)(d), Florida Statutes, as follows:

(1) The department shall issue a license by endorsement to any applicant who, upon applying to the department and remitting a fee not to exceed $250 set by the board, demonstrates to the board that he has met the qualifications for licensure in s. 458.311 and:
(d) Has been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) or is certified by the National Board of Medical Examiners as having completed its examination; provided that said examination required shall have been so certified within the 10 years immediately preceding the filing of his application for licensure under this section.

Section 458.311, Florida Statutes, referenced above, is the provision controlling licensure by examination, one qualification of which is successful completion of the FLEX examination.

Rule 21M-29.01(2) interprets the section 458.313(l)(d) phrase “has been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc.” as requiring that applicants obtain a 75% weighted average score from a single complete sitting of FLEX, a three-day, three-part examination. The EIS accompanying the rule anticipated no significant impact on competition or on the open market for employment.

The well recognized general rule is that agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies’ general statutory duties. Florida Commission on Human Relations v. Human Development Center, 413 So.2d 1251 (Fla. 1st DCA 1982). An agency’s construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla.1983); Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983). Where, as here, the agency’s interpretation of a statute has been promulgated in rulemaking proceedings, the validity of such rule must be upheld if it is reasonably related to the purposes of the legislation interpreted and it is not arbitrary and capricious. The burden is upon petitioner in a rule challenge to show by a preponderance of the evidence that the rule or its requirements are arbitrary and capricious. Agrico Chemical Co. v. State, Dept, of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978); Florida Beverage Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975). Moreover, the agency’s interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations. Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983) (Ervin, C.J., dissenting); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). In the instant case the Board is authorized to adopt rules under the general authority conferred upon it by Section 458.309, Florida Statutes, and the specific authority of Section 458.313(4), Florida Statutes. The latter provision clearly empowers the Board with the authority to make such rules necessary to implement the provisions of the licensure by endorsement statute at issue here and the agency’s interpretive rulemaking is entitled to the deference outlined above. The issue is whether Rule 21M-29.01(2), in setting a minimum FLEX score of 75% and requiring that the score be obtained in one sitting, exceeds the range of possible interpretations of section 458.313(l)(d), thereby constituting an addition or alteration to the statute, in excess of lawfully delegated rulemaking authority?

Durrani contends that the rule imposes additional requirements not encompassed within the statute. He interprets the language of section 458.313(l)(d), “certified by licensure examination of the Federation of State Medical Boards of the United States, Inc.”, to mean that if one is licensed by another state on the basis of the FLEX exam, such person is entitled to Florida licensure by endorsement, regardless of the score achieved on FLEX or the number of tests combined to achieve the score. This interpretation has two obvious faults. First, if “certified by licensure examination” means certified by licensure in another state, the statute should have included that language. The language describing licensure “in another state” is included within other sections of the act. See Sections 458.311(2)(a), 458.315 and 458.-317, Florida Statutes. The legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended. Ocasio v. Bureau of Crimes Compensation Division of Workers’ Compensation, 408 So.2d 751 (Fla. 3d DCA 1982).

Second, Durrani is mistaken in his contention that subsection (d) establishes the FLEX requirement for endorsement candidates. Section 458.313(1) requires that endorsement candidates meet the qualifications for licensure in section 458.311, which statute requires candidates for licen-sure by exam to complete the FLEX examination. Thus, section 458.313(1) establishes the FLEX exam requirement for endorsement candidates, and subsection (d), rather than uselessly reiterating that requirement, imposes the additional condition that the FLEX be certified as having been completed within ten years preceding application for endorsement. Sections 458.-313(1) and 458.311, read in pari materia, reflect the legislative intent that candidates for licensure by endorsement and by examination satisfy the same examination requirement. Establishment of a minimum passing score is required by Section 455.-217(1), Florida Statutes; Rule 21M-21.01(3) sets the score for examination candidates. The challenged rule, consistent with the legislative intent of uniformity, adopts the same passing score for endorsement candidates. No additional criteria are imposed.

As earlier observed, the criteria selected by the Board to constitute an acceptable FLEX examination in Rule 21M-29.01(2) need not be the only possible interpretation or even the best interpretation of statutory language — it need only be within the range of possibilities. The choices of a 75% minimum score and the requirement that all test section scores calculated into this overall score be attained at a single sitting of FLEX are certainly within the range of permissible choices. There is nothing in the record to suggest that this choice was arbitrary or capricious. The establishment of examination criteria for endorsement candidates identical to that imposed on examination candidates implements the legislative intent of uniformity. Additionally, the criteria selected are reasonably related to the statutory purpose of requiring some basic level of medical competence to assure protection of the public health, safety and welfare. Both the 75% score and the single sitting requirement are criteria having a possible correlation to medical competence.

The interpretation of section 458.313(l)(d) urged by Durrani, and apparently accepted by the hearing officer, would result in the licensing of any physician who has obtained a license by examination in another state, even if such licensing were conceivably based on a passing score of only one percent. An interpretation open to this possibility would establish mere physical completion of FLEX as a standard of medical competence. A statute must be interpreted to avoid so unreasonable a result where, as here, it is open to another interpretation. Agrico, 365 So.2d at 766.

On cross-appeal we note that the preparation of an EIS is a procedural aspect of rulemaking that is subject to the harmless error rule. Plantation Residents’Association, Inc. v. School Board of Broward County, 424 So.2d 879 (Fla. 1st DCA 1982); School Board of Broward County v. Gramith, 375 So.2d 340 (Fla. 1st DCA 1979); Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979). Therefore before the agency action adopting Rule 21M-29.01(2) may be invalidated on the ground that it was not accompanied by an appropriate EIS, the court must first determine whether the fairness of the proceeding or the correctness of the action was found to be impaired. Gramith, 375 So.2d at 341. See also Wright, 439 So.2d at 942 (Ervin, C.J., dissenting). There is no evidence in this record supportive of any finding of incorrectness or unfairness in the rule’s adoption, therefore the hearing officer’s ruling was not in error.

Accordingly, we reverse as to the issue on appeal, affirm the issue raised on cross-appeal, and remand this cause for action consistent with this opinion.

SMITH and JOANOS, JJ., concur.


text:
    Mary C. Montford WARREN, Petitioner, v. Glenn T. WARREN, Sr., Respondent.
    No. AY-222.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1984.
    Rehearing Denied Sept. 19, 1984.
    Graham Clark of Staas, Overstreet & White, Panama City, for respondent.
   BARFIELD, Judge.

The petition for writ of certiorari is DENIED.

MILLS and BOOTH, JJ., concur.