author: BOYER, Chief Judge. MILLS, Judge,

text:
    STATE of Florida, Appellant, v. George David DRAKE, Appellee.
    No. CC-207.
    District Court of Appeal of Florida, First District.
    March 30, 1977.

      Robert L. Shevin, Atty. Gen., and Richard L. Wilson, Asst. Atty. Gen., for appellant.
    Virlyn B. Willis, Jr., Lake City, and Jerry M. Blair of Airth, Sellers, Lewis, Cherry & Blair, Live Oak, for appellee.
   BOYER, Chief Judge.

The State appeals from an order of the trial court granting Drake’s motion to suppress evidence. The sole issue is whether the court erred in granting the motion.

Drake was a passenger in a truck rented by Spencer from Ryder and driven by Gray-ville. The truck stopped at an agricultural inspection station where Creech, wearing a uniform and badge identifying him as an agricultural inspector, approached Grayville and asked if he could look in the truck. Grayville responded “Okay”, got out of the truck and opened the back of it. Creech entered the back of the truck and began his inspection for agricultural products. He observed a backpack on top of some sacks and boxes and picked it up to move it. The pack felt to him to be stuffed with “hay or something or another”. Creech acknowledged that he was not required to search for hay, but he claimed that he could not tell by feeling whether the pack actually contained hay, seed, or some other horticultural product. Creech did not ask who the owner was, nor did he seek consent to open the pack. He unzipped the pack- and saw what he thought was marijuana. Creech closed the truck door and called the sheriff’s office. A deputy arrived and upon being shown by Creech what he had found in the pack, the deputy instructed Drake and Grayville to remove everything from the back of the truck that personally belonged to them. Drake removed the pack. Creech and the deputy examined the pack and found marijuana. Neither Creech nor the deputy asked Drake for permission to examine the pack. Drake was placed under arrest and later charged by information with possession of more than five grams of marijuana.

The court based its order granting the motion to suppress solely on’our decision in Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976). The State contends this was error requiring reversal because of the facts in Powell make it inapplicable to this case. We agree. In the Powell case, three agriculture inspection station road guards attempted to “persuade” the defendant to consent to a search of his U-haul trailer. The first guard asked defendant to unlock the trailer for inspection, the second told defendant that his trailer would have to be inspected before he could leave, and the third gave defendant three options: (1) Wait for someone to come with the key to the lock on the trailer, (2) Break open the lock, or (3) Wait for the guards to obtain a search warrant. Under those factual circumstances, this Court held that defendant’s alleged consent was the product of coercion, and was, in fact, merely submission to the apparent authority of the three road guards. Sub judice, the vital elements of coercion is lacking. Agricultural Inspector Creech did not threaten defendant or Grayville, and did not express an intention to secure a search warrant in the event that consent was not given.

Drake argues that, notwithstanding the inapplicability of the Powell case, the decision reached by the trial court is supportable on grounds other than those assigned. City of Miami Beach v. 8701 Collins Avenue, 77 So.2d 428 (Fla.1954). Sub judi-ce, Drake argues that even if it is determined that Grayville gave a valid consent to search the truck, the search of Drake’s pack by Creech was unreasonable because the search exceeded the scope of the consent given. Under that theory, Grayville’s consent is limited to a search for agricultural products pursuant to Section 570.15, Florida Statutes (1975) and did not extend to a search of Drake’s personal luggage.

Readily conceding that the scope of the consent was limited to the search for agricultural products, we nevertheless hold that the initial search of-the pack while in the truck as conducted by Creech was valid under the circumstances. The record fails to., support the allegation that the search was for anything other than to discover agricultural products. Creech’s unrefuted testimony was that as he touched Drake’s pack, he felt therein hay, seed, or some horticulture substance. Under Section 570.-15(l)(c), Creech was empowered to “examine and open any package or container of any kind containing or believed to contain any article or product which may be transported, manufactured, sold, or exposed for sale in violation of the provisions of this chapter . . . .”

As to the authority of Grayville to consent to a search of a pack belonging to Drake, it must be remembered that when Creech initially examined the pack, he had no reason to believe that Drake was the owner. That fact distinguishes the instant case from People v. Stage, 7 Cal.App.3d 681, 86 Cal.Rptr. 701 (Cal. 4th CA 1970). In the absence of knowledge on the part of Creech that the pack belonged to someone other than Grayville, the search by Creech, premised upon Grayville’s consent, was valid.

Entirely different questions arise as to the subsequent search conducted outside the truck by the deputy and Creech, and to the seizure of the marijuana found within the pack. Because of its reliance on Powell v. State, supra, the trial court did not address those questions, and the status of the record is such that resolution of those issues at this stage of the proceedings would be inappropriate. (But see State v. Toffolio, Case No. EE-200 (Fla. 1st DCA 1977), not yet reported and cases cited therein.)

Accordingly, the trial court’s order granting Drake’s motion to suppress evidence is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

McCORD, J., concurs.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

The trial court based its order granting the motion to suppress solely on our decision in Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976). The State contends this was error requiring reversal because the facts in Powell make it inapplicable to this case. Not so. A decision which reaches the correct result can be supported on grounds other than those assigned by the trial court. City of Miami Beach v. 8701 Collins Avenue, 77 So.2d 428 (Fla.1954).

A search conducted without a warrant is per se unreasonable except under certain established and well delineated exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). When a defendant has shown a warrantless search, the burden shifts to the State to prove a valid search. Bicking v. State, 293 So.2d 385 (Fla. 1st DCA 1974).

The State contends the search of Drake’s pack was pursuant to a valid voluntary consent. Although Grayville could have validly consented to a search of the truck, the court apparently concluded that he did not knowingly consent but merely submitted to apparent authority. As stated in Powell:

“A distinction is recognized between submission to the apparent authority of an officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather, for an occupant to waive his rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search, being cognizant of his rights in the premises

In this case, Creech was wearing a uniform and a badge. Another uniformed inspector was with him. Creech asked Gray-ville if he minded if he looked in the truck and Grayville responded okay. But Creech did not advise Grayville or Drake that if they refused, he would be required to obtain a search warrant.

Even if we assume that Grayville gave a valid consent to search the truck, that consent did not extend to a search of Drake’s pack. A consent search is reasonable only when kept within the bounds of the consent. A persons’ consent may limit the scope of a warrantless search in the same way that the specifications of a warrant may limit a search pursuant to a warrant. United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971). “The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 917 (1968).

Although Grayville did not expressly state that his consent was limited to a search for agricultural products based on statutory authority, that is the only reasonable inference. (Hay is not one of the authorized agricultural products.) See Powell v. State, supra.

The consent of the driver of a motor vehicle to search the vehicle is not consent to search personal property within the car which belongs to a passenger, particularly when the officer conducting the search knows that the property belongs to the passenger and is not under the control of the driver. People v. Stage, 7 Cal.App.3d 681, 86 Cal.Rptr. 701 (C.A. 4th Cal. 1970); also Bailey v. State, 319 So.2d 22 (Fla.1975).

Drake's pack was closed. Creech and the deputy knew that Drake was the owner of the pack and that Grayville exercised no control over it. The search was invalid.

The State failed to carry its burden by showing a voluntary waiver of Drake’s right to a warrant. I would affirm the trial court’s order granting Drake’s motion to suppress.


source: Caselaw Access Project

author: OTT, Judge.

license: Public Domain

text:
    Lawrence M. WHITEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-912.
    District Court of Appeal of Florida, Second District.
    March 30, 1977.
    Lawrence E. Lyman, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of three counts of involuntary sexual battery in violation of Section 794.011(4)(e), Florida Statutes.

He appeals on two grounds that arise from a ruling of the trial court that similar fact evidence was relevant to the material issues framed by the charges, was therefore admissible into evidence and constituted a proper subject for appropriate comment by the prosecutor. We affirm.

Section 794.011(4)(e), Florida Statutes provides in relevant part:

(4) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, shall be guilty of a felony of the first degree
(e) When the victim is older than 11 but less than 18 years of age and the offender is in a position of familial, custodial, or official authority over the victim and he uses this authority to coerce the victim to submit. (Emphasis added)

The appellant was charged in three separate informations with having forced his then 17 year old niece to have sexual intercourse on three separate occasions while she was under his fámilial and custodial control. The appellant had been given custody of the niece and her three brothers in official guardianship proceedings when the niece was approximately four years of age.

The niece was permitted to testify, over objection, to other occasions of sexual intercourse with the appellant (other than those specified in the informations) which had occurred over a lengthy period of time, the first of which occurred when she was 9 years old. She also testified to numerous instances of being handled and fondled by the appellant, being forced to give him baths, reading pornography aloud at his insistence and submitting to other types of sexual by-play (again at various times other than the occasions specified in the charges).

The court below ruled such testimony admissible at a hearing in advance of the trial for the purpose of deciding the admissibility question. In his ruling the trial judge stated:

The entire relationship between the parties, that is, between the defendant and the alleged victim is relevant and material. Anything that went on between them in view of the allegations of the information that he [the appellant] was exercising this authority over her, anything going to that point, the Court finds it relevant, even though it may also indicate some other wrongdoing, but it is relevant.

At issue is the Williams rule. See Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). Since 1886, convictions have been reversed in Florida because of the admission of evidence of other offenses wholly independent of the case being tried. See Selph v. State, 22 Fla. 537 (1886); Mann v. State, 22 Fla. 600 (1886).

The rule governing the admission of similar fact evidence began as a rule of admissibility. 110 So.2d at 659. However, as cases multiplied and developed, courts inclined toward announcing the rule in terms of exceptions to the broad rule of exclusion rather than in terms of a broad rule of admissibility. 110 So.2d at 659.

In 1959, the supreme court attempted to chart a new approach to similar fact evidence by doing two things. First, the court mandated that the rule of admission or relevancy should supplant the rule of exclusion. Admission — if relevant — would be the general rule and exclusion the exception: “[Ujnless precluded by some specifically recognized exception, all relevant testimony is admissible,” 110 So.2d at 660.

Having put a “new look” on the admissibility of similar fact evidence, see Green v. State, 190 So.2d 42 (Fla.2d DCA 1966), the supreme court promulgated a rule defining what was to be admissible:

Eelevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy. The test of inadmissibility is a lack of relevancy. 110 So.2d at 659-60. Evidence revealing other crimes is admissible if it casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of the prior offenses would have a relevant or a material bearing on some essential aspect of the offense being tried. 110 So.2d at 662.

In another but separate case entitled Williams v. State, 117 So.2d 473 (Fla.1960), the supreme court reaffirmed the validity of the Williams rule, but reversed for the defendant because the state had been permitted to go into greater detail than was necessary to establish similar fact evidence tending to reveal the commission of a collateral crime.

In that case, the defendant had been arrested for the murder of the proprietor of the H & K Market, who had been shot to death in the course of a robbery. Twenty-eight days later, the Blue Grass Market was robbed by persons using the same weapon and following a similar pattern. The state was permitted to introduce many objects (i. e., pictures, bottles, pistols, etc.) into evidence which had nothing whatever to do with the identity of the defendant, the weapon he used, the similarity of pattern or other material aspect of the crime charged.

The court held that the testimony about the collateral crime (the Blue Grass Market robbery) was so disproportionate that the latter offense was made a “feature instead of an incident.” See Fivecoat v. State, 244 So.2d 188 (Fla.2d DCA 1971); Green v. State, 228 So.2d 397 (Fla.2d DCA 1969). The court found that measured by volume, the evidence relating to the collateral crime exceeded all other testimony combined and most of it was immaterial to show the material facts in issue.

With the second Williams case standing for a caveat against prosecutorial overzea-lousness, a further caveat was introduced in Duncan v. State, 291 So.2d 241 (Fla.2d DCA 1974). In Duncan the court held that “neither a ‘continuing course of conduct,’ ‘plan or scheme’ nor ‘modus operandi’ is an end in and of itself which may be proved in a criminal case.” 291 So.2d at 243; see Beasley v. State, 305 So.2d 285 (Fla.3d DCA 1974); Braen v. State, 302 So.2d 485 (Fla.2d DCA 1974). The court stated that “[evidence relating to similar offenses is admissible only when they, or any of them, are relevant in a given case to one of the essential or material issues framed within the charge instantly being tried.” 291 So.2d at 243.

Neither the warnings raised in the second Williams case or in Duncan prevent an af-firmance herein. In the instant case the statute placed parental authority and coercion in issue. Thus, we are not troubled by the trial court’s ruling that similar fact evidence would be relevant and admissible to show the “entire relationship between the parties” and the familial or parental domination of the niece by the accused within that relationship.

Furthermore, we do not find that the asserted relevance of the so-called “independent crimes” (the handling-fondling, pornography reading, bathing and sexual by-play) is “illusory, fancied, supposititious or unsubstantial” as claimed by appellant. See Headrick v. State, 240 So.2d 203, 205 (Fla.2d DCA 1970). Rather, there was an obvious similarity between the offenses charged in the informations and the independent crimes testified to by the victim.

With specific reference to the caveat in the second Williams case, we are cognizant of the danger inherent in allowing the collateral crime to become the “feature instead of an incident”:

. in a criminal prosecution, such procedure devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant whose character is insulated from attack unless he introduces the subject. 117 So.2d at 475-76.

However, we feel that the holding of the second Williams case was materially influenced by the court’s awareness of the penalty of death looming in that case. The court stated that “it is [our] responsibility and obligation ... to deal cautiously with judgments imposing the supreme penalty.” 117 So.2d at 476. Even if, assuming arguendo, the Williams II court’s apparent concern with the death penalty did not dilute its warnings against disproportionate treatment of the collateral crime, we find no such disproportionate emphasis herein. See Hines v. State, 243 So.2d 434 (Fla.2d DCA 1971); Keel v. State, 243 So.2d 630 (Fla.4th DCA 1971).

We also find no merit in appellant’s contention that a “continuing course of conduct” was the end sought to be proved by the state in violation of the holding in Duncan. Appellant’s continuing course of sexual aberration in reducing his legal ward to a veritable automaton was clearly relevant to the manner in which his parental authority over her had been exercised so as to reduce the niece to the status of a sexual plaything. Nothing is more relevant than the milieu in which the victim was reared by her legal guardian and her will or freedom to consent effectively vitiated.

Finally, this court is well aware of the fact that the introduction of evidence of collateral crimes tends to impress upon the minds of the jurors that the defendant has a propensity to commit crimes. Beasley, supra at 286. See C. McCormick, Evidence § 190 (2d ed. 1972); 1 J. Wigmore, Evidence § 194 (3d ed. 1940). Almost any case wherein such evidence is allowed must, of necessity, have such a quality. Nevertheless, where such is not the sole purpose of admitting the evidence and the similar fact evidence is relevant to prove a material fact in issue, admission is not unduly prejudicial. Green v. State, 190 So.2d 42 (Fla.2d DCA 1966).

AFFIRMED.

McNULTY, Acting C. J., and GRIMES, J., concur.

      . In Williams, the defendant had been hiding on the floor of the back seat of the victim’s automobile. After returning to her car, the victim drove a short distance whereupon the defendant reached over from the back seat and stabbed her in the chest. Later, he twice raped her. Upon arrest the defendant maintained that he had entered the victim’s automobile to take a nap under the mistaken belief that the automobile belonged to his brother. At trial there was evidence that about six weeks before the attack on the victim, a young girl had found defendant on the floor in the back of her automobile parked in the same parking area. Upon arrest the defendant had given a similar story, i. e., that he had entered the automobile mistakenly to take a nap, believing that it was his brother’s automobile.

      . The second Williams case was reversed for a new trial. Thereafter, in Williams v. State, 143 So.2d 484 (Fla.1962), the court again dealt with the same defendant. Prosecutorial overkill has more recently been criticized in two Second District Court of Appeal cases. See Davis v. State, 276 So.2d 846, 849 (Fla.2d DCA 1973); Christie v. State, 246 So.2d 605, 606 (Fla.2d DCA 1971).


author: BOARDMAN, Chief Judge.

text:
    Dean REFRAM et al., Appellants, v. James PORTER and Martha Porter, Appellees.
    No. 76-973.
    District Court of Appeal of Florida, Second District.
    March 30, 1977.

      A. P. Gibbs, Dade City, for appellants.
    James S. Moody, Jr. of Trinkle, Redman, Clawson, Alley, Swanson & Moody, Plant City, for appellees.
   BOARDMAN, Chief Judge.

Appellants/defendants appeal the final judgment entered in favor of appel-lees/plaintiffs in a suit for payment of the full purchase price of and a vendor’s lien on a parcel of real property. Appellants/buyers and appellees/sellers entered into a written contract for sale of realty on which appellants planned to construct a golf course. The pertinent part of the contract provided that:

In addition to the aforesaid purchase price, Buyer guarantees to the Sellers that he or his assigns will begin construction of an 18-hole regulation par 71 or 72 golf course at least 6,800 yards in length measuring from championship tees to the middle of the greens, to be approved by the United States Golfers Association within one (1) year from the date of closing and to be completed within twenty-four (24) months from closing. The guarantee contained in this paragraph will survive the closing. A default by the Buyer in failing either to commence construction or to complete construction of the golf course as specified herein shall be an event of default entitling the Sellers to a penalty of an additional cost of $250.00 per acre on the entire 460 acre purchase, or a total penalty of $115,000.00 payable within ninety (90) days of such default, it being understood by and between the parties that part of the consideration for the purchase of said property is the construction of the aforesaid golf course (the promise to construct same on the part of the Buyer resulted in the Sellers reducing the purchase price of the above described property by $250.00 per acre). Likewise, all prices per acre for the lands set forth in the options in paragraph 2 below shall be increased by $250.00 per acre for the same reasons set forth above, anything hereinafter set forth to the contrary notwithstanding.

The sellers alleged in their complaint that the buyers did not perform according to the terms of this provision, that is to complete the construction of a golf course within two years of the closing. The buyers alleged in their answer and affirmative defense that the golf course was completed or substantially completed as contemplated by the contract. After a hearing the trial judge ruled that the sum the parties agreed to in the contract was not a penalty but was a part of the purchase price and that appel-lees were entitled to $115,000 plus interest, plus costs. A vendor’s lien was imposed on the property.

The sole meritorious point raised by appellants is whether the amount stipulated by the contract in the event of default constituted an unenforceable penalty. Appellants assume that the agreement to pay an additional $250 per acre for failure to timely complete the golf course is in the nature of damages for breach of contract. We do not agree. We submit, however, that even if the stipulation were included to provide for damages for breach of contract, it would not be a penalty but would be liquidated damages. While there is no general rule to determine whether a sum stipulated for breach of contract is a penalty, the courts will consider the reasonableness of the provision, the certainty of establishing actual damages, and the intent of the parties. See 9 Fla.Jur. Damages §§ 103, 104 (1956, Supp.1976). In consideration of the value of the property reflected by other offers which were higher than the offer accepted by appellees, a $250 per acre increment to a base price of $1350 per acre would not be unreasonable. Testimony introduced at trial, particularly that regarding the parties’ negotiations, established that both appellants and appellees were fully cognizant of the purpose of the provision requiring timely construction of a golf course. Appellees planned to retain the property surrounding the parcel sold to ap-pellees. Their agreement to sell the property to appellants at a lower price per acre was directly dependent on the development of a golf course which they believed would provide a hedge against the possibility of a recession and consequent decrease in property value. In the event of a breach, calculation of damages would be speculative and uncertain. It would be extremely difficult to gauge the effect a completed, partially completed, or nonexistent golf course would have on the surrounding property value.

This stipulation is not, however, a damage provision for breach of contract, and the sellers did not bring this action for damages. They were seeking payment of the unpaid purchase price. The purchase price is clearly set out in the contract, that is $610,000 plus a golf course or $610,000 plus $115,000. From a reading of the contract the intent of the parties is clear. They agreed to a purchase price of $1600 per acre. In reliance on and in consideration of the completion of a golf course by December 21,1974, the purchase price to be paid in cash was $1350 per acre. See Cox v. Smith, 93 Ark. 371, 125 S.W. 437 (1910). Accordingly a vendor’s lien was properly imposed on the property to secure the unpaid alternate purchase price of $115,000. See Oliver v. Mercaldi, 103 So.2d 665 (Fla.2d DCA 1958).

The findings of the trial court are accorded a presumption of correctness and will not be disturbed on review by this court where, as here, there is sufficient, competent evidence to support those findings.

AFFIRMED.

McNULTY and SCHEB, JJ., concur.


text:
    James Matthew DIXON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1103.
    District Court of Appeal of Florida, Second District.
    March 30, 1977.

      Jack 0. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and David B. Slaughter, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant/defendant appeals the judgment and sentence on a charge of possession of a controlled substance in violation of Section 893.13(l)(e), Florida Statutes.

On November 1, 1975, at approximately 12:45 A.M., a motorist stopped Officer John Henderson of the Lakeland Police Department and advised him that an occupant of an automobile had just moments before shined a spotlight into her face and had nearly run her off the road. She described the vehicle as a black Buick and gave the officer the tag number. Officer Henderson proceeded in the direction indicated by the woman and followed a vehicle until it stopped and parked in a vacant lot. The officer did not turn on his blue lights or siren to indicate that the driver of the automobile should stop. He pulled his patrol car behind the vehicle and at that time verified that the tag number and the description of the automobile were identical to those given by the woman. He also saw a spotlight mounted on the outside of the automobile. The officer observed a great deal of smoke coming from the vehicle and as he approached it detected a strong odor of burning marijuana. Officer Henderson testified that he had smelled the odor of marijuana approximately 100 times prior to this incident, and it was the smell which led him to believe that the occupants of the vehicle were in possession of marijuana and to search appellant. The officer asked the three occupants, including the driver, appellant, to step from the automobile. When backup assistance arrived, Officer Henderson asked Officer Frank Owens to search the suspects while he searched the automobile. Officer Owens testified that he was not searching for weapons but for marijuana. Both officers testified that no arrest was made prior to the search. Although neither officer found any marijuana on the occupants’ person or in the automobile, Officer Owens found a packet of phencycli-dine in a pouch hanging from appellant’s belt. Officer Henderson advised appellant that he was under arrest. Appellant’s motion to suppress the evidence was denied.

Appellant contends on appeal that the narcotics seized from his person were the fruit of an illegal, warrantless search.

The general rule is that evidence obtained as a result of a warrantless search is inadmissible. It is well settled in Florida and in other jurisdictions, however, that a warrantless search incident to an arrest is an exception to that rule. It is equally well settled that a warrantless search incident to arrest is invalid unless the arrest is justified by facts constituting probable cause to arrest which are within the arresting officer’s knowledge prior to the search. See Melton v. State, 75 So.2d 29Í (Fla.1954); 68 Am. Jur.2d Searches and Seizures §§ 35, 37 (1973). The validity of a warrantless search conducted subsequent to the establishment of probable cause to arrest but prior to arrest has not yet been determined in Florida.

The constitutional protections and safeguards against unreasonable search and seizure are not diminished by permitting a limited, prearrest search of a person and his immediate surroundings if the search is incident to probable cause to arrest. See, e. g., People v. Simon, 45 Cal.2d 645, 290 P.2d 531, 533 (1955). As Justice Traynor explained in Simon, the de minimis practical difference between a search incident to arrest and a search incident to probable cause to arrest actually works to the advantage of the suspect.

[I]f the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested and the place where he is arrested, there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest. In fact, if the person searched is innocent and the search convinces the officer that his reasonable belief to the contrary is erroneous, it is to the advantage of the person searched not to be arrested. On the other hand, if he is not innocent or the search does not establish his innocence, the security of his person, house, papers, or effects suffers no more from a search preceding his arrest than it would from the same search following it. In either case the important considerations are whether the officer had reasonable cause before the search to make an arrest and whether the search and any seizures incident thereto were or were not more extensive than would reasonably be justified as incident to an arrest.
Simon, supra, at 647, 290 P.2d 533.

Furthermore, suppression of evidence seized under these circumstances would place an unreasonable, illogical restraint on police officers in the efficient, diligent performance of their duty and on the administration of justice, which is not mandated by the fourth amendment. We submit, therefore, if a warrantless search is otherwise valid the fact that the accused was not arrested does not render the evidence found inadmissible where probable cause to arrest existed prior to the search.

The questions before us then are whether probable cause to arrest appellant existed prior to the search and whether the evidence at issue was discovered within the permissible scope of a warrantless search incident to probable cause.

Authority to arrest without a warrant is..-specifically provided by statute where there is probable cause to believe the suspect is in possession of marijuana. Section 893.13(l)(g), Florida Statutes (1975). The test to determine probable cause to arrest is whether

the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.

Benefield v. State, 160 So.2d 706, 708 (Fla. 1964). The elements of the criminal offense of possession of marijuana are the suspect’s knowledge of the presence of the contraband and his ability to maintain control over it or reduce it to his possession. E. g., Spataro v. State, 179 So.2d 873 (Fla.2d DCA 1965). The smell of marijuana and sight of smoke emanating from an automobile constitute probable cause to believe that both elements are satisfied as to all of the occupants of the vehicle and that each occupant had actual or constructive possession of marijuana. Porter v. State, 302 So.2d 481 (Fla.3d DCA 1974). See also Mattson v. State, 328 So.2d 246 (Fla.lst DCA 1976). The existence of probable cause to believe that the driver of the automobile was in possession of the marijuana was particularly apparent. See Zicca v. State, 232 So.2d 414 (Fla.3d DCA 1970). Cf. Porter, supra; D.M.M. v. State, 275 So.2d 308 (Fla.2d DCA 1973); Arant v. State, 256 So.2d 515 (Fla.1st DCA 1972).

A search incident to arrest or to establishment of probable cause to arrest may be made of the defendant and the area immediately surrounding him. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Casso v. State, 182 So.2d 252 (Fla.2d DCA 1966). In the case before us the incriminating evidence was found in a pouch on appellant’s belt which was within the area of a permissible search.

AFFIRMED.

McNULTY and GRIMES, JJ., concur.

      . Appellant does not raise the issue and we need not consider whether Officer Henderson had reasonable cause to stop the vehicle since appellant voluntarily pulled his automobile to the side of the road.

      . There are numerous cases in Florida which have held that the results of a warrantless search incident to an arrest are not to be considered to establish the validity of the arrest. E. g., D’Agostino v. State, 310 So.2d 12 (Fla. 1975); Collins v. State, 65 So.2d 61 (Fla.1953); Kraemer v. State, 60 So.2d 615 (Fla.1952); Richardson v. State, 291 So.2d 253 (Fla. 1st DCA 1974); Russell v. State, 206 So.2d 92 (Fla.3d DCA 1972); Carter v. State, 199 So.2d 324 (Fla.2d DCA 1967).

       The majority of the courts which have ruled on this issue have based their decisions to varying degrees on the absence of a fourth-amendment problem with the order of the search and the arrest. See United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974) (to require an arrest prior to a warrantless search where probable cause to arrest existed at the time of the search would “exalt form over substance”); United States v. Riggs, 474 F.2d 699 (2d Cir. 1973) (“postponement of the further intrusion of arrest” does not prejudice the accused); United

        States v. Gorman, 355 F.2d 151 (2d Cir. 1965) (a prearrest search was said to be “incident” to the arrest); Holt v. Simpson, 340 F.2d 853 (7th Cir. 1965) (the search and arrest were considered one transaction); Busby v. United States, 296 F.2d 328 (9th Cir. 1961) (once probable cause to arrest is established need not consider that a warrantless search preceded the arrest); State v. LeBlanc, 347 A.2d 590 (Me.1975) (the search was “substantially contemporaneous” with the arrest). The rationale in Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305 (1967) was somewhat different. In Bailey the court held that a formal arrest was not required where the accused is physically detained. Berry v. State, 316 So.2d 72 (Fla.1st DCA 1975) adopts this rationale by implication. There is a line of cases which suggests that facts, such as these, which demonstrate probable cause for a warrantless arrest necessarily demonstrate probable cause for a warrantless search. See Bailey, supra, at 159 & n. 11 (dissenting opinion). See also State v. Compton, 13 Wash.App. 863, 538 P.2d 861 (Ct.App.1975) (statutory authority to make a warrantless arrest is equivalent to authority to make a warrantless search prior to the arrest).

      . The standard of probable cause to arrest is not as strict as the standard which must be met to convict. Lemus v. State, 158 So.2d 143 (Fla.3d DCA 1963). “The legality of an arrest does not depend on the conviction or acquittal of the accused. . . . ” Canney v. State, 298 So.2d 495, 496 (Fla.2d DCA 1973): See Brown v. State, 91 So.2d 175 (Fla.1956).

      . Other jurisdictions have affirmatively ruled that the odor of burning marijuana emanating from an automobile provides sufficient probable cause to arrest and/or to search the occupants as evidence of a crime committed in the presence of an officer or as reasonable grounds to believe that the occupants had recently committed a felony. State v. Compton, 13 Wash. App. 863, 538 P.2d 861 (Ct.App.1975); United States v. Burton, 327 A.2d 308 (D.C.Ct.App. 1974); State v. Downes, 19 Or.App. 401, 528 P.2d 110 (1974); In re S.E.B., 514 S.W.2d 948 (Tex.Civ.App.1974); People v. Wolf, 15 Ill. App.3d 374, 304 N.E.2d 512 (Ct.App.1973). Although a warrantless arrest of all the occupants of a dwelling for possession of contraband may be invalid even where the police are certain that contraband is present in the house, an automobile is not accorded the status of a dwelling. Compare Britton v. State, 336 So.2d 663 (Fla.1st DCA 1976) with Berry v. State, 316 So.2d 72 (Fla.1st DCA 1975). If probable cause to believe that a particular occupant is committing a crime cannot be established prior to infringement on an area where the occupants have a reasonable expectation of privacy, such as a dwelling, a warrantless entry and subsequent arrest cannot be justified by facts made known after the intrusion. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 468 (1948). The fact that a search warrant would be issued on the same facts prompting the officer’s unconstitutional intrusion, standing alone, does not obviate the procurement of a warrant. Johnson, supra; Falcon v. State, 226 So.2d 399 (Fla. 1969).


author: MILLS, Judge. BOYER, Chief Judge,

text:
    James Dennis SHEPHERD, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. CC-355.
    District Court of Appeal of Florida, First District.
    April 1, 1977.
    Richard W. Ervin, III, Public Defender and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury convicted Shepherd of possession of phencyclidine. He was sentenced to five years imprisonment. The only issue here is whether the trial court erred in denying Shepherd’s motion to suppress the phency-clidine.

Shepherd was taken to the emergency room of the Baptist Memorial Hospital with gunshot wounds in the head, a shoulder and a knee. He was in serious condition. A deputy sheriff was dispatched to the hospital to investigate the shooting. The medical staff had not identified Shepherd, therefore, the deputy requested a nurse to remove his billfold from his pants and hand it to him. This was done and while searching the billfold for Shepherd’s driver’s license, the deputy first looked in the currency section where he found a plastic bag containing what he thought might contain a little marijuana, although he could not see the contents. He was not concerned with this and stuffed the bag back in the billfold because he was seeking identification. He continued to search for a driver’s license which he found. He then identified Shepherd and talked to him at length regarding the shooting incident. After the conversation with Shepherd, the deputy again examined the billfold and removed the bag. He examined the bag and thought it contained heroin. He notified the vice squad and told the hospital authorities to place a hold on Shepherd. The contents of the bag were later identified as phencyclidine.

The State argues that where an officer observes contraband while performing his lawful duties, he may seize the contraband and it is admissible in evidence. Castle v. State; 305 So.2d 794 (Fla. 4th DCA 1974). The State also argues that if an officer has reasonable belief that an emergency exists, an otherwise illegal search is justified. Gilbert v. State, 289 So.2d 475 (Fla. 1st DCA 1974). We agree with the statements of law but do not agree that they apply to the facts of this case.

The burden rests on the State to demonstrate that a warrantless search of a person’s personal effects fall within a clear exception to the warrant requirement. Bicking v. State, 293 So.2d 385 (Fla. 1st DCA 1974). A warrantless search must be based on probable cause and on sufficient exigent circumstances to excuse the failure to obtain a warrant.

When the officer searched the plastic bag in Shepherd’s billfold, he did so because of his suspicion that it might contain marijuana. The fact that Shepherd had a small plastic bag in his billfold did not constitute probable cause for a warrantless search of his personal effects. The officer was acting upon bare suspicion alone. This was an exploratory search prior to the time the officer had probable cause. A similar search of an automobile trunk, based upon suspicion but nothing more, was declared to be an unlawful exploratory search by us in Cotellis v. State, 297 So.2d 625 (Fla. 1st DCA 1974).

After finding Shepherd’s driver’s license and determining his identity, the officer then explored the contents of his billfold solely for the purpose of obtaining evidence of a crime. Even if the officer had probable cause to believe evidence of a crime was contained in the billfold, there were no exigent circumstances to excuse the officer from applying for a search warrant.

The only reason the officer thought he might find marijuana in the billfold was the fact that he had noticed a small plastic bag folded up in the currency section of Shepherd’s billfold. Even if that was sufficient to justify the issuance of a warrant to search the billfold, nothing excused the officer from the requirement of waiting to conduct the search until a warrant issued.

In State of Maine v. Richards, 296 A.2d 129 (Me.1972), an officer at the scene of an accident searched an inoperable vehicle for identification of the two persons who were injured in the accident. After finding a jacket bearing a name, the officer explored the left pocket where a plastic bag containing illegal capsules was found. A motion to suppress was denied, but on appeal, the Maine Supreme Court reversed because it had not been shown that the search of the pocket was solely and exclusively for the purpose of finding identification. The court questioned whether the officers were engaging in an exploratory search for the purpose of seeking evidence of criminal conduct. Under these facts, which are similar to those in the case before us, the court concluded that the intrusion by the police into the jacket pocket was without probable cause.

Assuming in the case before us that the officer was acting reasonably in searching Shepherd’s billfold for the purpose of determining his identity, there is no question that after the identification was found, and after the officer determined that Shepherd was the person pictured on the driver’s license, the second search of the billfold was for the sole purpose of obtaining evidence of criminal activity of which the officer had only bare suspicion. Thus, assuming that the good intentions of the officer justified the first search of Shepherd’s billfold for the purpose of obtaining identification, the second search was clearly for the purpose of obtaining evidence upon which to base a criminal charge. The officer was merely guessing that the search would yield such a result. The search of the billfold was not incident to arrest because the officer had not yet placed Shepherd under arrest.

Clearly there is no emergency here. The preservation of human life is not involved, merely identification. Gilbert, supra.

The second search of Shepherd’s billfold was unreasonable because (1) the officer had no probable cause, (2) there was no prior determination of probable cause by a neutral and detached magistrate, and (3) there were no exigent circumstances to excuse the warrant requirement.

The second search of Shepherd’s billfold was illegal under Article I, Section 12 of the Florida Constitution and the Fourth Amendment to the Federal Constitution. An individual’s personal effects are as fully protected from unreasonable searches when the individual is not suspected of criminal behavior as when the individual is suspected of criminal behavior. Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

The trial court erred in denying Shepherd’s motion to suppress and we must reverse the judgment and sentence as to Count I of the Information.

McCORD, J., concurs, and BOYER, C. J., concurs specially.

BOYER, Chief Judge,

concurs specially.

I concur in the result reached. In the fifth paragraph of the foregoing opinion, referring to the second visit by the officer to appellant’s billfold, it is stated “This was an exploratory search prior to the time the officer had probable cause.” Again, in the third paragraph from the end is found the statement “The second search of Shepherd’s billfold was unreasonable because (1) the officer had no probable cause, * * I do not agree with those statements. In my view, the initial examination of appellant’s billfold was not an unreasonable search but was a proper means of determining appellant’s identity. Had the officer been able to clearly see what was in the baggie contained in the billfold, the “plain view rule” would have applied. However, the officer frankly conceded that, although he knew that something was in the baggie, he could not plainly see what it was. Once the officer learned, after talking with appellant, that appellant had been shot during an ill-fated drug deal, the officer had a sufficient basis for probable cause. The issue of probable cause is rendered moot, however, because the officer did not attempt to secure a search warrant. In the absence of exigent circumstances, the second warrantless search of appellant’s wallet was unjustified.

Therefore, although I would not go so far as the opinion in State of Maine v. Richards, supra, I nevertheless concur in the result reached by the majority, based upon the above-described factual situation.


author: PER CURIAM.

text:
    Frances M. HARRISON, formerly Frances M. Floyd, Appellant, v. Ray FLOYD, Appellee.
    No. BB-196.
    District Court of Appeal of Florida, First District.
    April 1, 1977.
    S. Ray Gill, Ocala, for appellant.
    Neil A. Malphurs, Malphurs & Brown, P. A., Alachua, for appellee.
   PER CURIAM.

Affirmed. (See Brust v. Brust, 266 So.2d 400 (Fla. 1st DCA 1972); Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975) and Spradley v. Spradley, 312 So.2d 215 (Fla. 1st DCA 1975), cert. granted, opinion quashed 335 So.2d 822 (Fla.1976))

BOYER, C. J., MILLS, J., and JOPLING, WALLACE, Associate Judge, concur.


text:
    Kay W. EUBANKS, Individually, and Eubanks Realty, Inc., a Florida Corporation, Appellants, v. John R. STOCKS, Individually, et al., Appellees.
    No. CC-129.
    District Court of Appeal of Florida, First District.
    April 1, 1977.
    Davisson F. Dunlap, Jr., Pennington, Wilkinson & Sauls, Tallahassee, for appellants.
    Sam Spector and Kenneth R. Hart, Brown, Pelham, McDonnell & Hart, Tallahassee, for appellees.
   PER CURIAM.

Appellants, who were plaintiffs in the trial court, appeal an order dismissing Counts I and II of their amended complaint for failure to state a cause of action. Our review reveals that the dismissed counts fail to allege recoverable damages. Further, even were recoverable damages alleged, the trial judge was eminently correct in determining that no cause of action was stated. (Please see Turvey v. Kulazenka, 341 So.2d 551 (Fla. 1st DCA 1977), wherein is cited Beagle v. Bagwell, 169 So.2d 43 (Fla. 1st DCA 1964).

AFFIRMED.

BOYER, C. J., and RAWLS and ERVIN, JJ., concur.


text:
    The BOARD OF TRUSTEES OF ALACHUA GENERAL HOSPITAL et al., Petitioners, v. Mary F. KIMBLE, Respondent.
    No. CC-342.
    District Court of Appeal of Florida, First District.
    April 1, 1977.
    L. William Graham, Dell, Graham, Will-cox, Barber, Rappenecker, Ryals & Henderson, and W. C. O’Neal, Chandler, O’Neal, Gray & Lang, Gainesville, for petitioners.

      Aaron A. Green, Gainesville, for respondent.
   PER CURIAM.

It appearing that review is here sought of an order of the trial court denying a motion to dismiss an action founded on tort and the petitioners having failed to demonstrate that the learned trial judge departed from the essential requirements of law and it further appearing that review is not permitted by way of interlocutory appeal and that common law certiorari is not, for the reasons above mentioned, a proper remedy to vest jurisdiction in this Court, it is

ORDERED that the petition for writ of certiorari is denied and the petition dismissed.

BOYER, C. J., MILLS, J., and JOPLING, WALLACE, Associate Judge, concur.


text:
    PIERCE, WULBERN, MURPHEY, INC., a Florida Corporation, and Edward S. Redington, Trustee in Liquidation for Weis Securities, Inc., Appellants, v. CONSURGICO CORPORATION, Appellee.
    No. DD-44.
    District Court of Appeal of Florida, First District.
    April 1, 1977.
    Edna Wilson, Dixon, Shear, Brown & Stephenson, Tampa, for appellants.
    William P. Thorpe, McClintock, Donovan, Carson & Roach, Detroit, Mich., for appel-lee.
   PER CURIAM.

Appellants, plaintiffs in the trial court, appeal from a summary final judgment in favor of the defendant there. The learned trial judge wrote an extensive explanatory summary final judgment which recites the uncontroverted facts and reasons for his conclusion that a summary judgment was required. Nothing will be added to the jurisprudence of Florida by repetition here.

AFFIRMED.

BOYER, C. J., and RAWLS and ERVIN, JJ., concur.


author: HOBSON, Acting Chief Judge. GRIMES, Judge,

text:
    HARBOUR INN, INC., et al., Appellants, v. William KAGAN et al., Appellees.
    No. 76-593.
    District Court of Appeal of Florida, Second District.
    April 1, 1977.

      Richard L. Watkins of Fassett & Watkins, and Jeffrey R. Garvin of Moorey, Seals & Garvin, Fort Myers, for Harbour Inn, Inc. and Kenneth Lurtz.
    David A. Wolfson, Miami, for appellees.
   HOBSON, Acting Chief Judge.

Appellees filed a complaint against appellants for damages arising out of a contract between the parties whereby appellees were to procure a valid written loan commitment in the amount of $10,000,000 and secure a limited real estate joint venture agreement between American Real Equities Corporation, or a subsidiary thereof, and Harbour Inn, Inc. and Collage, Inc., two of the appellants herein.

Count I of the complaint alleged that appellees had performed under the contract and that they obtained a qualified organization under the terms of the contract to be a member of the joint venture and were successful in obtaining a loan commitment from several lending institutions contingent upon the verification of certain facts and exhibits which were to be furnished to them by appellants, Harbour Inn and Collage, as provided for in the contract. The complaint further alleges that the appellants breached the contract in that they did not furnish the exhibits as required, thereby preventing them from successfully completing the contract and earning their commission as provided for in the contract.

Count II of the complaint realleges the above allegations and prays for damages under the quantum meruit theory.

The appellants answered and depositions were taken. Both appellants and appellees filed motions for summary judgment with attached affidavits. The trial court entered a partial summary judgment for the appel-lees on liability under Count II on the quantum meruit theory. The appellants appealed this partial summary judgment. In appellants’ brief they contend that the trial court erred in not entering a summary judgment in their behalf on both counts of the complaint. However, the only partial summary judgment appealed is in favor of appellees on Count II of their complaint as to liability. Therefore, the question of the denial of appellants’ summary judgment is not before us as to Count I.

The contract sued upon provided in part as follows:

“PROFESSIONAL SERVICES. For and in consideration of the sum of One Thousand ($1,000.00) Dollars, non-refundable deposit paid by Collage to Commercial Mortgage, receipt of which is hereby acknowledged, Commercial Mortgage agrees to provide the professional service of Mr. William Kagan, President, for the purpose of the procurement of a valid written loan commitment and loan endorsement & guarantee by American Real Equities Corporation.
(a) The deposit shall be credited in full as part payment on the brokerage fee earned as hereinafter defined.”
* * * * * *
“FURNISHING OF EXHIBITS. HII & Collage agrees to furnish all necessary exhibits required including but not limited to: Current M.A.I. appraisal, plat survey, plans, specifications, site plan, aerial photo, street photo, location map, current financial statement on corporation and individual Investors signing personal endorsement, cost of construction estimates, building of construction Contractor, his Bonding Corporation insuring the completion of construction, projected income and expenses of project, letter of evidence that property is zoned and approved for its intended use, letter of evidence that all utilities will be available to tie in for use at the site, and letter ascertaining to present title holder of record.”
* * * * * *
“DISBURSEMENT OF' ' EARNED FEE. This Agreement constitutes an irrevocable authority to any title company or attorney or Project Manager handling the settlement of the loan to disburse the earned fee as hereinafter set forth, from the proceeds of the financing, settlement of the loan and construction draws, to the order of Commercial Mortgage and Mr. William Kagan.”
‡ ‡ ‡ * ‡
“PAYMENT FOR SERVICES RENDERED. It is expressly understood that all payments made for Financial or Real Estate Brokerage Fees earned or for professional services rendered by either Commercial Mortgage or Mr. William Ka-gan, will and shall only be paid upon the satisfactory completion and execution of the hereinbefore referenced Limited Real Estate Joint Venture Agreement and the actual loan consummation and the manner as hereinafter described and defined.” (emphasis added)

The appellants contend that 1) the $1,000 paid for professional services which was nonrefundable is the entire compensation due appellees; 2) the appellees are not entitled to any additional fee in that additional fees were payable only upon the satisfactory completion and execution of the limited real estate joint venture agreement and the actual loan consummation; and 3) the ap-pellees’ fees were to come from the proceeds of the fund created by the loan, and since the fund did not materialize appellees are not entitled to recover either for breach of contract or on the quantum meruit theory-

In Hanover Realty Corp. v. Codorno, 95 So.2d 420 (Fla.1957), our Supreme Court stated the law as to brokers’ fees as follows, at page 423:

“. . . ‘[Wjhere a party contracts for another to do a certain thing, he thereby impliedly promises that he will himself do nothing which will hinder or obstruct that other in doing the agreed thing,’ 7 Fla.Jur., Contracts, Sec. 145, and that ‘one who prevents or makes impossible the performance or happening of a condition precedent upon which his liability by the terms of a contract is made to depend cannot avail himself of its nonperformance.’ Ibid, Sec. 148, p. 215. But we know of no case where these rules have been applied to permit recovery in the face of a specific agreement to the contrary. As pointed out in Kay v. Sperling, supra, [Fla.,] 83 So.2d 881, 882, where the relationship of the parties was similar to that in the instant case and the broker agreed that ‘unless and until a deal is consummated, the contemplated lessor is not obligated for any commission,’ in none of the cases allowing recovery by the broker where the owner refused to complete the transaction ‘had the party sought to be held liable for the commission protected itself with a provision similar to that embodied in the contract in the case at bar. None of these cases holds that a broker can recover in the face of a specific contract to the contrary.’ ” (emphasis ours)

Also, in Hanover, supra, it was held that the broker could not recover on the quantum meruit theory unless the lease in that case had actually been consummated.

In the case before us no additional fees were to be paid unless there was a satisfactory completion and execution of the limited real estate joint venture agreement and the actual consummation of the loan. The appellees admit that this was not done. Further, the appellee Kagan stated in his deposition that he had been a real estate broker and mortgage broker for approximately forty years and that his forty years in the business was worth a capitalization of a minimum of $5,000,000. Therefore, there was no doubt that he was an experienced and successful mortgage broker.

In addition, the appellees received $1,000, nonrefundable, to provide the professional services of Kagan, who was president of Commercial Mortgage, for the purpose of procuring the loan commitment and guarantee by American Real Equities Corporation, which he did successfully and for which he was compensated.

For the reasons stated above the partial summary judgment is reversed and the trial court shall enter a summary judgment on count II of the complaint for the appellants. The cause is remanded for further proceedings on the remaining count.

SCHEB, J., concurs.

GRIMES, J., dissents with opinion.

GRIMES, Judge,

dissenting.

In Hanover Realty Corp. v. Codomo, supra, the listing provided:

“. . . and if, for any reason, these leases are not signed, you will not have any claim against either the owners of the property, or Mr. William W. Kamm and myself as agents.”

The court held that this was a specific agreement which permitted the owner to arbitrarily refuse to close without liability for a brokerage commission. However, several years later the same court in Mark v. Hahn, 177 So.2d 5 (Fla.1965), construed a listing which contained the following statement:

“. . . and that commission will be due and payable only if and when title is actually closed.”

The court stated:

“The listing on Codorno is couched in language which makes it reasonably clear that the owner might arbitrarily at any time before the leases were signed refuse to go through with the deal and thus relieve himself of any liability for payment of a commission. On the other hand, it does not appear quite so clearly that the seller reserved unto herself the right to renege in the instant suit, indeed there is room for the implication that the seller would do nothing to interfere with the actual closing of the deal. . . . ”

Because of some additional facts in the case, the court declined to rest its decision for the broker entirely upon semantics. However, the court went on to state:

“. . .We are impelled before turning from the subject discussion to say, by way of caveat, that in Codomo when we used the expression ‘specific agreement to the contrary’ we meant exactly that. We did not mean that a listing could be worded in such manner as to require the astuteness of the proverbial ‘Philadelphia lawyer’ to determine that the seller intended to reserve until himself the right to change his mind or back out arbitrarily at any time he might see fit and thereby avoid. payment of a commission. Although some brokers are also lawyers, many, many of them are not. Perhaps most lawyers would suspect from the language used in the listing in this case that the seller meant to reserve the right to refuse to go through with the deal if she should so elect. Few laymen would have the same reaction. We think the ‘specific agreement' to which we referred in Codo-rno should be expressed in language which would be readily understood by a layman and leave no room for doubt. The specificity of such an agreement should be precisely formulated, explicit, positive, direct and should admit of no misunderstanding. The agreement should clearly put the lay-broker on notice that he might expend both effort and substance in vain.”

In my judgment, the listing in the instant case more nearly compares with the one in Mark v. Hahn. 'Were I in the position of the appellees, I might understand that if the loan was not consummated because of circumstances reasonably beyond the appellants’ control (such as title defects or zoning problems), I would not be entitled to a commission. However, not being the “Philadelphia lawyer” referred to in Mark v. Hahn, I doubt that I would have understood that this provision allowed the appellants to escape a commission by arbitrarily declining to go forward with the closing of the loan. This is particularly true where, as here, the loan fell through because the appellants refused to furnish certain exhibits which they had specifically agreed to furnish in the brokerage contract. In view of the fact that appellees would have been entitled to $750,000 if the transaction had closed, I am not persuaded that because the appellees were permitted to keep $1,000, this meant that the contract contemplated the possibility of an arbitrary withdrawal by the appellants.

I believe the trial court correctly ruled that the appellees should be entitled to recover on a quantum meruit basis for their efforts spanning a period of more than six months. Therefore, I respectfully dissent.

      . Accord, Warter v. Bancroft Hotel Associates, 285 So.2d 676 (Fla. 3d DCA 1973) and Curran & MacDonell, Inc. v. Pearre, 202 So.2d 858 (Fla. 1st DCA 1967).


author: ERVIN, Judge.

text:
    Julia Fay TUCKER, by and through her father and next friend, William Tucker, and William Tucker, Individually, Appellants, v. SHELBY MUTUAL INSURANCE CO. OF SHELBY, OHIO, and Lou Goldman, Appellees.
    No. BB-201.
    District Court of Appeal of Florida, First District.
    April 6, 1977.

      Paul R. Stern, Stern & LaRue, Daytona Beach, for appellants.
    J. Richard Caldwell, Jr. and Sutton G. Hilyard, Jr., Pitts, Eubanks, Ross & Rum-berger, Orlando, for appellees.
   ERVIN, Judge.

This is an appeal by plaintiff-appellants from a cost judgment awarding certain accrued costs in favor of defendants-appel-lees. Julia Fay Tucker, a minor, through her father and next friend, William Tucker, brought a personal injury action against appellees based upon the negligent operation of an automobile by appellee Lou Goldman. She sought damages for bodily pain, suffering and disfigurement. William Tucker, individually, in the same action, sought damages for medical expenses and the denial of the services of his child resulting from the accident. On June 18, 1975, Shelby Mutual Insurance Company filed its offer of judgment in the amount of $6,000.00, plus costs accrued, for the combined claims of Julia Fay Tucker and of William Tucker, individually. The offer of judgment was refused. The case proceeded to trial and on November 20,1975, a verdict was returned assessing damages in favor of Julia Fay Tucker in the amount of $1,500.00 and William Tucker in the amount of $2,029.20.

The Tuckers appealed the cost judgment which denied their costs incurred after the offer of judgment, alleging generally that Fla.R.Civ.P. 1.442 does not permit an offer in gross to two parties plaintiffs having separate causes of action. Rule 1.442 provides in part:

“At any time more than ten days before the trial begins a party defending against a claim may serve an offer-on the adverse party to allow judgment to be taken against him for the money or property or to the effect specified in his offer with costs then accrued. If the adverse party serves written notice that the offer is accepted within ten days after service of it, either party may then file the offer and notice of acceptance with proof of service and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence of it is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the adverse party is not more favorable than the offer, he must pay the costs incurred after the making of the offer.”

The Tuckers argue that because of the specific wording of the rule, an offer may only be made by one party to another in a specific action and does not apply to a single offer to two parties having separate causes of action. Thus they conclude that an offer of judgment addressed to two parties is void unless it directs the specific amount to be paid each party. The claims for damages of Julia Tucker and her father are separate and distinct. A parent’s right of action for recovery of loss of his child’s services and medical expenses is independent of the right of action of the child arising from the same incident. Cicero v. Paradis, 184 So.2d 212 (Fla. 2nd DCA 1966). Still, it is obvious that joinder of the two distinct claims into one cause of action is, under the circumstances, most appropriate. In the first place the child can not bring the cause of action in her own right but may only sue by a duly appointed representative, or as in this case, by her next friend, her father. Fla.R.Civ.P. 1.210(b). Secondly, since the claims of the respective parties arose from the same transaction, their interests may be joined in the same action. Fla.R.Civ.P. 1.210(a). Thus where the claims of a father and his minor daughter are properly joined in one action we fail to see that violence has been done to the rule by a defendant making one offer to both parties.

The Tuckers additionally complain that since the offer was made in gross, the clerk could not comply with his ministerial function under the rule to enter judgment, had the offer been accepted, since of necessity it had to be apportioned between the parties. Moreover, they state that there being no provision in the rule for action by the court in entering judgment, the rule conflicts with Section 744.387, Florida Statutes (1975), requiring that offers of settlement to minors must first be approved by the court. Subsection 3(a) of the statute provides:

“No settlement after an action has been commenced by or on behalf of a minor or other incompetent shall be effective unless approved by the court having jurisdiction of the action.”

We do not believe the provisions of the rule and Section 744.387 are irreconcilable. We feel that a reasonable interpretation is that the court must first approve a settlement offer made for the benefit of a minor before judgment can be entered by the clerk. Once the offer is approved, the court need only specify in its order the amount payable to each party, pursuant to agreement of the parties, and the clerk is required then to enter judgment in accordance with the order.

To accept the appellants’ argument that the rule has no application to the type of offer on appeal would result in an overly technical interpretation of Rule 1.442. The rule is designed to induce a party to settle litigation and obviate the necessity of a trial. Santiesteban v. McGrath, 320 So.2d 476 (Fla. 3rd DCA 1975); Hernandez v. Travelers Insurance Company, 331 So.2d 329 (Fla. 3rd DCA 1976). The underlying purpose of encouraging settlement has been stated in Wright and Miller, Federal Practice and Procedure, section 3001 as follows:

“Although the privilege of an offer of settlement is extended only to the party defending against a claim, it furnishes a just procedure to all parties concerned. It is fair to the claimant because it does the defending party no good to make an offer of judgment that is not what the claimant might reasonably be expected to recover; he will not free himself of the costs if the judgment recovered is more than the offer. It is certainly fair to the defending party because it allows him to free himself of the court costs by offering to make a settlement. It is of great benefit to the court because it encourages settlements and discourages vexatious suits and thus diminishes the burden of litigation.”

It should be emphasized that our opinion is restricted to the specific facts of this case, i. e., involving the separate claims of a minor and her father which arise from the same transaction.

AFFIRMED.

BOYER, C. J., and RAWLS, J., concur.


text:
    David L. DODGE and Doris M. Dodge, his wife, Appellants, v. WILLIAM E. ARNOLD COMPANY and Fidelity & Casualty Company of New York, Appellees.
    No. BB-271.
    District Court of Appeal of Florida, First District.
    April 6, 1977.

      W. M. Chanfrau, Daytona Beach, and Anthony I. Provitola, of Provitola & McDer-mott, De Land, for appellants.
    Robert K. Rouse, Jr., of Smalbein, Eu-bank, Johnson, Rosier & Bussey, Daytona Beach, for appellees.
   PER CURIAM.

Appellants, plaintiffs in the trial court, seek review of a final summary judgment in favor of the defendant there, appellee here. Appellant Dodge, a journeyman electrician, while working at his trade on a building site, was injured as a result of the alleged negligence of an employee of appel-lee. Appellee was general contractor for the job and Paxon Electric Company was a subcontractor. At the time of the incident giving rise to this controversy plaintiff was “employed” by Olson Electric Company which company provided and paid workmen’s compensation benefits to Dodge. By virtue of an unwritten agreement, the provisions of which are not clear from the record, Olson Electric furnished Dodge and other electricians to Paxon Electric Company for the performance of the latter’s subcontract. Dodge sued the general contractor, William E. Arnold Company, for damages sustained as a result of his injuries and the latter asserted a defense of immunity under the provisions of Chapter 440, Florida Statutes, specifically Section 440.11.

The parties agree that unless the record establishes that appellee was obliged under Chapter 440, Florida Statutes, to provide the compensation required by the act for appellant then the chapter affords no immunity. The immunity afforded under Section 440.10 arises from the liability of an employer to secure the compensation required by the act.

It is axiomatic that a summary judgment may not be properly granted unless there is no issue of material fact. (Connell v. Sledge, 306 So.2d 194 (Fla. DCA 1st 1975)). The burden is upon the party moving for summary judgment to demonstrate that there are no issues of material fact and there is no burden upon the party moved against to “fill the gaps in the record”.

Sub judice the record is unclear as to the basis upon which the trial court determined immunity. Neither is the relationship or arrangement between Olson Electric Company and Paxon Electric Company made clear. The record is insufficient, for instance, for either the trial court or this court to determine whether or not Olson Electric Company was a subcontractor or a sub-subcontractor or whether appellant was a “loaned employee”. We determine therefore that the summary judgment here appealed was premature.

REVERSED.

BOYER, C. J., MILLS, J., and JOPLING, WALLACE, Associate Judge, concur.


text:
    Glenn Clifton DURDEN, Appellant, v. In re The Petition of George HENRY, Jr. and Mildred Davis Henry, Appellees.
    No. CC-255.
    District Court of Appeal of Florida, First District.
    April 6, 1977.
    J. B. Walkup, Jr., of Blowers, Walkup, Berk & Tucci, Ocala, for appellant.
    Phil Trovillo, Ocala, for appellees.
   ERVIN, Judge.

This is an appeal by the natural father from a final judgment of adoption of a nearly two-year-old child awarded to the maternal grandparents of the child. The father and mother were divorced on March 21, 1975, custody of the child was awarded to the wife, with reasonable visitation to the father. Pursuant to a property settlement agreement, the father was directed to pay child support. The mother of the child, following dissolution of the marriage, took it to live in her parents’ home and thereafter signed a consent for the child to be adopted by her parents. Subsequently George and Mildred Henry filed their petition for adoption.

The findings in support of the judgment of adoption generally state that since the time the child was placed in the Henrys’ home, Durden had only visited it two or three times. Moreover, Durden had not made regular or substantial payments of money for support of the child during the time it was in the Henrys’ home and that Durden still owed $160.00 in medical payments on the child’s pediatrician’s bill which had been reduced from $400.00. Additionally, during the first few months of the child’s life and apparently during the existence of the marriage the father placed the child in a home without running water or other sanitary facilities and permitted the child to have a babysitter who did not keep the child from being bitten by mosquitoes and fleas. The babysitter also placed paper diapers on the child even though it was allergic to them as the father well knew.

The court noted, however, that Durden had since placed his child in the home of his parents and that he was assisted in the care and custody of the child by his parents. The court also observed that the child was well cared for when kept in the home of its father’s parents where its father permanently resided. Moreover it specifically made no finding that the father was an unfit parent.

We reverse. The burden was upon the petitioners seeking the adoption, without the natural father’s consent, to present by clear and convincing evidence facts justifying a judgment of adoption taking from the father his privileges and responsibilities as a parent. E. g., In re Adoption of Gossett, 277 So.2d 832 (Fla. 1st DCA 1973); La Foliette v. Van Weelden, 309 So.2d 197 (Fla. 1st DCA 1975). More must be shown other than the natural father had failed to visit his child regularly or that he had failed to make regular payments on behalf of the child. As stated by this court in In re Adoption of Gossett, supra, at 834:

“It is an established principle of law observed by most appellate courts of this state that a natural parent should not be deprived of the privileges and responsibilities of parenthood unless in some fashion he has abandoned his child or otherwise demonstrated that he is not a fit subject to continue to enjoy the privilege. It is also held that even though temporary failures and derelictions of parents may justify temporary deprivation of the custody of their children, it will seldom justify the permanent deprivation of parental rights resulting from the finality of an adoption decree.”

Finally, as this court observed in In re Adoption of Lewis, 340 So.2d 126, 128 (Fla. 1st DCA 1976):

“Crucial to the decision by the trial court to order the adoption of the child by appellees is the finding that appellant abandoned his son. In order for there to be a finding of abandonment, a parent must be found by his actions to have totally relinquished or forfeited his right to continue as a legal parent.”

The final judgment of adoption is reversed and set aside.

MILLS, C. J., and JOPLING, WALLACE M., Associate Judge, concur.


author: MILLS, Judge.

text:
    BOARD OF REGENTS OF the STATE OF FLORIDA, a body corporate, for and on behalf of the University of Florida, Petitioner, v. Billy JOINER and the Career Service Commission of the State of Florida, Department of Administration, Division of Personnel, Respondents.
    No. DD-362.
    District Court of Appeal of Florida, First District.
    April 6, 1977.

      Thomas S. Biggs, Jr. and Judith Bre-chner, Gainesville, for petitioner.
    Robert L. Shevin, Atty. Gen., Betty J. Steffens, Asst. Atty. Gen., Larry G. Turner and Terry N. Silverman, Gainesville, for respondents.
   MILLS, Judge.

The University of Florida (University) seeks review of an order of the Career Service Commission (Commission) which set aside the University’s dismissal of Joiner from its employment on 13 October 1975 for fighting and which reinstated Joiner with pay as of 13 December 1975.

On appeal, the Commission found that Joiner was fighting but due to extenuating circumstances the University did not have just cause to dismiss Joiner.

“. . . The role of the Career Service Commission on appeal is to determine whether there existed competent substantial evidence to sustain the action taken by the agency and whether the facts establish ‘just cause’.”

State Department of Pollution Control v. State of Florida Career Service Commission and Hummel, 320 So.2d 846 (Fla. 1st D.C.A. 1975). This the Commission did and there

was competent substantial evidence to support its findings.

Although the University dismissed Joiner as of 13 October 1975, the Commission reinstated him with pay as of 13 December 1975. This action amounted to a suspension of Joiner for the period of 13 October to 13 December without pay. There is no authority for this action. Section 110.061(3), Florida Statutes (1975). The Commission could have reinstated Joiner with or without pay as of 13 October 1975, but it could not suspend him from 13 October to 13 December without pay and reinstate him with pay as of 13 December.

We, therefore, deny the review as to the Commission’s finding that the University did not have just cause to dismiss Joiner, but grant the review as to the Commission’s reinstatement of Joiner with pay as of 13 December 1975. We remand this case to the Commission for appropriate action consistent with this opinion.

BOYER, C. J., and JOPLING, WALLACE, Associate Judge, concur.