text:
    Wilburn Lee DAVIS, alias v. STATE.
    5 Div. 435.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied Feb. 20, 1979.
    Donald M. Phillips, Lanett, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was tried pursuant to an indictment and convicted of burglary in the second degree. The trial court sentenced him to five years imprisonment in the penitentiary.

The indictment alleged that the business burglarized was King Ford Sales, which was an automobile dealership and repair shop that was operated by and in possession of Hennon King at the time of the alleged burglary on the night of January 10th and 11th, 1978.

It appears from the evidence that a quantity of repair tools and motor vehicle parts, including an automobile, all valued by Mr. King at $24,000, was taken. Some of the items were recovered from an automotive truck in which defendant was riding when he was stopped for speeding. A wrench and a metal chain recovered in the search of the truck were properly identified as items that were stolen from the burglarized building.

It appears in the record that on the first day of May, 1978, defendant’s appointed counsel filed a motion to suppress. Omitting the caption and signature of counsel, the motion reads:

“MOTION TO SUPPRESS ILLEGALLY SEIZED EVIDENCE
“1. The affiant, Donald M. Phillips, the attorney for the defendant being first duly sworn, deposes and says:
“2. That on a date prior to the return of the indictment in this cause the vehicle, pick up truck, of the defendant was stopped by an officer of the City of Leeds or other county or state officers and was searched against the will and without the consent of the defendant.
“3. That certain items were taken from the truck of the defendant consisting of a chain, mechanic’s tools and other items which constitute all the physical evidence in this action.
“4. As a result of said illegal search the defendant was arrested on the charge for which he now faces trial in this Honorable Court.
“5. Said unlawful search and seizure violated defendant’s rights under the Fourth Amendment under the United States Constitution and affiant has reasonable grounds to believe that the above described property will be used as evidence against the defendant in the above prosecution.
“WHEREUPON, affiant respectfully requests an order suppressing as evidence the above described property illegally seized. And granting defendant such other and further relief as the Court deems just and proper.”

While the foregoing motion does not specifically demand or request a hearing, we think the nature of the motion and the allegations therein impliedly entitled the movant to a hearing outside the presence of the jury; but the trial court did not set the motion down for a hearing. On May 9, 1978, it entered an order denying the motion. Appellant here, and in ground 4 of his motion for a new trial, asserts that the denial of the motion without a hearing was reversible error. We conclude that the denial, under the circumstances, was prejudicial error.

We hold that denial of the written motion was not an incurable error to reverse. It appears in the record that during the progress of the trial and when the State proposed to introduce in evidence some of the stolen items that were found in the truck occupied and driven by the defendant, the defendant objected to such introduction and moved the court for a hearing outside the presence of the jury. The court overruled the objection and denied the motion. The trial continued in the presence of the jury.

This Court in Neugent v. State, Ala.Cr. App., 340 So.2d 55, cert. denied, Ala., 340 So.2d 60, observed:

“While the better or more efficient procedure may be to hold a pretrial hearing on motions to suppress, we find no prejudicial effect upon the appellant so long as the matter is heard outside the presence of the jury. Childers v. State (1976) 58 Ala.App. -, 339 So.2d 597. And, further providing that the appellant is not prejudiced by having evidence from the suppression hearing improperly introduced against him during the trial on the merits of the case. However, evidence from a probable cause hearing, which may be inadmissible as primary evidence of guilt, may nevertheless end up before the jury where proper and timely objection is not made by the appellant.”

Thus, it appears that the Court not only denied the written motion to suppress without a hearing, but in the trial on the merits it denied appellant’s motion to first hear the evidence outside the presence of the jury.

Thus, we have multiple efforts on the part of defendant to prevent the evidence being admitted: (1) by written motion to suppress and (2) by oral objection during the trial on the merits. It is to be noted that upon the trial on the merits, defendant asked to be heard outside the presence of the jury, but such hearing was denied.

The court erred to reversal in refusing such hearing outside the presence of the jury and in overruling defendant’s objection to such admission made during the trial. The first ruling denying the written motion remained intact and was not made harmless as would have been the case had the court granted defendant’s motion made during the trial to be heard outside the presence of the jury. Both denials were error to reverse. Neugent v. State, supra.

The judgment is reversed and the cause is remanded.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-317.
    Supreme Court of Alabama.
    April 6, 1979.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: ENGLAND, J.,

text:
    Daryl Danny AUXIER, Appellant, v. STATE of Florida, Appellee.
    No. 51969.
    Supreme Court of Florida.
    Oct. 26, 1977.
    OVERTON, C. J., and ADKINS, BOYD and KARL, JJ., concur.
   ENGLAND, J.,

would treat as certiorari from Interlocutory Order and deny certiora-ri.


author: BOARDMAN, Judge.

text:
    John W. MIKOS, as property appraiser of Sarasota County, Florida, and Harry L. Coe, Jr., as executive director of the Department of Revenue of the State of Florida (formerly J. Ed Straughn), Appellants-Cross-Appellees, v. RINGLING BROS.-BARNUM & BAILEY COMBINED SHOWS, INC., a Delaware Corporation, the Board of Tax Adjustment In and For Sarasota County, Florida, and Miss Charlie Hagerman, as tax collector of Sarasota County, Florida, Appellees-Cross-Appellants.
    No. 78-316.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1979.
    Rehearing Denied March 21, 1979.

      John C. Dent, Jr., of Dent & Pflugner, Sarasota, for appellants-cross-appellees.
    Granville H. Crabtree, Jr., of Crabtree, Butler, Syprett & Meshad, Sarasota, and Sheldon V. Ekman, of Reavis & McGrath, New York City, for appellee-cross-appellant Ringling Bros.-Barnum & Bailey Combined Shows, Inc.
   BOARDMAN, Judge.

Appellants/defendants, John W. Mikos, as property appraiser for Sarasota County, and Harry L. Coe, Jr., as executive director of the Department of Revenue of Florida, appeal the final judgment entered in favor of appellee/plaintiff Ringling Bros.-Barnum & Bailey Combined Shows, Inc. We focus on the question of whether certain tangible personal property owned by appellee is subject to taxation on a portion of its value based on the number of days it is in the state annually rather than taxation at 100% of its value.

Ringling is a Delaware corporation in the business of staging circus performances. During the tax years involved, 1972 through 1976, its principal place of business was Washington, D.C. It is authorized to do business in Florida as a foreign corporation. It has approximately 650 employees. Eighty-five employees, including all the executive officers, are based in Washington, D.C. where all administrative and executive functions are conducted. Eleven employees are based in Venice, Florida, where Ringling maintains permanent facilities.

Two separate shows, designated as the Red Unit and the Blue Unit, are produced. Approximately 280 persons travel with each unit. Each unit has its own equipment and animals (the tour property) and is transported throughout the United States and Canada on railroad cars (the railroad property) which are owned by Ringling. Each unit is accompanied by an average of thirty-four railroad cars which are moved from location to location by interstate common carriers. The common carriers provide the engines, cabooses, and crews. The railroad cars are used not only for transportation but also to house a majority of the performers. The shows tour an average of thirty-five states in approximately eleven months. Ringling enters into leases with the arenas where the shows are performed well in advance of each season.

Each show consists of approximately forty to fifty specialty acts and five production numbers. Each year Ringling conceives and produces one new show concept for either the Red Unit or the Blue Unit which tours for two years before it is changed. In the tax years involved, the shows were generally created and planned during the month of March at the Washington, D.C. headquarters. New costumes, props, and equipment are manufactured and assembled in New York City during a period beginning in June and ending in November or December and then shipped to Venice, Florida. The purpose of the stay in Venice is to assemble and rehearse the show and to perform maintenance on equipment and the railroad property. The new show spends about ten weeks in Venice and then leaves on its tour throughout the country. The show then returns to Venice for about a month to refurbish and to add new acts. Thus, each unit spends some time every year in Venice. Both units were present in Venice on January 1 of each of the tax years involved. All of the tour and railroad property arrives at and departs from Sarasota County on pre-established, definite dates in accordance with itineraries for each unit. Some of the property is eventually retired to the facilities in Venice.

In 1971 all of the personal property of Ringling, including the tour and railroad property which was physically located at its Venice quarters on January 1, the date for annual assessment established by statute, was assessed at 100% of its value. Ringling objected to this assessment before the Board of Tax Adjustment for Sarasota County. After a hearing, the Board approved an agreement by which the value of the property was apportioned on the basis of the number of days in the year that the property was in Florida. In its 1972 tangible property tax return Ringling listed the value of the tour and railroad property on an apportioned basis in accordance with the 1971 agreement. However, the appraiser assessed the tour and railroad property at its full value, and the Board of Tax Adjustment sustained the assessment over Ringling’s objection. In the tax years 1973 to 1976 the appraiser continued to assess the tour and railroad property at its full value. The assessments as to the tour property for 1973 through 1976 and for the railroad property for 1973 and 1974 were sustained by the Board. However, the 1975 and 1976 assessments of the railroad property were disapproved because the Department of Revenue had determined that the railroad property was “private car line” property within the meaning of Section 193.085(4), Florida Statutes. The property has not been subjected to ad valorem taxation by any other state.

After exhausting its administrative remedies, Ringling filed suit seeking cancellation or reduction of the tangible personal property tax. The assessments in dispute were for the tax years 1972 through 1976 as to the tour property and 1972 through 1974 as to the railroad property. The final judgment recited, among other things, the following:

2. That after an extensive review of the facts presented in this case, the Court finds that the Ringling tour and railroad property was not “permanently located” in Sarasota County, Florida, on the assessment date within the meaning of Florida taxing statutes applicable for each year involved in this consolidated case.
3. That Ringling tour property was subject to tangible personal property taxes by Sarasota County, Florida, but under the Constitution of the United States the tax must be an apportioned tax determined by multiplying the assessed value of the tour property by a fraction, the numerator of which is the number of days the tour property was physically present in Sarasota County during the year, and the denominator of which is the total number of days in the year, and it is so ordered.
4. That for the tax years 1972, 1973 and 1974, Plaintiff’s railroad property is subject to tangible personal property taxation by Sarasota County, Florida, but the tax is to be an apportioned tax determined in the manner set forth in paragraph 3 above, and it is so ordered.

The tax assessor contends that the property was taxable at 100% of its value. In response, Ringling argues that if the property was subject to any tax, the apportionment adopted by the court was appropriate. Ringling asserts however, by cross-appeal, that the property was the subject of no tax whatsoever.

Under Florida law the situs of tangible personal property for taxation purposes is determined in accordance with Section 192.032(2), Florida Statutes (1977), which provides that property shall be “permanently located” in the State of Florida on the assessment date of January l. The effect of the term “permanently located” in that section is to statutorily incorporate the doctrine of permanence as it applies to establishment of an actual tax situs. Because there are no Florida statutory guidelines applicable to the establishment of the tax situs, the rules established by case law relevant to the doctrine of permanence should be applied to each situation.

Generally, movable tangible personal property has a situs in the domicil of the owner regardless of its actual location in that state on the assessment date. Ayer & Lord Tie Co. v. Kentucky, 202 U.S. 409, 26 S.Ct. 679, 50 L.Ed. 1082 (1906); 71 Am. Jur.2d State and Local Taxation §§ 661-65 (1973). If on the date for assessment tangible personal property has acquired a situs in a nondomiciliary state, it is subject to a nondiscriminatory property tax in that state. Old Dominion S. S. Co. v. Virginia, 198 U.S. 299, 25 S.Ct. 686, 49 L.Ed. 1059 (1905). Tangible property which is physically present in a nondomiciliary jurisdiction for the sole purpose of transit through that state is not subject to property taxation there. Kelley v. Rhoads, 188 U.S. 1, 23 S.Ct. 259, 47 L.Ed. 359 (1902); State and Local Taxation, supra, §§ 658-63. Nonetheless, movable property may be subject to local taxation if there is a break in the transit and the property has come to rest within the taxing entity's jurisdiction. Minnesota v. Blasius, 290 U.S. 1, 54 S.Ct. 34, 78 L.Ed. 131 (1933). If the purpose of the interruption, however, is incidental to transportation it is not taxable. Champlain Realty Co. v. Town of Brattleboro, 260 U.S. 366, 43 S.Ct. 146, 67 L.Ed. 309 (1922). Intent to transport the property to another jurisdiction at some later date does not exclude taxation by the state where it is more or less permanently located as of the date of assessment. Susquehanna Coal Co. v. City of South Amboy, 228 U.S. 665, 33 S.Ct. 712, 57 L.Ed. 1015 (1913).

In discussing the word permanent with respect to tax situs, the court in City of Dallas v. Overton, 363 S.W.2d 821, 825 (Tex.Ct.Civ.App.1963), said:

The term “permanent” as used in expressions relating to this rule of law is sometimes confusing. The term “permanent” is used in contra distinction of the term “temporary” or “transitory”. The question of “permanency” is clarified considerably in Cooley, “Law of Taxation” Fourth Ed., § 452, as follows:
“In order to acquire a situs in a state or taxing district so as to be taxable in the state or district regardless of the domicile of the owner and not taxable in another state or district at the domicile of the owner, tangible personal property must be more or less permanently located in the state or district. In other words, the situs of tangible personal property is where it is more or less permanently located rather than where it is in transit or temporarily and for no considerable length of time.
“The governing rule, as usually stated, is that the taxable situs depends on whether the property is ‘permanently’ within the state. However, in this connection, the word ‘permanently’ is apt to be misleading unless read in connection with the facts of the particular case. It means a more or less permanent location for the time being.”

See also 110 A.L.R. pp. 707, 717:

“The courts are all agreed that before tangible personal property may be taxed in a state other than its owner’s domicil, it must acquire there a location more or less permanent. It is difficult to define the idea of permanency that this rule connotes. It is clear that ‘permanency,’ as used in this connection, does not convey the idea of the characteristics of the permanency of real estate. It merely involves the concept of being associated with the general mass of property in the state, as contrasted with a transient status — viz., likelihood of being in one state today and in another tomorrow.”
Obviously the courts do not construe the term “permanent” to mean absolutely permanent, since movable property is seldom absolutely permanent. .

In Ray v. Board of County Comm’rs, 173 Kan. 859, 863, 252 P.2d 899, 902 (1953), the court upheld a tax on construction equipment which had been brought into the state for approximately sixty days by a nondomi-ciliary contractor in order to do some road work. The court observed:

As a general proposition, before tangible personal property may be taxed in a state other than the domicile of the owner it must have acquired a more or less permanent location in that state as contrasted to a transient status. Within the meaning of the’rule “permanency” has been held to mean a more or less permanent location, for the time being, one test being whether the property in question is within the state solely for use and profit there. .

The Supreme Court of Wisconsin reached a similar conclusion in another construction equipment case. Thus, in Town of Cady v. Alexander Construction Co., 12 Wis.2d 236, 243, 107 N.W.2d 267, 271 (1961), the court reasoned:

In the instant case the construction equipment was in the state of Wisconsin for somewhat less than a year and was not in transit or merely passing through . the state, but was being used by its owner for the construction of a highway. True, the owner intended to remove the property upon completion of the contract, but the intention of the owner is not the deciding factor in determining the taxable status of personal property. During the months that the property was in Wisconsin, it and its owner received the benefits of our laws, the same as similar property so owned and used by Wisconsin residents. From the standpoint of the nonresident owner, it is true the property was in Wisconsin temporarily in a broad sense, but temporary is a relative term. The length of time the property was in Wisconsin depended upon the size of the construction job. The property was used for the purpose for which it was constructed and for the benefit of its owner’s business. The property, in our opinion, had sufficient contact with this state to acquire a taxable situs and to justify a personal-property tax thereon by the state.

Reversing the trial judge for having given the word “permanent” in Section 192.032 too narrow an application, our sister court, in Overstreet v. Sea Containers, Inc., 348 So.2d 628, 630 (Fla. 3d DCA 1977), said:

In City of Lakeland v. Lawson Music Co., Inc., 301 So.2d 506 (Fla. 2d DCA 1974), the court opined that for purposes of taxation, the word “permanent” in a taxing statute does not always denote lasting forever, and does not always have a meaning opposite to temporary.
“In tax cases the requirement of permanency has been found satisfied where presence is consistent with continuity and not sporadically or temporarily present.” Supra, 301 So.2d 508 at 508.
In addition, on the Federal level, the Court of Appeals for the District of Columbia has held that permanency, in the sense that personal property must be fixed like real property is not essential to the establishment of a taxable situs. District of Columbia v. Smoot Sand & Gravel Corp., 87 U.S.App.D.C. 248, 184 F.2d 987 (1950).

Though the facts were unique, the case is significant because the court construed the permanence required by the statute by drawing upon the general definition applicable to the acquisition of a tax situs in a nondomiciliary state.

Taxes on commodities or articles of trade have often been upheld so long as the items are not in the stream of interstate commerce. Thus, even though it is evident that commodities are intended to be shipped beyond the state boundary shortly after the assessment date, they have been held to be subject to taxation by a nondomiciliary state so long as the journey has not commenced. Diamond Match Co. v. Village of Ontonagon, 188 U.S. 82, 23 S.Ct. 266, 47 L.Ed. 394 (1903); Coe v. Town of Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715 (1886). Likewise, when the interstate transit has been interrupted for purposes other than those which are necessarily incident to the transportation, the commodities have not been deemed protected from taxation. Minnesota v. Blasius, supra; Bacon v. Illinois, 227 U.S. 504, 33 S.Ct. 299, 57 L.Ed. 615 (1913). In this type of ease the courts consistently seem to require much less in the way of a showing of permanence for purposes of the acquiring of a tax situs. See Clark, A State’s Tax Jurisdiction as Limited by the United States Constitution, 13 U.Fla. L.Rev. 401, 421 (1960).

Applying these principles to the undisputed facts of the case before us, we are persuaded that the subject property acquired a situs in Sarasota County, Florida, for the purpose of tangible personal property taxation. The property was not within the “stream of commerce” while it was located in Sarasota County, and the purpose of the annual stays in Venice were distinct from those incidental to transportation. While Ringling intended to transport the property out of the state each year, Ringling also intended to bring it back at the conclusion of each tour. The property enjoyed the protection of the state to such a degree that its owner should be required to contribute to the state’s maintenance.

Because we have held that the property was taxable by Sarasota County, the second issue we must address is whether it is taxable at its full value.

The majority of the many cases cited by the parties to this appeal deal with instrumentalities continually employed in interstate commerce, such as boats, trains, and airplanes. These cases hold that such items of property are subject to taxation by a nondomiciliary state if there is sufficient activity within the state but then only upon an apportioned basis. Braniff Airways v. Nebraska State Board, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967 (1954); Pullman’s Palace Car Co. v. Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613 (1891). These are primarily cases involving fleets of vehicles in which no one vehicle is in the taxing state for an appreciable length of time, yet, as an entity, the fleet itself has a very substantial connection with the state. For example in Johnson Oil Refining Co. v. Oklahoma ex rel. Mitchell, 290 U.S. 158, 54 S.Ct. 152, 78 L.Ed. 238 (1933), the Court held that the average number of railroad cars, but not the whole fleet of cars owned by the taxpayer, which operated within the jurisdiction was taxable although no one car had an actual situs in that state. The rule of these cases is that any ad valorem tax on movable, tangible personal property which is in the stream of interstate commerce at the time the tax accrues must be apportioned so as to avoid an undue burden on interstate commerce. See, e. g., Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585 (1949).

Although we recognize this well established rule of apportionment and appreciate the reasoning supporting it, there is no constitutional requirement that an apportionment formula be applied to movable property which has not entered or has left the stream of interstate commerce. Clearly, the commerce clause would not be involved. The due process clause does not require that in all circumstances there be quid pro quo between the tax paid and the benefits received. See Developments in the Law-Federal Limitations on State Taxation of Interstate Business, 75 Harv.L.Rev. 953 (1962). The statement by the United States Supreme Court that when a state has the power to levy a tax on property it must do so in “relation to opportunities, benefits, or protection conferred or afforded by the taxing State” is to remind the states that the property it seeks to tax must have a sufficient relationship to their jurisdictional boundaries. Ott v. Mississippi Barge Line, supra, at 174, 69 S.Ct. at 434, 93 L.Ed. at 589. See Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S.Ct. 246, 85 L.Ed. 267 (1940).

The trial court was in error when it found that only an apportioned tax could be levied against the tour and railroad property. The property is to be treated like any other movable, tangible personal property in the state, and it is subject to taxation at 100% of its value.

REVERSED and REMANDED.

GRIMES, C. J., and RYDER, J., concur.

      . Ringling leases its costumes and props.

      . Because the issue of the propriety of taxing the railroad property as a “private car line” is not challenged, we do not consider it in this opinion.

      . At the outset we note what appears to be an inconsistency between the finding that the property was not “permanently located” in Sarasota County and the fact that the property was held subject to tangible personal property taxes on an apportioned basis. Under the wording of the statute, if the property were not permanently located in Sarasota County, we cannot see how it could be held subject to a tax in any amount.

      . When the legislature first used the words “permanently located” in 1970 with reference to tangible personal property, we do not think they intended to limit more strictly the capacity of the state to tax than the constitutional standard of due process which requires tangibles of a nonresident to have acquired a tax situs in the taxing state.

      . Apparently, the trial judge relied on these cases when he determined that Sarasota County did have authority to tax on an apportioned basis. However, we do not view Ringling’s railroad property as an instrumentality in the same sense as the cars involved in the cases referred to above. Ringling simply used its railroad property to haul its own show from place to place, and for purposes of analysis, the railroad property’s tax status was no different from that of Ringling’s tour property.

      . This analysis does no harm to the rule that the owner’s domiciliary state may tax personalty if no other tax situs for the property has been established. Property which is continually involved in interstate commerce while in a nondomiciliary state is subject only to a tax on the portion of its value representing the nexus between that state and the property. The domiciliary state, however, would be authorized to tax that property not only on the basis of the nexus between the property and its jurisdiction but also may tax any portion not taxed by another authority. Johnson Oil Refining Co. v. Oklahoma ex rel. Mitchell, 290 U.S. 157, 54 S.Ct. 152, 78 L.Ed. 238 (1933). Of course, if the property is permanently removed from the domiciliary, it may not tax that property at all. 71 Am.Jur.2d State and Local Taxation §§ 664-65 (1973).

      . A taxing authority may choose to apportion its tax to reflect a direct relation between the tax paid and benefits enjoyed such as was done in Ice Capades v. Los Angeles, 56 Cal.App.3d 745, 128 Cal.Rptr. 717 (1976). This would avoid the burden of double taxation where an actual situs has been established in more than one jurisdiction. A state is not, however, obliged to avoid double taxation in this circumstance, even though such a result is favored when interpreting tax statutes. State and Local Taxation §§ 31-41, supra, n.6.


author: PER CURIAM.

text:
    Glenn GALLOW, Arlene Gallow and Government Employees Insurance Company, Appellants, v. Cleo McKNIGHT, Appellee.
    No. 78-854.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied April 12, 1979.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas Scott, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Bette Quiat, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Shields v. Del Rosario, 303 So.2d 355 (Fla. 3d DCA 1974), cert. den. 315 So.2d 97 (Fla.1975); 6 Fla.Jur. “Compromise and Settlement” § 4 (1956).


author: GRIMES, Chief Judge.

text:
    Carlton E. MILLER, d/b/a Miller Painting, Appellant, v. KNOB CONSTRUCTION COMPANY, a Florida Corporation, and American States Insurance Company, a foreign corporation, Appellees.
    No. 78-877.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 1979.
    Rehearing Denied March 21, 1979.

      Thomas M. Harris of Harris, Harris & Andrews, P.A., St. Petersburg, for appellant.
    Hugh E. Reams and Richard A. Schlosser of Goldner, Reams, Marger, Davis, Piper & Kiernan, P.A., St. Petersburg, for appellee Knob Construction Co.
   GRIMES, Chief Judge.

This is an appeal from a final summary judgment which held that appellant’s claim for $3,875 under an alleged contract with appellee was barred by the one-year statute of limitations in Section 255.05, Florida Statutes (1975).

Appellant’s (Miller) complaint alleged that appellee (Knob), the prime contractor for the construction of a sewage lift station for the City of Pinellas Park, had agreed to pay Miller to correct some defective work done by another subcontractor on that job. Miller joined American States Insurance Company (American) as a defendant, alleging that as the insurer of the “defective” subcontractor, American had also agreed to pay him for the repair work. American cross-claimed against Knob for indemnification and alleged that it had paid Knob $6,326.03 in full settlement of the damages done by its insured. A summary judgment exonerated American from liability to Miller, and this judgment was not appealed. Later, the court entered summary judgment in favor of Knob because Miller’s suit was filed more than one year after the completion of the work.

Section 255.05(1) provides that any person entering into a contract with a public body for the construction of public projects is required to execute a performance and payment bond with an authorized surety conditioned on the contractor’s proper performance of the contract and prompt payment to all persons supplying him labor, materials or supplies used directly or indirectly by him for the prosecution of the work provided for in the contract. Section 255.05(2) includes a limitation provision which reads:

No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after 1 year from the performance of the labor or completion of delivery of the materials and supplies. (Emphasis supplied.)

Miller asserts that because his complaint is not based upon the bond required by the statute but is simply an action ex contractu, the one-year limitation does not apply. Knob, on the other hand, argues from the wording of the statute that the use of the disjunctive “or” between the phrases “against the contractor” and “against the surety” necessarily makes the term “on the bond required in this section” modify only “surety.”

We doubt if the language quoted above is so clear as to make it unnecessary to consider the legislative intent behind the passage of Section 255.05. This section is intended to prove subcontractors and mate-rialmen on public work projects with the same type of protection which is available to subcontractors and materialmen on private construction projects under the Mechanics’ Lien Law. Winchester v. State, 134 So.2d 826 (Fla.2d DCA 1962). In the private sector, the failure to perfect a mechanic’s lien does not affect any other remedy which a subcontractor might have against the prime contractor. Section 713.-30, Florida Statutes (1975). No reason comes to mind why the character of the project — government ownership — should make any difference in this respect. Section 255.05 was designed to assist subcontractors and materialmen who lack privity with the prime contractor or the owner and who cannot obtain a lien because of the public nature of the project. We do not believe that by including a one-year limitation provision within the body of Section 255.05, the legislature intended to lessen the protection already available to subcontractors and materialmen who enjoy privity of contract with the prime contractor.

Section 255.05 was patterned after the federal statute known as the Miller Act. 40 U.S.C.A. § 270a et seq. (West 1969). In Warrior Constructors, Inc. v. Harders, Inc., 387 F.2d 727 (5th Cir. 1967), the court observed that the Miller Act was not intended to protect the contractor required to furnish the bond. The same could be said of our version of the Miller Act. To construe subsection (2) as a general statute of limitation on actions against public works contractors would have the effect of providing a special benefit to contractors at the expense of their subcontractors and materialmen.

In Southwest Florida Water Management District v. Miller Construction Co., 355 So.2d 1258 (Fla.2d DCA 1978), this court held that the one-year limitation period in Section 255.05 did not apply to a suit on a performance bond given by the prime contractor on a public work project. We reached this conclusion after a determination that the bond in question was a common law obligation rather than the statutory bond described in subsection (1). Implicit in our decision is the notion that the terms of subsection (2) apply only to actions initiated under subsection (1) and are not intended to restrict other statutory and common law remedies.

Thus, we hold that the one-year limitation in subsection (2) applies only to a plaintiff asserting a claim on the bond required by subsection (1). Because Miller’s complaint is grounded entirely upon the allegation of a contract between himself and Knob and does not allege any claim under Section 255.05, the general statute of limitations pertaining to suits on contracts applies. The summary judgment in favor of Knob is reversed, and the case is remanded for further proceedings.

SCHEB and RYDER, JJ., concur.

      . This section has been modified effective January 1, 1978. See Ch. 77-81, Laws of Florida. Section 255.05, Florida Statutes (1977), reflects the change.

      . We shall assume for the sake of argument that Miller’s corrective work would have been public construction work within the scope of Section 255.05 for which Miller could have sued Knob’s surety company had he properly complied with all of the requirements of statute.


author: DOWNEY, Chief Judge. BERANEK, Judge,

text:
    Sandra McMillan BERRYMAN, James Michael Murray and Harry William Berryman, III, Appellants, v. STATE of Florida, Appellee.
    No. 78-180.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    Rehearing Denied April 18, 1979.

      Robert L. Saylor of Saylor & Ingalsbe, North Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, Robert L. Bogen, Asst. Atty. Gen. and Kenneth G. Spillias, Legal Intern, West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellants were charged with violations of the State drug abuse laws. When their motion to suppress was denied they pleaded nolo contendere, reserving the right to appeal, and were duly sentenced. We have then for consideration the propriety of the trial court’s order denying the motion to suppress.

Appellants initially attack the search warrant for failure to properly designate the residence to be searched. We reject that contention.

The second point raises the alleged violation of Section 933.09, Florida Statutes (1977), by the police officer in serving the search warrant. Said section provides:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of his authority and purpose he is refused admittance to said house or access to anything therein.

It appears that the Palm Beach County Sheriff’s Department had staked out appellant’s premises and conducted surveillance for several weeks. A great deal of suspicious activity appeared to be taking place with frequent vehicular traffic to and from the residence, people entering the house and leaving again shortly thereafter.

On the date in question sheriff’s deputies, armed with a search warrant to search for “illegal narcotics and/or dangerous drugs” appeared at the front door of the residence. The police had no knowledge or even a suspicion regarding the quantity or type of drugs they suspected were being kept on the premises. In seeking entrance to the premises they failed to comply with the mandate of the statute which requires giving due notice of their authority and purpose. They knocked once, received no response, then announced, “police,” knocked again and received no response. The officer then opened the door which turned out to be unlocked and said, “Police — anyone here?” Receiving no response, he stepped inside and met one of the appellants coming to the door.

During the suppression hearing one of the officers testified that he opened the door and did not wait any longer because he feared the contraband might possibly be destroyed. However, it is clear from the entire transcript that none of the officers had any knowledge of the amount of nar-coties involved. In fact, the prosecutor summed up his argument by stating to the trial court:

“ . . . According to Agent Carroll’s testimony he didn’t know what quantity of drugs was involved or what the quality of those drugs was, how they were packaged, how they were hidden. He had to take precaution in order to preserve that evidence and he rightfully instructed those agents who were charged with the responsibility of executing that warrant to be careful about the method of execution of that warrant.”

The police in this case knew from their experience that where a small amount of narcotics is involved it is a simple matter to dispose thereof while the police are “knocking and announcing”, but their experience is all they relied upon. This residence could have contained a ton of marijuana for aught they knew.

If the search and seizure in this case is deemed to be valid it would appear to us we have effectively eliminated the statutory requirement that the police must give due notice of their purpose and authority and be denied admission before entering a private residence to serve a search warrant where the contraband involved is narcotics unless they have reason to believe that the quantity is very large.

As we understand the current law on the question of when police are justified in believing that there will be an attempt to destroy evidence, the Benefield-Clarke exceptions, infra, engrafted on Section 933.09, Florida Statutes (1977), do not authorize an intrusion into a residence to serve a search warrant without complying with Section 933.09, unless the police “had reason to fear at the time of entry the destruction of evidence.” Unquestionably, that means the police must have some facts pertaining to the case at hand which would reasonably cause such apprehension.

Unlike the case at bar, in State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1970), the police had viewed the small amount of narcotics and other contraband from a fire escape; hence, they had good reason to fear destruction of the evidence if there were any delay in making their entry. Therefore, the officers were justified in entering without knocking and announcing their authority and purpose. The Clarke exception was approved by the Supreme Court in State v. Kelly, 287 So.2d 13 (Fla.1973), because the facts in Clarke fit within the fourth Benefield exception.

Contrawise, in Benefield, the conviction was reversed because the court found that the contraband, three thousand dollars in small bills, was not so readily disposable as to warrant intrusion without knocking and announcing as required by the statute.

In Earman v. State, 265 So.2d 695 (Fla.1972), the Supreme Court reversed a conviction based upon evidence garnered by entry without compliance with Section 933.09 and absent any circumstances which would constitute an exception under Benefield. With reference to the exigency of the circumstances as they pertain to anticipated destruction of the evidence if notice of the proposed entry is given the Supreme Court said:

An appellate court is not justified in concluding there was such an exception as a matter of law when the record is devoid of any testimony by police officers or other competent evidence showing they had reason to fear at time of entry the destruction of evidence. Once Earman challenged his arrest, the burden of proving its validity as a predicate for the lawful admission of the seized marijuana in evidence, was upon the State. Urquart v. State, Fla.App., 211 So.2d 79, supra. Essential to such proof in this case is testimony by the arresting officers or other competent evidence that they had reasonable grounds to believe the marijuana within the house would be immediately destroyed if they announced their presence. Absent such evidence, the fruits of any search conducted pursuant to such arrest must be considered illegally obtained. 265 So.2d at 697.

In State v. Kelly, supra, the appellate court affirmed an order suppressing evidence because the police violated the knock and announce statute. The Supreme Court of Florida reversed and directed the District Court of Appeal to remand the cause to the trial court so that it could “determine whether there existed ‘good reason to fear at time of entry the destruction of evidence.’ ” The Supreme Court noted that the trial and appellate courts had failed to consider the Clarke exceptions.

In view of the foregoing, we conclude that there are three hypothetical situations in which the police might be called upon to consider the applicability of Section 933.09, Florida Statutes (1977) vis a vis the fourth Benefield exception involving destruction of evidence. First, the Clarke situation in which the police have knowledge or a reasonably grounded suspicion that the quantity and nature of the contraband and the circumstances surrounding its possession are such as to make it readily disposable. Second, the Benefield situation in which the police have knowledge or a reasonably grounded suspicion that the quantity or nature of the contraband is not readily disposable. Thirdly, the situation in the case at bar where the police do not know and do not have a reasonably founded suspicion that the quantity and nature of the contraband is readily disposable. It is only in the first situation that the police are justified under that exception in not complying fully with Section 933.09.

In the case at bar the destruction of evidence exception is negated by the State’s own admission. The police had no “reason to fear at the time of entry the destruction of evidence.” That being the case, the entry, the search and the seizure were unlawful and the evidence thereby uncovered should have been suppressed.

Accordingly, the judgment and sentence appealed from are reversed and the cause is remanded for further proceedings consistent herewith.

BERANEK, J., concurs specially.

CROSS, J., dissents without opinion.

BERANEK, Judge,

specially concurring.

I concur in the foregoing opinion but wish to point out that this case should have very limited application. Here, the State secured a search warrant and the sufficiency of the matters supporting the warrant is not raised on appeal. Although the police had surveilled the premises for a number of weeks and obtained a warrant to search for “illegal narcotics and/or dangerous drugs,” they had absolutely no idea of the amount, or the nature of the substances being sought. They did not know whether they were looking for a ton of marijuana or an ounce of heroin. It is somewhat anomalous to have a situation where after securing of a warrant, police are required to serve same without having the slightest idea what they are looking for. Under these circumstances the officers serving a warrant must indeed comply with all requirements of the knock and announce statute.

In this particular case the intrusion on the rights of the defendant was slight. The officer peacefully stepped across the threshold of an unlocked door after having received no answer. The only deviation from the statute was the failure to announce the purpose for which he was there and the refusal of admittance. However, if we were to affirm the search herein, it would allow total disregard for all requirements of the knock and announce statute in future situations where a warrant could be secured and the police had only a general idea what they were looking for. The Benefield and Clarke cases cited above are exceptions to all requirements of the statute and not merely exceptions to the “announcement” part of the statute. It is not and should not be the law of this State that police may obtain a warrant and then based on their lack of knowledge proceed in gang busters’ fashion to break down doors and enter homes totally without warning to seize whatever they can find. The conduct of the police here was not of this nature, but the danger of a precedent to this effect is what convinces me the majority opinion is indeed correct.

      . Agent Carroll was in charge of the mission.

      . Section 933.09, Florida Statutes (1977).

      . Benefield v. State, 160 So.2d 706 (Fla.1984); State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1970).

        . Earman v. State, 265 So.2d 695 (Fla.1972).

      . Benefield v. State, 160 So.2d 706, 710 (Fla.1964), “ . . . (4) where those within made aware of the presence of' someone outside are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted.”

      . Earman v. State, 265 So.2d 695 (Fla.1972).


text:
    AMERICAN NATIONAL BANK OF JACKSONVILLE, Appellant, v. Virgil R. NORRIS and Mavis Y. Norris, Appellees.
    Nos. II-8 and II-234.
    District Court of Appeal of Florida, First District.
    Feb. 26, 1979.
    Rehearing Denied April 11, 1979.
    Thomas C. Dearing, Jacksonville, for appellant.
    Allen C. D. Scott, II and David W. Foer-ster, Jacksonville, for appellees.
   MITCHELL, HENRY CLAY, Jr., Associate Judge.

Appellant-Plaintiff, American National Bank of Jacksonville, appeals a final judgment rendered pursuant to a jury verdict finding in favor of Appellees-Defendants, Mr. and Mrs. Norris, on their counter-claim in the amount of $600,000.00. Mr. and Mrs. Norris cross-appeal a final judgment of foreclosure rendered in favor of the bank.

The bank filed suit against Norris seeking foreclosure of a mortgage held by the bank and executed by Norris simultaneously with a construction loan agreement for the proposed construction of an apartment complex. Norris counterclaimed against the bank for breach of the construction loan agreement.

The construction loan agreement provided that the project was to be completed in accordance with the plans and specifications upon which the lender issued its commitment and in all events the construction was to be completed within twenty-four months from the date of execution of the agreement. The bank’s attorney performed a title examination for the purpose of obtaining mortgagee title insurance which was ultimately obtained. Within a month after the closing, Norris was notified by the State of Florida Internal Improvement Fund and the U.S. Army Corps of Engineers that a portion of the land on which they were to build was submerged land and belonged to the State of Florida. From January, 1973 to March, 1974 no construction took place upon the Norris property. Norris talked frequently with bank officers during the interim period about the submerged land problem. Norris testified that at his meetings with the various officials, the bank offered suggestions and openly ratified and acquiesced in his efforts to resolve the construction problem. During this time, Norris required an option to purchase four additional acres of waterfront property immediately adjacent to the project site. Norris intended to take the planned apartment units, displaced by the state claim, and revise the site plan to construct the units on the four acres adjacent to the original project site. The bank officers were aware of the necessity for revision of the original project site plan. A revised site plan was prepared and approved by the U.S. Army Corps of Engineers and the State. Norris contends that the bank waived the twenty-four month term of the construction loan agreement and impliedly agreed'to fund the loan throughout the time expended by Norris in attempting to resolve the submerged land construction problem.

The first question for our consideration is whether there was sufficient evidence to support the verdict of the jury that the bank had breached the construction loan agreement. We find the evidence presents a jury question. There is evidence to support the position of Norris that time was not of the essence of the construction loan agreement and that the bank, by virtue of its own conduct and actions, waived the time for performance requirement and was estopped to demand compliance. The evidence was sufficient to permit a jury to infer waiver on the part of the bank. See Selective Builders v. Hudson City Savings Bank, 137 N.J.Super. 500, 349 A.2d 564 (1975).

The Appellants contend that the trial court erred in various instructions given to the jury. It is a difficult thing, indeed, to achieve mechanical perfection in the trial of a law suit. Technical errors almost inevitably occur. The test is, rather, whether under the particular facts in this case, the instructions could have misled the jury or prejudiced the bank’s right to a fair trial. We have examined all of the instructions and find that the instructions given were not prejudicial to the bank. See OWCA v. Zemzicki, 137 So.2d 876 (Fla.2d DCA 1972); Hart v. Jackson, 142 So.2d 326 (Fla.1st DCA 1962); Winn Dixie Stores, Inc. v. Nall, 302 So.2d 781 (Fla.3d DCA 1974); and Section 59.041, Florida Statutes (1977).

We have considered the remaining points urged for reversal by the Appellant-Bank, but find them to be without substantial merit.

In the cross-appeal, Norris contends that the trial court erred in allowing the bank to foreclose the note and mortgage. There were issues in the foreclosure which were unrelated to the issues upon which the counter-claim was based. Therefore, the trial court did not abuse its discretion in entering the final judgment of foreclosure for the bank including the allowance of attorneys fees.

Accordingly, the judgments appealed are

AFFIRMED.

MILLS, Acting C. J., and SMITH, J., concur.


author: HAVERFIELD, Chief Judge. HUBBART, Judge

text:
    Marlene HUDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1375.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied April 9, 1979.

      Moran & Gold and George D. Gold, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   HAVERFIELD, Chief Judge.

Defendant, Marlene Hudson, challenges her conviction for (1) possession of a controlled substance, (2) possession or delivery of a controlled substance implement, and (3) manufacture or possession with intent to sell, manufacture or deliver cannabis based upon a plea of nolo contendere tendered subsequent to the denial of her motion to suppress evidence obtained through a court-ordered wiretap.

Hudson contends that the trial court should have suppressed the tape recordings and transcripts obtained through the court-ordered wiretap pursuant to Section 934.09, Florida Statutes (1975) on the grounds of (1) lack of probable cause and staleness, (2) omissions and misrepresentations in the affidavit of application, (3) failure to demonstrate that other investigative techniques had failed or would be unlikely to succeed, (4) nonrecognition of an authorized object under Section 934.09(5), Florida Statutes (1975), (5) lack of proper description of the communications to be intercepted, and (6) deficiencies in the intercept order. In discussing each of these grounds, the pervasive principle of law is that the ruling of the trial court on a motion to suppress comes to the appellate court clothed with the presumption of correctness and the appellate court will interpret the evidence and reasonable inferences and deductions therefrom in a manner most favorable to sustain the trial court’s ruling. McNamara v. State, 357 So.2d 410 (Fla.1978).

We turn now to the first ground that the affidavit submitted in support of the application was insufficient as a matter of law to give rise to probable cause. Before a wiretap order can be issued, Section 934.09(3), Florida Statutes requires that the judge based upon the facts submitted by the applicant must find the existence of probable cause to believe that (1) an individual is committing, has committed or is about to commit an offense enumerated in Section 934.07, Florida Statutes (1975); (2) particular communications concerning that offense will be obtained through such a wiretap; and (3) the facilities from which the communications are to be intercepted are being used or are about to be used in connection with the commission of such offense or are leased to, listed in the name of or commonly used by such person. Rodriguez v. State, 297 So.2d 15, 17 (Fla.1974).

Probable cause in the context of the requirements of Section 934.09(3), Florida Statutes (1975) has been defined by the Supreme Court in Rodriguez v. State, supra, as reasonable grounds for the belief that the party whose communications are to be intercepted is committing or is about to commit one of the offenses enumerated in Section 934.07, Florida Statutes (1975); that particular communications concerning that offense will be obtained through such interception; and that the facilities or place involved is being used or about to be used in connection with the offense. We believe that the contents of the instant affidavit sufficiently demonstrated probable cause to believe that Hudson was involved in a protracted and continuous conspiracy of dealing in narcotics. The affidavit sets out the reliability of four confidential informants, each of whom had advised the affiant, Officer Stone, that over the past several years they had telephoned Hudson numerous times and had arranged to make purchases of narcotics at her residence. Some of this information was verified by independent police investigation. A January 23, 1976 conversation concerning an expected arrival of a kilo of cocaine between confidential informant # 1 and Hudson at her residence was recorded through the use of a “body bug” worn by the informant. In addition, records of telephone calls made from Hudson’s three telephones demonstrated that calls had been placed to telephone numbers listed to persons known by law enforcement agencies as traffickers in illegal drugs. Also, investigation by the affiant failed to reveal that Hudson had any lawful visible means of support or income to maintain her affluent lifestyle.

In support of her argument of lack of probable cause, Hudson further contends that the affidavit was stale in that from the conversation with confidential informant # 1 on January 23,1976 until April 14 (the date of the application for a wiretap order), there were no allegations that she was using or about to use her phones to commit a crime.

A fundamental principle of search and seizure law is that the information given to the magistrate in the application for a wiretap order must be timely; the proof must be of facts so closely related to the time of the issuance of the authorization order as to justify a finding of probable cause at the time. See Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). With regard to this issue of timeliness, Hudson cites to the following holding approved by the Supreme Court in Rodriguez v. State, 297 So.2d 15, 18 (Fla.1974):

“ ‘Barring extraordinary circumstances which may be shown to exist in any given case, the pattern has been rather clearly established in courts of this country that if the observation of the alleged offense is not further remote than 30 days from the making of the affidavit and issuance of the warrant, a finding that there exists probable cause will not be disturbed. The contrary appears where the elapsed time is more than 30 days from the date of the observation to the date on which the affidavit is executed and the warrant issued.’ ” Hamelmann v. State, 113 So.2d 394, 396 (Fla. 1st DCA 1959).

However, the court in Rodriguez, supra, hastened to point out that this 30-day period was not hard and fast, but simply a “rule of thumb”. Furthermore, the staleness issue must be examined more liberally when a continuing pattern of criminal activity is alleged as gleaned from the following holding in Bastida v. Henderson, 487 F.2d 860 (5th Cir. 1973):

.In general, the basic criterion as to the duration of probable cause is the inherent nature of the crime. The Circuits hold that where an affidavit recites a mere isolated violation then it is not unreasonable to believe that probable cause quickly dwindles with the passage of time. On the other hand, if an affidavit recites activity indicating protracted or continuous conduct, time is of less significance, ... Id. at 864.”

Hence, fairly long periods of time have been allowed to elapse between information and application for a wiretap authorization in cases where the evidence clearly shows a longstanding, ongoing pattern of criminal activity, and a mechanical count of days is of little assistance in the determination of staleness which must be decided on the peculiar facts of each case. United States v. Hyde, 574 F.2d 856 (5th Cir. 1978). The affidavit in the case at bar alleged a protracted conspiracy over the past several years. Although the allegations evidenced criminal activity only up until January 23, 1976, it was permissible for the magistrate to infer that if criminal activities and conversations had been occurring over Hudson’s telephone lines for the past several years, they had not mysteriously stopped within the ensuing weeks. Cf. United States v. Hyde, 574 F.2d 856, 865 (5th Cir.1978), supra. We, therefore, will not disturb the finding of probable cause.

Concerning Hudson’s second ground that the affidavit contained misrepresentations and omissions, the controlling law is that affidavits are invalid if the error (1) was committed with an intent to deceive the magistrate (whether or not the error was material to the showing or probable cause); or (2) made nonintentionally, but the erroneous statement is material to the establishment of probable cause. United States v. Thomas, 489 F.2d 664 (5th Cir. 1973), cert. denied 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64 (1975).

We first find that the affidavit did not contain the alleged misrepresentations as evidenced by the testimony presented at the hearing on the motion to suppress. Secondly, measuring the affidavit against the above standard, any inaccuracies contained therein were not of such magnitude as to render the wiretap order invalid. See Stipp v. State, 355 So.2d 1217, 1219 (Fla. 4th DCA 1978).

Hudson’s third ground for her motion to suppress is that the application was deficient in providing a full and complete statement about other investigative techniques as required by Section 934.09(l)(c), Florida Statutes (1975).

This requirement is intended to ensure that wiretap authorization procedures were not to be routinely employed as the initial step in criminal investigation; however, it is not necessary to show a comprehensive exhaustion of all possible techniques. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). The court in United States v. Hyde, 574 F.2d 856 (5th Cir. 1978) succinctly stated with regard to this statutory requirement:

“In short, courts will not invalidate a wiretap order simply because defense lawyers are able to suggest post factum some investigative technique that might have been used and was not. It is enough if the affidavit explains the prospective or retrospective failure of several investigative techniques that reasonably suggest themselves.” Id. at 867.

Contrary to defendant’s contention we find the affidavit sufficient in this respect. The affidavit asserted that between February 16 and April 11, 1976, 25 surveillances were conducted at Hudson’s residence and at least one police officer was seen and suspected by a person known to be an associate of Hudson’s. At the suppression hearing the affiant, Officer Stone, testified that because of the location of the residence surveillance was virtually impossible and proved counterproductive. It could, therefore, be reasonably concluded that normal investigative procedures had been tried and failed, and that further normal investigation was not likely to succeed. Cf. United States v. DiMuro, 540 F.2d 503, 511 (1st Cir. 1976).

We next considered the fourth ground that the wiretap authorization was invalid because it did not meet the specificity requirement of Section 934.09(5), Florida Statutes (1975) and was not sufficiently limited in purpose. We cannot agree.

With respect to the matter of specificity, the case of United States v. Cohen, 530 F.2d 43 (5th Cir. 1976) sets out the following two guidelines: the authorization order must be broad enough to allow interception of any statements concerning a specified pattern of crime and in determining whether the order and application are sufficiently particular, the papers as a whole must be considered, including especially those portions which recite facts intended to establish probable cause. Reviewing the affidavit of application and the authorization as a whole, we find the authorized purpose of the wiretap (to intercept telephone voice communications related to or concerning the sale and traffic of cocaine, marijuana and other controlled substance) to meet the statutory requirements of particularity.

We likewise find the wiretap to be sufficiently limited in duration as gleaned from paragraph # 8 of the wiretap order. See U. S. v. Cohen, 530 F.2d 43, 46 (5th Cir. 1976), supra, and cf. United States v. Steinberg, 525 F.2d 1126, 1131-32 (2nd Cir. 1975).

Closely related to the preceding is the fifth ground for reversal that the wiretap order lacked a proper description of the communications to be intercepted as required by Section 934.09(l)(b) and (5), Florida Statutes (1975). These sections require that the intrusions of the privacy of those persons whose communications are intercepted be held to a minimum (consistently with the purposes of the wiretap). United States v. Hyde, 574 F.2d 856, 869 (5th Cir.1978), supra. If this requirement is blatantly disregarded, the information obtained through the'wiretap may be suppressed. Rodriguez v. State, 297 So.2d 15, 19-22 (Fla.1974), supra. The authorization order contained a minimization provision and, therefore, it must be determined whether the persons who intercepted the communications did so in a manner designed to minimize the interception of nonpertinent conversations.

The officers who monitored the calls in the case at bar testified that it was their understanding they could listen to conversations involving narcotics transactions and were instructed not to record personal calls. The criminal activity under investigation being a large and complex conspiracy, extensive monitoring of the calls was appropriate and we find the minimization requirement was met. Cf. United States v. Daly, 535 F.2d 434 (8th Cir. 1976) and United States v. Hyde, 574 F.2d 856, 869-70 (5th Cir. 1978), supra.

We also examined Hudson’s final ground for reversal and conclude it is without merit.

For the reasons stated the conviction and denial of the motion to suppress are affirmed.

Affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would reverse the conviction herein and remand the cause to the trial court with directions to allow the defendant to withdraw her nolo contendere plea and grant her motion to suppress. In my view, the wiretap evidence obtained by the police was unreasonably seized in violation of the defendant’s rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution, Article I, Section 12, of the Florida Constitution and Sections 934.09(3), (4), Florida Statutes (1977), and should have been suppressed. It is further my view that there was no probable cause for the issuance of the search warrant in this cause as it was based entirely upon the above unlawfully obtained wiretap evidence, and that the evidence seized pursuant to said warrant should have also been suppressed as it constituted the fruit of the poisonous tree. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939).

The wiretap evidence and all evidence fatally tainted thereby was subject to suppression for two reasons: (1) the probable cause facts contained in the affidavit for the wiretap order were stale and could form no basis for a probable cause belief at the time the wiretap order issued that the defendant was presently violating or about to violate the narcotics drug laws, and that the defendant’s telephone sought to be wiretapped was being used or about to be used in connection with the commission of such offenses, and (2) the wiretap order is a general warrant in that it orders the seizure of all voice communications over the defendant’s telephone with no limitation as to the criminal subject matter of such communications.

A

The wiretap order was issued in this case on April 14, 1976. It was based on a police officer’s affidavit which, viewed in the light most favorable to the state, Taylor v. State, 355 So.2d 180, 185-186 (Fla. 3d DCA 1978); Rodriquez v. State, 189 So.2d 656, 660 (Fla. 3d DCA 1966), contained reliable confidential informer information detailing a continuous course of illegal drug activity at the defendant’s house beginning in August 1974 and ending January 23, 1976. It is therefore undisputed that 81 days elapsed between the last illegal act of the defendant and the issuance of the wiretap order. There was no subsequent police surveillance nor information learned which indicated that the defendant committed any illegal act during the above 81 day period. In my view, this long, unexplained lapse in time rendered the affidavit stale and could form no basis for a probable cause belief, as opposed to a mere suspicion, that on April 14, 1976, the defendant was committing or about to commit an illegal act relating to drugs and that she would use the telephone to do so.

The law is well-settled that an application in support of a wiretap order must establish probable cause to believe that the accused is committing or about to commit certain enumerated offenses [i. e. narcotic and other drug law violations] and that the telephones sought to be wiretapped are being used or about to be used in connection with the commission of such offense. Mere suspicion of current criminal activity or probable cause solely as to past criminal activity is insufficient. Rodriguez v. State, 297 So.2d 15 (Fla.1974); § 934.09(3), Fla.Stat. (1977).

An affidavit in support of a wiretap order does not state probable cause if it recites facts of criminal activity which are stale by the time the wiretap order issues. Barring extraordinary circumstances which may be shown to exist in any given case, the pattern has been rather clearly established in the courts of this country that if the observation of the alleged offense is not further remote than 30 days from the making of the affidavit and the issuance of a warrant, a finding that there exists probable cause will not be disturbed. The contrary appears where the elapsed time is more than 30 days from the date of the observation to the date on which the affidavit is executed and the warrant issued. Rodriguez v. State, 297 So.2d 15 (Fla.1974); Hamelmann v. State, 113 So.2d 394 (Fla. 1st DCA 1959).

In the instant case, 81 days elapsed from the last observed offense on the defendant’s premises and the issuance of the wiretap order. The state’s brief combined with the court’s independent research herein fails to cite a single ease in this state which has ever sustained a wiretap order or search warrant based on an affidavit with a delay anywhere near the 81 day delay in this case. Indeed, such affidavits have generally been struck down as stale. Rodriguez v. State, 297 So.2d 15, 18 (Fla.1974); Anno., 100 A.L.R.2d 525, 531-543 (1965), supplemented by 92-100 A.L.R.2d, Later Case Service 619, 619-623 (1976). Contra: United States v. Brinklow, 560 F.2d 1003 (10th Cir. 1977); United States v. Steeves, 525 F.2d 33 (8th Cir. 1975). I fail to see how this ease is so unique, so extraordinary that it deserves to stand apart from all other cases in Florida as well as the weight of authority throughout the country on this subject.

I recognize that the affidavit herein sets forth a continuing course of illegal drug activity extending over many months prior to the last known illegal act, and that such evidence does present “extraordinary circumstances” which relaxes the admittedly flexible 30 day rule stated above based on past case law. But that hardly justifies an indefinite suspension of the rule. There comes a point in time when evidence of continuing criminal conduct becomes stale depending on the facts of the case. It seems clear to me that the 81 day delay subsequent to such conduct herein greatly exceeds that point in time.

B

The wiretap order in this case must also fall because it is a general warrant. It authorizes certain named police officers to wiretap the defendant’s telephone and states that “[t]he type of communications sought to be intercepted is or are voice communications.” The order in no way limits the subject matter of the conversations to be intercepted to illegal drug activity or any other criminal offense. The absence of such an express limitation amounts to a general warrant and is prohibited by the Fourth and Fourteenth Amendments to the United States Constitution. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927) (“The [constitutional] requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer.”) It is also prohibited by Article I, Section 12 of the Florida Constitution which provides that “[n]o warrant shall be issued except upon probable cause, supported by affidavit, particularly describing . the communication to be intercepted, and the nature of the evidence to be obtained.” See Tollett v. State, 272 So.2d 490, 492-93 (Fla.1973). It is finally prohibited by Section 934.09(4)(e), Florida Statutes (1977), which requires that wiretap orders must contain “[a] particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates.” As such, the wiretap order is clearly invalid.

The court’s reliance herein on all the provisions of the wiretap order and supporting affidavit when taken as a whole cannot save the order by supplying the above specificity omitted therefrom. There is no statement in any part of the wiretap order which limits the subject matter of the communications to be intercepted; indeed, the order expressly authorizes the seizure of all voice communications over the defendant’s telephone. Moreover, the wiretap order does not expressly incorporate the supporting affidavit by reference, and, under the authority of Bloom v. State, 283 So.2d 134, 136 (Fla. 4th DCA 1973), the affidavit can form no part of the order.

C

I concur in the balance of the court’s opinion herein. The defendant in her brief and oral argument places inordinate emphasis on alleged misstatements of fact in the supporting affidavit. I agree with the court that such misstatements, if any, were insufficient to upset the wiretap order herein. I would, however, place my rejection of this contention on the controlling authority of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), rather than relying, as the court herein does, on United States v. Thomas, 489 F.2d 664 (5th Cir. 1973), which Franks supersedes.

I would reverse.

      . which includes the offenses in the present case.

      . obtained from the telephone company by court order.

      . “(c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous; . . .”

      . “8) The authorized interception will terminate upon attainment of the authorized objective, or in any event in thirty (30) days from the signing of this Order.”

      . “7) The authorized interception shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under applicable State or Federal law.”

      . The state also relies on certain other facts testified to at the hearing on the motion to suppress to support the probable cause basis for the issuance of the wiretap order herein. These facts, however, were neither included in the wiretap affidavit nor otherwise presented to the issuing magistrate. As such, these facts can form no part of the alleged probable cause for the issuance of the wiretap order. §§ 934.-09(1), (2), (3), Fla.Stat. (1977).

      . “There is a fundamental distinction between a search warrant and the underlying or supporting affidavit, and the affidavit is not necessarily either part of the warrant nor available for defining the scope of the warrant, (citation omitted.) Therefore, even if the affidavit which supported the warrant was sufficiently detailed, it would not cure the defect in the search warrant consisting of a failure to describe items to be seized with particularity, since specificity is required in the search warrant so that the discretion of the officer executing the search warrant is limited, (citations omitted.)
      Some decisions, however, have permitted an affidavit to cure a defective search warrant where the affidavit and the search warrant are such that they can be reasonably said to constitute one document. Two requirements must be satisfied to reach this result: first, the affidavit and search warrant must be physically connected so that they constitute one document; and second, the search warrant must expressly refer to the affidavit and incorporate it by reference using suitable words of reference.” Bloom v. State, 283 So.2d 134, 136 (Fla. 4th DCA 1973).

      . “[W]e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676-2677, 57 L.Ed.2d 667, 672 (1978).


text:
    Patrick J. LYONS, Jr., J. W. Walter and the Aetna Casualty & Surety Company, Appellants, v. Morris S. KRATHEN, August J. Paluzzi and Ralph A. Carloni, d/b/a Fratex Properties, Klements & Associates Architects & Engineers, Inc., and Carroll D. Klements, AIA, and Joseph A. Truglio, Appellees.
    No. 78-1743.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied April 9, 1979.

      Pallot, Stern & Pollack and Mark E. Pollack, Miami, for appellants.
    Cristol & Mishan and Steven Mishan, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Defendants, general contractors and their surety, appeal an order denying their motion to compel arbitration.

' On August 11, 1975 plaintiff owners, Morris Krathen, August Paluzzi and Ralph Carloni d/b/a Fratex Properties, entered into a standard AIA contract with the defendant general contractors, Patrick J. Lyons, Jr. and J. W. Walter, for the construction of a freight terminal warehouse. With regard to the arbitration of disputes, the contract contained the following provisions:

“7.10 ARBITRATION
“7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, . . ., shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
“7.10.2 Notice of the demand for arbitration shall be filed in writing with the other party of the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect. The demand for arbitration shall be made within the time limits specified in Sub-paragraph 2.2.10 and 2.2.11 where applicable, and in all other cases within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.” []

In September Lyons and Walter commenced construction and upon completion, Fratex, by letter of June 9, 1977, notified them of certain defects; but no corrective action was taken. On November 14 the architects notified Lyon's and Walter in writing that the deficiencies were their responsibility to remedy. Again Lyons and Walter'failed to correct the defects, and on February 14,1978 Fratex filed a multicount complaint against Lyons and Walter, their surety, the architects and engineers. Thereafter, on March 15 Lyons and Walter filed a motion to compel arbitration. After a hearing, the motion to compel was denied. Lyons and Walter and their surety, Aetna Casualty & Surety Company, appeal the denial order. We affirm.

Under the facts presented in the instant case, we conclude that Lyons and Walter failed to timely make demand for arbitration. As of June 9, 1977 they were put on notice of the defects and on November 14, 1977 the architects rendered their written decision finding that they were responsible for remedying the defects. Pursuant to paragraph 2.2.11 of the contract, Lyons and Walter had 30 days therefrom (or until December 14) in which to demand arbitration. Having failed to exercise their right to arbitration, they waived that right. See 4 Fla. Jur.2d Arbitration and Award § 13 (1978). Although paragraph 7.10.2 provides that the demand for arbitration shall be filed within a reasonable time, we find no abuse of discretion on the part of the trial judge in determining that a motion to compel arbitration filed more than nine months after the first written notice of a dispute and four months after the decision of the architects has not been filed within a reasonable time. Cf. Bickerstaff v. Frazier, 232 So.2d 190 (Fla. 1st DCA 1970).

Finally we note that Lyons and Walter never filed a written notice of demand for arbitration with Fratex, the American Arbitration Association and the architect as required by paragraph 7.10.2 of the contract.

Affirmed.

      . “2.2.10 Any claim, dispute or other matter that has been referred to the Architect, . ., shall be subject to arbitration upon the written demand of either party. However, no demand for arbitration of any such claim, dispute or other matter may be made until the earlier of:
      “2.2.10.1 The date on which the Architect has rendered his written decision, or .2 the tenth day after the parties have presented their evidence to the Architect or have been given a reasonable opportunity to do so, if the Architect has not rendered his written decision by that date.
      “2.2.11 If a decision of the Architect is made in writing and states that it is final but subject to appeal, no demand for arbitration of a claim, dispute or other matter covered by such decision may be made later than thirty days after the date on which the party making the demand received the decision. The failure to demand arbitration within said thirty days’ period will result in the Architect’s decision becoming final and binding upon the Owner and the Contractor. If the Architect renders a decision after arbitration proceedings have been initiated, such decision may be entered as evidence but will not supersede any arbitration proceedings unless the decision is acceptable to the parties concerned.”


text:
    Curtis McQUAY, Appellant, v. STATE of Florida, Appellee.
    No. KK-266.
    District Court of Appeal of Florida, First District.
    March 6, 1979.
    Rehearing Denied April 18, 1979.
    Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

McQuay was convicted of attempted burglary, possession of burglary tools, and three counts of battery upon a law enforcement officer. McQuay’s sole contention on appeal is that the seven year sentence imposed for attempted burglary is excessive and illegal. We agree and reverse that sentence. An attempt to commit a burglary of any degree constitutes a third degree felony punishable by a term of imprisonment not exceeding five years. Sections 777.04(4)(c), 810.02 and 775.082(3)(d), Florida Statutes (1977); Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977), cert. den. 354 So.2d 983 (Fla.1977).

Therefore, the sentence imposed for attempted burglary is vacated and the cause is remanded for proper sentencing. McQuay need not be present for this purpose.

McCORD, C. J., and ERVIN and BOOTH, JJ., concur.


author: HENDRY, Judge.

text:
    Marshall PORTER, Appellant, v. Mario PAPPAS, Individually and as father of Helen Jean Pappas, a minor, and Frederick Boehm, Appellees.
    No. 78-88.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Rehearing Denied April 12, 1979.
    Headley & Headley, Daniels & Hicks and Mark Hicks, Miami, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

This is an appeal by appellant/plaintiff from an adverse final judgment entered pursuant to a jury verdict in an action for personal injuries arising out of an accident between a motorcycle and an automobile.

The sole point presented for our determination is whether the trial court committed reversible error in admitting into evidence a written and signed statement made by the minor operator of the automobile to officers at the scene of the accident to the effect that the minor did not have the permission of the owner or primary user of the automobile to drive it at the time of the accident. If the minor was a permissive user of the automobile, then insurance coverage would be provided.

The facts of the case are as follows: appellant sued appellee Mario Pappas, individually and as the father of Helen Pappas, and appellee Frederick Boehm alleging that Helen so negligently operated an automobile owned by Frederick Boehm that it collided with a motorcycle owned and operated by appellant. It appears from the evidence that Helen obtained possession of the Boehm automobile while it was in the possession of Mr. Boehm’s minor daughter, Lauri, and being used by Lauri with his permission.

On the day of the accident, Lauri had driven Helen and two other young girl friends to the beach. Upon leaving the beach, the girls returned to Helen’s home and took showers. While Lauri was taking her shower, Helen took the ignition keys that Lauri had left either in the bathroom or on the bed, and drove away in Lauri’s automobile. She had driven only a short distance from her home when she collided with appellant, causing him serious injuries.

Prior to trial, the parties entered into a written stipulation that the sole issue to be tried was whether or not Helen Pappas had Lauri Boehm’s express or implied permission to use the automobile involved in the accident. The testimony adduced at trial differed substantially as to whether Lauri had given Helen permission to use the automobile.

Lauri testified that when she came out of the shower she did not realize that her keys were gone. Soon thereafter the Pappas’ phone rang and Helen’s sister Terry answered it. She began screaming that Helen had hit somebody with somebody’s car. Lauri said, she looked out the door and for the first time realized that her car was missing. Lauri further testified that she never gave Helen permission to use the Boehm automobile. Lauri and Helen’s mother drove to Greynolds Park where the accident occurred. When Lauri saw the damage to the Boehm automobile she screamed at Helen who was talking to police officers, saying, “Why did you take my car? My father is going to kill me and you had no permission.”

Helen’s testimony was substantially different. She stated that she emerged from her shower and asked Lauri if she could use the car to “cruise” around the block. Helen replied, “Sure, just don’t get me in trouble.” Helen denied that Lauri said anything to her at the scene of the accident. Further, Andrea Shapiro, one of the girls accompanying Helen and Lauri to the beach and back to Helen’s home, testified that she was present when Lauri gave Helen her permission to use the car.

At the time of the accident, Sgt. Terry Palmer and seven other police officers were on special assignment at Greynolds Park. Shortly after the accident occurred, the officers were at the scene. Sgt. Palmer and one of his men apprehended Helen in the woods nearby and took her back to the scene of the accident, turning her over to the investigating officer, Anthony Cos. Officer Cos was dispatched to investigate the accident and at trial, testified that it was his responsibility to prepare the traffic report. He began his investigation by questioning Helen. At that time, he made no notation on the accident report of what Helen said.

Shortly after Cos arrived, Officer Robert Hinman, a traffic homicide investigator was sent because of the possibility that a death may have occurred. Officer Hinman testified that once he appeared at the accident site, he was in charge of the overall investigation and directed Officer Cos to assist him in the investigation.

Once Officer Hinman arrived, Officer Cos took Helen to him for questioning. Officer Cos remained in the presence of both Officer Hinman and Helen during the initial questioning. Cos testified that he heard Officer Hinman read Helen her “Miranda Rights” and he saw Officer Hinman take a written statement from Helen. Prior to the completion of the statement, Officer Cos returned to his vehicle to complete the accident report.

Officer Hinman did not advise Helen that he was investigating for a possible homicide or that his report would not be made a part of the traffic report to be filed in Tallahassee. He did not advise her that his report was any different than any other police officer’s report prepared during the investigation of an accident. Hinman did state, however, that his report was related to the traffic accident report. Both reports contained the statement made by Helen to the effect that she took the vehicle without the permission of the owner.

At trial, the court admitted into evidence, over appellant’s objection, Helen’s statement. In response to the statement’s introduction, Helen testified that she only wrote and signed the statement to protect her friend Lauri as she was fearful that Lauri would get into trouble with her father. At the conclusion of all testimony, however, the jury found that Helen did not have permission to use the automobile. Accordingly, a verdict and judgment were entered in favor of appellees and this appeal follows.

Appellant contends that it was reversible error for the trial court to admit into evidence the written statement of Helen Pap-pas in that she was never informed that the statement was not being taken as part of the traffic accident investigator’s report, which is protected by Section 316.066(4), Florida Statutes (1977). Said statute provides that all accident reports made by persons involved in accidents shall be without prejudice to the individual so reporting and no such report shall be used as evidence in any trial, whether civil or criminal, arising out of an accident.

Appellees take the position that, inasmuch as Helen’s statement was given to Officer Hinman in connection with his investigation of a possible homicide and not for a Section 316.066(4) traffic report, the statement was afforded no protection under the statute and was properly admitted into evidence. Appellees rely heavily upon State v. Mitchell, 245 So.2d 618 (Fla.1971); Standley v. White, 326 So.2d 68 (Fla. 1st DCA 1976); State v. Fernandez, 303 So.2d 58 (Fla. 4th DCA 1974). We think these cases are distinguishable from the instant case and are not controlling.

We do think, however, the controlling cases are Nash Miami Motors, Inc. v. Ellsworth, 129 So.2d 704 (Fla. 3d DCA 1961), cert. discharged 142 So.2d 733 (Fla.1962); and Elder v. Robert J. Ackerman, Inc., 362 So.2d 999 (Fla. 4th DCA 1978). In the Nash Miami Motors decision, this court opined as follows:

“But appellee urges that the second report given to officer Fontana was not an ‘accident report’ within the meaning of the statute. He argues that the statement given to officer Fontana was not for the purpose of making an accident report but for discovery of possible criminal charges which might arise from the accident. From the viewpoint of the person interrogated there is little difference. The distinction, to have meaning, would require realization by a person charged with giving such report that one officer was reporting the accident, while a second, who asked the same questions, was not reporting the accident.” Supra, at 129 So.2d 706.

In the Elder case, the Fourth District Court of Appeal expanded upon the Nash decision and stated that:

“[T]he only possible indication of a different character of investigation was the fact that Walsh advised Ackerman of his constitutional rights; but then, so did McDonough during his interrogation for the accident report. How is a 16 year old boy at the scene of a serious auto accident and the emotional upset which usually accompanies such an experience supposed to discern the nuances of the dichotomy existing between investigations for automobile accident reports and investigations for the criminal aspects of automobile accidents? The trial judge found here that the evidence did not show that Ackerman understood that Walsh’s capacity was different than McDonough’s.
“The solution to the problem presented in these cases is relatively simple. Law enforcement officers investigating accidents must be aware of the ramifications associated with taking statements from drivers in accident cases. When the investigation conducted to make the 316.066 report is concluded and the investigation into possible criminal aspects of the accident commences the driver should be advised of that fact. To do any less simply erodes the protection which the Legislature affords drivers in order to obtain accurate information for reports of automobile accidents.” Supra, at page 1002.

Sub judice, as it appears from the record that Officer Hinman did not advise fifteen year old Helen that he was investigating a possible homicide; that his report would not be made a part of the traffic accident report to be filed in Tallahassee; or that his report was different than any other police officer’s report prepared during the accident investigation, it is our opinion that the trial judge erred in admitting into evidence the statement given to Officer Hinman.

Accordingly, based upon the above reasons and authorities cited, the judgment appealed is reversed.

Reversed.


text:
    William STETZ and Marie Stetz, his wife, Appellants, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Appellee.
    No. 78-450.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Rehearing Denied April 9, 1979.
    Erstling & Erstling and Julius H. Ers-tling, South Miami, for appellants.
    Joel R. Teague, Coral Gables, for appel-lee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Appellants Stetz, plaintiffs in the trial court, seek review of the order granting the defendant/insurance company’s motion for partial summary judgment on the issue of punitive damages. The gravamen of the complaint is the alleged breach of contract by the insurer on a disability policy; appellants assert that in addition to compensatory damages, they are entitled to punitive damages based upon allegations of intentional infliction of mental distress by the agents of the insurer in their attempts to settle the claim with Mr. Stetz and their methods of investigation regarding his malady.

After study of the briefs, careful review of the entire record and having heard oral argument of counsel for the respective parties, we affirm the trial court order. The appellants have failed to establish that the insurer was guilty of a willful and independent tort, separate from breach of contract, so as to permit an award of punitive damages. See, McDonald v. Penn Mutual Life Insurance Company, 276 So.2d 232 (Fla. 2d DCA 1973) and Aetna Life Insurance Company v. Walter I. Smith, 345 So.2d 784 (Fla. 4th DCA 1977). The rule in Florida has been that, absent a physical injury, a plaintiff can recover damages for mental anguish only where it has been shown that the defendant acted with such malice that punitive damages would be justified. Crane v. Loftin, 70 So.2d 574 (Fla.1954) and Saltmarsh v. Detroit Automobile Inter-Insurance Exchange, 344 So.2d 862 (Fla. 3d DCA 1977). Also see, Butchikas v. Travelers Indemnity Company, 343 So.2d 816 (Fla.1976) which holds that in order to be entitled to punitive damages against an insurer, the case must be of the class involving deliberate, overt and dishonest dealing on the part of the insurer. The instant case clearly does not fall within this category.

The trial court correctly granted the insurance company’s motion on the issue of punitive damages.

Affirmed.