author: MELVIN, Judge.

text:
    Frank NEFF, a patient, Appellant, v. STATE of Florida, Appellee.
    No. HH-440.
    District Court of Appeal of Florida, First District.
    March 23, 1978.

      Michael J. Minerva, Public Defender, and Joseph M. Nursey, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Susan E. Mole, Asst. Atty. Gen., for appellee.
   MELVIN, Judge.

Appellant Neff brings this appeal for review of an order of involuntary hospitalization finding that he was mentally ill, in need of care or treatment, and that he lacked the sufficient capacity to make a responsible application in his own behalf.

On October 11, 1977, the administrator of the Tallahassee Psychiatric Centre, Inc., filed a petition for the involuntary hospitalization of Neff. A hearing on the matter was held October 13, 1977, and the trial court entered its order requiring Neff’s involuntary hospitalization the following day pursuant to Section 394.467(l)(b), Florida Statutes (1975).

Neff argues that, since he was found not to be dangerous to himself or others, there was no clear and convincing evidence to support the court’s finding that he lacked sufficient capacity to make a responsible application on his own behalf or that hospitalization was, in fact, necessary. The State, on the other hand, argues that there was clear and convincing evidence to support the involuntary hospitalization.

The facts gleaned from this record are that Neff, who is 27 years of age, ordered breakfast at a Jerry’s Restaurant and, upon finishing his meal, informed the manager of Jerry’s that God would pay his bill. The police were called and Neff was taken to the Psychiatric Centre, Inc., where he was subsequently examined by two psychiatrists.

One of the psychiatrists, Dr. Head, testified that he and another doctor diagnosed Neff as a paranoid schizophrenic but that such description didn’t . . really adequately describe Mr. Neff. Mr. Neff is a very — -his intellect is intact; he is extremely intelligent — .” The doctor stated that Neff had withdrawn from the world and that he was not living up to his intellectual capabilities. Dr. Head continued, stating:

“. . . what I’m trying to say is the reason Dr. Moore and I think he should be hospitalized is that because we would hope that he would get adequate treatment with the possibility that he might be able to come back into the world with his capabilities. . . .”

This case is controlled by In re Beverly, 342 So.2d 481 (Fla.1977). Beverly was involuntarily hospitalized pursuant to Section 394.467(l)(b), Florida Statutes (1973). Section 394.467(1), Florida Statutes (1973) and Section 394.467(1), Florida Statutes (1975) are identical, and provide:

“394.467 Involuntary hospitalization.—
“(1) CRITERIA — A person may be involuntarily hospitalized if he is mentally ill and because of his illness is:
“(a) Likely to injure himself or others if allowed to remain at liberty, or
“(b) In need of care or treatment and lacks sufficient capacity to make a responsible application on his own behalf.”

In holding that Section 394.467, Florida Statutes (1973) was constitutional, the Supreme Court stated the following test to be used prior to the entering of an order requiring the involuntary hospitalization of an individual:

First, the judge must conclude that the person is mentally ill. Second, if the person is found to be mentally ill, the court must then conclude that, because of the mental illness, the person is likely to injure himself or others if allowed to remain at liberty. In making this determination, the court must conclude “. . . that there is such a threat of harm as to comprehend the positive infliction of injury. . . . ” The term “injury” contemplates emotional injury to another, as well as physical injury to one’s self or others. Thus, if a person is found to be mentally ill and dangerous to himself or others, he may be involuntarily hospitalized.

However, if the person is mentally ill but not dangerous to himself or others, additional questions must be asked.

First, the court must determine that the mentally ill person is in need of care and treatment. Next, the court must conclude that the person lacks sufficient capacity to make a responsible application for such treatment on his own behalf.

Further, the court must conclude that the mental illness manifests itself in neglect or refusal to care for himself and that such neglect or refusal poses a real and present threat of substantial harm to his well being. If these three conditions are met, the non-dangerous, mentally ill person may be involuntarily hospitalized. Stressing the necessity that all of these criteria be met, the Supreme Court added this caveat:

even though the other criteria are met, a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends should never be hospitalized involuntarily.” 342 So.2d at 487

Neff ordered breakfast and after consuming it, directed the manager to, in essence, bill it to God. Neff was examined by two psychiatrists, as required by statute, who found him to be mentally ill, i. e., a paranoid schizophrenic. There was absolutely no evidence that Neff was potentially dangerous to himself or others, either physically or emotionally. The testifying psychiatrist stated that Neff should receive treatment so that he might more fully recognize his capabilities. The court also heard testimony that Neff did not recognize that he was mentally ill and that if he was released he would not seek treatment on his own.

Thus far, Neffs situation had met all but one of the criteria for involuntary hospitalization, the absent condition being whether Neff was “. . . capable of surviving safely in freedom by himself. . . . ” In addressing this issue, the Public Defender initiated the following colloquy:

Public Defender: “Do you think that without institutionalization he could not adequately take care of himself?
Psychiatrist: “I think he has been taking care of himself. I can’t say he is not taking care of himself.
Public Defender: “Do you believe that he could actually survive safely in freedom?
Psychiatrist: “Yes, yeah, I would say that. He has done it for several years. He, however, is not aware of his need for treatment.”

There was no testimony that Neff was incapable of caring for himself in freedom. That the primary desire of the psychiatrists in hospitalizing Neff was to make him a better person upon his release is evidenced by the psychiatrist’s statement that:

“. . . what I’m trying to say is the reason Dr. Moore and I think he should be hospitalized is that because we would hope that he would get adequate treatment with the possibility that he might be able to come back into the world with his capabilities. And that’s all I can say about it.”

The Legislature has not authorized deprivation of liberty or the expenditure of public funds for such laudatory purpose. In the case here reviewed, there was no showing that Neff, despite his illness, could not safely care for himself in freedom.

Accordingly, the order for the involuntary hospitalization of Neff is

REVERSED.

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


source: Caselaw Access Project

author: SMITH, Acting Chief Judge.

license: Public Domain

text:
    Jennifer FLICK, by her mother and next friend, Eva Flick, Appellant, v. Pat MALINO and Reserve Insurance Company, a corporation authorized to do business in the State of Florida, Appellees.
    No. GG-466.
    District Court of Appeal of Florida, First District.
    March 23, 1978.
    Charles K. Ruse, Jr. of Shook & Ruse, and George Stelogeannis, Ocala, for appellant.
    John S. Winnie of Winnie & Winnie, P. A., Gainesville, for appellees.
   SUBSTITUTED OPINION ON REHEARING

SMITH, Acting Chief Judge.

By her mother and next friend, appellant Jennifer Flick, a three-year-old child, sued appellee Ms. Malino for a dog bite Jennifer suffered on the home property owned by the entireties by Ms. Malino and her husband, since deceased. Ms. Malino’s motion for summary judgment established that her husband was sole owner of the dog that bit Jennifer and that two clearly readable “bad dog” signs were posted on the fence surrounding the property. The trial court found that the “bad dog” signs complied with Section 767.04, Florida Statutes (1975), and that Jennifer’s mother had actual knowledge of the signs and of the dog’s propensities before the accident occurred. The court therefore concluded that Ms. Mal-ino was entitled to immunity from liability under Section 767.04, which provides in relevant part:

The owners of any dog which shall bite any person, while such person is . lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners’ knowledge of such viciousness. A person is lawfully upon private property of such owner within the meaning of this act . . . when he is on such property upon invitation, expressed or implied, of the owner thereof; Provided, however, no owner of any dog shall be liable for any damages to any person . . if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words “Bad Dog.”

When Section 767.04 was enacted in 1949, it imposed liability on dogowners for their dogs’ bites where the common law did not— where there was no proof of prior knowledge of the dog’s propensity to bite. Romfh v. Berman, 56 So.2d 127 (Fla.1951). In expanding that liability, however, the legislature also created a coextensive immunity for the dogowner who prominently placed an easily readable “bad dog” sign on his property where the dog was kept. Thus, appellee Ms. Malino suggests here that her husband, if sued for Jennifer’s dog bite, would have enjoyed the immunity afforded by Section 767.04; and she urges that her own liability cannot logically be greater than that of the dogowner himself.

Ms. Malino’s argument is an appealing one. Of course, we need not here decide whether the statute would protect Mr. Malino from liability to three-year-old Jennifer because he posted “easily readable” signs which she could not read, see Carroll v. Moxley, 241 So.2d 681, 683 (Fla.1970). But we do find it troubling to contemplate that Mr. Malino, owner of a “bad dog,” may be exonerated, while his wife, whose exposure derives wholly from her ownership of home property by the entireties with her husband, is not. Nevertheless, the liability and the exemption created by the statute pertain only to dogowners, and Ms. Malino is neither liable under nor exonerated by the statute. Carroll v. Moxley held that the statute displaces common law concepts of liability for dogbites, but the Court emphasized that the statute displaces the common law only for dogowners, and only to the extent that the statute applies. Here, the record before the trial court on the motion for summary judgment did not establish that Jennifer came to the Malino home property without an express or implied invitation. See Wood v. Camp, 284 So.2d 691 (Fla.1973). Therefore Ms. Malino remains potentially liable for any failure to use reasonable care to protect her from a dog known to be dangerous on the land. Christie v. Anchorage Yacht Haven, Inc., 287 So.2d 359 (Fla. 4th DCA 1973).

Ms. Malino’s potential liability for Jennifer’s injury, in this action brought by Jennifer, is unaffected by any contributing negligence by Jennifer’s mother. Burdine’s Inc. v. McConnell, 146 Fla. 512, 1 So.2d 462 (1941); Jacksonville Elec. Co. v. Adams, 50 Fla. 429, 39 So. 183 (1905). There is a jury issue whether the posting of “bad dog” signs was all that was reasonably required of Ms. Malino to protect young children who occasionally came to visit. Reasonable protection for the safety of an adult, who can read and understand a warning sign, is not necessarily protection of expected children. That determination is for the jury.

The apparent anomaly of exonerating the dogowner but exposing his spouse to liability as a landowner results from developments in the common law which have outpaced the modest purpose of the 1949 statute. Statutes purporting to fix and clarify the liability of dogowners seem to be anomalous as a class. Mapoles v. Mapoles, 350 So.2d 1137 (Fla. 1st DCA 1977). The solution rests with the legislature, not with the courts.

REVERSED.

ERVIN and BOOTH, JJ., concur.

      . “[B]efore a dog owner will be relieved of liability, the attempt to give notice that a bad dog is on the premises must be genuine, effective arid bona fide. In every case the factual determination must be made whether the ‘Bad Dog’ sign as posted is in a prominent place and easily readable, so as to give actual notice of the risk of bite to the victim” (emphasis add- ’ ed).


author: PER CURIAM. MELVIN, Judge,

text:
    Johnny Earl NEVELS, Appellant, v. STATE of Florida, Appellee.
    No. FF-57.
    District Court of Appeal of Florida, First District.
    March 28, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant has not demonstrated error in his conviction of aggravated battery while in the possession of a firearm. Complaint is made of a statement by the trial judge to the jury in answer to a question, appellant urging that the trial judge intimated his view of appellant’s guilt. In context, the trial judge’s statement does not have that necessary effect. It was not objected to and was not fundamental error.

AFFIRMED.

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

MELVIN, J., dissents.

MELVIN, Judge,

dissenting.

I dissent. The defendant urges that the trial court erred in commenting to the jury upon the evidence. The record reveals that the jury, after having deliberated for a period of time, returned to the courtroom and, thereupon, the following transpired:

“JUROR PARKER: Sir, we just are in confusion about the fact that if this defendant is charged — if this defendant did not have a gun during the time that this argument started and pursued on out the door, finally when they got into the heat of the argument a gun came from somewhere and was shot in the process and in the process Mr. Jones was shot, that’s one situation. Okay. Then he has the gun on his person, not meaning to use the gun, but during the course of the argument he used the gun. All right. We are in confusion with guilty of aggravated battery while in possession of a firearm as charged in the Information. Now, if he had the gun on his person all the time, not meaning to use the gun, but as the argument happened, used the gun, does that mean what he is charged with here, whereas if he did not have the gun and as they went out the argument got heated and a gun came from somewhere, we don’t know where yet, he got — Mr. Jones got shot, doesn’t that mean that it’s not in the possession of a firearm? That’s not very clear. Does possession of a firearm mean that he had the gun on his person at all times? (Emphasis supplied)
“THE COURT: Come up to the bench, gentlemen.
“(Counsel for the State and Defense approached the bench for a side-bar conference out of the hearing of the jury and Court Reporter.)
“THE COURT: All right, I think I can answer that question now for you. Maybe I can clarify it. It is not important as to when the defendant, if he had the gun, when he got it. The important thing, the important time is when the aggravated battery was committed did he have possession of a gun. Does that clarify it for you?
“JUROR PARKER: Yes, sir.
“THE COURT: All right, would you please retire and deliberate further?”

One hour and 15 minutes following this discussion, the jury returned into court with its verdict finding the defendant guilty of aggravated battery while in possession of a firearm as charged in the information.

It is apparent from the questions asked of the court by the forelady that the jury was confused about, among other things, whether the evidence established that an aggravated battery had been committed. In this posture, the • comment of the court, “. . The important thing, the important time is when the aggravated battery was committed did he have possession of a gun. . . . ”, (Emphasis supplied) constituted a comment by the court from which the jury could infer that in the opinion of the distinguished trial judge the evidence had established to his satisfaction that an aggravated battery had been committed. We note that trial counsel did not object to this comment by the court, however, under Fla.App. Rule 6.16, this court is authorized to “. . . review any other things said or done in the cause which appear in the appeal record, . . .” that this court deems necessary to consider in the interest of justice.

As early as 1896, the Supreme Court of Florida in Lester v. State, 37 Fla. 382, 20 So. 232 (1896), strongly stressed the great importance in a judge avoiding, in the presence of the jury, any comment or any expression that might directly or indirectly even intimate that the judge has decided some factual issue that has been submitted for jury consideration, or has some view or opinion as to any issue of fact. The jury in this case could well have concluded that the court was telling them that the aggravated battery had occurred and the only thing that was important for them further to consider was whether or not when such aggravated battery was committed, did the defendant have in his possession a gun. Such comment, although unintentional as to such purpose, constituted an impermissible invasion upon the fact finding processes of the jury.

In Tanner v. State, 197 So.2d 842 (Fla.1st DCA 1976), this court cited with approval Hamilton v. State, 109 So.2d 422 (Fla.3d DCA 1959), in which the court held:

“The dominant position occupied by a judge in the trial of a cause before a jury is such that his remarks or comments, especially as they relate to the proceedings before him, overshadow those of the litigants, witnesses and other court officers. . . . ”

In Giglio v. Valdez, 114 So.2d 305 (Fla.2d DCA 1959), the court observed that comments made by a judge during the trial proceedings may well have more influence upon the result reached by the jury than the actual evidence presented.


author: SMITH, Judge.

text:
    FIAT MOTORS OF NORTH AMERICA, INC., Petitioner, v. John D. CALVIN as Director, Division of Motor Vehicles of the State of Florida, and the Division of Motor Vehicles of the State of Florida, and Alpine Motors, Inc., a Florida Corporation, Respondents.
    No. FF-223.
    District Court of Appeal of Florida, First District.
    March 28, 1978.
    Franklyn A. Johnson, Jr. of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, and Greenbaum, Wolff & Ernst, New York City, for petitioner.
    Edwin E. Strickland, Gen. Counsel, and Enoch J. Whitney, Asst. Gen. Counsel, for Dept, of Highway Safety and Motor Vehicles, Tallahassee, for respondents.
   SMITH, Judge.

By petition for writ of prohibition, which we treat as a petition for review of preliminary agency action, Section 120.68(1), Florida Statutes (1977), Fiat Motors of North America, Inc., seeks review of an order of the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles in which the Division assumed jurisdiction to determine if Fiat unfairly canceled the dealership franchise of Alpine Motors, Inc. Section 320.641(3), Florida Statutes (1977), provides:

(3) Any motor vehicle dealer whose franchise agreement is discontinued, canceled, or not renewed may, within [90 days before the date of cancellation], file with the [Department of Highway Safety and Motor Vehicles] a verified complaint in triplicate for a determination of unfair discontinuation or cancellation. Agreements and certificates of appointment shall continue in effect until final determination by the department of the issues raised in such complaint by the motor vehicle dealer, and no replacement motor vehicle dealer shall be named for this point or location to engage in business prior to the final adjudication by the department on the discontinuation, cancellation, or failure to renew.

When Fiat notified Alpine, a Fort Laud-erdale dealer, that its dealership would be discontinued in 90 days, Alpine sent an un-sworn letter to the Division asserting that the planned termination was “highly unfair” for stated reasons. Accepting Alpine’s letter in lieu of the verified complaint required by the statute, respondent Calvin, director of the Division, entered an order setting a hearing under Section 320.641(3).

Alpine’s failure to timely file the required verified complaint left the Division without jurisdiction and, upon expiration of the 90-day period for initiating proceedings, without power to acquire jurisdiction. Administrative agencies are creatures of statute and have only such powers as statutes confer. State ex rel. Greenburg v. Florida State Board of Dentistry, 297 So.2d 628, 634 (Fla. 1st DCA 1974), cert. dismissed, 300 So.2d 900 (Fla.1974). It follows that the Division could not dispense with the requirement that proceedings be initiated by a verified complaint.

This is an appropriate case for our intervention to review preliminary agency action. Section 320.641(3) provides that the dealer’s filing of a verified complaint, without more, stays the licensee’s cancellation of a dealer franchise and prevents the granting of another franchise at that location until the merits are determined. The agency’s preliminary action in taking unwarranted jurisdiction therefore has immediate and substantial adverse consequences for the licensee, Fiat, for which review after final agency action will not be an adequate remedy.

The petition for review is GRANTED and the agency proceedings are QUASHED.

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


author: PER CURIAM.

text:
    Robert Clay RICE, Appellant, v. STATE of Florida, Appellee.
    No. GG-218.
    District Court of Appeal of Florida, First District.
    March 28, 1978.
    Carl G. Swanson, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant entered a plea of guilty for the offense of lewd assault on a minor, Section 800.04, Florida Statutes (1975). Appellant was sentenced to two years imprisonment, but the court ordered that the remainder of the sentence should be suspended after appellant served seventy-two (72) days in county jail and appellant was then to be placed on probation for a period of two years. During the period of probation, an affidavit charging a violation of probation was filed. After a hearing on the violation, appellant’s probation was revoked. Appellant was sentenced to ten (10) years imprisonment for the original offense.

The split sentence alternative was approved in State v. Jones, 327 So.2d 18 (Fla.1976). Therein, the court held that upon a violation of probation, the trial court is authorized to impose any sentence which might have been imposed originally. Further, the court held that a defendant must be given credit for the time spent in jail pursuant to the split sentence probation order under 921.161(1), Florida Statutes (1975).

Under State v. Jones, supra, upon revocation of appellant’s probation, the trial court could impose a sentence of ten (10) years. See Section 800.04, 775.082(3)(c), Florida Statutes (1975). However, the court was required to allow appellant credit for the time he served in county jail pursuant to the split sentence. Accordingly, the judgment is affirmed and the cause is remanded with directions to credit appellant with time previously served in jail. Appellant need not be present for this purpose.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    Neil F. LETTS, M. D., Petitioner, v. Charles W. DAVIS, Respondent.
    No. 11-198.
    District Court of Appeal of Florida, First District.
    March 28, 1978.
    Victor M. Halbach, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for petitioner.
    Steven A. Werber and David R. Lewis of Lewis, Paul, Isaac & Castillo, Jacksonville, for respondent.
   PER CURIAM.

The Petitioner seeks Writ of Certiorari to review the order of the Judicial Referee in a claim filed under the Medical Malpractice Reform Act. The Referee’s order terminated the panel by reason of expiration of certain time periods specified by statute. See Section 768.44, Florida Statutes.

The Judicial Referee was correct. The jurisdiction of the Medical Mediation Panel ceased when the case did not proceed within the time the statute mandates. See Rule 20.190, Florida Rules of Mediation Procedure.

There is a point we consider should be mentioned. We note that under the assignment of cases in many circuits, a judge other than the Judicial Referee to whom the case is assigned may undertake to perform acts on behalf of the Judicial Referee. We seriously question, without deciding, the validity of the practice.

CERTIORARI DENIED.

McCORD, C. J., BOYER, J., and McLANE, RALPH M., Associate Judge, concur.


author: PER CURIAM. NATHAN, Judge,

text:
    Mark COOPER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2304.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz and Ronald A. Dion, Asst. Attys. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

The defendant, Mark Cooper, was found guilty after a trial before the court without a jury of malicious destruction of personal property in an amount less than $200, a misdemeanor. He was placed on probation for one year on condition that he pay a fine of $500 and make restitution in the amount of $350. On this appeal, two points are argued: (1) that the trial court erred in refusing to conduct a requested in camera inspection of the statement made by the complaining witness to the state attorney, and (2) that the trial judge erred in making the payment of $350 as restitution a condition of probation. We hold that neither point presents reversible error.

The salient facts are as follows: Cooper was charged by information with having done malicious damage on August 10, 1975, to a Porsche automobile, with damages in excess of $200, a felony. He waived the right to jury trial. His initially retained private counsel withdrew; he was adjudged insolvent, and, on March 23, 1976, the Public Defender was appointed to represent him. A bench trial was held on March 25, 1976, at which time the court found Cooper guilty of malicious destruction of personal property in an amount less than $200, a misdemeanor.

The sole witness to the alleged offense was Cooper’s estranged wife, Melanie. She testified at trial that, having separated from defendant, she had returned to his apartment building on September 4, 1975, to retrieve her clothing and other property. She drove there in a Porsche, which she had borrowed from her first husband, and parked it in the parking lot near the building. She stated that on that date, September 4,1975, she saw the defendant slash the seats and damage the hood of the Porsche with a “Buck” knife which she recognized as his.

On September 24, 1975, pursuant to Fla. R.Crim.P. 3.220(a), defendant’s original counsel made a demand for discovery of any statements made by any persons known to the prosecutor who had information relevant to the offense charged. The record reveals no response by the State. The defendant did not pursue the matter. Prior to trial, the defendant took the deposition of his estranged wife. The record does not reveal the date that the deposition was taken or whether it was ever transcribed. At trial, on March 25, 1976, after the public defender had completed his cross-examination of Mrs. Cooper, he stated that, although he had taken her deposition, he had not yet had an opportunity to have it transcribed, and that she had referred repeatedly to sworn testimony she had given in the State Attorney’s office. He requested an in camera inspection by the court of this missing statement to see whether or not it had impeachment value to the defense. He reiterated that it never had been made available to the defense and that counsel had been appointed only two days previously. He also stated that the defense had exhausted other channels of securing the statement.

When a defendant waits until the middle of a trial to request a statement that he knew to be in existence prior to trial, the trial court will not be held in error for refusing to stop the trial and secure the statement for examination. See Yanetta v. State, 320 So.2d 28 (Fla. 3d DCA 1975); Wilcox v. State, 299 So.2d 48 (Fla. 3d DCA 1974); and Kelsey v. State, 267 So.2d 685 (Fla. 1st DCA 1972). In the present instance, it is clear that the defendant knew of the statement at the time he took Mrs. Cooper’s deposition.

We need not determine whether a defendant could, upon proper motion, have secured the production of this particular statement. The State contends that it must have been the affidavit for the issuance of the information, but that fact does not appear on this record.

Defendant’s second point does not present reversible error. Section 948.-03(l)(g), Florida Statutes (1975), specifically gives the trial court authority to make restitution a condition of probation. This record supports the finding of the trial judge with regard to the reasonable amount necessary for restitution. See Fresneda v. State, 347 So.2d 1021 (Fla.1977).

Affirmed.

NATHAN, Judge,

dissenting.

While I agree that appellant’s second point does not present reversible error, I must respectfully dissent from the view that the trial court did not err in refusing to inspect the pre-trial statement of appellant’s sole accuser.

This case presents a situation in which the sole basis for the court’s judgment must have been the credibility of the witnesses. The only person who said she had seen the alleged crime committed was defendant’s estranged wife. Defendant and two other witnesses, one of whom was his present wife, asserted that he was not even in the area at the time. The police never found the implement allegedly used.

The information, which apparently was based on the data supplied by Ms. Cooper, charged that the alleged offense was committed on August 10, 1975, nearly a month prior to the date she specified at trial. And yet, when defense counsel, who had been appointed only two days prior to trial and had had minimal opportunity for preparation, sought an in camera review of the statement which might provide a documentary basis for impeaching the credibility of appellant’s sole accuser in a situation where the record reveals initial reluctance on the part of the police to make an arrest, the court denied the request and relied instead on the prosecutor to have made a determination the trial judge alone is authorized to make. See Cumbie v. State, 345 So.2d 1061 (Fla.1977); Briskin v. State, 341 So.2d 780 (Fla. 3d DCA 1976).

Fla.R.Crim.P. 3.220(a) obligates the prosecutor to produce such a statement once demanded. Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970); Richardson v. State, 233 So.2d 868 (Fla. 2d DCA 1970). Such demand had been made shortly after the information was filed. The prosecutor never produced the statement. Once the court was made aware of the state’s failure to comply with the requested discovery, it was obligated to make an adequate inquiry into the surrounding circumstances especially in view of the importance of Ms. Cooper’s credibility. Ramirez, supra.

I believe that, at minimum, the defense was entitled to have the court review Ms. Cooper’s pre-trial statement to see whether it had impeachment value, and that the trial judge’s refusal to do so violated the defendant’s right to a fair trial. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Hernandez v. State, 348 So.2d 1224 (Fla. 3d DCA 1977). I would reverse and remand for a new trial.

      . Since no objection was raised at trial to this variance between the allegation and the proof, and the argument was not raised on appeal, I regard this issue as going solely to the impeachment value of the missing testimony.

      . In response to defense counsel’s request for an in camera inspection by the court of the missing statement, the court stated: “I am sure that if there was any Brady material available it would have long since been supplied to the defendant or his counsel. Your request is denied.”
      When defense counsel next asked whether he would also be denied the right to see the arrest warrant and its supporting affidavit, the court replied: “The information reflects that [the State Attorney] has sworn testimony upon which he based the information. There is nothing to show otherwise, so the request is denied.”


text:
    Dale THORPE, Appellant, v. CITY OF MIAMI, Appellee.
    No. 77-65.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Williams, Tomlinson & duFresne, Coral Gables, for appellant.
    George F. Knox, Jr., City Atty. and Sherman Bennett Mayor, Asst. City Atty., for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Hoffkins v. City of Miami, 339 So.2d 1145 (Fla. 3d DCA 1976).


text:
    Sherry McFARLAND, Appellant, v. TRULY NOLEN, INC., et al., Appellees.
    No. 77-310.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.

      Gold & Fox, Coral Gables, for appellant.
    Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Riddle v. Aero Mayflower Transit Co., 73 So.2d 71 (Fla.1954).


text:
    Elizabeth GETTINGER, Appellant, v. AMERICANA HOTEL OF BAL HARBOUR, INC., a Florida Corporation d/b/a Americana Hotel, Consolidated Mutual Insurance Company, a Foreign Insurance Corporation, and American Home Assurance Company, a Foreign Insurance Corporation, Appellees.
    No. 77-388.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Guy B. Bailey, Jr. and William R. Dawes, Miami, for appellant.
    Horton, Perse & Ginsberg, P. J. Carroll & Associates, Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The plaintiff Elizabeth Gettinger appeals a remittitur or new trial order entered by the Circuit Court for the Eleventh Judicial Circuit of Florida in a slip-and-fall, personal injury tort action after the jury had returned $850,000 verdict for the plaintiff against the defendant Americana Hotel of Bal Harbour, Inc. and its insurers Consolidated Mutual Insurance Company and American Home Assurance Company. The plaintiff contends that the jury verdict finding the defendant 100 percent negligent was based upon substantial competent evidence, that the damages awarded were not excessive or unconscionable in view of the plaintiff’s extensive injuries and resultant medical expenses, and that the court erred in entering the order of remittitur or new trial. We entirely agree. Allred v. Chittenden Pool Supply, Inc., 298 So.2d 361 (Fla.1974); Laskey v. Smith, 239 So.2d 13 (Fla.1970); Hanson v. Florida East Coast Railway, 334 So.2d 63 (Fla.3d DCA 1976); Mansell v. Eidge, 179 So.2d 624 (Fla.3d DCA 1965); Clark v. Russo, 133 So.2d 764 (Fla.2d DCA 1961), cert. discharged 147 So.2d 1 (Fla.1962); Mow v. F. P. Sadowski Corp., 122 So.2d 46 (Fla.3d DCA 1960), cert. den. 131 So.2d 3 (Fla.1961). We further find no merit in the defendant’s cross assignments of error and arguments based thereon.

The order appealed from is reversed and the cause remanded to the trial court with directions to enter a judgment for the plaintiff in accordance with the jury verdict.


text:
    Jose SALOMON, Appellant, v. MID-STATES MORTGAGE CORP., a Michigan Corporation, Appellee.
    No. 77-405.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Max A. Goldfarb, Miami, for appellant.
    Krongold & Bass, Miami, for appellee.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   PER CURIAM.

In a suit for specific performance, plaintiff, Jose Salomon, appeals an order of the trial court setting aside a default entered against defendant, Mid-States Mortgage Corporation, and also a summary final judgment entered in favor of Mid-States and against plaintiff.

Review of the record discloses that the trial court did not err in setting aside the default against Mid-States. Heritage Supply Company v. Graham, 334 So.2d 840 (Fla. 1st DCA 1976); Associated Medical Institutions, Inc., v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976). The trial court did, however, err in entering a summary final judgment for Mid-States since there are material issues of fact to be decided by the trier of fact.

Affirmed in part and reversed in part with directions.


author: CHARLES CARROLL, Associate Judge.

text:
    Dr. Nancy T. CLASBY, Appellant, v. The UNIVERSITY OF MIAMI, Appellee.
    No. 77-507.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.

      Pearson & Josefsberg and Bruce S. Ro-gow, Miami, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Charles C. Kline, Miami, for appel-lee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

The appellant, employed by the appellee University of Miami in a teaching capacity, filed this action against the University seeking damages for alleged breach of contract and a mandatory injunction to require the University to award her a tenured contract for the academic year 1974-1975 and to renew same subsequently.

The defendant University answered. Discovery was had. Both parties moved for summary judgment. Plaintiff’s motion was denied. The motion of the defendant University was granted. From the judgment so holding the plaintiff appealed.

The judgment entered by Judge Whit-worth in the circuit court displayed full and thorough consideration of the facts, the contentions of the parties and the applicable law, and in our opinion correctly disposed of the cause. The trial court’s judgment, as set out below, is adopted as the opinion of this court. It was as follows:

“This cause is before the Court on the UNIVERSITY’S Motion for Summary Judgment and Motion to Strike as well as Plaintiff’s Motion for Partial Summary Judgment. After reviewing the file, hearing argument of counsel and being otherwise fully advised in the premises, the Court finds and concludes as follows:

“FINDINGS OF UNDISPUTED FACTS

“1. On July 14, 1972, the UNIVERSITY entered into a written settlement agreement with Plaintiff and her husband, Dr. Eugene Clasby. The agreement compromised a claim of sex discrimination against the UNIVERSITY, which Plaintiff had filed with the United States Department of Health, Education and Welfare.

“2. The settlement agreement gave Plaintiff three years within which to earn tenure at the UNIVERSITY. During each of the three years, Plaintiff was entitled to call for a vote in her department on the question of her tenure in accordance with the normal procedures pertaining to such votes.

“3. The UNIVERSITY agreed that a majority vote in favor of tenure would activate the regular processing of the award of tenure.

“4. The regular processing of the award of tenure at the UNIVERSITY involves the following steps:

(a) First, the tenured members of the candidate’s department vote on the question of the candidate’s tenure.
(b) The Department Chairman reviews the candidate’s qualifications, records his recommendation, and forwards the vote and his recommendation to the Dean of the candidate’s school
(c) The Dean of the school asks for recommendations from the School Review Board, if there is one, makes his own recommendation, and forwards all recommendations to the Dean of the Faculties.
(d) The Dean of the Faculties obtains and records the recommendations of the Academic Personnel Board, records his own recommendations, and forwards all recommendations to the President.
(e) The President records his recommendation and forwards all recommendations to the Trustees along with the candidate’s vitae and statement of qualifications.
(f) The Academic Affairs Committee of the Board of Trustees considers all recommendations, reviews the applicant’s qualifications, and records its recommendation.
(g) The Executive Committee of the Board of Trustees reviews the recommendations and the candidate’s qualifications and makes the final decision to grant or deny tenure.

“5. At the time Plaintiff’s settlement contract was signed, the tenure process differed from that described above only in that’if the Office of the President decided against tenure, the candidate’s application for tenure would not be forwarded to and considered by the Trustees. Instead tenure would be denied by the President.

“6. The standards for evaluating the scholarly and professional qualifications of faculty members are set forth in By-Law V of the UNIVERSITY’S Faculty Charter and By-Laws. Among the standards included in the by-law are the character of the faculty member’s advanced degree; research measured by the publication of books and articles of a scholarly nature; the directing of productive work by advanced students; the receipt of awards and fellowships; memberships on Boards and Commissions devoted to inquiry; and the judgment of professional colleagues.

“7. When the settlement contract was being negotiated, Plaintiff expressed the fear that because of her complaints to the Department of Health, Education and Welfare, the ‘Administration’ of the UNIVERSITY might recommend against tenure and thus prevent her application from ever going to the Trustees for their final consideration. For this reason, the UNIVERSITY agreed to insert in the contract the following clause:

‘The University agrees that the Administration will favorably recommend to the Board of Trustees, any majority vote in favor of tenure, however, nothing contained herein is to be construed as binding the Trustees of the University to vote in favor of tenure.’

“9. [sic] Prior to the signing of the settlement contract by the UNIVERSITY, the Board of Trustees of the UNIVERSITY reviewed and approved said contract.

“10. During the first year of the settlement contract, Plaintiff failed to get a majority vote in favor of tenure.

“11. During the second year of the contract, Plaintiff received a majority vote in favor of tenure in her department (8-5). However, since a non-tenured member of the department participated in the tenure deliberations in violation of UNIVERSITY voting procedures, a second vote was required by the UNIVERSITY. The second vote was eight in favor (including the vote of Plaintiff’s husband) and seven opposed. Following the second vote, the UNIVERSITY activated the regular tenure process which was followed up to the Office of the President and both votes and an explanation therefor were sent to the Trustees.

“12. During the third year of the contract, the Plaintiff received a majority vote in favor of tenure (7-5) and the regular tenure process was again activated and followed up to the Office of the President.

“13. During the second and third years, the regular tenure process resulted in the following recommendations:

Department Chairman — recommended against
Dean of the College of Arts and Sciences — recommended against
Academic Personnel Board — recommended against
Vice President of the University and Dean of the Faculties — recommended in favor
President of the University — recommended in favor

“14. Prior to submitting the results of the tenure process to the Trustees in the second and third years of the contract, Plaintiff was invited to submit any material she wished the Trustees to consider so that they could evaluate her professional qualifications and scholarly accomplishments. In the second year, she submitted a letter complaining about the fact that a second vote on her tenure was required in the English Department. The only material submitted concerning her scholarly qualifications was a vitae listing her professional background, articles she had written, organizational activities, and awards. During the third year of the contract, Plaintiff again submitted her vitae, but nothing more. Plaintiff never submitted or offered to submit any of her publications or scholarly work to the Trustees for their consideration.

“15. During the second and third years of the contract, Plaintiff’s application for tenure, vitae and all of the recommendations obtained during the tenure process were submitted to the Trustees for their consideration. During both of the years, the Trustees voted to deny tenure.

% ?}: sfc * *

“19. Plaintiff did not file any affidavits, depositions or other testimony contradicting the foregoing facts.

“PLAINTIFF’S THEORY OF THE CASE “Plaintiff claims that the clause requiring the ‘Administration’ to favorably recommend to the Trustees any majority vote in favor of tenure required all of the administrators to recommend in favor of tenure. The Plaintiff contends that the Dean of Arts and Sciences and the Academic Personnel Board are Administrators and were therefore required by the contract to recommend in favor of tenure. Since the Dean of Arts and Sciences and the Academic Personnel Board recommended against tenure, Plaintiff argues that the contract was breached. Also, Plaintiff argues that the UNIVERSITY’S explanation to the Trustees that voting irregularities required a second vote in the second year of the contract constitutes a violation of the clause requiring a favorable recommendation to the Trustees. But for these alleged breaches of the contract, Plaintiff claims that the Trustees would have granted her tenure.

“CONCLUSIONS OF LAW

“1. Since there is no conflicting evidence as to the background and setting in which the settlement contract was executed, the interpretation of that contract is a matter of law for this Court to decide. City of Leesburg v. Hall, 96 Fla. 186, 117 So. 840, 841 (1928); Font v. Lazarus Homes Corporation, 339 So.2d 258 (Fla. 3d Dist. 1976); Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th Dist. 1973); Automatic Canteen Co. of America v. Butler, 177 So.2d 712 (Fla. 3d Dist. 1965). “2. Based upon the undisputed facts in this case, the only reasonable interpretation of the clause requiring the ‘Administration’ to favorably recommend any majority vote to the Trustees is that the UNIVERSITY, through the President, should recommend Plaintiff for tenure so that her application could be passed on to the Trustees for their consideration. To interpret the clause in the manner suggested by Plaintiff would be to deny effect to another clause in the contract requiring that Plaintiff’s application should follow the regular processing of the award of tenure. It is undisputed that the regular processing of the award of tenure includes receiving recommendations from mid-level administrators. It would be entirely unreasonable for this Court to interpret a contract which gives Plaintiff three years to earn tenure so as to require the Dean of the college of Arts and Sciences and the Academic Personnel Board to misrepresent to the Trustees their true opinions regarding Plaintiff’s scholarly accomplishments and professional ability. To do so would be to deprive the Trustees of information from persons who normally observe the Plaintiff in her professional environment and who are normally entrusted with the responsibility of making recommendations regarding a candidate’s progress towards tenure.

“3. The UNIVERSITY, having processed Plaintiff’s application in accordance with the normal procedure during the two years in which she received majority votes in her department, and having passed Plaintiff’s application for tenure on to the Trustees with the favorable recommendation of the President, substantially performed all of the obligations required of it by the contract.

“4. As a further basis for its decision, this Court concludes as a matter of law that the negative recommendations complained of by Plaintiff were not the cause of the Trustees’ denial of tenure. All of the Trustees have unequivocally stated that the following factors by themselves would have convinced them to deny tenure.

(1) The substantial split in the vote of the English Department.
(2) The Chairman of the English Department recommended against tenure.
(3) The vitae submitted by Dr. Clasby did not disclose in their judgment any substantial scholarly output in the field American Literature during the years in which she had to earn tenure. of

Plaintiff has not filed any evidence conflicting with the Trustees’ affidavits.

“5. When examining a decision by a private university to deny tenure to a faculty member, this Court’s scope of review is limited to a determination of whether there is substantial evidence in the record to support the decision of the university’s governing body (in this case the Trustees). This Court is not to conduct a review de novo of the tenure decision. Chung v. Park, 514 F.2d 382 (3d Cir. 1975); Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 40 (3d Cir. 1974); Simard v. Board of Education, 473 F.2d 988 (2d Cir. 1973); Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972); Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966). To do so would require this Court to weigh Plaintiff’s qualifications and substitute its judgment for the judgment of the Trustees. This would be contrary to that clause in the contract which states that ‘nothing contained herein is to be construed as binding the Trustees of the University to vote in favor of tenure’ and contrary to the controlling rule of law in this country. Keddie v. Pennsylvania State University, 412 F.Supp. 1264, 1270 (M.D.Pa.1976). Furthermore, Plaintiff apparently does not seek review de novo by this Court since she has stated in her memorandum of law filed with this Court that she did not intend to try the issue of her scholarly ability:

‘Dr. Clasby’s academic credentials are not in issue in this case. We do not intend to turn this trial into a contest over her ability. The issue is whether the Trustees assessed her ability’

The evidence before this Court is unequivocal that the Trustees reviewed and assessed Plaintiff’s scholarly qualifications and professional ability. There is no evidence before this Court that the three factors relied on by the Trustees would not support their decision to deny tenure. It follows then, that the

“6. The pleadings, depositions, answers to interrogatories and affidavits on file show that there is no genuine issue as to any material fact and that the UNIVERSITY is entitled to a judgment as a matter of law. Because of the decision announced herein, there is no need for the Court to rule on the UNIVERSITY’S Motion to Strike. Accordingly, it is

“ORDERED AND ADJUDGED

“That Defendant’s Motion for Summary Judgment be and the same is hereby granted; and Plaintiff’s Motion for Partial Summary Judgment be and the same is hereby denied. This opinion and Order shall be the final judgment of the Court. The Plaintiff shall take nothing by her suit and the Defendant shall go hence without day.”

Upon concluding that the contentions and arguments of the appellant on this appeal are adequately answered adversely to the appellant by the reasoning and decision of the trial court, as above quoted, we find no necessity for further statements thereon. Accordingly, the judgment is affirmed.


text:
    The STATE of Florida, Appellant, v. Eva RAMIREZ and Jesus Torres, Appellees.
    No. 77-1208.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Janet Reno, State’s Atty. and George Volsky and Dennis L. Curran, Asst. State’s Attys. and Howard Blumberg, Legal Intern, for appellant.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for Eva Ramirez.
    Stephen J. Bronis, Sp. Asst. Public Defender, for Jesus Torres.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The State appeals an order entered pursuant to Fla.R.Crim.P. 3.190, reducing the charges against the appellees from murder in the first degree to murder in the second degree. The order is affirmed upon authority of State v. Dixon, 283 So.2d 1 (Fla.1973).

Affirmed.


text:
    J. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1471.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Affirmed on the authority of Doerr v. State, 348 So.2d 938 (Fla. 2d DCA 1977).


text:
    Paulette JONES, a/k/a Bertha Paulette Atkins, a/k/a Paulett Jones, a/k/a Cathy Perters, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-1473, 77-1474 and 77-1476.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Carling H. Stedman and Stephen L. Ras-kin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Croteau v. State, 334 So.2d 577 (Fla.1976); Bernhardt v. State, 288 So.2d 490 (Fla.1974); Wheeler v. State, 344 So.2d 630 (Fla.2d DCA 1977), and Randolph v. State, 292 So.2d 374 (Fla.3d DCA 1974).


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Timothy WISE, Appellee.
    No. 76-1372.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    B. Randall Griffiths, St. Petersburg, for appellee.
   GRIMES, Judge.

The state argues that the court erred in granting a motion to suppress marijuana seized from within appellee’s residence. We agree and reverse.

The evidence presented at the hearing on the motion revealed that several police officers went to appellee’s residence in the evening for the purpose of arresting him pursuant to some warrants. When the police knocked at the front door, the appellee came out the back door. He was apprehended in the yard next door by Officer Carroll. The appellee, who was not wearing a shirt, was handcuffed and led to the front of the house.

According to Carroll, appellee requested permission to return to his home in order to obtain a shirt. When Carroll refused to permit this, appellee asked the officer to go into the front bedroom to get a shirt for him. Carroll agreed to do so. While in the room designated by appellee, Carroll noticed an open paper bag immediately next to the dresser from which he was seeking to obtain the shirt. The bag contained what appeared to him to be several bags of marijuana. Carroll seized this evidence which became the subject of the suppression order entered below. The record does not reflect when, if at all, the appellee was given Miranda warnings.

We note that at this point in the proceedings the state had presented a prima facie showing of a free and voluntary consent for Carroll to enter the residence, and a prima facie showing that the marijuana seized therein was discovered in plain view. One who initiates and invites a search cannot thereafter object to either the search or the seizure of items discovered as a result of the search. State v. Patterson, 252 So.2d 398 (Fla. 2d DCA 1971). The fact that Miranda warnings may not have been given is irrelevant since a warrantless search can be validated by consent despite the lack of warnings. Cockerham v. State, 237 So.2d 32 (Fla. 1st DCA 1970); James v. State, 223 So.2d 52 (Fla. 4th DCA 1969).

The appellee never presented any substantial evidence in support of his motion, but this may have been because he was never called upon to do so. Midway during the interrogation of the appellee’s first witness, the court indicated that appel-lee’s motion to suppress with respect to the marijuana found in the house would be granted. Defense counsel got the message and closed his case in short order. In view of our decision, we believe that fairness dictates that the appellee be given another opportunity to present evidence in support of his motion, after which the trial court can make its ruling on the merits.

The order of suppression is reversed, and the case is remanded for further proceedings consistent with this opinion.

BOARDMAN, C. J., and HOBSON, J., concur.

      . The motion to suppress as it related to a bag of marijuana found on the roof of the neighbor’s house near where appellee was apprehended was denied. This aspect of the court’s order has not been attacked in this appeal.


author: HOBSON, Acting Chief Judge.

text:
    Bradley MOORE and Frederick K. Hunt, Individually and as representatives of a class of lot owners in the Japanese Gardens Mobile Home Estates, Inc., a Mobile Home Park, Appellants, v. JAPANESE GARDENS MOBILE ESTATES, INC., Appellee.
    No. 77-62.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.
    Richard T. Bennison, of MacKenzie, Cas-tagna, Bennison & Gardner, Clearwater, for appellants.
    Ralph C. Dell and Edward 0. Savitz, of Allen, Dell, Frank & Trinkle, Tampa, for appellee.
   HOBSON, Acting Chief Judge.

In our third visit with these interested parties, we find that the record was not sufficient to entitle Japanese Gardens to summary judgment in its favor on the issue of the necessity of all the expenditures for operation and maintenance of the mobile home park. Accordingly, the trial court erred in granting Japanese Gardens summary judgment and fixing the amount of the monthly assessments for the accounting years of 1975 and 1976.

The facts giving rise to this controversy are set forth in the opinion on an appeal in a prior action. A reiteration of the interests of the parties and explanation of events subsequent to that prior appeal will put the controversy into focus.

Japanese Gardens was the developer of the mobile home park and now owns a vast majority of the lots. Apparently Japanese Gardens has little difficulty in selecting the person to act as park manager. (At one time the person selected was an officer of Japanese Gardens.) J. G. Home Sales, Inc. is a mobile home sales business which conducts its business upon the park premises and is owned by the officers and directors of Japanese Gardens. Many of the employees of J. G. Home Sales, Inc. are also employed by the park’s management, including the park’s manager who is a salesman for J. G. Home Sales, Inc.

In 1974, the parties again resorted to the courts to resolve their differences. That action resulted in a final judgment of the circuit court which set the assessments for the years 1969 through 1973. That final judgment also “accepted” certain accounting categories, expenses under which were to form the basis of the succeeding year’s assessments. However, the circuit court expressly preserved the lot owners’ right to challenge “further categories or the amounts under any categories” as “arbitrary or unreasonable.” That final judgment determined that the expenses then listed under these categories were valid and set the assessments accordingly.

Japanese Gardens accounted for expenses under these same categories for succeeding years and set the assessments for the accounting years of 1975 and 1976. These assessments are approximately $3 and $4 (respectively) over the amount previously determined to be valid. The lot owners have consolidated their opposition to these increases and have alleged that the park management has acted in the interests of Japanese Gardens’ leasing operations and of J. G. Home Sales, Inc., rather than in the interests of the lot owners. When the lot owners refused to pay the increase in assessment, Japanese Gardens brought a declaratory action to have their assessments determined to be valid.

In due course, Japanese Gardens filed a motion for summary judgment. The motion was supported by the affidavit of the park manager who outlined his accounting and assessment methods and concluded that “the figures used in arriving at those assessments are actual, are not arbitrary and are not unreasonable.” The lot owners responded by filing an affidavit in opposition to summary judgment. Carefully reading this affidavit, one can discern that appellants were contesting not so much the reasonableness of the amount of these individual expenditures as the necessity of those expenditures for proper park functions. The trial court granted summary judgment in favor of Japanese Gardens and ordered that the assessments were determined at the amount calculated by the manager.

The force of Japanese Gardens’ argument is that since the circuit court had previously “accepted” the accounting categories, appellants are barred from contesting the necessity of expenditures under those categories. This argument is the result of an understandable misinterpretation of the final judgment in the 1974 action and of the prior opinion of this court. In that opinion, this court held that the term “assessment”, as used by the parties, was obviously intended to relate to actual and reasonable expenses. Hence, an expenditure was invalid to the extent that the amount was not actually paid or to the extent that the amount actually paid was unreasonably high. This court went on to recognize that the expenses must be “reasonably necessary and proper for the purpose” for which the park is managed. There were, therefore, two bases upon which the assessments could be challenged: 1) the reasonableness of the amount of the expenditures from which the assessment is derived; and 2) the reasonable necessity of the expenditures to accomplish a legitimate park purpose.

The record offers only little assistance in determining whether in the case at bar there were “genuine” issues involving either disputed facts or conflicting reasonable inferences to be drawn from undisputed facts. The only fruits of discovery incorporated in the record are the manager’s accounting sheets attached as answers to interrogatories. (The record does not contain a copy of the accounting sheets reflecting expenditures previously determined by the circuit court to be reasonable and necessary.) While the manager’s affidavit expresses his opinion that the “figures” (amounts) are actual and reasonable, it nowhere states that all of the expenditures were necessary to the operation and maintenance of the park’s recreational and community facilities. Appellant’s affidavit essentially does not dispute the reasonableness of the amount of the expenditures (with the possible exception of the manager’s salary), but does contest the necessity of these expenditures for proper park purposes. While these allegations in appellant’s affidavit are not supported with facts disclosed by the record, the face of the accounting sheets contains sufficient apparent corroboration of these allegations so as to establish the presence of a genuine issue of material fact regarding the necessity of some of the expenditures. Of course, any doubts regarding the existence of a genuine issue of material fact must be resolved against the moving party. Glens Falls Ins. Co. v. Board of Public Instruction, 213 So.2d 741 (Fla. 1st DCA 1968).

Since the record discloses genuine issues of material fact, final summary judgment was improper. The final summary judgment entered in this action by the trial court below must be, and is hereby,

REVERSED and the case REMANDED.

GRIMES and OTT, JJ., concur.

      . The two prior appeals to this court are: Japanese Gardens Mobile Estates, Inc. v. Hunt, 261 So.2d 193 (Fla. 2d DCA 1972); Japanese Gardens Mobile Estates, Inc. v. Hunt, 294 So.2d 113 (Fla. 2d DCA 1972), cert. denied, 305 So.2d 202 (Fla. 1974).

      . Japanese Gardens Mobile Estates, Inc. v. Hunt, 261 So.2d 193 (Fla. 2d DCA 1972).


text:
    Richard Hagar SILKEY, Appellant, v. STATE of Florida, Appellee.
    No. 77-829.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.

      Michael H. Bloom, Coconut Grove, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged with and convicted of a third degree felony. He was adjudicated guilty and sentenced to five years in prison and also to pay a $5,000 fine. The sentence provided that in lieu of payment of the $5,000 fine, appellant was to serve an additional (sixth) year in prison. This sentence is excessive.

One convicted of a third degree felony may be lawfully sentenced to a maximum of five years in prison, Section 775.082(3)(d), Florida Statutes (1975), and in addition be assessed up to a $5,000 fine, Section 775.-083(l)(c), Florida Statutes (1975). However, the portion of the present sentence requiring appellant to serve a sixth year in prison upon failure to pay the fine is excessive because there exists no statutory authority for the imposition of such a sentence. In order to collect the fine imposed, the state is relegated to those remedies provided by law for the collection of judgments as in other cases.

Accordingly, we hold that that portion of the sentence requiring appellant to serve a sixth year in prison in lieu of payment of the fine is void and is hereby stricken, without the necessity of bringing appellant before the trial court for resentencing. See Chaires v. State, 265 So.2d 529 (Fla. 1st DCA 1972). In all other respects, the judgment and sentence appealed is affirmed.

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.


author: SCHEB, Judge.

text:
    CONTINENTAL DEVELOPMENT CORPORATION OF FLORIDA, a Florida Corporation, Appellant, v. DUVAL TITLE AND ABSTRACT COMPANY, a Florida Corporation, and Herman L. Chandler, Appellees.
    No. 77-1285.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.

      Randall N. Thornton, Lake Panasoffkee, for appellant.
    No appearance for appellees.
   SCHEB, Judge.

This appeal involves an action for slander of title by appellant Continental against appellee Duval, and a counterclaim by Du-val for fees for title services. Judgment was entered in favor of Duval on both causes of action. As to the counterclaim, we hold there was sufficient evidence to support the trial court’s award. As to the slander-of-title claim, we hold that while the trial court committed error by requiring proof that Duval acted with actual malice, this error was harmless. We affirm.

The record reveals that in 1973 Continental borrowed in excess of nine million dollars from Republic Mortgage Investors to finance a condominium project. Early the next year Continental decided to refinance the project with another mortgage company, and contracted with Duval to provide title insurance. Duval subsequently issued a commitment for the insurance.

After Continental’s attempts to refinance came to naught, it informed Duval that it would no longer need the title insurance. Duval then contacted Continental and requested payment of a cancellation fee. When Continental denied that it owed the fee, Duval proceeded to file a claim of mechanic’s lien for “title services” against Continental’s property. As a result, Continental filed suit against Duval for slander of title seeking both compensatory and punitive damages. Duval counterclaimed, seeking payment of a $10,000 cancellation fee for the title insurance commitment it had issued.

The court entered a pretrial order in which it held that Duval had no right to file a mechanic’s lien under Chapter 713, Florida Statutes (1973). The court further held that doing so was not slander per se, and that Continental would have to prove malice on the part of Duval in the filing of the lien to justify recovery of damages.

After a nonjury trial the court found that Continental had not proved the material allegations in its slander-of-title complaint against Duval and entered judgment accordingly. However, the court held that Duval had established a right of recovery on its counterclaim and awarded it $10,000. This appeal by Continental ensued.

DUVAL’S COUNTERCLAIM

At the trial, testimony came principally from George Wayson, president of Continental, and Herman Chandler, executive vice president of Duval. Mr. Chandler testified that he had discussed the procurement of title insurance for the refinancing with Continental’s attorney, Dick Hagin, in February 1974. Chandler said that he and Hagin had agreed that if the refinancing did not go through Duval would be entitled to a $10,000 cancellation fee from Continental. In support of this testimony Duval introduced into evidence a letter from Hag-in to Chandler in which Hagin stated that it was his understanding that there would be a $10,000 cancellation fee should the refinancing not go through.

Mr. Wayson of Continental testified that he knew nothing of any cancellation fee, and that he had not authorized Hagin to agree to one. Continental introduced another letter Hagin had written to Chandler. In the second letter, written a week after the first, Hagin denied that there was any agreement for a cancellation fee.

As is quite obvious, the testimony and other evidence before the trial court was conflicting as to whether the parties agreed to a cancellation fee. Simply stated, we believe the facts as set out above demonstrate that there was sufficient evidence from which the trial court could find that Duval was entitled to the $10,000 cancellation fee. Consequently we must affirm the award to Duval on the basis of the well established principle that when there is competent evidence to support the findings and the judgment of the trial court it is the duty of this court to affirm. Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

CONTINENTAL’S SLANDER-OF-TITLE CLAIM

The remaining question is more troublesome: Did the trial court err in holding that Continental was required to prove that the filing of the lien was done with malice in order to recover damages in a slander-of-title action?

While malice is an element of a cause of action for slander of- title, a plaintiff sustains his burden of proof once he establishes that a defendant has communicated untrue statements to a third person which disparage the plaintiff’s title and cause him actual or special damage. Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965); 50 Am.Jur.2d Libel and Slander Sections 541 and 546 (1970). So, malice can be presumed to exist if a plaintiff establishes these elements of his claim. Gates v. Utsey, supra. From the tenor of the court’s pretrial order it is apparent that the court did not feel that malice could be presumed. However, even if it had realized that malice could be presumed, there would not have been sufficient evidence upon which to do so since Continental did not adequately prove special damages.

A plaintiff must specifically plead special damages. Fla.R.Civ.P. 1.120(g); Augustine v. Southern Bell Telephone & Telegraph Co., 91 So.2d 320 (Fla.1956); Restatement (Second) of Torts, Section 633 (1977). Looking at the complaint we find that Continental alleged that it lost sales, sustained damage to its credit reputation, and incurred attorney’s fees. Consequently, it was entitled to submit evidence of damages on these points. Yet at trial it produced no evidence to demonstrate what, if any, sales were lost or the value of these sales. Moreover, its witnesses ascribed no specific value to the loss of credit reputation and submitted no evidence as to any attorney’s fees incurred as a result of the lien.

The only evidence which Continental did present on damages was a bare statement that it lost the condominium project because of the filing of the lien and that its investment in the project was approximately $100,000. Aside from the fact that Continental did not plead this element of damages, we do not believe that the conclusory statement as to the reason for loss was a sufficient predicate to establish damages without further facts to support that conclusion. So, even if the trial court had applied the proper standard there would have been no basis to have awarded special damages to Continental.

We note in passing, however, that while actual malice is not necessary to recover compensatory damages in a slander-of-title action, a plaintiff always must prove actual malice in order to recover punitive damages. Collier County Publishing Co., Inc. v. Chapman, 318 So.2d 492 (Fla. 2d DCA 1975).

Finally, it follows that since a court may only award special as opposed to general damages in a slander-of-title suit, there would be no basis for an award of nominal damages. Nominal damages are recoverable when there is proof of injury but not of the damages flowing therefrom. Tampa Electric Co. v. Ferguson, 96 Fla. 375, 118 So. 211 (1928). There was no proof of injury here.

To sum it up, there was substantial, competent evidence to support Duval’s counterclaim, and the court’s ruling that Continental was required to prove malice was harmless error.

Affirmed.

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

      . We mention as a caveat that the presumption of malice can be overcome by the showing of privilege. For a good discussion of privilege, see W. Prosser, Law of Torts, Section 122 (2 ed. 1955).

      . See 50 Am.Jur.2d Libel and Slander Section 546 (1970) Annot. 39 A.L.R.2d 840, 855 (1955).


text:
    Everette D. ALDERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1314.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant Alderman pled nolo contendere to the misdemeanor offense of receiving stolen property, reserving the right to appeal the denial of his motion to suppress certain evidence. The trial judge withheld adjudication and placed appellant on probation for one year. This appeal ensued.

The facts leading up to appellant's arrest were these: Four police officers were investigating appellant’s next-door neighbor concerning two stolen motor vehicles. While at the neighbor’s residence, they noticed an automobile with the engine and interior missing parked in appellant’s driveway. Becoming suspicious, Detective Delisle asked appellant if he could check the identification number on the car. Appellant said he was welcome to do so.

Delisle checked the identification plate on the door and discovered that it was attached with pop rivets rather than spot-welded as it should have been. In addition, the portion of the manufacturer’s identification number, which indicates the type of vehicle to which it is attached, did not match the actual model of the car. These circumstances indicated to the officers that the car’s identification number had been altered.

At this point, the officers impounded the car and had it towed to a garage. There the hidden, or confidential, identification number of the vehicle was located. A cheek of this number through the police computer revealed that the automobile had indeed been stolen.

Appellant argues that any evidence derived from the impoundment of the car should have been suppressed because no search warrant was obtained. We do not agree.

The evidence of tampering with the car’s identification plate, which was obtained with appellant’s consent, was clearly sufficient to establish probable cause for the officers to believe that the car had been stolen. In State v. Parnell, 221 So.2d 129, 131 (Fla.1969), Justice Roberts, speaking for the court, said:

It is well settled that when an officer, while engaged in performing his lawful duties, observes contraband items or goods that he has probable cause to believe are stolen, such goods may be seized without a search warrant and are admissible in evidence.

See also State v. Ashby, 245 So.2d 225 (Fla.1971). We think these cases control the instant case and demonstrate that the trial court did not err in refusing to suppress the evidence against appellant.

Appellant also complains that the trial court could not have legally placed him on probation for one year. We agree. Although the state charged appellant with the felony offense of receiving stolen property, appellant was allowed, as a result of a plea bargain, to plead nolo contendere to the second-degree misdemeanor under Section 812.031(3), Florida Statutes (1975). The maximum term of imprisonment for a second-degree misdemeanor is sixty days. Section 775.082(4)(b), Florida Statutes (1975). And while probation cannot normally be extended beyond the maximum permissible sentence, the statute does permit the court to place a defendant on probation for six months in a misdemeanor case. Section 948.04, Florida Statutes (1975); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976). It follows that appellant’s probationary period was in excess of the maximum provided by law.

Accordingly, the order withholding adjudication of guilt and placing appellant on probation is affirmed, but the cause is remanded for modification of the term of probation consistent with this opinion.

BOARDMAN, C. J., and DANAHY, J., concur.


text:
    Dorothy KING, Appellant, v. Cecil SAUCIER et al., Appellees.
    No. 77-1405.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.
    Thomas Montgomery, Belle Glade, for appellant.
    Neal J. Dunn, Clewiston, for appellee Saucier.
    George L. Harrell, II, of Luckey & Harrell, LaBelle, for appellee Conklin.
   PER CURIAM.

In this action for conversion, the trial judge granted a motion for a directed verdict in favor of the appellees/defendants, finding, as a matter of law, that appellant/plaintiff had failed to establish any damages. We agree with appellant, plaintiff below, that the trial judge erred in so ruling and we reverse.

At trial, the appellant’s evidence established that appellee Saucier hired appellee Conklin to tow appellant’s car away from her place of employment and that Conklin did so. Saucier admitted hiring Conklin, but claimed that he had a lien on appellant’s car because he had done repair work on it and appellant had not paid him. Appellant, however, claimed that she had paid Saucier for the repair work.

After appellant rested her case, appellees moved for a directed verdict, arguing, as they argue here, that appellant had not presented sufficient evidence to prove compensatory or punitive damages. The trial court agreed with them and granted their motion.

In the posture this case arrives here, we find it unnecessary to reach the question whether appellant did establish compensatory or punitive damages because we hold that, on the evidence presented in her ease in chief, appellant was entitled to at least nominal damages. Although we have found no cases in Florida which deal with the question of nominal damages in a conversion suit, it is clear the general rule in this state is that where a plaintiff shows the invasion of a legal right, he may recover at least nominal damages. Hutchinson v. Tompkins, 259 So.2d 129 (Fla.1972); Cason v. Baskin, 159 Fla. 31, 30 So.2d 635 (1947); Tampa Electric Co v. Ferguson, 96 Fla. 375, 118 So. 211 (1928). Moreover, courts in other states have specifically ruled that nominal damages are available in actions for conversion. Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 197 A.2d 721 (1964); MacGregor v. Watts, 254 App. Div. 904, 5 N.Y.S.2d 525 (1938); 18 Am. Jur.2d Conversion Section 93 (1965).

In looking at appellant’s case, we believe that the evidence was such that a jury could have found an invasion of appellant’s rights by conversion which could serve as the basis for an award of nominal damages. Conversion is defined as a wrongful taking of personal property with intent to exercise an ownership which is inconsistent with the real owner’s right of possession. Wilson Cypress Co. v. Logan, 120 Fla. 124, 162 So. 489 (1935). In the case at bar, if the jury believed appellant’s testimony, it could find that there was such a taking and, therefore an invasion of appellant’s rights. Consequently, it was error for the trial judge to keep this case from the jury as he did when he directed a verdict for appellees.

Accordingly, we reverse the judgment of the lower court and remand the ease for a new trial on all issues.

GRIMES’, A. C. J., and SCHEB and DAN-AHY, JJ., concur.


author: BOARDMAN, Chief Judge.

text:
    Ricky D. FRANKLIN, a minor, by and through his mother and next friend, Annie Baxter, Petitioner, v. DISTRICT SCHOOL BOARD OF HENDRY COUNTY, Florida, Respondent.
    No. 77-1888.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.

      Robert J. Shapiro, Florida Rural Legal Services, Inc., Belle Glade, for petitioner.
    Owen L. Luckey, Jr. of Luckey & Harrell, Labelle, for respondent.
   BOARDMAN, Chief Judge.

Petitioner, Ricky Franklin, petitions for writ of certiorari to review his expulsion from high school by respondent, District School Board of Hendry County. He contends that all of the evidence both written and oral upon which the order of expulsion was based was hearsay and, therefore, insufficient to support the school board’s action. We agree and reverse.

The evidence tending to show petitioner’s guilt of the two acts upon which his expulsion was based consisted only of affidavits of the alleged student/victim and the testimony of the school principal and vice principal concerning what this student told them. No witness to the acts concerned testified nor did petitioner admit having committed either of the acts.

School expulsion proceedings are governed by Section 120.57, Florida Statutes (1975). See Section 230.23(6)(c), Florida Statutes (Supp.1976). Section 120.58, applicable to proceedings under Section 120.57, provides in pertinent part: “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” Clearly, all of the evidence introduced against petitioner constituted hearsay inadmissible over objection in a civil action. Accordingly, we must conclude that while admissible at the expulsion hearing, the hearsay standing alone was insufficient evidence upon which to predicate the order expelling petitioner.

REVERSED and REMANDED for further proceedings consistent with this opinion.

OTT and RYDER, JJ., concur.


text:
    Gary Cicero VICK, Appellant, v. STATE of Florida, Appellee.
    No. EE-98.
    District Court of Appeal of Florida, First District.
    March 30, 1978.
    Michael J. Minerva, Public Defender, Janice G. Scott and Theodore E. Mack, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The record and briefs in this cause have been carefully reviewed. The appellant has failed to demonstrate reversible error and, therefore, the judgment and sentence appealed from are AFFIRMED.

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


text:
    COUNTY OF VOLUSIA, Appellant, v. CITY OF DAYTONA BEACH SHORES, a municipality under the Laws of the State of Florida, Appellee.
    No. HH-258.
    District Court of Appeal of Florida, First District.
    March 31, 1978.

      Warren 0. Tiller and William K. Howell, Jr., DeLand, Sam Spector and Guyte P. McCord, III, of Spector & Tunnicliff, Tallahassee, for appellant.
    Leon G. van Wert of van Wert, Heebner & Kennedy, S. LaRue Williams of Kinsey, Vincent, Pyle & Williams, Daytona Beach, for appellee.
   PER CURIAM.

Volusia County’s charter being silent as to whether the county has an exclusive means of annexation, the lower court’s judgment approving annexation is affirmed. Section 171.044(4), Florida Statutes (1975).

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    William L. NICHOLS, Appellant, v. STATE of Florida, and One (1) 1970 Tan Ford Van V.I.N. E 32GHH73258, Appellees.
    No. 77-1318.
    District Court of Appeal of Florida, Second District.
    March 31, 1978.
    Robert G. Jacobson, of Farr, Farr, Hay-mans, Moseley & Odom, Port Charlotte, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellees.
   SCHEB, Judge.

Appellant Nichols challenges the trial court’s order forfeiting his motor vehicle to the state under Section 943.43, Florida Statutes (1975). Since there was no showing of any nexus between the controlled substance found in the vehicle and any illegal drug operation, we hold the forfeiture was improper. We reverse.

Two deputies from the Charlotte County Sheriff’s Department stopped Nichols while he was driving his van on March 9, 1977. The deputies had received a tip from a confidential informant that there was marijuana in the vehicle. On this basis they searched the vehicle and found a small quantity of marijuana. As a result Nichols was charged with felonious possession of a controlled substance and the van was impounded pursuant to the “Florida Uniform Contraband and Transportation Act,” Sections 943.41 through 943.44, Florida Statutes (1975).

Nichols pled nolo contendere to the charge against him, and the court withheld adjudication and placed him on probation. Thereafter, the state petitioned the trial court for an order forfeiting the van to the state. After an evidentiary hearing, the trial court on July 6, 1977, granted the state’s petition and ordered the van forfeited for the use of, or sale by, the Charlotte County Sheriff’s Department. From the order of forfeiture this appeal ensued.

The state correctly points out that Section 943.42, Florida Statutes (1975), makes it unlawful to transport, conceal, or possess any contraband article in or upon a motor vehicle; and that Section 943.43 provides that any motor vehicle used in violation of the preceding section shall be seized and may be forfeited under the procedures outlined in Section 943.44. Thus, from a literal reading of the statutes it may appear the trial court could have ordered Nichols’ vehicle forfeited. The teaching of the Supreme Court of Florida in a very recent opinion, however, demonstrates that such an approach is superficial. In Griffis v. State, 356 So.2d 297 (Fla.1978), Case No. 51,011, opinion filed March 2, 1978, the supreme court traced the legislative history and intent of Sections 943.41 through 943.44. The court noted that the provisions are substantially identical to those in 49 U.S.C. Sections 781 and 782. Further, the court pointed out that the legislature’s purpose in enacting these sections was to conform Florida’s forfeiture statutes to their federal counterparts, which authorize forfeiture only when the vehicle is engaged in drug trafficking. Justice Karl, speaking for the court, then explained:

We must also conclude that it was not the legislative intent in enacting Chapter 73-331, Section 12, Laws of Florida [now Sections 943.41-943.44], to authorize vehicle forfeiture as an instrument to punish citizens for mere possession of controlled substances in a vehicle. Although this construction may conflict with a literal reading of Sections 943.41 through 943.44, Florida Statutes (1975), an interpretation allowing forfeiture for mere possession of a controlled substance does violence to the expressed intent of the Legislature.

Griffis v. State, Case No. 51,011, 356 So.2d 297 at 301 (emphasis supplied).

The trial judge applied the forfeiture statutes in a literal manner and ordered forfeiture because a small amount of marijuana was found in the vehicle while Nichols was legally in charge of it. Since, however, the evidence before the trial court did not reveal any nexus between the controlled substance found in the van and any illegal drug operation, this appeal is directly controlled by the supreme court’s opinion in Griffis v. State, supra. Accordingly, the order of the trial court must' be and is hereby vacated.

Reversed.

GRIMES, A. C. J., and OTT, J., concur.

      . Two recent district court of appeal decisions have indicated that forfeiture is a drastic remedy that should be applied only to those persons “significantly involved in a criminal enterprise.” In re Forfeiture of 1969 Camaro, 334 So.2d 82, 83 (Fla. 3d DCA ), cert. den. 342 So.2d 1103 (Fla.1976); In re Forfeiture of 1972 Porsche, 307 So.2d 451, 452 (Fla. 3d DCA 1975). However, the supreme court did not address this subject definitively until Griffis v. State. In fairness to the trial court we note that it did not have the benefit of the Griffis opinion when it entered its order of forfeiture.


text:
    Joey B. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1906.
    District Court of Appeal of Florida, Second District.
    March 31, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephannie L. DaCosta, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Martha J. Cook, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s probation supervisor filed an affidavit charging appellant with violating conditions (2) and (4) of his probation. At the hearing on the affidavit, the trial court found that appellant had violated condition (4) of his probation and revoked the probation. We affirm that revocation, but we agree with appellant that there are imperfections in the order revoking probation and in the subsequent sentence.

In the first place, owing to an apparent clerical error, the order revoking probation recites that appellant violated not only condition (4) but also condition (2). Since at the hearing the court only found that appellant had violated condition (4), it should now remove any reference to condition (2) from its order.

The phrase “at hard labor” in the present sentence is improper. Molina v. State, 349 So.2d 844 (Fla. 2d DCA 1977).

We remand the case for the court to make the corrections which this opinion mandates, and appellant need not be present at that time.

OTT, A. C. J., and RYDER and DAN-AHY, JJ., concur.