text:
    Charlotte I. GAMBLE, as Guardian of the Property of Cynthia Leigh Gamble, Appellant/Cross-Appellee, v. Ted L. WELLS, Appellee/Cross-Appellant.
    No. 63768.
    Supreme Court of Florida.
    May 17, 1984.

      Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, Tampa, for appellant/ cross-appellee.
    Howard C. Hadden, Tampa, for appel-lee/cross-appellant..
    Hamilton D. Upchurch, Chairman, Committee on Judiciary, and Richard A. Hixson, Staff Counsel, Tallahassee, for H. Lee Mof-fitt, Speaker of the Florida House of Representatives, amicus curiae.
   ALDERMAN, Chief Justice.

Charlotte Gamble, as guardian of the property of Cynthia Gamble, appeals and Ted Wells cross-appeals the decision of the District Court of Appeal, Second District, in Gamble v. Wells, 436 So.2d 173 (Fla. 2d DCA 1983). The Second District declared invalid the portion of chapter 80-448, Laws of Florida, which placed a $10,000 limitation on the attorney’s fee for Cynthia Gamble’s attorney. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

We reverse the district court and hold that the attorney’s fee limitation in chapter 80-448 is a constitutionally permissible exercise of legislative authority and does not constitute an impairment of contractual obligations proscribed by article I, section 10 of the Florida Constitution.

The facts are stated at length in the district court’s decision. Briefly the pertinent facts are that commencing in 1967, while in the custody of the State Department of Public Welfare, now known as the Department of Health and Rehabilitative Services, due to the negligence of the department, Cynthia Gamble sustained crippling and disfiguring injuries. In 1975, Charlotte Gamble, who had been granted legal custody of Cynthia, contacted Ted Wells, a personal injury trial lawyer, and told him that the child had been abused and injured while in the previous legal custody of HRS. She signed a standard contingent fee contract giving Wells authority to represent Cynthia. This contract provided, among other things, that as compensation for his services Wells would be paid 33V3 percent of the, proceeds of recovery if the matter was settled without suit, 40 percent if suit was filed, and 50 percent if an appeal was taken from the lower court.

In 1977 Wells decided that the only possible means available for recovery would be a private relief act. He represented Cynthia before the legislature during the deliberations over the claims bill. In 1980, the legislature enacted chapter 80-448, Laws of Florida. Section 3 of this act specifically limits the attorney’s fee to Cynthia’s counsel to $10,000.

Wells advised Gamble that he would not accept only $10,000 and that he believed the fee limitation to be unconstitutional. Gamble refused to pay Wells more than $10,000.

Wells then filed in probate court for attorney’s fees, under the terms of the contingent fee contract for costs and for a charging lien. The probate court awarded Wells attorney’s fees of $50,000 pursuant to the contingent fee contract clause which provided for a fee of 33⅛ percent in the event the case was settled without suit, allowed $710.24 in costs, impressed a charging lien, and denied prejudgment interest. Declining to hold the attorney’s fee limitation of the act unconstitutional, the probate court held that this language of chapter 80-448 was mere surplusage.

Upon appeal, the district court held that the attorney’s fee limitation amounted to an unconstitutional impairment of a contractual obligation but that this limitation was severable from the remainder of the private relief act. It further determined, however, that Wells waived his contractual rights during his conversation with Representative Upchurch to a qualified extent by holding out for 25 percent of whatever amount the legislature awarded the child. Accordingly, the Second District directed the trial court to reduce the fee award to $37,500, without prejudgment interest.

We disagree and hold that no contract rights were impaired by section 3 of chapter 80-448. By enacting chapter 80-448, the legislature found that a moral obligation existed on its part to redress the physical and emotional injuries of Cynthia Gamble sustained as a result of the negligence of a state agency. This voluntary recognition of its moral obligation by the legislature in this instance was based on its view of justice and fair treatment of one who had suffered at the hands of the state but who was legally remediless to seek damages. Chapter 80-448 is an act of grace to redress a wrong suffered by Cynthia at the hands of the state which is not otherwise legally compensable. In seeking to obtain relief for Cynthia by means of a private relief act, Ted Wells was not in a position to demand that the legislature grant compensation to Cynthia. He could only request that the legislature grant the compensation sought. The legislature then, as a matter of grace, could allow compensation, decide the amount of compensation, and determine the conditions, if any, to be placed on the appropriation.

Parties cannot enter into a contract to bind the state in the exercise of its sovereign power. The legislature had the power to place the attorney’s fee limitation in chapter 80-448. Wells, by the terms of his contingent fee contract with Gamble, could not deprive the legislature of this power. The legislature was in no way bound to pass legislation conforming with the provisions of the prior contingent'fee contract.

Accordingly, we hold that chapter 80-448 is constitutional and reverse the decision of the district court. We remand with directions that the fee award be reduced to $10,000.

It is so ordered.

BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.

SHAW, J., concurs in result only.

      . Gamble, in her brief, also contended that she was entitled to trial by jury as a matter of right. We need not resolve that issue since Gamble's counsel at oral argument advised the Court that, if he prevailed on the first issue and the legislative limitation was upheld, he had no problem with the amount set by the legislature.

      . An act for the relief of Cynthia Leigh Gamble, a minor; providing an appropriation to compensate her for personal injuries due to the negligence of the Department of Health and Rehabilitative Services; providing an effective date.
      WHEREAS, on May 24, 1967, Cynthia Leigh Gamble, then 3 months old, was taken into the custody of the juvenile court of Hillsborough County and because she had no living parent was placed in the custody of the State Department of Public Welfare, and
      WHEREAS, on August 6, 1967, Cynthia Gamble was admitted to Tampa General Hospital where it was discovered that she had several injuries, and
      WHEREAS, on July 29, 1969, while still in the custody of the department, Cynthia Gamble was readmitted to the hospital suffering from a variety of illnesses and injuries, and
      WHEREAS, on August 4, 1969, it was concluded that the child’s skeletal deficiencies and changes were the result of vitamin deficiency and trauma, and
      WHEREAS, the child was placed in the home of a new foster mother and has since received adequate medical care at the Crippled Children’s Clinic to overcome the crippling and disfiguring injuries carelessly and negligently inflicted upon her while she was in the custody of the now Department' of Health and Rehabilitative Services, and
      WHEREAS, due to the negligence of the department, Cynthia Gamble has required plastic surgery and orthopedic operations and remains crippled and disfigured, NOW, THEREFORE,
      Be It Enacted by the Legislature of the State of Florida;
      Section 1. The facts stated in the preamble of this act are found and declared to be true.
      Section 2. The sum of $150,000 is appropriated from funds in the State Treasury to the credit of the Department of Health and Rehabilitative Services, not otherwise appropriated, to compensate Cynthia Leigh Gamble for personal injuries.
      Section 3. The Comptroller is directed to draw his warrant in favor of Cynthia Leigh Gamble to be applied to a trust fund to be administered and accounted for by her legal guardian in the sum of $150,000 upon funds in the State Treasury to the credit of the Department of Health and Rehabilitative Services, and the State Treasurer is directed to pay the same out of such funds in the State Treasury not otherwise appropriated. The attorney’s fee for counsel of Cynthia Leigh Gamble shall be limited to $10,000.
      Section 4. This act shall take effect July 1, 1980.
      Approved by the Governor July 2, 1980.
      Filed in Office Secretary of State July 3, 1980.


source: Caselaw Access Project

author: McDONALD, Justice.

license: Public Domain

text:
    Beverly GRAPIN, Petitioner, v. Bertram GRAPIN, Respondent.
    No. 63869.
    Supreme Court of Florida.
    May 17, 1984.

      Brian R. Hersh of Hersh & Bernstein, Miami, for petitioner.
    Norman S. Klein and Linda A. Fenner of Schwartz, Klein, Steinhardt, Weiss & Wein-stein, North Miami Beach, for respondent.
    Marsha B. Elser, Chairman, Brenda M. Abrams, Chairman-Elect, Cynthia L. Greene of Melvyn B. Frumkes, P.A., Miami, and C. Edwin Rude, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for The Family Law Section of The Florida Bar, amicus curiae.
   McDONALD, Justice.

We have for review Grapin v. Grapin, 430 So.2d 926 (Fla. 3d DCA 1983), because of conflict with Nicolay v. Nicolay, 387 So.2d 500 (Fla. 2d DCA), review dismissed, 392 So.2d 1377 (Fla.1980). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution and approve the decision under review.

In a 1982 dissolution action the trial court entered a final judgment that included a provision requiring Mr. Grapin to pay the expenses of his emancipated daughter’s college education. The district court reversed the education costs provision in the final judgment on the grounds that a parent has no legal duty to provide post-majority support to an otherwise healthy child, absent either a finding of legal dependence or a binding contractual agreement by the parent to pay such support, neither of which conditions occurred here. We agree that a trial court may not order post-majority support simply because the child is in college and the divorced parent can afford to pay. See also Thomas v. Thomas, 427 So.2d 259 (Fla. 5th DCA 1983); Jones v. Jones, 421 So.2d 815 (Fla. 4th DCA 1982); Dwyer v. Dwyer, 327 So.2d 74 (Fla. 1st DCA 1976); Kowalski v. Kowalski, 315 So.2d 497 (Fla. 2d DCA), cert. dismissed, 319 So.2d 31 (Fla.1975); Krogen v. Krogen, 320 So.2d 483 (Fla. 3d DCA 1975).

The second district took a contrary position in Nicolay. There the district court affirmed an increase in alimony based upon the wife’s need for funds to provide a college education for her children, as expected by the parties’ standard of living during the marriage. 387 So.2d at 506. We disagree with this indirect method of compelling unwilling divorced parents to provide college costs for their capable adult children.

While most parents willingly assist their adult children in obtaining a higher education that is increasingly necessary in today’s fast-changing world, any duty to do so is a moral rather than a legal one. Parents who remain married while their children attend college may continue supporting their children even beyond age twenty-one, but such support may be conditional or may be withdrawn at any time, and no one may bring an action to enforce continued payments. It would be fundamentally unfair for courts to enforce these moral obligations of support only against divorced parents while other parents may do as they choose. As Judge Cowart pointed out in his dissent to a decision affirming a post-majority support order for a high school student:

It denies such divorced parents their constitutional right to equal treatment under law; that being the same right to voluntarily make such decisions concerning their adult children as other, undivorced parents have under law. I cannot agree with a rule of law that permits domestic relations judges to create and enforce special duties of support in favor of adult children against divorced parents which are not provided by general law equally applicable to all parents.

Owens v. Owens, 415 So.2d 855, 858 (Fla. 5th DCA 1982) (Cowart, J., dissenting).

Any reliance on dictum in Finn v. Finn, 312 So.2d 726, 731 (Fla.1975), for the proposition that parents, married or divorced, may be required to pay post-majority education support based only upon need and the ability to pay is misplaced. The dictum from Finn refers to the societal ideal of continued parental support for the education and training of these children. These statements of concern neither created a legal duty nor provided a new cause of action.

Accordingly, we approve the decision under review and disapprove Nicolay to the extent that it conflicts with this opinion.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Terry Lee ROBARGE, Respondent.
    No. 63928.
    Supreme Court of Florida.
    May 17, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese and W. Brian Bayly, Asst. Attys. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for respondent.
   McDONALD, Justice.

We accepted this case because the district court’s opinion in Robarge v. State, 432 So.2d 669 (Fla. 5th DCA 1983), appeared to be in conflict with State v. Thompson, 390 So.2d 715 (Fla.1980), State v. Buchman, 361 So.2d 692 (Fla.1978), and State v. Kohler, 232 So.2d 166 (Fla.1970).

On January 19, 1982 a jury convicted Robarge of aggravated assault and manual possession of a firearm without a license. On appeal the district court reversed Ro-barge’s conviction for violating section 790.05, Florida Statutes (1981) (possession of a firearm without a license), because the state had not proved at trial that Robarge did not have a license. The district court held that the lack of a license is an essential element of the crime, and, by not introducing any evidence on this issue, the state had failed to meet its burden of proving each element of the offense beyond a reasonable doubt.

The state argues that the district court’s construction of the “without a license” provision in section 790.05 conflicts with previous decisions of this Court characterizing exceptions or provisos contained in other statutes as defenses which a defendant must raise. Initially, we agreed with the state and granted review of this case. Upon further consideration of the various decisions and the statutes considered therein, however, we conclude that the district court’s decision does not conflict with the cases cited by the state.

The general rule for determining whether a statutory exception is an element of a statutory offense or a defense is set forth in Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890), which states that,

if there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause, or a subsequent statute, that is matter of defence [sic], and is to be shown by the other party.

Id. at 75, 7 So. at 372 (quoting 1 J. Bishop, Criminal Procedure § 639 (2d ed. 1872)). Thus, for a statutory exception to constitute a defense under Baeumel, it must be in a clause subsequent to the enacting clause of a statute. In Thompson we cited with approval Webster’s definition of a “clause”: “A ‘clause’ is defined as ‘a word group formed by subject and predicate elements but constituting a member of a complex or compound sentence instead of ranking as a completed sentence.’ ” 390 So.2d at 716 n. 3 (quoting Webster’s New International Dictionary 497 (2d ed. 1947)).

Applying the above rule and definition to the text of section 790.05, it is clear that the “without a license” provision is not “an exception in a subsequent clause.” Rather, “without a license” is a prepositional phrase contained in the enacting clause of the statute. Therefore, the district court correctly held that “the absence of a license is an essential element of the crime of possession of a firearm without a license.” 432 So.2d at 672.

Conversely, the statutory exception we considered in Thompson appeared in a clause following the enacting clause. We found the statutory exception in subsection 790.221(1), Florida Statutes (1977), not to be an element of the crime that the state had to prove. Given the different placement of the statutory exception in subsection 790.221(1), the district court’s decision in this case is consistent with Thompson.

The case with which there appeared to be the strongest likelihood of conflict is Buch-man. In Buchman we held that the state did not have to prove the lack of an exemption to obtain a conviction for the sale of unregistered securities under section 517.-07, Florida Statutes (1975), even though the statutory exception which set out the exemptions appeared in the enacting clause of the statute. In reaching our decision in Buchman, however, we did not overrule Baeumel, but, rather, relied on the legislature’s intent in enacting the statute.

A court’s main guide in construing a statute is the legislature’s intent. Parker v. State, 406 So.2d 1089 (Fla.1981). Accordingly, general rules of statutory construction, such as the one in Baeumel, are designed to help courts ascertain the intent of the legislature. American Bakeries Co. v. Haines City, 131 Fla. 790, 180 So. 524 (1938). As stated above, however, Baeu-mel is a general rule, and in some eases the placement of a statutory exception is not determinative of the legislature’s purpose regarding a statutory exception.

In Buchman application of the Baeumel rule would not have reflected the correct legislative intent. In section 517.-17, another provision of the Sale of Securities Law, the legislature stated:

It shall not be necessary to negative any of the exemptions provided in this chapter in any complaint, information, indictment, or any other writ or proceedings brought under this chapter, and the burden of establishing the right to any exemption shall be upon the party claiming the benefit of such exemption.

Based on the legislature’s clear directive, we construed section 517.07 in conformity with section 517.17 and held that “the lack of an exemption is not an element of the offense.” 361 So.2d at 695. In determining legislative intent a court must examine the entire statute under consideration. State v. Rodriquez, 365 So.2d 157 (Fla.1978). If we had followed the Baeumel rule in Buchman in interpreting section 517.07, we would have not only construed that section inconsistently with the legislature’s intent but we would have rendered section 517.17 a nullity.

On the other hand, a court need not depart from a general rule of statutory interpretation if application of the rule will carry out the legislature’s will. See American Bakeries Co.; 3 J. Sutherland, Statutes and Statutory Construction 454-62 (rev. 3d ed. 1974). An examination of section 790.05 does not disclose anything to indicate that characterizing the lack of a license as an element of the offense would be contrary to legislative intent regarding this statute. Therefore, the district court’s decision that Baeumel’s general rule of statutory construction controls the construction of section 790.05 is not in conflict with our decision in Buchman.

Finally, in Kahler we considered the validity of a statutory presumption, not whether an exception was an element of or a defense to a criminal offense. Thus, there can be no conflict between the district court’s decision and Kahler.

Finding no conflict between Robarge and the above cases, we deny the petition for review.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents.

      . § 790.05 provides:
      Whoever shall carry around with him, or have in his manual possession, in any county in this state, any pistol, electric weapon or device, or Winchester rifle or other repeating rifle without having a license from the county commissioners of the respective counties of this state shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; provided, this section shall not apply to sheriffs, deputy sheriffs, city or town marshals, policemen, or United States marshals or their deputies as to the carrying of concealed weapons.

      . § 790.221(1) provides:
      It is unlawful for any person to own or to have in his care, custody, possession, or control any short-barreled rifle, short-barreled shotgun, or machine gun which is, or may readily be made, operable; but this section shall not apply to antique firearms.
      In Thompson we found that the antique weapon proviso in this statute constituted "an exception in a subsequent clause” under Beaumel.

      .§ 517.07 provides in relevant part:
      No securities except of a class exempt under any of the provisions of s. 517.05 or unless sold in any transaction exempt under any of the provisions of s. 517.06 shall be sold within this state unless such securities shall have been registered, as hereinafter defined.

      . The fact that the Baeumel rule is not the exclusive method for determining the characterization of a statutory exception is evidenced by the qualification that begins the statement of the rule:
      In a statutory offense, it depends very much, though not exclusively, on the words of the statute whether a particular matter is one of defense or whether the negative of the matter enters into the definition of the crime.
      26 Fla. at 75, 7 So. at 372 (quoting 1 J. Bishop, Criminal Procedure § 639 (2d ed. 1872)).


author: EHRLICH, Justice.

text:
    Holly CORALLUZZO, a minor By and Through her mother and next friend, Anita CORALLUZZO, and Anita Coralluzzo, individually, Petitioners, v. Paul FASS, M.D., Cora Sue Golden, M.D., Physicians Protective Trust Fund, Florida Patient’s Compensation Fund, Curtis Meltzer, M.D., Daniel Diana, M.D., Sanford Robbins, M.D., Philip Freeland, M.D., and Arthur Sher, M.D., d/b/a Radiology Associates and Parkway General Hospital, Inc., a Florida corporation, Respondents.
    No. 64034.
    Supreme Court of Florida.
    May 17, 1984.
    Karen A. Gievers of Anderson, Moss, Russo & Gievers, Miami, for petitioners.
    James E. Tribble and Todd A. Cowart of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for respondents.
    Larry Klein, West Palm Beach, for Academy of Florida Trial Lawyers, amicus curiae.
    Mary Friedman of Colson, Hicks & Eid-son, Miami, for Dade County Trial 'Lawyers, amicus curiae.
    Bernard J. Zimmerman of Akerman, Sen-terfitt & Eidson, Orlando, for Iowa Nat. Mut. Ins. Co., amicus curiae.
    Gerald E. Rosser, Miami, for Florida Defense Lawyers Ass’n, amicus curiae.
    Robert M. Klein of Stephens, Lynn, Cher-nay, Klein & Zuckerman, Miami, for Florida Physicians Ins. Reciprocal, amicus curiae.
   EHRLICH, Justice.

This cause is before us on a question certified by the Third District Court of Appeal as being of great public importance. Coralluzzo v. Fass, 435 So.2d 262 (Fla. 3d DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The respondents, several health care providers, allegedly improperly diagnosed and treated an ailment suffered by then eight-year-old Holly Coralluzzo. The condition was later found, by an oral surgeon, Dr. Magnacca, to be related to a dental abscess.

In August, 1981, defendant Fass and certain other defendants (respondents here) made arrangements to meet ex parte with Dr. Magnacca on August 31 to discuss the Coralluzzo case. On August 31, 1981, plaintiffs counsel learned of the pending unauthorized ex parte meeting. When Dr. Magnacca and defense counsel refused to cancel the meeting, an emergency motion for protective order was filed. The circuit court heard argument and entered a protective order prohibiting the defendants from having unauthorized ex parte contact with plaintiffs health care providers.

On July 8, 1982, the circuit court vacated the August 1981 protective order, finding Frantz v. Golebiewski, 407 So.2d 283, 284 (Fla. 3d DCA 1981), to be controlling.

The plaintiffs filed a petition for writ of certiorari, and asked the district court to prohibit the defendants’ unilateral, ex parte interference with the confidential relationship existing between Coralluzzo and her treating health care providers. After an en banc hearing, a six-three district court majority denied the relief sought, citing as authority Rule 1.280(b)(3), Florida Rules of Civil Procedure and Frantz v. Golebiewski. The district court found the case to involve a question of great public importance and certified the following question to this Court:

Does a court have the authority to prevent a treating physician from extrajudi-cially disclosing information obtained from his patient and information concerning the treatment of his patient where the patient has not consented to such disclosure?

435 So.2d at 263 n. 1. For the following reasons, we answer the question in the negative and approve the decision of the district court.

In Frantz v. Golebiewski, which the Third District found to control the case before us, the defendant in a medical malpractice suit took a sworn statement from plaintiffs treating physician without giving notice to the plaintiff. The trial court, on plaintiffs motion, ordered that the statement be supplied to the plaintiff. When the defendant refused, the trial court fined him and ordered that the sworn statement could not be used in any way during the trial. Additionally, the trial court ordered the defendant to give the plaintiff notice prior to taking a recorded statement from any other treating physician. On petition for certiorari the district court quashed the orders of the trial court, ruling that the treating physician did not acquire and develop his information or opinions in anticipation of litigation or trial and was thus outside the ambit of Florida Rule of Civil Procedure 1.280(b)(3). We agree with that rationale and with that result and we agree that the same result should obtain here.

Petitioner urges this Court to exercise its jurisdiction to do equity between the parties. We can find no reason in law or in equity to disapprove the decision of the district court. No law, statutory or common, prohibits — even by implication — respondents’ actions. We note that no evi-dentiary rule of physician/patient confidentiality exists in Florida and that, although several statutes preserve confidentiality in certain medical records, petitioner has failed to identify a specific statute respondents have infringed. Likewise, no rule of procedure or rule of professional responsibility proscribes respondents' interview with Dr. Magnacca. We find no grounds to quash the district court’s decision.

The focal point of petitioner’s distress seems to be Dr. Magnacca’s failure to fulfill his fiduciary duty toward his patient. We note that the trial court expressly found the existence of such a fiduciary relationship. We also note that Dr. Mag-nacca was not before the trial court, nor is he before this Court in any capacity, nor is any question concerning the propriety of his behavior now at issue. Whether he has violated the ethical standards of his profession is a matter to be addressed by the profession itself. Such standards have not been codified and we therefore have no jurisdiction on this matter. Any violation of the fiduciary relationship with Holly Coralluzzo must be addressed in appropriate proceedings to which Dr. Magnacca is a party.

The decision of the district court is approved.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDONALD and SHAW, JJ., concur.

ADKINS; J., dissents.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Thomas P. QUINN, III, Respondent.
    No. 64929.
    Supreme Court of Florida.
    May 17, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, Tallahassee, Richard B. Liss, Jacquelyn Plasner Needelman and Michael D. Powell, Bar Counsels, Fort Lauderdale, for complainant.
    Jerry B. Smith, Coral Springs, for respondent.
   PER CURIAM.

This matter is before the Court on Quinn’s petition for leave to resign without leave to apply for readmission permanently, pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

In its response the bar stated that “the granting of this Petition for Leave to Resign Pending Disciplinary Proceedings will not adversely affect the public interest, nor will it adversely affect the purity of the courts, nor hinder the administration of justice, nor the confidence of the public in the legal profession.”

The Court, having determined that the requirements of Rule 11.08(3) are fully satisfied, the petition for leave to resign without leave to apply for readmission permanently is hereby granted effective June 18, 1984, thereby giving Quinn thirty days to close out his practice and take the necessary steps to protect his clients.

Costs in the amount of $1,117.23 are assessed against Quinn.

It is so ordered.

BOYD, Acting C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


text:
    Luis ALVAREZ, Petitioner, v. The Honorable David GERSTEN, Respondent.
    No. 83-677.
    District Court of Appeal of Florida, Third District.
    March 29, 1983.
    Rehearing Denied April 21, 1983.
    Roy E. Black, Miami, for petitioner.
    Janet Reno, State Atty., and Anthony C. Musto, Asst. State Atty., for respondent.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The petition for relief from the lower court’s order refusing to seal pretrial discovery is denied without prejudice to reapply to the trial court to conduct an in camera inspection of the pretrial discovery information and material and thereafter determine if any of such material should be sealed and not disclosed to other than the parties prior to the impanelling of a jury in this case. On the present state of the record, this court has no way of knowing from the petition whether the discovery information and material which the petitioner seeks to have sealed contains matters which, if disclosed, would endanger the defendant’s right to a fair and impartial trial.


author: SCHWARTZ, Chief Judge.

text:
    The STATE of Florida, Appellant, v. Randy Ray ROOSE, Appellee.
    No. 83-1895.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.

      Jim Smith, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellant.
    Kenneth H. White, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

The State appeals from an order suppressing the result of a blood alcohol test in a prosecution for manslaughter by operating a motor vehicle while intoxicated. The ruling was based upon the admitted fact that the defendant’s blood sample was drawn by a hospital intern who did not qualify under Section 316.1932(l)(f)2., Florida Statutes (1983):

Only a physician, registered nurse, or duly licensed clinical laboratory technologist or clinical laboratory technician, or a paramedic certified as provided in s. 401.-47 who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining the alcoholic content thereof or presence of controlled substances therein [footnote omitted].

We affirm the order below.

In Grala v. State, 414 So.2d 621 (Fla. 3d DCA 1982), we squarely held, as we do here, that the fact that the person who has drawn the defendant’s blood is not statutorily authorized to do so fatally infects the reliability of the test results and renders them inadmissible into evidence.

On appeal, the defendant contends that the trial court erred in admitting the blood alcohol test results because there was no showing that the blood was withdrawn by a physician, nurse, or technician as required by section 322.261(2)(b), Florida Statutes (1979) [now 316.-1932(l)(f)2.].
We agree that the test results were improperly admitted into evidence since the State, by failing to present evidence of the identity or qualifications of the person who withdrew the blood, did not comply with the statutory provisions pertaining to such tests.

414 So.2d at 622. Accord, State v. Gillman, 390 So.2d 62 (Fla.1980); State v. Bender, 382 So.2d 697 (Fla.1980); Campbell v. State, 423 So.2d 488 (Fla. 1st DCA 1982) (blood test inadmissible even though drawn by authorized person when taken without direction of law enforcement officer as statute requires); State v. Wills, 359 So.2d 566 (Fla. 2d DCA 1978); Lytwyn v. State, 353 So.2d 222 (Fla. 1st DCA 1977), cert. denied, 361 So.2d 835 (Fla.1978); see Drury v. Harding, 443 So.2d 360 (Fla. 1st DCA 1983) (results admissible because test conducted in compliance with HRS rules deemed controlling as adopted before trial although after test); State v. Demoya, 380 So.2d 505 (Fla. 3d DCA 1980) (blood test inadmissible when not conducted in compliance with § 322.261 even if permissible under Schmerber v. California). The state’s reliance on State v. Gunn, 408 So.2d 647 (Fla. 4th DCA 1981) and Pardo v. State, 429 So.2d 1313 (Fla. 5th DCA 1983) is misplaced. These cases hold only that the officer’s failure to advise the defendant of the consequences of a refusal to take an alcohol test does not render it inadmissible. They do not involve, as here, the violation of a legislatively-created standard relating both' to the identity of those individuals exclusively authorized to invade the defendant’s person and to the scientific trustworthiness of the results of that process.

The state argues that the only consequence of a non-compliance with the “technical” prerequisites of Sec. 316.1932 is to preclude the automatic admissibility of the test results and the consequent applicability of the percentage presumptions created by Sec. 316.1934(2), It contends that if, as it says is the case here, the blood test otherwise qualifies under Schmerber and the general rules of evidence governing scientific and expert testimony, and even if it were secured in a non-statutory manner, the test should still be admitted for consideration by the trier of fact. While this contention is surely not unsubstantial, it cannot be accepted. The position is supported only by Grant v. Brown, 429 So.2d 1229 (Fla. 5th DCA 1983), rev. denied, 438 So.2d 832 (Fla.1983), which is self-avowedly based upon the fact that the case was a civil proceeding, and gratuitous dicta in Pardo v. State, supra, at 429 So.2d 1315. On the other hand, it is directly contrary to our decisions in Grata and Demoya, and the other district court opinions we have cited. More important, the express terms of the controlling statute mandatorily provide that “only ” a designated person “may withdraw blood for the purpose of determining the alcoholic content thereof.” Sec. 316.1932(l)(f)2. It is significant, moreover, that this subsection has no equivalent to the provision of (f)3. that

[t]he failure or inability to obtain an additional test by a person shall not preclude the admissibility in evidence of the test taken at the direction of the law enforcement officer.

Finally, and alone sufficiently, the supreme court has precluded our acceptance of the prosecution’s view. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). In State v. Gillman, supra, the court stated:

This Court recently held in State v. Bender, 382 So.2d 697 (Fla.1980), that when the state presents evidence of motor vehicle driver intoxication which includes an approved alcoholic test method, the test results are admissible only upon compliance with the statutory provisions and the administrative rules enacted thereunder. In so holding, we cited the instant district court decision. We agree with this general principle as expressed by the district court... [e.s.]

390 So.2d at 63.

Affirmed.

      . There is no claim that the intern in this case was in any way certified under this provision as was the technician involved in State v. Gillman, 390 So.2d 62 (Fla.1980).

      . 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

      . ... the results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section shall be admissible into evidence when otherwise admissible, and the amount of alcohol in the person’s blood at the time alleged, as shown by chemical analysis of the person's blood or breath, shall give rise to the following presumptions:
      (a) If there was at that time 0.05 percent or less by weight of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of alcoholic beverage to the extent that his normal faculties were impaired.
      (b) If there was at that time in excess of 0.05 but less than 0.10 percent by weight of alcohol in the person’s blood, such fact shall not give rise to any presumption that the person was or was not under the influence of alcoholic beverages to the extent that his normal faculties were impaired, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired.
      (c)If there was at that time 0.10 percent or more by weight of alcohol in the person's blood, that fact shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired.

      . Secs. 90.702-.705, Fla.Stat. (1983).

      . See State v. Demoya, supra (Schwartz, J., dissenting).


text:
    In re FORFEITURE OF ONE 1979 FORD V.I.N. 9G87F167035.
    No. 83-1372.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Rehearing Denied June 26, 1984.

      Howard I. Alabaster of Brimmell & Graham, P.A., Fort Lauderdale, for appellant John Kovach.
    Bruce W. Jolly of Shailer, Purdy & Jolly, Fort Lauderdale, for appellee George A. Brescher, Sheriff of Broward County.
   PER CURIAM.

This is an appeal in a forfeiture case where the only connection shown between the vehicle forfeited and the appellant’s illegal activities was that the vehicle was used by the appellant to travel to and from a bar where appellant consummated an illegal drug transaction. We agree with the trial court that these facts constitute a sufficient showing of the use of the vehicle to facilitate or aid and abet in the commission of the illegal transaction to authorize forfeiture. See Chapter 932, Florida Statutes (1983) and In re Forfeiture of 1979 Toyota Corolla, 424 So.2d 922 (Fla. 4th DCA 1982).

AFFIRMED.

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


author: FERGUSON, Judge.

text:
    PROTECTIVE CASUALTY INSURANCE COMPANY, Appellant, v. Jorge HERNANDEZ, Appellee.
    No. 84-193.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.
    Rehearing Denied June 19, 1984.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and A.H. Toothman and John Wylie, Miami, for appellant.
    Stephen Cahen, Miami, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

This appeal is from a judgment on the pleadings in an action to determine coverage under the personal injury protection provisions of an automobile insurance policy. The trial court determined that plaintiff was entitled to benefits because he sustained bodily injury arising out of the ownership, maintenance, or use of a motor vehicle. We reverse.

The facts are not disputed. Plaintiff was apprehended by police officers at a traffic signal for a traffic infraction. After his automobile had come to a complete stop he was forcibly removed from the vehicle, then frisked and handcuffed. The injuries were caused by the arresting officers.

Appellee defends the judgment on the grounds that the injury need only grow out of, have its origin in, or flow from the use of a motor vehicle and that there is no requirement that an automobile be the instrumentality of the injury, relying on Novak v. Government Employees Insurance Co., 424 So.2d 178 (Fla. 4th DCA 1983), and Asnip v. Hartford Accident & Indemnity Co., 446 So.2d 1121 (Fla. 3d DCA 1984). In Novak the court held that there was coverage where an automobile operator was shot by a stranger after the operator refused to give the stranger a ride. Novak is probably indistinguishable but we choose not to follow it because, in our opinion, it is contrary to, and irreconcilable with, the statute and the following cases which have construed the statute. Second, Asnip is factually dissimilar because there the plaintiffs injuries were found to have been undoubtedly caused by a hit and run vehicle.

A similar case that was correctly decided is Reynolds v. Allstate Insurance Co., 400 So.2d 496 (Fla. 5th DCA 1981) in which no coverage was found where plaintiff suffered injury when an assailant physically heaved him from his parked car -or carried him some distance from the vehicle, then violently threw him down. Reynolds, in support of its holding that a cause and effect relationship is required, relied upon Stonewall Insurance Co. v. Wolfe, 372 So.2d 1147 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980), which stated:

[I]t is not enough that an automobile be the physical situs of an injury or that the injury occur incidentally to the use of an automobile, but that there must be a causal connection or relation between the two for liability to exist. 372 So.2d at 1148 (quoting General Accident Fire and Life Assurance Corp. Ltd. v. Appleton, 355 So.2d 1261, 1263 (Fla. 4th DCA), cert. denied, 361 So.2d 830 (Fla.1978)).

The Florida Supreme Court in Lumbermens Mutual Casualty Co. v. Castagna, 368 So.2d 348, 350 (Fla.1979), quoted with approval similar language from a decision of this court, Royal Indemnity Co. v. Government Employees Insurance Co., 307 So.2d 458, 460 (Fla. 3d DCA 1975):

While the no-fault law was intended to remedy the concept of fault in automobile negligence cases, we do not think that tort concepts of causation were intended to be entirely abandoned. We think that by inserting the word “caused” in the statute [§ 627.736(4)(d)l, Fla.Stat. (1983) j, the legislature plainly intended that it would be a factor to be considered.

Plaintiffs injury was caused solely by the force exercised by police officers in effecting an arrest, and did not arise out of the ownership, maintenance, or use of a motor vehicle. It is not foreseeable that in the ordinary course of using a motor vehicle, an operator will suffer injury by arrest for violation of traffic laws.

Reversed and remanded with instructions to enter judgment for appellant.

      . Section 627.736, Florida Statutes (1983) provides in part:
      (1) REQUIRED BENEFITS.—
      Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured ... to a limit of $ 10,000 for loss
      sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle_[e.s.]

      (4) BENEFITS; WHEN DUE.—

        (d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
      1. Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle.


author: PER CURIAM. HERSEY, Judge,

text:
    Stanley E. FOWLER, Appellant, v. CITY OF HOLLYWOOD and Unemployment Appeals Commission, Appellees.
    No. 83-1231.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Rehearing Denied June 26, 1984.
    Chas. H. Brodzki of Case, Brodzki & Case, Lauderdale-By-The-Sea, for appellant.
    Nancy A. Cousins, City Atty., and Leslie W. Langbein, Asst. City Atty., Hollywood, for appellee, City of Hollywood.
    Geri Atkinson-Hazelton, Tallahassee, for appellee, Unemployment Appeals Com’n.
   PER CURIAM.

AFFIRMED.

LETTS, J., concurs.

HERSEY, J., concurs specially with opinion.

BERANEK, J., dissents, without opinion.

HERSEY, Judge,

concurring specially.

This is an appeal from a decision of the Unemployment Appeals Commission disqualifying appellant from unemployment compensation benefits.

Appellant was employed by the City of Hollywood as a clerk in its central store. One of his job responsibilities included making deliveries between city hall and the central store.

In the latter part of 1982 appellant’s drivers license was suspended for six months as a result of a conviction for Driving Under the Influence. Appellant was thereupon terminated from his job because he was unable to make deliveries. The episode which resulted in the conviction occurred during nonworking hours.

The facts of this case fit within the line of cases holding that where an employee becomes unable to meet a known, understood and accepted condition of his employment and where that inability is not the fault of the employer, the employee is considered to have voluntarily left his employment without good cause attributable to the employer. Florida Sheriff's Youth Fund v. Department of Labor and Employment Security, 436 So.2d 332 (Fla. 2d DCA 1983); Paschal v. Florida Department of Labor and Employment Security, 405 So.2d 1020 (Fla. 3d DCA 1981), pet. for review denied, 412 So.2d 468 (Fla.1982). Thus, the Unemployment Appeals Commission properly found appellant not eligible for unemployment benefits.

Finding the rationale of the above cited cases both compelling and applicable here, I join in the affirmance. If an employee by his volitional act disables himself from performing some portion of his work, it is obviously necessary that a new employee be hired to take up the slack (at least theoretically). It is also fairly obvious that the employer now pays two employees to do the work of one. Simple economics dictates the solution. We should not penalize the employer and reward the recalcitrant employee under these circumstances.


author: DIAMANTIS, GEORGE N., Associate Judge.

text:
    Theodore L. WIECZORECK, Appellant, v. H & H BUILDERS, INC., a Florida corporation, Appellee.
    No. 83-425.
    District Court of Appeal of Florida, Fifth District.
    May 3, 1984.

      Charles R. Steinberg of Holcomb, Theri-ac, Steinberg & Amari, Merritt Island, for appellant.
    Charles M. Harris of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellee.
   DIAMANTIS, GEORGE N., Associate Judge.

Appellant, Theodore L. Wieezoreck, has filed an appeal from a final judgment dated January 19,1983, entered in supplementary proceedings under section 56.29, Florida Statutes (1981), which found that he should be impleaded as a third party, and that the conveyance of certain real property to him was null and void since it constituted a fraudulent conveyance for the purpose of delaying, hindering or defrauding the creditors of Nelson L. Davis.

On September 10, 1981 appellee, H & H Builders, Inc., filed a complaint against Nelson L. Davis to recover money lent to him. The trial court rendered a final judgment for appellee against Davis on August 12, 1982.

Subsequently, on September 7, 1982, the appellee filed a motion for a rule to show cause and order impleading a third party. This motion was accompanied by two affidavits of George Howard, president of H & H Builders. In one affidavit for proceedings supplementary, Howard stated that the sheriff attempted to levy on Davis’ property in order to satisfy the judgment but no property was found. The second affidavit was filed in support of the rule to show cause and to implead Wieczoreck as a third party defendant. Howard, in that latter affidavit, stated that on the date the action against Nelson L. Davis was filed that he had an interest in Lot 11, Hilltop Manor Subdivision; however Howard believed that Davis conveyed the property to the appellant to delay, hinder or defraud creditors for the following reasons: (1) the parties were close social friends; (2) Nelson L. Davis used the services of Wieczoreck or his business in several commercial enterprises; (8) the transfer was made for an inadequate consideration; (4) the conveyance was made after this action was filed against Davis; (5) Nelson L. Davis has continued in possession of the premises and has made no payment to Wieczoreck but has only continued to make the mortgage payment to GECC Financial Services; and (6) the transfer to. Wieczoreck either rendered Davis insolvent or greatly diminished his available assets.

Nelson L. Davis and Joan E. Davis, his former wife, conveyed that property to Wi-eczoreck by warranty deed dated October 26, 1981, for a stated consideration of $10.00. The deed was subject to the following conditions: (1) ad valorem taxes and solid waste charges for the year 1981 and subsequent years; (2) zoning, restrictions, prohibitions and other requirements imposed by governmental authority; (3) restrictions on matters appearing on the plat or otherwise, to the subdivision; (4) public utility easements of records; and (5) that certain mortgage in favor of Gulf Bay Financial Corporation dated June 18, 1979, in the original sum of $40,000.00, recorded June 25, 1979 ... and assigned by assignment of mortgage dated June 22, 1979 to GECC Financial Services recorded June 25, 1979....

Upon the appellee’s motion, the trial court ordered on September 3, 1982 that Wieczoreck was to show cause “why he should not be impleaded as a third party defendant, and if impleaded, for examination of the defendant and the impleaded third party in determination of the rights of the plaintiff against the defendant and third party defendant as to the property of the defendant which they have in their possession,.... ”

This order to show cause further provided as follows:

“ORDERED and RULED that the defendant and the third party proposed to be impleaded shall file a written answer, a response or other written pleadings to this Rule to Show Cause and the attached affidavits (which shall be served with the Rule to Show Cause) on or before Oct. 1, 1982, and serve a copy thereof upon the attorney for plaintiff; .... ”

In an order dated October 8, 1982, the trial court denied Wieczoreck’s motion to vacate the rule or order to show cause and gave him until October 15, 1982 in which to file an answer and the hearing which was set for October 7, 1982 was rescheduled for November 1, 1982.

At that hearing of November 1, 1982, appellant Wieczoreck, who was the only witness, testified that on October 16, 1981 he tendered $23,400.00 in cash for the property and that he would assume the liabilities that were on the property at that time. Although on that date the appellant knew that GECC had a second mortgage that would become the first mortgage after the first mortgage with First Federal Savings and Loan Association of Fort Pierce was paid off, he did not know the exact amount of the other indebtedness on the property. Wieczoreck purchased the property from Nelson L. Davis and his former wife, Joan E. Davis, on October 16, 1981, the day it was sold in a foreclosure suit to the mortgagee, First Federal Savings and Loan Association of Fort Pierce. Appellant paid the $23,400.00 to that Savings and Loan Association with Nelson L. Davis paying an additional sum of approximately $20,000.00 to the First Federal Savings and Loan Association of Fort Pierce to redeem the property.

Appellant subsequently discovered that there were additional liens to the $40,-000.00 one of GECC Financial Services against the property entered prior to his purchase of the property. These liens were as follows: (1) Sentinel Star — $922.58; (2) John Sexton Company — $286.00; (3) D Q Corporation — -$3,159.30; (4) Alfa Electric —$1,154.63; (5) Donald E. Biddelle — $16,-944.46; (6) Department of Revenue— $248.00; (7) Howard Armstrong— $9,079.61; (8) Frank Pallaehowski— $9,968.25; and (9) county taxes — $1,629.52. The amount of the liens, including the GECC one, interest charges and other matters totaled approximately $125,292.00.

The appellant further testified that he had satisfied two of these liens (the county • taxes and the Howard Armstrong judgment lien) and that he had agreed to satisfy the remaining liens. Appellant also testified that at the time that he purchased the property, he was not aware of the pending action by the appellee against Davis nor did he and Davis ever discuss the sale in terms of Davis avoiding payment to appellee.

Appellant gave testimony regarding the circumstances of his purchase of the property. Some years ago he worked on the house, liked it, and told Davis to let him know if he would ever consider selling it. One night appellant saw Joan E. Davis, who told him that her former husband was having problems and stood a chance of losing the property because of a foreclosure action. For the past couple of years appellant saw Davis only at an occasional lunch. Joan E. Davis had her former husband call appellant, and Davis told appellant about his situation and what he needed. Although Davis first asked if appellant would loan him money, appellant said no, that he would buy the property instead. Davis then asked if appellant would give him a sixty day option to buy the property or house back for approximately $24,-000.00. Appellant gave him a ninety day option and leased the house to him during that period for $730.00 a month, which Davis paid directly to GECC Financial Services (the mortgage payments are approximately $720.00 per month). Davis is currently in the house as a tenant on a month-to-month basis paying $1,650.00 a month as rent. The option is no longer in effect. Appellant intends to move into the house prior to age fifty-five (when he testified on November 1, 1982, he was fifty years old) because of a capital gains tax advantage. Appellant also stated that he did not promise Davis that he would pay the, claims against the property and that he did not do a title search until after Davis failed to exercise his option. Wieczoreck further testified that he sat at dinners at the Rotary Club with Davis while Davis was married and that they had visited each other’s homes socially on one occasion. Appellant stated that he did not have a long-term business relationship with Davis, but had done work for him on occasion. Davis told appellant that he thought the fair market value of the property was between $185,-000.00 to $200,000.00. Appellant said that there was no time to do the title search and that he would not do such a search until the option was not exercised.

The trial court set aside the conveyance and directed the sheriff to levy on the interest of Nelson L. Davis that he conveyed to appellant for the following reasons: (1) said conveyance took place after the action was filed and service of process was obtained against defendant, Nelson L. Davis; (2) that at the time of said conveyance Nelson L. Davis was heavily indebted and had judgments against him; (3) that Wieczoreck was a business and social friend of Nelson L. Davis; (4) that Nelson L. Davis as owner of the property estimated the value of the property conveyed at between $185,000.00 and $200,000.00; (5) that after the conveyance Davis was made judgment proof; (6) Wieczoreck paid only $23,400.00 for the property and this was paid (along with additional money from Nelson L. Davis) to First Federal Savings and Loan Association; Wieczoreck paid nothing to either Nelson L. Davis or Joan E. Davis; (7) the deed to Wieczoreck placed no obligation at all on him to pay any creditors of Nelson L. Davis; (8) in fact, no other creditors were paid until after the hearing in this case and only then on the eve of court proceedings; (9) that a secret lease, i.e., an unrecorded lease, permitted Nelson L. Davis to remain in possession of the property by paying no obligations other than what he would have paid as owner, to wit: the mortgage paid directly to the mortgage company; (10) Davis controlled his possession of the premises; and (11) the consideration purportedly paid for the property was grossly inadequate.

Appellant initially maintains that he was denied procedural due process of law because he was not fully impleaded as a third party until the final judgment which simultaneously divested him of any and all interest in the real property deeded to him by Nelson L. Davis and Joan E. Davis, his former wife.

Although section 56.29, Florida Statutes (1981), does not prescribe the procedure for impleading third party defendants, the case law of this State establishes the proper procedure. Robert B. Ehmann, Inc. v. Bergh, 363 So.2d 613 at 615 (Fla. 1st DCA 1978). Under the decisional law interpreting section 56.29, there are two jurisdictional prerequisites for supplementary postjudgment proceedings: (1) a returned and unsatisfied writ of execution; and (2) an affidavit averring that the writ is valid and unsatisfied, along with a list of third persons to be impleaded. Tomayko v. Thomas, 143 So.2d 227 at 229-30 (Fla. 3d DCA 1962). Once these jurisdictional criteria are met, the “statute should be given a liberal construction so as to afford to the judgment creditor the most complete relief possible.” Richard v. McNair, 121 Fla. 733, 164 So. 836 at 840 (Fla.1935); General Guaranty Ins. Co. of Fla. v. DaCosta, 190 So.2d 211 at 213 (Fla. 3d DCA 1966). The appellee in this case has established by its affidavits that its writ of execution was valid and returned unsatisfied as well as naming the appellant as the party to be impleaded.

The authority and duty of a court to implead third parties is clear. Richard v. McNair, supra, 164 So. at 840. Implead-ing those parties whose interest may be affected by the court’s rulings is necessary both to acquire jurisdiction over them and to afford them procedural due process. Id., 164 So. at 840-41; Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. 483 at 487 (Fla.1935); State ex rel. O’Dare v. Kehoe, 189 So.2d 268 at 269 (Fla. 3d DCA 1966), cert. denied, 200 So.2d 812 (Fla.1967); Tomayko v. Thomas, supra, 143 So.2d at 229; Florida Guaranteed Securities, Inc. v. McAllister, 47 F.2d 762 at 765 (S.D.Fla.1931). Such impleading, however, does not in of itself imply liability on the part of the impleaded third parties. General Guaranty Ins. Co. of Fla. v. DaCosta, supra, 190 So.2d at 214. It provides them with an opportunity to raise their defenses and protect their interests consistent with genuine due process. Id.; Tomayako v. Thomas, supra, 143 So.2d at 229-30. The fundamentals of procedural due process are (1) a hearing (2) before an impartial decision-maker, after (3) fair notice of the charges and allegations, (4) with an opportunity to present one’s own case. Neff v. Adler, 416 So.2d 1240 at 1242-43 (Fla. 4th DCA 1982); Mission Bay Campland, Inc. v. Sumner Financial Corp., 71 F.R.D. 432 at 435 (M.D.Fla.1976).

A judgment creditor should establish a prima facie case, by testimony under oath, that the proposed third party defendant holds assets subject to his claim, and the proposed third party should be given an opportunity to respond in writing before a hearing. Robert B. Ehmann, Inc. v. Bergh, supra, 363 So.2d at 615. In other words, if the examination of the judgment creditor establishes his claim to property in the hands of a third party, the trial court should then issue an order to show cause setting forth the findings of specific assets or transactions to which the third party can respond in writing prior to further hearings. Conway Meats, Inc. v. Orange Ave. Ptshp., 440 So.2d 674 at 676 (Fla. 1st DCA 1983).

In the instant case, the appellant received (1) a hearing (2) before an impartial decision-maker, after (3) fair notice of the charges and allegations, (4) with an opportunity to present his own case. Further, the order to show cause, with the attached affidavits, set forth the findings regarding the specific property or transaction involved in this case to which appellant responded in writing by answer prior to the rescheduled hearing of November 1, 1982 from October 7, 1982.

Although it may have been better procedure for the trial court to have entered an order first impleading the appellant and then an order setting aside the conveyance, we cannot say that the procedure utilized in the case at bar did not comport with procedural due process of law.

Secondly, the appellant attacks the sufficiency of the evidence first to implead him and then to set aside the subject conveyance as a fraud on creditors.

We find that the evidence was sufficient to implead the appellant in that the appellee made a prima facie case to implead Wieczoreck.

The more difficult question turns on whether there was sufficient evidence to support the lower court’s finding of a fraudulent transfer. Central to this issue is whether the current burden of proof in an action based on fraud is a preponderance of the evidence (currently referred to as the greater weight of the evidence) or a clear and convincing standard. Neither the appellant nor the appellee has addressed this specific issue. However, we shall.

Initially, we note that there is a divergence of opinion on this point in the decisions of the various district courts of appeal and the Florida Supreme Court. Compare Rigot v. Bucci, 245 So.2d 51 (Fla.1971); Watson Realty Corporation v. Quinn, 435 So.2d 950 (Fla. 1st DCA 1983); Sprayberry v. Sheffield Auto & Truck Service, 422 So.2d 1073 (Fla. 1st DCA 1982), review dismissed, 427 So.2d 738 (Fla.1983); Blaeser Development Corp. v. First Federal Savings and Loan Association, 375 So.2d 1118 (Fla. 4th DCA 1979); Pelekis v. Florida Keys Boys Club, Inc., 358 So.2d 849 (Fla. 3d DCA 1978); Harrell v. Branson, 344 So.2d 604 (Fla. 1st DCA), cert. denied, 353 So.2d 675 (Fla.1977); Pender v. Hatcher, 303 So.2d 427 (Fla. 2d DCA ,1974); the concurring opinion in Barber v. Hatch, 380 So.2d 536 at 537 (Fla. 5th DCA 1980) (a preponderance or greater weight of the evidence standard) with Canal Authority v. Ocala Mfg. Ice & Packing Co., 332 So.2d 321 (Fla.1976); McCrary v. Bobenhausen, 366 So.2d 77 (Fla. 1st DCA 1978); Headley v. Pelham, 366 So.2d 60 (Fla. 1st DCA 1978) (clear and convincing evidence standard).

We hold that the preponderance of the evidence or a greater weight standard constitutes the correct and current burden of proof in an action based on fraud.

In Rigot v. Bucci, supra, the Florida Supreme Court appeared to have settled this matter when it expressly and unequivocally held “that only a preponderance or greater weight of the evidence is required to establish fraud, whether the action is at law or in equity,” and overruled all decisions holding to the contrary. Id. at 53. However, in Canal Authority, supra, a more recent decision, the Florida Supreme Court without mentioning its earlier holding stated: “It is rudimentary that proof of fraud must be by clear and convincing evidence.” 332 So.2d at 327. In that later case, the main issue on appeal dealt with whether the Canal Authority possessed the requisite statutory authority to maintain a condemnation action against the appellee. Id. at 326. The Supreme Court concluded that the Canal Authority did and then gratuitously stated that even if the Canal Authority lacked this statutory authority the only category of tort within which the allegations of the appellee’s complaint could conceivably fall was fraud and deceit and it was “doubtful that the allegations would satisfy the requirement that fraud be pleaded with particularity.” Id. at 327. Then that Court continuing its gratuitous comments stated that the appellee’s evidence did not meet the clear and convincing standard of proof. Id. at 327.

Consequently, we hold that the Supreme Court’s statement in Canal Authority, supra, that proof of fraud must be by clear and convincing evidence is obiter dictum and in this regard we agree with the First District Court of Appeal in Sprayberry, supra, 422 So.2d at 1075 and the Fourth District Court of Appeal in Blaesear Development Corp., supra, 375 So.2d at 1118-19. Earlier in its opinion, the First District Court of Appeal in Sprayberry, supra, 422 So.2d at 1074 had referred to its earlier decision in Headley v. Pelham, supra, 366 So.2d 60 (a fraudulent transfer case) which had opted for the clear and convincing standard. However, in Sprayberry, supra, 422 So.2d at 1075 the First District Court of Appeal receded from any decisions to the contrary when it held the preponderance or greater weight of the evidence standard applies to actions based on fraud.

Therefore, applying the preponderance or greater weight standard to the instant case, we hold that there was sufficient competent evidence to support the lower court’s ruling in setting aside the subject conveyance as a fraud upon the creditors of Nelson L. Davis and directing the Sheriff to levy on the interest of Mr. Davis in the property involved in this case. This standard has been defined as the more persuasive and convincing force and effect of the entire evidence in the case. See Standard Civil Jury Instruction Number 3.9. The lower court could find by the preponderance or greater weight of the evidence that the requisite elements of a fraudulent transfer by Davis existed in this case. See Cleveland Trust Company v. Foster, 93 So.2d 112 at 114 (Fla.1957); Temple Terrace Assets Co. v. Wason, 120 Fla. 638, 163 So. 72 at 75-76 (Fla.1935); Weathersbee v. Dekle, 107 Fla. 517, 145 So. 198 at 199-200 (Fla.1933); Money v. Powell, 139 So.2d 702 at 703-704 (Fla. 2d DCA 1962); Banner Construction Corporation v. Arnold, 128 So.2d 893 at 896 (Fla. 1st DCA 1961); United States v. Fernon, 640 F.2d 609 at 613 (5th Cir.1981) (applying Florida law); Davis v. Nielson, 9 Wash. App. 864, 515 P.2d 995 at 1000 (Wash.App. 1st Div., Panel Two 1973) for a discussion of the factors which are necessary to constitute a fraudulent transfer.

To constitute a fraudulent conveyance there must be a creditor to be defrauded, a debtor intending fraud, and a conveyance of property which is applicable by law to the payment of the debt due. Bay View Estates Corp. v. Southerland, 114 Fla. 635, 154 So. 894 at 900 (Fla.1934). Obviously, appellee stood as a creditor of Nelson L. Davis. Further, Davis’ interest in the subject property would be subject to the payment of appellee’s judgment. “A fraud upon creditors consists in the intention by the debtor to prevent his creditors from recovering their just debts by withdrawing his property from the reach of his creditors.... As the fraud rests upon the debtor’s intent, it must exist at the time of the transfer.” Id. at 900. This intention can be found from the existence of certain indicia or badges of fraud. Cleveland Trust Co. v. Foster, supra, 93 So.2d at 114.

The factors which are recognized in these cases as indicia of fraud are numerous. Generally, the most important ones that these cases have recognized are the insolvency or indebtedness of the transferee; lack of consideration, or in some cases grossly inadequate consideration, for the conveyance; retention by the debtor of possession of the property; or a relationship between the transferor and the transferee; the reservation of benefit to the transferee; the pendency or threat of litigation; secrecy or concealment; and the transfer of the debtor’s entire estate.

While a single badge of fraud standing alone may only generate little more than a suspicious circumstance, insufficient in itself to constitute the requisite fraud to set aside a conveyance, several of them when considered together may afford a basis from which its existence can be properly inferred. Banner Construction Corporation v. Arnold, supra, 128 So.2d at 896.

The trial judge could properly conclude by the preponderance or greater weight of the evidence that the requisite badges of fraud that he found were present in this case.

Since Joan E. Davis was neither a party to the proceedings in the lower court nor involved in this appeal, we make no determination regarding her interest in the subject property. The only matter before the trial court and this court involves the interest of Nelson L. Davis in the subject property.

Because of the divergent views on the issue of the evidence standard applicable to actions based upon fraud, we have decided to certify the following question to the Florida Supreme Court, deeming it to be of great public importance:

IS IT NECESSARY TO ESTABLISH FRAUD IN ANY ACTION, WHETHER THE ACTION IS AT LAW OR IN EQUITY, BY ONLY A PREPONDERANCE OR GREATER WEIGHT OF THE EVIDENCE AS OPPOSED TO A CLEAR AND CONVINCING STANDARD OF PROOF?

The final judgment as between the parties to this appeal is affirmed.

AFFIRMED.

DAUKSCH and COBB, JJ., concur.


text:
    Lewis E. BLACKBURN, Appellant/Cross-Appellee, v. J. Frank BLACKBURN, Appellee/Cross-Appellant.
    No. 83-325.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    Rehearing Denied June 6, 1984.
    Judith M. Goldman of Robert M. Johnson, P.A., Sarasota, for appellant/cross-ap-pellee.
    Geoffrey Morris, P.A., Venice, for appel-lee/ cross-appellant.
   PER CURIAM.

This appeal and cross-appeal challenge the trial court’s award of certain items of personal property. A review of the record indicates sufficient competent evidence exists to uphold the trial court’s award of all the items of personal property, with the exception of the Sears posthole digger. Therefore, we remand with instructions to award the posthole digger to appellee and to amend the final judgment accordingly.

We affirm in all other respects.

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


author: LEHAN, Judge.

text:
    Doris A. PIROLO, Appellant, v. CENTURY FIRST NATIONAL BANK OF PINELLAS COUNTY, Appellee.
    No. 83-1173.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    Rehearing Denied June 6, 1984.
    Robert M. Winick of Phillips, McFarland, Gould & Wagstaff, P.A., Clearwater, for appellant.
    V. James Dickson and Dale K. Quinlan of Jacobs, Robbins, Gaynor, Hampp, Burns, Cole & Shasteen, P.A., St. Petersburg, for appellee.
   LEHAN, Judge.

In this mortgage foreclosure action we find no error in the trial court’s determination that no genuine issue of any material fact existed which would have precluded the final summary judgment. As to the other point on appeal, we also find no error. See Hart v. Sanderson’s Administrators, 18 Fla. 103 (1881); Patterson v. Taylor, 15 Fla. 336 (1875); Hicks v. Mid-Florida Production Credit Association, 374 So.2d 566 (Fla. 1st DCA 1979).

AFFIRMED.

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


author: SCHEB, Acting Chief Judge.

text:
    FIRST SARASOTA SERVICE CORPORATION and Ramar Group Holdings, Inc., General Partners, d/b/a Plantation Associates, a Florida General Partnership, and Ramar Properties, Inc., a Florida Corporation, Appellants, v. David G. MILLER and Eleanor K. Miller, husband and wife; Richard Jordan; Douglas P. Brecher; Henry Hutchinson and Elizabeth M. Hutchinson, husband and wife; Paul E. Pluchino and Marjorie J. Pluchino, husband and wife; Paul E. Hansen; Gena M. King; and Lucie Saavedra, Appellees.
    No. 83-1791.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    Rehearing Denied June 6, 1984.

      William E. Getzen and A. Lamar Matthews, Jr., of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for appellants.
    W. Russell Snyder of Snyder & MaCris, and John J. Dulmer, Jr., of Dulmer & Tracy, Venice, for appellees.
   SCHEB, Acting Chief Judge.

Appellants, the developer and escrow agent, challenge a summary final judgment awarding eight purchasers the return of their earnest money deposits under several preconstruction contracts for the purchase of condominium units. We reverse.

During November and December 1980, appellees signed separate agreements with Plantation Development Company for the purchase of eight condominium units. Each purchaser deposited ten percent of the purchase price as earnest money with Ramar Properties, Inc., the real estate broker for the project who also served as escrow agent. Subsequently, Plantation Development assigned its interest in the contracts to First Sarasota Service Corporation, who, in turn, assigned them to Plantation Associates, a Florida general partnership comprised of First Sarasota Service Corporation and Ramar Group Holdings, Inc.

In February and March 1982, counsel for the purchasers sent letters to the developer and escrow agent notifying them that the purchasers would not close on their contracts. Counsel cited Plantation Associates’ failure to amend some condominium documents and to comply with certain filing requirements as well as the developer’s plan to provide a substitute television antenna system for the project instead of cable television. On this basis the purchasers elected to rescind their contracts and demanded return of their deposits. The developer did not accept the purchasers’ reasons as a valid basis for rescission of the contracts and, pursuant to the purchase agreements, set a closing date for each unit and notified the purchasers. After the purchasers failed to appear for closing, the escrow agent, pursuant to section 718.-202(1)(b), Florida Statutes (1981), determined that the purchasers were in default and remitted their earnest money deposits to the developer.

The purchasers filed suit against the developer and escrow agent. In Count V of their second-amended complaint, they demanded return of their earnest money deposits, and attorneys’ fees and costs. They claimed that the letters they sent to the escrow agent in February and March 1982 constituted notice of a dispute between them and the developer pursuant to section 718.202(1)(d). They further contended that the escrow agent’s disbursement of funds and the developer’s acceptance of those funds were improper and entitled them to avoid their agreements pursuant to section 718.202(5).

The matter came before the court on the purchasers’ motion for summary judgment as to Count V. The court found as a matter of law that the escrow agent and developer violated section 718.202(1)(d), since prior to the disbursement of funds to the developer, the purchasers had notified them that there was a dispute between the parties. The court further found that section 718.202(5) rendered the purchase agreements voidable and that the purchasers had properly avoided them. Finally, the court observed that it made no difference whether the purchasers defaulted by failing to appear at the scheduled closings or whether they would have prevailed on the merits of their complaint. The crucial factor, the court concluded, was that the deposit funds were disbursed and accepted after the escrow agent and developer were on notice of a dispute between the developer and the purchasers.

The trial court entered a summary final judgment requiring both defendants to refund the earnest money deposits which totaled $68,614.00, plus interest of $9,799.83, and assessed court costs in the amount of $243.50. From that judgment the defendants have taken this timely appeal.

We begin our analysis by reviewing the relevant statutory provisions of Chapter 718, the Florida Condominium Act. This act, passed by the legislature in 1976, is designed: (1) to give statutory recognition to the condominium form of ownership; and (2) to establish procedures for the creation, sale and operation of condominiums. § 718.102. Section 718.202 of the act details the rights and obligations of developers in respect to sale or reservation deposits accepted prior to closing. Specifically, subsection (1) concerns the mechanics of escrow transactions for deposits on precon-struction contracts and stipulates:

(a)If a buyer properly terminates the contract pursuant to its terms or pursuant to this chapter, the funds shall be paid to the buyer together with any interest earned.
(b) If the buyer defaults in the performance of his obligations under the contract of purchase and sale, the funds shall be paid to the developer together with any interest earned.
(c) If the contract does not provide for the payment of any interest earned on the escrowed funds, interest shall be paid to the developer at the closing of the transaction.
(d) If the funds of a buyer have not been previously disbursed in accordance with the provisions of this subsection, they may be disbursed to the developer by the escrow agent at the closing of the transaction, unless prior to the disbursement the escrow agent receives from the buyer written notice of a dispute between the buyer and developer.

If these provisions are not complied with, then section 718.202(5) makes the contract voidable by the purchaser. If the contract is voided, all deposit funds must be refunded with interest.

The defendants contend on appeal that the purchasers were in default and that section 718.202(1)(b) entitled the escrow agent to disburse the deposit funds to the developer. The purchasers, on the other hand, submit that their letters of February and March 1982 constituted “written notice of a dispute” under subsection (1)(d). Thus, they argue that section 718.202(5) entitled them to void their agreements.

This case devolves into an interpretation of subsections (1)(b) and (1)(d), an issue of first impression. Our role, of course, is to follow the plain meaning of the statute in light of the express legislative intent. St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071 (Fla.1982). In doing so, we must apply the statute in a realistic, common sense manner that will preserve the basic contract rights of the parties while affording the purchasers the protection the legislature intended.

Of course, the cases are legion which hold that a trial judge must not enter a summary judgment unless the movant is entitled to a judgment as a matter of law. Fla.R.Civ.P. 1.510(c). In this instance, we think the trial court was premature in entering summary judgment in favor of the purchasers. It was incumbent on the court to first determine whether the purchasers were in default under their contracts. If they were, the escrow agent was correct in paying the deposit over to the developer under subsection (l)(b). But since the escrow agent had prior written notice of a claim that there was a dispute between the purchasers and the developer, it made these disbursements at its peril. And if the purchasers were not in default, then the escrow agent’s failure to retain the deposits would be a violation of subsection (l)(d) and would bring into play the purchasers’ right to void their contracts under section 718.202(5). Thus, under the facts of this case, the crucial consideration is whether there was a default by the purchasers. That determination must be made by the trial court. Once made, the remaining procedures to be followed will be as outlined in the statute.

The obvious purpose of section 718.-202 is to protect purchasers under precon-struction condominium contracts from loss of their deposits should the developer fail to perform its contractual obligations. Our holding preserves this intent while still affording the parties the right to determine whether or not a default occurred which would have permitted the matter to be resolved under subsection (l)(b).

Accordingly, we vacate the summary final judgment. On remand, the trial court must determine whether the evidence discloses that the purchasers were in default. If so, their deposits were properly forfeited and paid over to the developer, and the escrow agent acted properly under subsection (l)(b). If, on the other hand, the purchasers were not in default, then the escrow agent acted improperly because there is no question but that the developer and escrow agent received written notice of a claimed dispute. The escrow agent in such instance was required to retain the deposits under subsection (l)(d). In this latter instance the purchasers will be entitled to a return of their deposits plus interest pursuant to section 718.202(5).

CAMPBELL and SCHOONOVER, JJ., concur.


author: PER CURIAM. JORGENSON, Judge,

text:
    Harold K. WARNER, as Personal Representative of the Estate of Mary Ruth Bangert, deceased, Appellant, v. M.L. WINNER, Appellee.
    No. 83-1955.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Rehearing Denied June 15, 1984.

      Thomas J. Dowdell, III, Marathon, for appellant.
    Steven D. Tishler, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

This suit on a promissory note was filed against appellee on March 6, 1978 in the Circuit Court of Monroe County, Florida. The controlling point on appeal is whether the trial court erred in dismissing this cause of action for want of prosecution.

On July 9, 1979, appellee’s pleadings were stricken and a default was entered against him. A non-jury trial was held on March 5, 1980. The appellant was not able to produce the promissory note so the trial judge recessed the trial, ruling that judgment on the default would not be entered unless the note was produced and offered in evidence. No date for the resumption of the trial was specified.

Over fifteen months later, the court on its own motion notified appellant that the cause would be dismissed unless good cause was shown why the action should remain pending. Plaintiff responded that he had not been able to locate the original note, but believed it was still possible to locate it and offer it in evidence. Based upon that statement, the trial judge extended the time to show good cause to October 19, 1981, and upon further request for more time, granted an additional extension.

On May 10, 1983 the court again on its own motion notified appellant that the suit was subject to dismissal for failure to prosecute; appellant responded requesting that the suit not be dismissed. The trial judge ruled that appellant had failed to show good cause why suit should not be dismissed, since counsel for the appellant had failed to show what he or his client had done to try to locate the original promissory note, failed to show what steps, if any, had been taken to re-establish the note as a lost instrument, and failed to show anything to advance the suit to a conclusion. Thereupon, the cause was dismissed for lack of prosecution, pursuant to Rule 1.420(e), Florida Rules of Civil Procedure, which provides, as follows:

(e) Failure to prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.

We have carefully considered the propriety of the trial court’s action in dismissing the cause of action, and have concluded that no abuse of discretion or other error has been demonstrated. See Dashew v. Marks, 352 So.2d 554 (Fla. 3d DCA 1977); Industrial Trucks of Florida, Inc. v. Gonzalez, 351 So.2d 744 (Fla. 3d DCA 1977); Douglas v. Eiriksson, 347 So.2d 1074 (Fla. 1st DCA), cert. denied, 353 So.2d 674 (Fla.1977); Van Gorder v. Blank (R) Construc tion Corp., 341 So.2d 1003 (Fla. 4th DCA 1976), cert. denied, 354 So.2d 987 (Fla.1978). See generally Elmer A. Yelvington & Son, Inc. v. Sheridan, 65 So.2d 44 (Fla.1953).

Affirmed.

JORGENSON, Judge,

specially concurring.

After a default had been entered against the defendant, the plaintiff was unable to establish the amount due on the promissory note. Although dismissing the complaint was not the correct method of reaching the result, the result was proper, given the failure of proof.


text:
    Andrew M. DAIMLER, Appellant, v. Carol E. DAIMLER, Appellee.
    No. 83-2925.
    District Court of Appeal of Florida, Third District.
    May 8, 1984.
    Rehearing Denied June 20, 1984.
    John E. Duhig, Miami, for appellant.
    Peter R. Pancoast, North Miami, for ap-pellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See City of Miami v. Spurrier, 320 So.2d 397 (Fla. 3d DCA 1975), cert. denied mem., 334 So.2d 604 (Fla.1976).


author: GLICKSTEIN, Judge.

text:
    Shirley QUICK, Appellant, v. STATE of Florida, Appellee.
    No. 82-2408.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Rehearing Denied June 27, 1984.
    Richard L. Jorandby, Public Defender, Margaret Good and Lorrie Robinson, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Laura L. Sellers and Robert L. Teitler, Asst. Attys. Gen., West Palm Beach, for appel-lee.
   GLICKSTEIN, Judge.

Shirley Quick, an inmate at Broward Correctional Institution, appeals judgment and sentence in a grand theft conviction in Bro-ward County Circuit Court. One of five issues raised on appeal by itself forms a sufficient basis for reversing judgment and remanding for retrial.

For approximately three months in 1981, Ms. Quick served as cashier at cage one of the Institution’s prisoners’ canteen. The state’s principal evidence in support of the charge of grand theft was testimony about and records of an investigation and accounting audit of the canteen’s receipts. The keystone in the state’s case was exhibit 27, which contained cash register tapes and daily cash reports of Ms. Quick as well as of other cashiers. Comparison of information on the tapes with the cash reports was fundamental to the auditor’s calculations and crucial to the state’s case. Yet there was no testimony of the records custodian or other qualified person identifying the records contained in exhibit 27 and stating they were kept in the regular order of business. See McEachern v. State, 388 So.2d 244 (Fla. 5th DCA 1980); Mastan Company v. American Custom Homes, Inc., 214 So.2d 103 (Fla. 2d DCA 1968). The absence of such testimony renders exhibit 27 inadmissible hearsay, and casts a similar pall over testimony predicated on the exhibit’s contents. Moreover, the court’s decision, over objection, to allow exhibit 27 into the jury room during deliberations, when the exhibit included cash register tapes and daily cash reports of other cashiers not here on trial, raises the spectre of prejudice, for Ms. Quick may have been tarred with the brush of her peers’ misdeeds. See Whitted v. State, 362 So.2d 668 (Fla.1978); Hirsch v. State, 279 So.2d 866 (Fla.1973). Because exhibit 27 and testimony dependent thereon were fundamental to the prosecutions’ case, we must find there was reversible error.

The public rightfully demands peak efficiency of its servants. Proposed Amendment One, recently removed from the November ballot, will doubtless rise again in a different guise, for it is merely a reflection of the people’s continuing impatience with perceived inefficiency that results in waste of their limited resources. It cannot be denied that to err is human; in the judicial system, we have taken cognizance of that failing by installing the harmless error rule. But we dare not enshrine inefficiency or lapse into complacency merely because occasional error is inevitable.

Here the state appears to have had a strong case. Through either complacency, inefficiency or both, the state left out one nail while shoeing the proverbial horse. Now the people’s court, state attorney and public defender must spend more of the public’s limited resources of time, effort and money to rectify an unjustifiable lapse.

Long before the prosecutorial lapse there was inexcusable laxity in the Institution’s business office that made possible continuous and persistent defalcations by canteen personnel. Had the business office done its job of checking daily cash receipts turned in against cumulative cash register totals, the shortages could have been easily prevented and no complex investigation or series of trials would have been needed. This was another instance of public servants letting their employers — the public— down. The people rightly refuse to countenance such laxity anywhere in the public service.

REVERSED and REMANDED for new trial.

ANSTEAD, C.J., concurs.

LETTS, J., dissents without opinion.


text:
    John S. BUCHERIE, Appellant, v. STATE of Florida, Appellee.
    No. 83-315.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.
    Rehearing Denied June 27, 1984.
    Michael Salnick of Kohl, Springer, Springer, Mighdoll & Salnick, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Lydia M. Valenti and Richard G. Bartmon, Asst. Attys. Gen., West Palm Beach, for appel-lee.
   PER CURIAM.

This is an appeal from the denial of a Rule of Criminal Procedure 3.850 motion to vacate judgment and sentence. The motion was based upon appellant’s claim of ineffective assistance of counsel at his jury trial which was held in June, 1981. Appellant was charged with and convicted of robbery with a weapon, for which he received a nine-year sentence. He appealed the judgment and sentence in 1982, and this court affirmed without an opinion. Appellant then made his 3.850 motion claiming ineffective assistance of counsel. Eventually, an evidentiary hearing was held, at which numerous witnesses testified. The trial court issued an order finding that trial counsel had been incompetent, but that the deficiencies did not affect the outcome of the trial. We reverse.

Knight v. State, 394 So.2d 997 (Fla.1981), provides a four-step procedure to be used in determining whether or not an individual has received effective assistance of counsel in accordance with the constitutional guaranties. In this case, the defendant clearly satisfied the first two steps. The trial court concluded that trial counsel had been ineffective, but this simply did not affect the outcome of the trial. It is never possible to know precisely what will affect a jury’s determination of guilt or innocence. It is only necessary that the defendant show a substantial deficiency which “presents a prima facie showing of prejudice.”

We conclude, after a -thorough review of the record, that the defendant did make a prima facie showing of prejudice, and the trial court’s order denying 3.850 relief is therefore vacated and the matter remanded for further proceedings in accordance herewith.

REVERSED AND REMANDED.

ANSTEAD, C.J., and LETTS and BERA-NEK, JJ., concur.