text:
    THE FLORIDA BAR, Complainant, v. Kenneth M. ABAGIS, Respondent.
    No. 46790.
    Supreme Court of Florida.
    Feb. 4, 1976.
    Charles S. Williams, Jr., Pensacola, Bar Counsel, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for complainant.
    Kenneth M. Abagis, in pro. per.
   PER CURIAM.

In this disciplinary proceeding, the Court published an opinion on June 4, 1975, providing :

“Having heard oral argument, carefully reviewed the record and briefs, we approve the findings and recommendation of the Referee with the following modification to recommendation (4) relative to the four-month suspension: Respondent is suspended for four months and thereafter until he shall have convinced the Chief Judge of the First Judicial Circuit that he has read in depth with understanding the Code of Professional Responsibility and the Chief Judge has certified the same to us.
“Execution is directed to issue for the costs of the proceedings against Respondent in the amount of $253.00.”

Thereafter, on December 12, 1975, The Florida Bar by petition for contempt informed the Court that Respondent has not complied with Integration Rule 11.-10(6) , which requires him to advise his clients of his suspension and furnish staff counsel with a list of those clients so informed within thirty days of the Court’s order. The petition further alleges that he has persisted in his failure to comply with the Rule despite Bar’s two written requests. Further, the Court is informed that on September 25, 1975, Honorable Woodrow M. Melvin, Chief Judge of the First Judicial Circuit, forwarded a sworn statement of one Jessie Clay relating to Mr. Clay’s contacts with Respondent subsequent to the effective date of his suspension.

The matter now recurs on the petition for rule to show cause, directed to Respondent, why he should not be held in contempt, the rule nisi, and the answer thereto, in which, among other things, the Respondent requested that he be allowed until February 10, 1976, to forward the notices and make the required certificate.

The answer by the Respondent is insufficient to relieve him of the responsibility to comply with the Court’s decision of June 4, 1975, and Integration Rule 11.-10(6), and the Court holds that Respondent has now had adequate time to comply with the order.

Therefore, it is ordered and adjudged that the Respondent Abagis has failed to comply with this Court’s suspension order and with Integration Rule 11.-10(6), and we hereby adjudicate him to be in contempt of this Court for such failure.

We now reconsider the disciplinary portion of our initial suspension order because of the contemptuous conduct of the Respondent and supplement its provisions by suspending Respondent Abagis from the practice of law for one year from the date of this opinion and thereafter until he shall prove his rehabilitation in reinstatement proceedings. Provided, however, that if the Respondent has complied with Integration Rule 11.10(6), supra, on or before March 1, 1976, and has provided proof of such compliance with this Court, then and in that event, the suspension shall stand reduced from one year to four months from the date of the publication of this decision, and thereafter until he shall prove his rehabilitation in reinstatement proceedings. We further direct that' a copy of this opinion be personally served on the Respondent by an officer authorized by law to serve process.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND and HATCHETT, JJ., concur.

      . Integration Rule 11.10(6), Notice to Clients. “Upon service on the respondent of an order of disbarment, suspension, temporary suspension or placement on the inactive list the respondent shall, unless this requirement is waived or modified in the Court’s order, forthwith furnish a copy of the order to all of his clients with matters pending in the respondent’s practice and within 30 days after service of the order the respondent shall furnish Staff Counsel of The Florida Bar a sworn affidavit listing the names and addresses of all clients who have been furnished copies of the order.”


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    James Allen HULTS, Petitioner, v. STATE of Florida, Respondent.
    No. 47054.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Jack O. Johnson, Public Defender and Steven H. Denman and Harold H. Moore, Asst. Public Defenders, for. petitioner. «
    Robert L. Shevin, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., for respondent.
   OVERTON, Justice.

This cause is before us on a petition for writ of certiorari to review a decision of the Second District Court of Appeal reported at 307 So.2d 489 (Fla.App.2nd, 1975). That decision held illegal a sentence placing petitioner on probation after completion of a prison term where the probationary period did not fall within a stayed period of imprisonment. As such, it conflicts with our recent decision in State v. Jones, 327 So.2d 18 (Fla.1976) ,

The petition for writ of certiorari is granted. We dispense with oral argument and the filing of briefs on the merits. The decision of the District Court is quashed, and the cause is remanded with instructions to reinstate the split sentence probation imposed by the trial judge. State v. Jones, supra.

It is so ordered.

ADKINS, C. J., and ROBERTS and ENGLAND, JJ., concur.

BOYD, J., dissents.

      . We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.


text:
    STATE of Florida, Petitioner, v. Ignacio Frank AVILA, Respondent.
    No. 46930.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for petitioner.
    Phillip A. Hubbart, Public Defender, and Kathleen Gallagher, Miami, Asst. Public Defender, for respondent.
   OVERTON, Justice.

This is a petition for writ of certiorari to review a decision of the Third District Court of Appeal reported at 306 So.2d 550 (Fla.App.3rd, 1975). The District Court held a sentence of forty days in the county jail followed by five years probation to be a nullity insofar as the probation period was concerned. The trial judge found the defendant guilty of violating the probation and imposed a sentence of five years. The District Court directed the defendant be discharged.

The decision of the District Court is in conflict with our recent decision in State v. Jones, 327 So.2d 18 (Fla.1976). We have jurisdiction.

The petition for certiorari is granted. We dispense with oral argument and the filing of briefs on the merits. The decision of the District Court is quashed, and this cause is remanded with directions to reinstate the sentence imposed for violation of said probation in accordance with our opinion in State v. Jones, supra.

It is so ordered.

ADKINS, C. J., and ROBERTS and ENGLAND, JJ., concur.

BOYD, J., dissents.

      . Art. V, § 3(b)(3), Fla.Const.


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re Boris SPASEFF.
    No. 48319.
    Supreme Court of Florida.
    Feb. 18, 1976.
    Gilbert Jackson Hardy, Jr., Miami, Bar Counsel, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for The Florida Bar, respondent.
   PER CURIAM.

This case is here on Petition for Leave to Resign from The Florida Bar. The Florida Bar filed its Response to the petition and recommended that this Court approve petitioner’s resignation, submitting:

The disciplinary proceeding pending against petitioner (which resulted in his petition to resign), Case No. 11175-3, concerns his misappropriation of $23,446 in trust funds which belonged to his former client, Stanley Constantini. After Stanley Constantini’s death, petitioner did not disburse these trust funds to his client’s estate. This case will be dismissed if petitioner’s resignation is approved. Mrs. Constantini, Stanley Con-stantini’s widow, has applied to the Clients’ Security Fund for reimbursement of the $23,446 that petitioner wrongfully withheld.

There are presently four grievance committee cases pending against petitioner, all of which will be dismissed if his resignation is approved. The cases are:

a. 11176-2 (Barkett) Misappropriation of $10,000 in trust funds belonging to Mr. Barkett that petitioner obtained in a real estate transaction. Mr. Barkett has filed a Clients’ Security Fund claim for this amount.
b. 11176-6 (Barnette) Misappropriation of $7,000 in trust funds belonging to Mr. Barnette that petitioner obtained in a real estate transaction. Mr. Barnette has filed no claim with the Client’s Security Fund for this amount although it is anticipated that he will do so.
c. 11167-7 (Schwandt, Seibert and LeCompte) Misappropriation of a total of approximately $7,700 in trust funds belonging to the three complainants which petitioner obtained as a result of a real estate transaction. All three complainants have filed separate Clients’ Security Fund claims for their respective shares of the $7,700;
d. 11176-11 (The Florida Bar) File opened to look into the details of the revocation of petitioner’s real estate license.
In addition to the grievance cases, there are five Clients’ Security Fund claims pending as a result of his misconduct. These claims total almost $31,000 and stem from the grievances filed against petitioner. In addition to the five claims pending, it is anticipated that Mr. Bar-nette (11176-6) will file a claim against the fund for $7,500.

It is ordered by the Court that the Petition for Leave to Resign is hereby accepted in lieu of disciplinary proceedings; that petitioner is required to prove rehabilitation before reinstatement; that petitioner, as he contends in his petition, shall not petition for reinstatement with The Florida Bar for a period of three years and until reimbursement to either the client or the Client’s Security Fund of all misappropriated trust funds; and that this order shall be published in the Southern Reporter.

Costs in the amount of Two Hundred Forty Nine Dollars and Ninety-Five Cents ($249.95) are hereby taxed against the Respondent.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND, SUND-BERG and HATCHETT, JJ., concur.


author: SUNDBERG, Justice: ENGLAND, Justice

text:
    LAKE REGION PACKING ASSOCIATION, INC., et al., Petitioners, v. Flora Flynn FURZE, for herself and as guardian ad litem for Mary Lewis and Alice Ellingson, etc., et al., Respondents.
    No. 47410.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Rehearing Denied March 31, 1976.

      Christopher C. Ford, Ford, Cauthen & Robuck, Tavares, for petitioners.
    Robert E. Austin, Jr., Davis, McLin, Burnsed, Austin & Cyrus, and Henry L. Pringle, Leesburg, for respondents.
    John A. Sutton and Peter N. Smith, Sutton, Wright & Smith, Orlando, and Jerome P. Weiss, Hamel, Park, McCabe & Saunders, Washington, D. C., for Winter Garden Citrus Growers Association, amicus curiae.
   SUNDBERG, Justice:

This case comes to us by virtue of the jurisdiction vested in this Court pursuant to Article V, § 3(b)(3), Florida Constitution, by writ of certiorari to the District Court of Appeal of Florida, Second District. In its opinion in the case at bar the District Court concluded with this statement :

“Now, because this appears to be a case of first impression and one which may have considerable impact on Florida agriculture generally, and upon the citrus industry in particular, we consider it appropriate to say, and do hereby certify, that we this day pass upon a question of great public interest.” Furze v. Lake Region Packing Association, Inc., 311 So.2d 183, 188 (2d D.C.A. Fla.1975)

The District Court of Appeal not having set forth the question it so certified as being of great public interest, such question has been variously stated for the Court by the parties as follows:

“WHERE THERE IS NO ABUSE OF DISCRETION BY THE BOARD OF DIRECTORS OF A CITRUS COOPERATIVE, SHALL THEY BE REQUIRED BY THE COURT TO REVOLVE PATRON’S CAPITAL CONTRIBUTIONS (RETAINS) ?” (Petitioners’ statement of the question)
“NOTWITHSTANDING A FINDING THAT THE BOARD OF DIRECTORS OF AN AGRICULTURAL COOPERATIVE ASSOCIATION DID NOT ABUSE ITS DISCRETION IN CONTINUALLY REFUSING TO PAY TO FORMER MEMBER-PATRONS SUMS OF MONEY WITHHELD FROM SALES OF THEIR CITRUS FRUIT AND RETAINED BY THE ASSOCIATION, WHEN NO SUMS WERE BEING WITHHELD FROM SALES OF CITRUS FRUIT OF CURRENT MEMBER-PATRONS, CAN .OTHER PRINCIPLES, i.e., EQUITY, BE APPLIED AND PROVIDE THE BASIS FOR A REQUIREMENT THAT THE DIRECTORS ADOPT A DEFINITE PLAN WHEREBY THOSE FORMER MEMBER-PATRONS WILL ULTIMATELY BE PAID THE SUMS WITHHELD.” (Respondents’ statement of the question)
“ABSENT A FINDING OF IMPROPRIETY ON THE PART OF THE BOARD OF DIRECTORS OF AN AGRICULTURAL COOPERATIVE CORPORATION IS THE COURT JUSTIFIED IN MANDATING THE REPAYMENT OF RETAINS OF FORMER MEMBERS ?” (Amicus curiae’s statement of the question)

In the absence of certification by the District Court of Appeal and after carefully reviewing its opinion, we deem the question certified to be as follows:

WHERE THE ARTICLES OF INCORPORATION AND BYLAWS OF AN AGRICULTURAL COOPERATIVE FORMED UNDER THE LAWS OF THE STATE OF FLORIDA PROVIDE FOR DISTRIBUTION OF RETAINED, EXCESS RESERVES TO FORMER MEMBERS ONLY AT THE DISCRETION OF THE BOARD OF DIRECTORS OF SUCH ASSOCIATION MAY A COURT OF COMPETENT JURISDICTION INTERVENE TO CAUSE SUCH DISTRIBUTION IN THE ABSENCE OF A SHOWING OF ABUSE OF DISCRETION, FRAUD, BREACH OF TRUST OR ILLEGALITY ON THE PART OF SUCH DIRECTORS?

We answer the certified question as so framed in the negative.

The factual background and posture of the case as presented to the District Court of Appeal, Second District, is as set forth by Chief Judge McNulty in the opinion and we quote:

“As a tax exempt cooperative, appellee [petitioner herein], Lake Region markets the citrus produce of its patrons for a charge, remitting the proceeds from fruit sales to the respective growers.
“Appellants [respondents herein], who are non-current, former members of the cooperative, brought this class action seeking sums concededly withheld from them by the cooperative in a reserve account.. Concluding that the time for repayment was to be determined by the directors’ business judgment, the trial court found neither an abuse of discretion nor breach of trust in the directors’ refusal presently to repay the accounts. We agree; but we must ultimately remand for further consideration as will more fully hereinafter appear.
“At the outset, however, an overview of the problem herein is almost essential to an understanding of our conclusions herein. We comment first on the pertinent cooperative function. While a cooperative form of organization provides advantages unavailable to the independent producer, it requires working capital and sufficient reserves to offset losses due to freezes or other contingencies. To establish such reserves a cooperative might either borrow money from outside sources (debt financing) or retain sums from members and patrons in order to accumulate working capital and reserves over a period of time (equity financing).
“In the case befóte us; since at least 1925 Lake Region has pursued the latter course and has charged its patrons such a fee, in addition to costs, in order to do so. Earnings withheld by the cooperative as contributions to its reserve account were recorded as non-cash ‘allocations’ to member and patron accounts. At the beginning of each fiscal year the board of directors set charges for the various services it was to perform for members and patrons during the coming year. At the end of that fiscal year net margins or net losses were determined by subtracting operating and other costs from the income received from charges. The difference was added to or subtracted from each member or patron’s allocated reserve acccount in an amount proportionate to his transactions with the cooperative during that year. Although no definite schedule was followed, excessive reserves were used to redeem the earliest unrefunded allocations on approximately a ten to twelve year cycle. The directors on these occasions of redemption, pursuant to their duties as set forth in the by-laws, ‘declared’ such excess.
“A 1962 amendment to the internal revenue code, however, has caused considerable change in the cooperative’s practice. As a consequence thereof, patrons’ contributions to reserves since 1963 have designedly totaled less than the cooperative’s net margins, and, with equal design, no contributions have been made since 1968. Moreover, no reserve allocations have been redeemed since 1963 and several letters by the president (now chairman of the board) clearly indicated that, until changed, the tax ramifications of the amendment would preclude repayment.”

In amplification of the facts set forth by Chief Judge McNulty, we have also considered the fact that Mary E. Lewis and her husband became members of the petitioner association in 1953 at which time they entered into a “Member’s Uniform Marketing and Production Agreement”. They withdrew -in 1957. The Member’s Uniform Marketing and Production Agreement incorporated by reference the bylaws and all amendments thereto of the Association, making the same binding upon the parties to the Agreement. We also deem it important to our decision herein to recite the pertinent provisions of Article II of the Amended Articles of Incorporation of Lake Region Packing Association, Inc., setting forth the purposes for which the corporation was organized:

“The purposes for which this corporation is organized are to engage in any activity in connection with the producing, marketing, selling, preserving, growing, harvesting, processing, canning, packing, grading, warehousing, storing, handling, shipping, or utilizing of citrus fruit; or in the manufacturing or marketing of the by-products thereof; or in connection with any of the activities mentioned herein, in the manufacturing, purchasing, selling, hiring, or using of supplies, machinery, or equipment; or in the financing of any of the above activities; or in performing business or educational service on a cooperative basis for those engaged in agriculture as bona fide producers of citrus fruit; or in any one or more of the activities specified herein . . .” (Emphasis supplied)

We believe the District Court to have been eminently correct in that portion of its opinion which concluded, based on the authorities therein cited, that judicial review of a cooperative’s refusal to redeem would be available if the directors’ refusal to repay constituted an abuse of discretion, a breach of trust or was based upon fraud, illegality or inequity. However, in the absence of any such impropriety, the decisions to date indicate that repayment rights do not vest until dissolution unless applicable bylaw provisions require earlier repayment. The District Court agreed with the trial court that no such abuse, impropriety or bylaw provision was demonstrated on the record in this case. Notwithstanding such conclusion the District Court then embarked upon general principles of equity to require the parties to agree upon some plan of scheduled repayment and if they were unsuccessful in this endeavor, the court reposed in the trial judge the obligation to formulate such a schedule. No authority for such procedure was cited and, in fact, the authorities cited by the District Court of Appeal expressly reject judicial intervention into such management decisions where no impropriety on the part of management is shown. In Florida, corporate directors generally have wide discretion in the performance of their duties and a court of equity will not attempt to pass upon questions of the mere exercise of business judgment, which is vested by law in the governing body of the corporation. Orlando Orange Groves v. Hale, 119 Fla. 159, 161 So. 284 (1935).

The special concurring opinion of Judge Grimes would tend facially to support the remand to the trial court, under the procedures outlined, on the theory that former tax treatment of such reserves under the Internal Revenue Code defined the obligation of the Cooperative to withdrawn members as a debt obligation, thereby supplying a legally enforceable duty upon the directors to commence some schedule of immediate repayment. There are two problems with this analysis, however. First, while the cases cited in Judge Grimes’ special concurring opinion generally stand for the proposition that patronage refunds were not taxable to the Association in that they were essentially “pass through” items prior to 1962, the Tax Court of the United States has held that amounts of income retained by a fruit growers’ exempt cooperative were not taxable as income to members in the year such sums were reserved and fund certificates issued. Carpenter v. Commissioner of Internal Revenue, 20 T.C. 603 (1953); aff'd, 219 F.2d 635 (5th Cir. 1955). In that case income was allocated by the cooperative, at the sole discretion of the directors, for reserve purposes and was evidenced by revolving fund certificates issued to members without interest. Such certificates were redeemable only at the discretion of the directors with the approval of the cooperative’s mortgagee, were junior to all of the debts of the cooperative, and had no market value. The court determined that although carried as an obligation to pay on the books of the agricultural cooperative, allocated retains were too indefinite in nature in the hands of a patron to have any market value subject to taxation. This is undoubtedly so because such retains (i) bear no interest, (ii) have no market value, (iii) can be transferred only with the consent of the cooperative, (iv) have no due date, (v) were at all times subject to depletion or complete elimination as a result of the exigencies of business, (vi) were, even upon dissolution, inferior to all other obligations of the cooperative, and (vii) were redeemable only at the discretion of the directors or upon dissolution. The second problem with such an analysis is that the characterization for Federal income tax purposes cannot be said to control the substantive character of a matter. For example, the tax treatment afforded to certain corporations under Subchapter S of the Internal Revenue Code does not make the business organization any less a corporation for purposes of state law, nor does the “fast write-off” provisions of the Internal Revenue Code and regulations with respect to deductions for depreciation determine the true useful life for valuation of depreciable assets.

Were it necessary to characterize allocated retains as “debt” or “equity”, we believe their characteristics more nearly resemble equity than debt. However, we do not deem it necessary to categorize retained reserves as either equity or debt since their treatment is defined by the bylaws of the cooperative in force at the time sums were retained from respondents. The agreement under which respondents undertook to participate in the cooperative effort of the association through incorporation of the bylaws by reference clearly spelled out the. circumstances under which amounts would be retained for reserves and the method for distribution of such amounts. The fact that it had been the prior practice of the Association to revolve such retained reserves is not controlling in that the change in the tax law in 1962 provided a sufficient business judgment justification for the directors to discontinue the practice of revolving reserves as it had theretofore existed.

That does not mean that a forfeiture is worked upon the respondents or that recourse to the courts is foreclosed to them. Clearly, upon a dissolution of the association, respondents will be entitled to their proportionate share of any then-existing reserves after payment of all other superi- or obligations of the Association. In addition, at any point in time at which respondents can demonstrate that the directors of the Association abuse their discretion or breach their trust by establishing charges to the producers at an inordinately low rate in relationship to the competitive market, by permitting the accumulation of excessive reserves, or by any other conduct, respondents have recourse to the courts under the principles expressed in the cases herein cited governing the conduct of directors.

We believe this result not only comports with the existing law on the subject, but also fulfills the intent and purposes of an agricultural cooperative as expressed in the Amended Articles of Incorportion heretofore quoted. The plain purpose of agricultural cooperative associations is to advance the interests of active producers in the production and marketing of their, crops. An agricultural cooperative is not in the nature of a business corporation in which the general public invests capital in the expectation of returns through appreciation in value or through dividends, nor is it an entity to which people lend funds in the form of bonds or debentures yielding a fixed sum by way of interest and return of the principal on a day certain.

Accordingly, the question herein certified having been answered in the negative, that portion of the District Court’s opinion affirming the judgment of the trial court is affirmed, but the balance thereof, including the remand to the trial court, is quashed.

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON and HATCHETT, JJ., concur.

ENGLAND, J., concurs in part and dissents in part with an opinion.

ENGLAND, Justice

(concurring in part and dissenting in part).

I concur with the Court’s decision in all respects, save one. I do not believe we have jurisdiction to review the district court’s decision, or if we do have jurisdiction it is discretionary and I do not believe we should exercise it.

Justice Sundberg notes that the district court failed to certify to us any question. That omission should be fatal to our jurisdiction. I am strongly opposed to our rummaging through district court opinions to identify the one question we think the district court deemed to be of great public interest. For one thing, that technique is fraught with the danger that we may frame and answer the wrong question. By insisting that the district courts frame their own questions as the Constitution seems to require, we can intelligently exercise our initial discretion to consider whether the question requires an answer. We can also insure a judicial meeting of the minds and avoid appellate effort which goes astray.

For another thing, the rummaging technique provides too great a possibility for simple meddling. The Constitution was never designed to give this Court the right to pick an interesting legal question from the text of a district court’s opinion merely because that court thought some portion of its decision was important. If the district court answers a question of great public interest, that court ought to be capable of framing the question it answered.

My concern for the potential evils of rummaging is less than hypothetical; it is warranted here. The question framed by Justice Sundberg may indeed be the important question on which the district court passed. Some might argue from the face of the district court’s opinion that the question could as well be framed as whether a court of equity will provide relief from a stringent contract in the absence of fraud or the like, or whether the trial judge abused his discretion on the facts of this case. It doesn’t matter greatly to me how the question is worded, since I seriously doubt that any great public interest is involved in any aspect of what the district court actually did in this lawsuit.

Judge McNulty noted below, and Justice Sundberg acknowledges that the law applicable to this lawsuit was probably settled in 1935 in Ozona Citrus Growers v. McLean, 122 Fla. 188, 165 So. 625 (1935). The “hard” facts in this case which cry out for equitable relief did not dictate the development of new law affecting the citrus industry, and none has in fact been developed here or below. For this reason, as well as the fact that we were given no certified question by the district court, I would exercise my discretion to decline certiorari review.

      “1. Originally a 10 cents per box ‘retain’ was charged and retain certificates were issued to contributing patrons. Virtually all of these certificates have been refunded; none are involved in this suit. Sometime in the early 1930’s the cooperative shifted to a system of allocated reserves, with book allocations made in lieu of handing out retain certificates.

      . Evanenko v. Farmers Union Elevator, 191 N.W.2d 258 (N.D.1971) ; cf. Placerville Fruit Growers’ Ass’n v. Irving, 135 Cal.App.2d 731, 287 P.2d 793 (Dist.Ct.App.1955) ; Claassen v. Farmers Grain Cooperative, 208 Kan. 129, 490 P.2d 376 (1971) ; Ozona Citrus Growers’ Ass’n v. McLean, 122 Pla. 188, 165 So. 625 (1935) ; Adams v. Sanford Growers’ Credit Corp., 135 Pla. 513, 186 So. 239 (1938).

      . Zirin v. Charles Pfizer & Co., 128 So.2d 594 (Fla.1961).

      . The district court did plough new judicial ground by both affirming the trial judge’s conclusion that equitable relief is not available and also remanding the litigation for an equitable resolution not justified by the evidence. Neither the district court nor the majority here contend, however, that this novel procedure was the question of great public interest on which the district court passed.


text:
    Maggie Ann HESTER, Petitioner, v. STATE of Florida, Respondent.
    No. 47,348.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Jack O. Johnson, Public Defender, and Ellen Condon, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ of Certiorari must be and is hereby discharged. Cf. McDole v. State, 283 So. 2d 553 (Fla. 1973) as modified by Wilson v. State, 304 So.2d 119 (Fla. 1974).

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.


text:
    Warren Allison IVEY, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 47249.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Jack O. Johnson, Public Defender, and Steven H. Denman and Harold H. Moore, Asst. Public Defenders, for petitioner.
    Robert L. Shevin, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., for respondent.
   OVERTON, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the Second District Court of Appeal reported at 308 So.2d 565 (Fla.App.2nd, 1975). In it the District Court considered whether six months’ time petitioner had spent in county jail as a special condition of a two-year probationary sentence should be credited to a jail sentence later imposed by the trial court following revocation of that probation. The probation was revoked for a violation of its terms, and a three-year jail sentence imposed. The District Court held Section 948.06(2), Florida Statutes (1973), to be controlling, and refused to credit the six months’ county jail time toward petitioner’s newly imposed jail sentence.

The District Court decision is in conflict with our recent decision in State v. Jones, 327 So.2d 18 (Fla.1976).

The petition for writ of certiorari is granted. We dispense with oral argument. So much of the decision of the District Court that denies crediting the county jail time is quashed, and the cause is remanded with directions to credit petitioner with the time he served in the county jail as a special condition to the initial probation sentence. State v. Jones, supra; see North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In all other respects the decision is affirmed.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD and ENGLAND, JJ., concur.

      . We have jurisdiction. Art. Y, § 3(b) (3), Fla.Const. (1972).


author: ENGLAND, Justice.

text:
    James WILSON et al., Petitioners, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH CO., Respondents.
    No. 46940.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Jeffrey S. Goldman, of Wallace & Bres-low, Miami, for petitioners.
    W. H. Adams, III, of Mahoney, Hadlow, Chambers & Adams, Jacksonville, James Knight of Walton, Lantaff, Schroeder, Carson & Wahl, Miami, and John A. Boy-kin, Jr., Altanta, Ga., for respondents.
   ENGLAND, Justice.

This case was brought to us on petition for writ of certiorari to review a decision of the Third District Court of Appeal holding that petitioners could not bring a class action on behalf of all telephone subscribers who do not receive financial recompense for interrupted telephone service, extending at least 24 hours, which is not a result of their own fault. We tentatively granted certiorari to explore a possible direct conflict between that decision and either Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla.App.2d 1963), or City of Miami v. Keton, 115 So.2d 547 (Fla.1959). Additional briefs and oral argument have sharpened the threshold jurisdictional issues, and it now appears that the constitutionally required direct conflict does not exist.

In Port Royal, Inc. v. Conboy, the Second District Court of Appeal allowed a class action suit on behalf of City of Naples taxpayers after analyzing the requirements for such an action and finding no deficiencies. The court there developed its analysis from the premise, well established in Florida’s class action jurisprudence, that “a class [action] suit depends upon the circumstances surrounding the case . and whether a party adequately represents the persons on whose behalf he sues depends on the facts of the particular case.” 154 So.2d at 736-37. The district court in this case proceeded from the same premise. After analyzing the same factors for class representation as the court in Port Royal, the court simply found the factual situation developed by the pleadings at variance with the necessary class action elements. The court’s decision in no way conflicts with Port Royal on any point of law, as petitioners’ counsel acknowledged in oral argument, and it patently varies as to the operative facts.

Petitioners allege conflict with the City of Miami case on the ground that here, as there, the class is so numerous that individual actions are impossible. The district court’s decision did not contradict that principle. That court found other factors to exist which in its judgment required a different result.

Without a direct conflict between the decision below and any other appellate decision, we lack jurisdiction to proceed.

The writ of certiorari is discharged.

ADKINS, C. J., and ROBERTS, BOYD and OVERTON, JJ., concur.

      . The district court’s decision is reported at 305 So.2d 302.

      . Petitioners also alleged conflict with Watnick v. Florida Comm. Banks, Inc., 275 So. 2d 278 (Fla.App.3d 1973), on the asserted ground that the court there limited the class action rule to governmental as opposed to private acts. Petitioners argue that respondent here is a governmental agency, and that the issues in this ease are within the Watniok-announced rule. The allegation of jurisdictional conflict with Watniok is frivolous. The district court did not announce the rule of law which petitioners ascribe to the Wat-niok decision. Moreover, if it had the decision now under review would not, for that reason, be in conflict with Watniok.

      .Fla.Const. art. V, § 3(b)(3).

      . Petitioners complain that the district court below could not have made the factual determinations expressed in its opinion since the full record developed in the circuit court was not before the appellate court. This contention overlooks the court’s holding that the pleadings themselves are inadequate to show the common interest of the class.


text:
    Mark SCHAFER, Petitioner, v. ST. ANTHONY’S HOSPITAL et al., Respondents.
    No. 46430.
    Supreme Court of Florida.
    Feb. 11, 1976.

      John G. Thompson of Brown, Watson, Goldstein & Douglass, St. Petersburg, for petitioner.
    James T. Earle, Jr. of Earle, Yanchuck & Cooper, St. Petersburg, for respondents.
   OVERTON, Justice.

Petitioner, as claimant, seeks review of an Industrial Relations Commission decision which reversed and remanded this cause to the Judge of Industrial Claims for “reconsideration” of the claimant’s lost wage-earning capacity. The Commission held the petitioner’s testimony was not competent as it concerned his loss of wage-earning capacity when coupled with his failure to respond to offers to discuss available jobs with the employer. It further held that the Judge of Industrial Claims failed to fully apply the criteria set forth in Walker v. Electronic Products & Engineering Company, 248 So.2d 161 (Fla.1971), recently reaffirmed in Tropicana Pools, Inc. v. Truex, 287 So.2d 71 (Fla.1973), and did not detail adequately the reasons for his findings and conclusions.

We interpret the Commission’s order as a remand requiring the taking of further evidence and a direction to the Judge of Industrial Claims to be more explicit in his grounds for his findings and conclusions.

The fact that this record might contain substantial competent evidence to support the findings of the Judge of Industrial Claims does not prohibit the Commission from requiring the Judge to take further evidence and make more expansive findings to assure a just result. The Commission possesses inherent authority to direct its finders of fact to meet the issues presented in each claim with answers as fully developed in fact as its quasi-judicial supervisory function and judicial economy require. Section 440.25(4) (d), Florida Statutes (Supp.1974).

The order of the Industrial Relations Commission does not appear to be a final disposition of this cause. Viewing the proceedings in this context, the petition for writ of certiorari is denied. The petition for attorney’s fees is denied.

It is so ordered.

ROBERTS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, C. J., dissents.


text:
    James A. SHERRILL, Jr., Petitioner, v. FUCHS BAKING COMPANY et al., Respondents.
    No. 46405.
    Supreme Court of Florida.
    Feb. 11, 1976.

      Kevin R. O’Connell, Spencer & Taylor, Miami, for petitioner.
    Edward Schroll, Miami, for respondents.
   ENGLAND, Justice.

This case is brought by writ of certiora-ri to review an order of the Industrial Relations Commission holding that petitioner’s claim for workmen’s compensation is barred by the statute of limitations. This order reversed the Judge of Industrial Claims, who had ruled that petitioner’s claim was timely filed. We hold that the Commission was correct.

Petitioner sustained a compensable hernia injury in 1967, for which respondent provided all appropriate treatment costs. Approximately six months after his return to work, petitioner developed small boils in the area of the operation and experienced discomfort. He did not then, however, specifically notify respondent of these problems or seek medical treatment. The applicable statute of limitations would bar any claim arising out of the hernia injury after 1969, two years from the employer’s last voluntary payment of compensation or authorization for remedial care. It was not until 1971 that petitioner first sought treatment and learned that his discomfort was attributable to his 1967 hernia operation. His claim for workmen’s compensation benefits was filed in 1972, more than four years after his employer’s last payment of compensation.

The Judge had ruled, presumably under our decision in Townsley v. Miami Roofing & Sheet Metal Company, that the statute of limitations had not run against petitioner because respondent (i) had allowed him to do lighter work and (ii) had acquired knowledge of the condition within two years of the last payment of compensation. The Commission determined that these findings were unwarranted by the evidence.

With respect to the employer’s knowledge, the record shows that petitioner did make some complaints to respondent’s personnel regarding his health within the two years after receiving his last compensation benefits, but that he lost no time at work as a result of physical problems and made no statements which would lead respondent to believe that the disabilities were associated with his 1967 hernia. In fact, petitioner conceded at the hearing on his claim that he had not connected his discomfort with the hernia until 1971, when he sought medical treatment in the course of processing a claim for group insurance benefits. The facts here as to his employer’s awareness of the condition are less compelling than those in University of Miami, Inc. v. Matthews, 97 So.2d 111 (Fla.1957), where we held that the statute of limitations was not tolled.

With respect to the Judge’s finding that respondent permitted petitioner to do lighter work because of his condition, we again find the record deficient to support this finding. Except for a period when petitioner was promoted from route salesman to supervisor, the only diminution in his work involved duties over which peti--tioner exercised discretion. His responsibilities were unchanged.

Petitioner also argues that, regardless of any technical defects in the claims procedure he should have followed, the statute of limitations should not be so rigidly applied as to cause hardship where the compensable nature of an injury could not reasonably be detected. That may be a philosophy appropriate to this type of employee benefit, but petitioner has not brought himself within the ambit of the policy. If the physical difficulties were as petitioner asserts, there is no plausible explanation for his delay in seeking treatment or requesting compensation.

The Commission acted within the scope of its review authority by inquiring whether the record contains competent evidence to support the Judge’s finding. Having found none, it properly reversed the decision below. The petition for a writ of certiorari is denied.

ADKINS, C. J., ROBERTS, OVER-TON, SUNDBERG and HATCHETT, JJ-, and SHOLTS, Circuit Judge, concur.

      . Sections 440.13(3) (b) and 440.19(1) (a), Fla.Stat. (1967).

      . 79 So.2d 785 (Fla.1955).

      . Petitioner’s failure to seek medical treatment for alleged problems following his hernia operation would, if the problems were disabling, constitute a lack of reasonable care on his part. Lobnitz v. Orange Mem. Hosp., 126 So.2d 739 (Fla.1961).

      . United States Cas. Co. v. Maryland Cas. Co., 65 So.2d 741 (Fla.1961).


author: BOYD, Justice.

text:
    In re ESTATE of Louise B. RINCON, Deceased.
    No. 46381.
    Supreme Court of Florida.
    Feb. 11, 1976.

      Thomas C. Dinard, Fort Lauderdale, for appellant.
    William L. Ranaghan, of Sullivan, Cochran, Ranaghan & Bailey, Pompano Beach, for appellee.
   BOYD, Justice.

This cause is before us on appeal from a final judgment of the Broward County Circuit Court in which the trial court denied Appellant’s election to take dower as the surviving husband of Louise B. Rincon, which decision of necessity reached the issue of constitutionality of Sections 731.34 (Dower in Realty and Personalty) and 731.35 (Election to take Dower), Florida Statutes. This Court has jurisdiction under Article V, Section 3(b)(1), Florida Constitution.

The pertinent chronology of this case is as follows. On October 31, 1972, Louise Rincon executed her will, dying on March 5, 1973. On March 9, 1973, the first Notice to Creditors was published, with the estate’s inventory being filed on May 4, 1973. During June, 1973, Appellant-widower, being dissatisfied with the provisions of the will, petitioned for revocation of probate (an issue ultimately disposed of by this Court in its denial of his petition for certiorari, reported at 304 So.2d 129). October 1, 1973, was the effective date of new Sections 731.34 and 731.35, Florida Statutes. On August 22, 1974, Appellant filed his Election to take Dower under the latter section, which election was denied by the trial court on October 1, 1974; this appeal followed.

The 1885 Constitution contained neither dower nor curtesy provisions, these being established by statute. With the passage of the new Constitution in 1968 our citizens approved the present Article X, Section 5 (Coverture and property), wherein dower or curtesy are mentioned twice in the disjunctive: i. e., the first speaks of “property rights,” and the second “except that dower or curtesy may be established and regulated by law.” Thereafter, based on that constitutional provision present Section 731.35, our current dower statute, was passed by the Legislature, becoming effective on October 1, 1973. Thus, there is the manifesting of the legislative intent of the direction given the Legislature by Article X, Section 5, Florida Constitution.

It is important to note that in 1969 there was an existing dower statute (Sections 731.34 and 731.35, Florida Statutes), and the new Constitution gave authority for revising it in the non-self-executing provision of Article X, Section 5. Since no obvious or necessary repugnancy existed between the new constitutional language and the existing statutes, the latter can easily be reconciled with the former. Because they were not impliedly repealed, the existing statutes remained the law of Florida until the effective date of the new statute, October 1, 1973, and govern the parties of this case.

We recognize that our 1968 Constitution specifically forbids distinctions between married men and married women; nevertheless, where a statute’s differing treatment of widows and widowers rests on some ground of reasonable difference having a fair and substantial relation to the object of the legislation, that statute does not violate the equal protection clauses of our state and federal constitutions. We find the distinction between the treatment of the sexes by former Section 731.-35, Florida Statutes, to have been reasonably justified by the disparity between their economic capabilities, therefore, we hold that section to have been constitutional. The conclusion is re-enforced by the exception in Section 5 of Article X of the Constitution providing that “dower or cur-tesy may be established and regulated by law.” Such exception makes it clear that the drafters of the 1968 Constitution intended to vest authority in the Legislature to make a distinction between the sexes with respect to providing rights of a wife in the property of her husband without requiring that the husband be granted reciprocal rights.

Furthermore, since legislative enactments may not be retrospective in effect unless that intent is clearly set forth, it is obvious that Appellant cannot take advantage of new Section 731.35, Florida Statutes, inasmuch as that section specifically provides within itself that it “ . shall not be applicable to any estate the administration of which was commenced prior to October 1, 1973.”

Accordingly, the judgment of the trial court is affirmed.

It is so ordered.

ADKINS, C. J., and ROBERTS, OVERTON, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . In re Estate of Humphreys, 299 So.2d 595 (Fla.1974) ; In re Estate of Arner, 218 So. 2d 471 (Ma.App.1969), cert. den. 225 So. 2d 916 (Fla.).

      . Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974).

      . Id.

      . Fullerton Metal Company v. Abell Howe Company, 299 So.2d 151 (Fla.App.1974).


text:
    STATE of Florida, Petitioner, v. Junior H. THORNTON, Respondent.
    No. 46954.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Rehearing Denied March 18, 1976.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for petitioner.
    Carlton P. Maddox, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for respondent.
   OVERTON, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the First District Court of Appeal reported at 306 So.2d 205 (Fla.App. 1st 1975).

The respondent was charged and convicted in the trial court with possession and delivery of a quantity of marijuana in excess of five grams. The primary thrust of the prosecution was to establish respondent as a party to a sale of approximately one pound of marijuana.

The First District reversed the conviction of respondent for possession and delivery of a dangerous drug upon finding insufficient evidence to support the charges. In doing so, it noted that the evidence adduced at trial included testimony that respondent, at the scene of the crime, briefly puffed on a marijuana cigarette. The inference from the opinion is that a mere puff on a marijuana cigarette is insufficient evidence to support a conviction for possession.

In State v. Eckroth, 238 So.2d 75 (Fla. 1970), we held that smoking a pipe filled with marijuana as it was passed around was sufficient to sustain a conviction for possession and there was no need to show that the pipe or the marijuana belonged to the individual smoking the prohibited drug. The decision in the instant case appears to conflict with the Eckroth decision. We have jurisdiction. Article V, Section 3(b) (3), Florida Constitution.

We agree with the First District that there was insufficient evidence to support a conviction for possession and delivery of more than five grams of marijuana. The evidence, however, does support a conviction of respondent for the lesser included offense of possession of not more than five grams of cannabis, a misdemeanor of the first degree. Sections 404.15(1) and 404.02(5), Florida Statutes (1971).

We reverse and remand to the District Court with directions that the cause be remanded to the trial court for entry of a judgment of conviction for the lesser included offense of possession of not more than five grams of marijuana. Section 924.34, Florida Statutes (1973); e. g., Bornstein v. State, 54 So.2d 519 (Fla. 1951).

Reversed in part and remanded.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD and ENGLAND, JJ., concur.


text:
    Clyde L. HEATH, Clerk of Circuit Court of Broward County, Florida, Petitioner, v. Wada Sue BECKTELL, Respondent.
    No. 47240.
    Supreme Court of Florida.
    May 27, 1975.
   Certiorari denied. 308 So.2d 647.

ADKINS', C. J., and ROBERTS, BOYD and OVERTON, JJ., concur.

ENGLAND, J., dissents.


text:
    Isaac WASHINGTON et al., Petitioners, v. STATE of Florida, Respondent.
    No. 45618.
    Supreme Court of Florida.
    Sept. 18, 1975.
    Rehearing Denied Feb. 11, 1976.
   Certiorari denied. 294 So.2d 407.

ADKINS, C. J.,and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    The TELOPHASE SOCIETY OF FLORIDA, INC., etc., et al., Petitioners, Appellants, v. STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS, an agency of the State of Florida, Respondent, Appellee.
    Nos. 47150, 47187 and 47188.
    Supreme Court of Florida.
    Nov. 10, 1975.
    Rehearing Denied Jan. 28, 1976.
   Certiorari denied. 308 So.2d 606.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND,' JJ., concur.


author: OWEN, Judge.

text:
    Dwight CHASTAIN, Appellant, v. CIVIL SERVICE BOARD OF ORLANDO et al., Appellees.
    No. 74-1387.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1976.
    Rehearing Denied March 15, 1976.
    Certification Denied March 15, 1976.
    E. Thom Rumberger and J. Richard Caldwell, Jr., of Pitts Eubanks Ross & Rumberger, Orlando, for appellant.
    Egerton K. van den Berg, City Atty., and Gretchen R. H. Vose, Asst. City Atty., Orlando, for appellees.
   OWEN, Judge.

Appellant was dismissed from the Orlando Police Department for alleged violations of the department’s regulations and the Civil Service Code. Following a hearing, the Civil Service Board of Orlando found against appellant on each of the charges and upheld his dismissal. This ruling was attacked by petition for writ of certiorari. filed in the circuit court. The present appeal is from the order denying that petition.

Two of th!e four charges against appellant alleged facts which the department asserted to be a violation of § 200-1 of the Orlando Police Department Regulations, which provided as follows:

“Standards of Conduct”
“Members and employees shall not engage in any conduct which constitutes neglect of duty, conduct unbecoming an officer, or any act which is likely to adversely affect the discipline, good order or reputation of th'e department.”

Appellant contends that this regulation is unconstitutionally void for vagueness under the standard enunciated in Connolly v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926) in that it “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . .” A somewhat similar police department regulation prohibiting “conduct unbecoming a member and detrimental to the service” was held to be unconstitutionally vague in Bence v. Breier, 357 F.Supp. 231 (E.D.Wis.1973) affirmed in Bence v. Breier, 501 F.2d 1185 (7th Cir. 1974), cert. den. 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 821 (1975), the latter decision carefully distinguishing between the constitutional standards of vagueness applicable to a civilian police department regulation and the regulations involved in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (involving military personnel) and Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (involving a certain classification of employee in government service). Academically, the decision in Bence v. Breier, 501 F.2d 1185 (7th Cir. 1974) is persuasive on the issue presented. However, it is unnecessary for us to determine the constitutionality of this regulation of the Orlando Police Department in disposing of this case since we conclude that appellant’s dismissal was properly upheld on the basis of a charge involving a violation of a regulation other than § 200-1.

On the basis of certain specified facts showing that appellant had shot and wounded an escaping prisoner, appellant was also charged with violating § 800-5 of the Orlando Police Department Regulations, which provided as follows:

“Deadly Force”
“Members of the department shall at all times exhaust every other reasonable means of apprehension before resorting to the use of deadly force. The use of deadly force shall be in accordance with current department directives.”

The current department directives referred to in § 800-5 were embodied in General Order No. 73-5 which provided, in pertinent part:

“IV. LIMITATIONS ON USE OF THE FIREARM
A. A member of the department will discharge any departmental firearm under the following circumstances only:
******
5. To effect an arrest, to prevent flight or escape, or to recapture a felony suspect whom he reasonably believes to 'have committed a crime, with the following qualifications:
a. The crime for which the arrest is sought must be an infamous crime where the use of deadly force by the perpetrator would be an ordinary consideration under the circumstances.
(1) For purposes of this directive, infamous crimes shall be murder, rape, robbery, burglary, arson, kidnapping or any other felony which involves the use or threatened use of deadly force against the individual.
b. The felony suspect believed to have committed the crime has not been identified and there is reason to believe identification cannot be made at a later date if the felon escapes.
c. A member would not ordinarily be justified in employing deadly force for such crimes as forgery, frauds, counterfeiting, embezzlement or any other crime the commission of which does not involve deadly force against an individual.”

This charge (involving the shooting of the escaping prisoner) alleged facts to support the allegation that “the prisoner was not involved in a crime of violence or any crime which would justify the use of deadly force,” and also alleged the conclusion that appellant “did not exhaust every other reasonable means of apprehension before resorting to the use of deadly force.” Appellant contends that even if the factual allegations contained in the charge were true they were insufficient as a matter of law to justify dismissal. ' For this position appellant relies upon Attorney General’s Opinion 071-41 (March 22, 1971) opining that (1) a police officer has the authority and duty to use deadly force to prevent the escape of a fleeing felon, (2) a police chief may not limit a police officer’s authority to use deadly force to only those situations involving crimes against persons, and (3) where a police chief does attempt to restrict the officer’s authority in such manner, disciplinary action against an officer who violates such restrictions cannot and should not be upheld.

There is no question but that if appellant were charged with a criminal offense such as aggravated assault, as in Dixon v. State, 101 Fla. 840, 132 So. 684 (1931), or his conduct were the basis of a civil action for damages against him individually or against his employer, as in Gordon v. Alexander, 198 So.2d 325 (Fla.1967) and City of Miami v. Nelson, 186 So.2d 535 (3rd DCA Fla. 1966), the standard or test of guilt would be whether appellant, in attempting to make the arrest or capture the escaping prisoner, had used more force than was reasonably necessary under the circumstances. Thus, to the extent that we might be concerned with the appellant’s criminal or civil liability, we agree with that part of the attorney general’s opinion, supra, opining that under certain circumstances a police officer has the authority to use deadly force to apprehend an escaping prisoner when the use of such force is reasonably necessary under the circumstances.

But here we are concerned, not with the matter of appellant’s criminal or civil liability for his conduct, but only with departmental disciplinary action. We know of no reason why the standard of conduct by which the law measures criminal or civil liability necessarily prohibits the police department, in the course of regulating its own members, from imposing upon them a more stringent standard, the violation of which would subject the offending member to departmental disciplinary action even though such violation might not be of a nature as to subject the offending member to criminal or civil liability. In this respect, we disagree with the cited attorney general’s opinion. We therefore hold that a police department may lawfully impose upon its police officers a regulation concerning the use of deadly force which is more stringent than the law imposes upon police officers for criminal or civil liability, and while such regulation would not affect the standard by which the officers’ criminal or civil liability is measured, the violation of such regulation would properly subject the offending member to appropriate disciplinary action within the department.

Finally, appellant contends that while the evidence before the Civil Service Board supported the factual allegations of this charge, the evidence was insufficient to support the conclusion, i. e., that appellant did not exhaust every reasonable means of apprehension before resorting to the use of deadly force. Admittedly, the issue is a close one as reflected by the fact that while appellant was required to make and act upon a split-second decision, the subsequent investigation by appellant’s superior officer led first to a decision that no violation of the General Order had occurred and only later, after a second review, to the determination that there had been a violation. Allowing however for the recognized leeway accorded law enforcement officers in the exercise of judgment in situations of this type, Weil v. City of Miami Beach, 158 So.2d 798 (3rd DCA Fla.1963), the record here contains a basis upon, which the Civil Service Board could reach the conclusion that the charge was sustained. That being so, neither the circuit court in its appellate capacity nor this court should reweigh the conflicting evidence. Wilson v. McCoy Mfg. Co., 69 So.2d 659 (Fla.1954); City of Opa Locka v. Carlile, 323 So.2d 661 (3rd DCA Fla. 1975).

Affirmed.

WALDEN, C. J., and DOWNEY, J., concur.


text:
    GREEN TREE COMMUNITIES, INC., and Sentry Indemnity Company, Appellants, v. The RAMOS GROUP, INC., Appellee.
    No. 75-851.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1976.
    Rehearing Denied March 16, 1976.
    Graham, Markel & Scott, Winter Park, and Charles J. Cheves, Jr., of Cheves & Hazen, Venice, for appellants.
    Patrick J. Murphy of Crabtree, Butler, Syprett & Meshad, Sarasota, for appellee.
   PER CURIAM.

This is an appeal from a final judgment enforcing an architect’s lien on certain properties in Sarasota and Manatee counties. While we have some doubts concerning the legality of the method by which the court computed the amount of the judgment, there is sufficient evidence in the record of appellee’s time and charges on the job together with reimbursable expenses as would justify an award of this amount. Therefore, we will not disturb the amount of the judgment.

The claim against the bond which was posted to transfer the lien from the Manatee County property must be set aside, along with the accompanying award of attorneys’ fees. The architect’s own records refute the contention that the claim of lien was filed within ninety days of the last day on which services were performed relating to that county. The architect fell short in attempting to prove an understanding that the plans drawn for Sarasota County were to be used in Manatee County.

The case is remanded with directions to enter an amended judgment in accordance with this opinion.

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


author: BOYER, Chief Judge. McCORD, Judge

text:
    Carlton Shipman SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. V-103.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1976.
    Joseph S. Farley, Jr., Mahon, Farley & Vickers, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

In April of 1973 appellant was lawfully arrested on charges not here relevant. After he was taken into custody his automobile was searched, revealing a .22 caliber pistol under the seat on the passenger side. Appellant was charged, inter alia, with carrying a concealed firearm contrary to the provisions of F.S. 790.01(2). He was convicted of that charge and sentenced to three and one-half years in the State Penitentiary. He now appeals, claiming that the learned trial judge erred in failing to grant his motion for directed verdict of acquittal.

We have heretofore cited with approval Attorney General’s Opinion No. 072-161, which states:

“A man who carries a pistol in an automobile, on the floor and partially exposed, does not violate § 790.05, even if he has no license from the county commissioners. He violates § 790.01(2) if, and only if, the pistol is in close proximity to him or within his easy reach, and is concealed from the ordinary sight of another person * * * ”

The statute under which appellant was charged provides as follows:

“Whoever shall carry a concealed firearm on or about his person shall be guilty of a felony in the third degree, punishable as provided in section 775.082, section 775.083 or section 775.084.”

The statute does not proscribe mere possession of a firearm nor the carrying thereof. The statute is not violated unless the firearm is concealed. Proof of concealment is therefore an essential element of the crime which must be proved beyond and to the exclusion of a reasonable doubt. A careful examination of the entire record in this case reveals, as to concealment, hints, suspicions and guesses but the record is devoid of any proof that the pistol sub judice was in fact concealed.

In addition to proof of the carrying of a concealed firearm the statute further requires, as a condition of its violation, proof that the firearm is “on or about” the person of the accused. A firearm is not on or about the person unless it is in a close proximity to him within his easy reach. A fortiori a firearm in a closed automobile glove compartment or under a seat on the opposite side of the vehicle from whence the accused is sitting or in the trunk of the vehicle, though concealed, is not in close proximity within easy reach.

The State seeks here to impose a special condition depending upon the size of the automobile, urging that since the vehicle here involved was a sports car with “bucket seats” the firearm was in close proximity and within easy reach. We do not agree. In any event, in this case, the evidence failed to prove that the size of the car was relevant, or that the firearm was any more accessible than it would have been had the vehicle been a Cadillac or a Rolls Royce.

In 1941 the Supreme Court of Florida construed the predecessor to Florida Statute 790.01 (Section 7202 CGL Fla.1927) under which prior statute it was held to be unlawful for one to “carry around with him, or have in his manual possession * * * any pistol, * * * without having a license * * *The current statute, F.S. 790.01(2) is, as above mentioned, different from its predecessor in that under the current statute actual manual possession of a firearm is not required, it being sufficient that the concealed firearm be “on or about” the person of the accused. While recognizing the materiality of the change in the wording of the statute we nevertheless observe that the following statement by the Supreme Court of Florida in the last cited case is particularly applicable today:

“ * * * When a pistol is in the pocket of an automobile, both owned by the driver, it cannot be said that it is in the personal manual possession of the owner, * * * ” (Emphasis the Court’s)
‡ s{c %
“The business [man], tourists, commercial travelers, professional man on night calls, unprotected women and children in cars on the highways day and night, State and County officials, and all law-abiding citizens fully appreciate the sense of security afforded by the knowledge of the existence of a pistol in the pocket of an automobile in which they are traveling. It cannot be said that it is placed in the car or automobile for unlawful purposes, but on the other hand it was placed therein exclusively for defensive or protective purposes. These people, in the opinion of the writer, should not be branded as criminals in their effort of self preservation and protection, but should be recognized and accorded the full rights of free and independent American citizens. * * * ” (4 So.2d pages 702-703)

We have not overlooked Lawson v. State. First, sufficient facts are not recited in that opinion to inform us whether or not the firearm was in fact concealed. Second, the facts which are recited lead to the conclusion that the firearm was in close proximity to, and within the easy reach of, the accused. Such are not the facts in the case sub judice.

It follows that the learned trial judge erred when he denied appellant’s motion for directed verdict on the charge of carrying a concealed weapon.

Reversed.

RAWLS, J., concurs.

McCORD, J., dissents.

McCORD, Judge

(dissenting).

In my view, the evidence was sufficient to support the jury’s verdict that the pistol was concealed (under the passenger’s seat of a two bucket seat small sports car) and that it was about the person of appellant, the driver of the automobile. The 1941 Supreme Court opinion (Watson v. State, Fla., 4 So.2d 700) cited in the majority opinion construed a previous statute (§ 7202 C.G.L. Fla.1927) under which it was unlawful for one to “carry around with him, or have in his manual possession, . . . any pistol, . . . without having a license . . . ” The statute here involved (§ 790.01, Florida Statutes) makes it a crime for one to “carry a concealed weapon on or about his person” (emphasis supplied).

      . State v. Day, Fla.App.1st 1974, 301 So.2d 469. See also Porchay v. State, Fla.App.1st 1975, 321 So.2d 439, opinion filed November 7, 1975, Cases No. V-443 and X-252.

      . State v. Day, supra, and State v. Sellers, Fla.App.2nd 1973, 281 So.2d 397.

      . Attorney General’s Opinion No. 072-161, and State v. Day, supra.

      . Watson v. Stone, 1941, 148 Fla. 516, 4 So. 2d 700.

      . Fla.App.3rd 1971, 251 So.2d 683.


text:
    James A. LEWIS and T. Grady Alday, Jr., Appellants, v. SARA-HOP PROPERTIES, INC., et al., Appellees.
    No. Y-482.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
    Rehearing Denied March 16, 1976.
    W. N. Avera, of Chandler, O’Neal, Av-era, Gray, Lang & Stripling, Gainesville, for appellants.
    Selig I. Goldin, Gainesville, for appel-lees.
   PER CURIAM.

Affirmed. See 29A Fla.Jur., Specific Performance § 150 at 793; and Foxworth v. Maddox, 103 Fla. 32, 137 So. 161 (1931).

RAWLS, Acting C. J., BARKDULL, THOMAS H., Jr., and MELVIN, WOODROW M., Associate Judges, concur.


text:
    JACK B. DEWEY, DDS, P.A., a Florida Corporation, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, a State Agency, Respondent.
    No. 75-1742.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1976.
    Charles W. Littell, of O’Connell & Cooper, P. A., West Palm Beach, for petitioner.
    Kenneth H. Hart, Jr., Gen. Counsel, Tallahassee, and James R. Parks, by James R. Parks, Miami, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari denied.

WALDEN, C. J., DOWNEY, J., and SCHULZ, GEORGE E., Associate Judge, concur.


author: BOYER, Chief Judge.

text:
    Lawrence J. O’BRIEN, Appellant, v. STATE of Florida, Appellee.
    No. X-77.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    William T. Lassiter, Jr., Jacksonville, for appellant.

      Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for ¡appellee.
   BOYER, Chief Judge.

Appellant, defendant below, was charged by information with grand larceny. After a jury found him guilty as charged, the trial court imposed sentence. Appellant now argues that his conviction should be overturned, and that the trial court erred in failing to grant his motion for directed verdict of acquittal based on sufficiency of the evidence.

At trial, the state proved that in February of 1974, appellant was a CPA and Financial Vice-President of Atlantic Discount Corporation in Jacksonville. While appellant, as one of the corporation’s loan officers, did have authority to issue checks for loans by the corporation, he did not, according to the President and Chairman of the Board, have authority to approve loans to himself. In early February of 1974, defendant approached both the President and Chairman of the Board and requested that the corporation approve a loan for his personal use. That request was refused on the ground that the corporation had a policy of not granting loans to employees. On February 25, 1974, appellant caused a check to be issued to J. & J. Properties, Inc. in the sum of $300,000 drawn on the Atlantic Discount corporate account. The check was validly co-signed by another employee who stated that she always signed where her immediate superi- or (i. e. the appellant) told her to. The company books reflected the transaction on four separate ledgers entered thereon by appellant himself, but the books indicated that the loan was made to J. & J. Properties with no mention of appellant. J. & J. Properties was, however, a corporation formed by appellant, his wife being the only other stockholder. In early June of 1974, appellant left the employ of Atlantic Discount. On June 26, appellant’s successor-comptroller brought to the attention of his superiors the $300,000 transaction for which there appeared to be no note nor loan agreement. After investigating the matter, Atlantic Discount officers discovered the identity of the recipient of the money. Immediately after acquiring that information, officers of Atlantic Discount confronted appellant, and an attempt was made to work out an amicable settlement for the repayment of the money. In the presence of those officers, appellant executed a written statement of intent to repay the loan by July 5, 1974. That statement of intent was signed by appellant and witnessed by the new Chairman of the Board of Atlantic Discount. The July 5 deadline passed, with appellant being unable to arrange means of repayment that would be acceptable to the officials of Atlantic Discount. Subsequent efforts to arrange an acceptable method of repayment were also unsuccessful. Having established the foregoing, the state rested, whereupon the defense moved for a directed verdict of acquittal which was denied.

Testifying in his own behalf, appellant stated that he “borrowed” the $300,000 from Atlantic Discount so that he might engage in a complicated business venture involving a complex system of business entities, the funding of each being secured by the funding of the others. He further testified that at the time of the transaction he and his wife executed a note in favor of Atlantic Discount and that a short time later he executed a corporate guarantee of the note by Mortgage Investors Funding Corporation, another corporation which had been formed by appellant. He testified that at no time did he intend to permanently conceal the transaction from Atlantic Discount but that he did seek to temporarily delay the discovery of the transaction by the other company officials because he wanted to “buy time.” To aid in accomplishing that purpose he removed from the company records, and ultimately destroyed, the cancelled check which would have normally gone into the computer. He asserted that he at all times intended, and yet intends, to repay the “loan” and that if he liquidated all of his assets he could repay Atlantic Discount the entire $300,000. Nevertheless, appellant had not liquidated his assets and the money had not been repaid. Although he claimed that the money “borrowed” from Atlantic Discount was not converted to his own use, he admitted that he did purchase securities in his own name and that if the securities increased in value he would be the recipient of the increase. He explained that the securities were purchased in his own name as a convenience rather than in the name of the corporation because it was more difficult and burdensome to purchase securities in a corporate name. At the close of the defendant’s case, the motion for directed verdict of acquittal was renewed and again denied.

In arguing that his motion for a directed verdict should have been granted, appellant asserts that the state failed to adduce any evidence that he had any criminal intent to permanently deprive Atlantic Discount of its property, that there was no evidence that a theft had occurred, and that there was no evidence that the alleged victim had suffered any loss. The evidence as contained in the record belies appellant’s contentions. The testimony shows that Atlantic Discount is minus $300,000 which formerly belonged to it and which appellant was never authorized to take. The only element of grand larceny which appellant might legitimately question is the element of criminal intent. That intent may be inferred from the circumstances. (Williams v. State, Fla.App.4th 1970, 239 So.2d 127) Sub judice, there are at least two facts adduced by th'e state from which the jury could have, and apparently did, find the requisite criminal intent. First, appellant never gave any indication that he was going to inform the company of the “loan.” In fact, the company did not find out about the transaction until some four months after it happened. A jury could well conclude that if appellant had not voluntarily told the company within four months, he might never have done so. Second, appellant stated that he could repay the loan to the company by liquidating all his assets: However, he had not done so. From that evidence, the jury could have inferred that appellant never really intended to reimburse the company at all. There being sufficient evidence in the record to establish a prima facie case, appellant’s conviction and sentence are

Affirmed.

RAWLS and SMITH, JJ., concur.


text:
    Johnnie Green HALL and State Farm Mutual Automobile Insurance Co., Petitioners, v. Wendell Bruce BOLINS and Firemans Fund American Insurance Co., Respondents.
    No. 75-1777.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 1976.
    Patrick E. Geraghty of Henderson, Franklin, Starnes & Holt, Fort Myers, for petitioners;
    Ronald L. Napier, of Pomeroy, Betts & Napier, Naples, for respondents.
   PER CURIAM.

Certiorari denied without prejudice to raising, on direct appeal, the matters sought to be raised herein.

McNULTY, C. J., and GRIMES and SCHEB, JJ., concur.


text:
    Lloyd HEROLD, P.A., Appellant, v. Patricia Ann HUNT and James S. Hunt, Jr., Appellees.
    No. 75-241.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    Rehearing Denied March 17, 1976.
    Lloyd Herold and Evan I. Fetterman, North Palm Beach, for appellant.
    H. T. Maloney, Patterson, Maloney & Shankweiler, Fort Lauderdale, for appel-lee-James S. Hunt, Jr.
   OWEN, Judge.

Appellant, a professional association of lawyers, represented the wife (appellee-Patricia Ann Hunt) in a suit for dissolution of marriage and now seeks review of a postjudgment order assessing the wife’s attorney’s fees against the former husband (appellee-James S. Hunt, Jr.).

Mrs. Hunt filed suit for dissolution of marriage in the Circuit Court of Broward County. Thereafter, she discharged her attorneys and employed appellant to replace them. The terms of appellant’s employment were embodied in a written Services Agreement which, while providing that appellant would be paid “reasonable compensation” for its services, also expressly provided that Mrs. Hunt’s obligation to the appellant to pay for services was her direct, personal obligation and was not in any way dependent upon or to be measured by any amount which the court might see fit to award her from her husband.

In due course the final judgment was entered dissolving the marriage, the court retaining jurisdiction to assess the wife’s attorney’s fees and costs against the husband. Prior to hearing on that matter, Mrs. Hunt discharged appellant as her counsel. Promptly upon being discharged, appellant filed in the Circuit Court of Palm Beach County an independent suit against Mrs. Hunt seeking judgment for the amount appellant alleged was due it for services rendered pursuant to the employment agreement. In connection with that suit, appellant placed in the registry of the Circuit Court of Palm Beach County certain personal property belonging to Mrs. Hunt against which appellant claimed a retaining lien.

After appellant filed the independent suit in Palm Beach County, a hearing was held in the instant case on Mrs. Hunt’s motion to assess attorney’s fees. On the basis of appellant’s testimony as to the extent of the services rendered to Mrs. Hunt, both husband and wife presented expert opinion testimony as to the reasonable value of such services. At the conclusion of the hearing, the court announced that the husband should pay to the wife’s attorneys the sum of $30,000 to be in addition to the $5,000 theretofore paid appellant by the wife. Some three weeks later a formal written order was entered and it is the specific language of that order which has precipitated this appeal.

The appealed order found that the reasonable value of the services rendered by appellant in representing the wife was $35,000, of which $30,000 was to be paid by the husband to the wife to compensate appellant for legal services in this case. The order also directed the wife to pay to appellant the said sum of $30,000 “which has been determined herein to be the balance due [appellant] for attorney’s fees for . . . services in this case, [said sum to be paid] at such time as said law firm tenders to the wife the property retained by said law firm under claim of retaining lien for services in this case.” (e.s.) Appellant, which is not claiming a charging lien, was permitted to intervene for the purpose of appealing this order.

Appellant’s first point is that in an action for dissolution of marriage the court is empowered to determine the amount of attorney’s fees, if any, payable by one party to the other, but has no power or jurisdiction to determine the fees due from a party to his or her own attorney, particularly under a separate employment agreement. Appellant cites as authority for its position the cases of Chaachou v. Chaachou, 122 So.2d 24 (Fla.App.3rd, 1960) and Cristiani v Cristiani, 114 So.2d 726 (Fla.App.2nd, 1959). Mrs. Hunt, although directly affected by our decision on this point, has not filed a brief. Mr. Hunt, whose obligation under the appealed order will necessarily remain unaffected by our decision on this appeal, has filed a brief in which he agrees that appellant’s statement of this point is a correct statement of the law, but then in effect inconsistently contends (without citation to any authority) that the trial court’s determination of the reasonable value of appellant’s services becomes res judicata on that same issue between appellant and Mrs. Hunt. We hold, on the authority of the Chaachou and Cristiani cases, supra, that in an action for dissolution of marriage the court’s authority to award attorney’s fees is in reference to determining the amount of attorney’s fees, if any, payable by one party to the other (or the other’s attorney), and that in such action the court has no power or jurisdiction to determine the fees due from a party to his or her own attorney, absent a claim of a charging lien. The order appealed is therefore modified consistent with the views herein.

Appellant’s second point is that it was error for the court to condition payment of fees to appellant upon a return by appellant of personal property owned by Mrs. Hunt. We conclude that this condition was a proper one to be imposed. Appellant’s retaining lien on such personal property (if it now exists) is a mere pos-sessory lien as security for the amount due appellant by its former client, appellee-wife. 3 Fla.Jur., Attorneys at Law, § 70 (1955). It would be inequitable to require the appellee-wife to pay appellant the $30,000 without requiring appellant to tender to appellee-wife her property. The order does not deprive appellant of its option to forego payment from appellee-wife until final disposition of the pending suit in Palm Beach County. In fact, this aspect of the order is actually for the protection of appellant who, though not absolutely required to tender the personal property to the wife, may at its option do so and thereby be assured of prompt payment of the $30,000. The order simply and wisely does not allow appellant to have the best of both worlds.

As herein modified, the order is affirmed.

CROSS and MAGER, JJ., concur.


author: McCORD, Acting Chief Judge.

text:
    Lillian J. O’HARA, Appellant, v. James E. O’HARA, Appellee.
    No. X-406.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1976.
    Rehearing Denied March 16, 1976.
    Hugh T. Handley, Fort Walton Beach, for appellant.
    J. LaDon Dewrell, Fort Walton Beach, for appellee.
   McCORD, Acting Chief Judge.

This is an appeal from a final judgment of dissolution of marriage. The judgment, among other things, ordered that the jointly owned homeplace of the parties located in the State of New Jersey be listed for sale and sold. Appellant contends such was error. The requirement that this jointly owned home be sold was in effect a partitioning of the property, which the court was unauthorized to require in the absence of an agreement by the parties or a request for partition in the pleadings. Bergh v. Bergh, Fla.App. (1st), 127 So.2d 481 (1961); Rankin v. Rankin, Fla.App. (2nd), 258 So.2d 489 (1972); Coscia v. Coscia, Fla.App. (4th), 262 So.2d 254 (1972); Moore v. Moore, Fla.App. (3rd), 311 So.2d 152 (1975); and 10A Fla.Jur., Dissolution of Marriage, § 105. Here, there was no prayer for partition in the pleadings, and there is no indication that the parties were in agreement on the sale of the home. We make no ruling here on the question of whether or not the court, by consent of the parties or upon adequate pleadings, could direct sale of out-of-state property.

We have considered the other contentions of appellant on this appeal and find them to be without merit. That part of the final judgment which required sale of the home of the parties is reversed and the final judgment in other respects is affirmed.

MILLS and SMITH, JJ., concur.


author: GRIMES, Judge.

text:
    Michael Damien STANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-639.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1976.
    Jack O. Johnson, Public Defender, and Steven H. Denman, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant contests the denial of a motion to suppress as evidence the marijuana and controlled substance paraphernalia which he was charged with unlawfully possessing. The point was preserved for appeal at the time of the entry of a plea of nolo con-tendere. State v. Ashby, Fla.1971, 245 So. 2d 225.

At 12:20 a. m. on October 20, 1974, Deputy Halvorsen and Special Deputy Bisso-nette of the Lee County Sheriff’s Department were dispatched to Daniels Road to check “speeding autos and intoxicated juveniles in the area.” Upon arriving in the darkened area of Daniels Road, the deputies observed an unusually large amount of traffic for the area. They parked off the side of the road with their headlights shining across the road. Daniels Road was unpaved at this point, but the speed limit was 55 miles per hour.

The vehicle in which appellant rode as a passenger was one of several cars that passed by going in an easterly direction. The car was estimated to be travelling at 40 to 45 miles per hour. Deputy Halvor-sen noticed a “white female” sitting in the front passenger seat who pointed toward the marked patrol car. Thereupon, he pulled out and followed the car for about a half mile and then stopped it.

In his police report, Deputy Halvorsen stated that his reason for stopping the vehicle was that it “appeared to have no destination.” In a deposition he testified that they decided to follow the car when the young lady “pointed to us or froze when she saw us.” At the suppression hearing, Halvorsen stated his reason was to ascertain the identities of the persons and to give the driver a warning about his speed.

There were three people in the car. Appellant was in the back seat. As the car stopped, the deputies believed they saw something thrown out the rear window. They found a plastic baggie containing marijuana and a warm pipe in some bushes a short distance from the car. The court determined that the officers had reasonable and probable cause to stop the vehicle and held that the evidence was lawfully seized.

This appeal turns on whether the deputies had a right to stop the automobile without a warrant. If the stop was valid, there was no basis to suppress the evidence. State v. Nittolo, Fla.1975, 317 So. 2d 748.

This court has held that there are circumstances short of probable cause which would justify the stopping of a vehicle. State v. Othen, Fla.App.2d, 1974, 300 So.2d 732. In Adams v. State, Fla.App.2d, 1974, 295 So.2d 114, which was also an automobile case,, this court said:

“. . . We are dealing here with an emerging area of law which, since Terry v. Ohio, has made it clear that there is a middle ground between the pretextual arrest and an arrest with probable cause.

Under Terry, a temporary detention is permissible if the facts available to the officer at the time would warrant a person of reasonable caution in the belief that the action taken was appropriate. Anything less “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.” Terry v. Ohio, supra.

None of the circumstances mentioned by the officers were legally sufficient to justify the stopping of the vehicle in which appellant was a passenger. The only possible justification was suggested by the court at the conclusion of Deputy Hal-vorsen’s direct examination when the following colloquy occurred:

“THE COURT: . ... When you stopped and put on your lights and threw the siren on and following that car and they ultimately stopped, what was your intention when stopping the vehicle ?
“THE WITNESS: Primarily to ascertain the identities and to give the gentleman a verbal warning of the speed he was doing down that road and make him aware of the situation as far as speeding autos and the complaints that people were making.
“I don’t think I would have actually cited him, to be honest and truthful, your Honor.
“THE COURT: So, it would be to ascertain the identities of the individuals?
“THE WITNESS: Yes, sir.
“THE COURT: And possibly warn them about the speed ?
“THE WITNESS: Yes, sir.
“THE COURT: And find out the situation with the young lady that was the reason she pointed to you to find out if she was frightened or was out with those gentlemen legitimately ?
“THE WITNESS: Yes, sir.”

While we are reluctant to reverse where there is any possibility of factual conflict, a study of the entire transcript convinces us that the safety of the girl played no part in the determination to stop the vehicle. In the course of checking out an area where intoxicated juveniles had been reported to be speeding, the deputies became suspicious of this automobile because the girl in the front seat suddenly froze when she saw the marked patrol car and pointed toward it. This case bears some similarity to Thomas v. State, Fla.App.4th, 1974, 297 So.2d 850, in which the court held that the police were not justified in stopping an automobile which started to pull out to pass and then pulled back when the passenger observed that the car it was about to pass was a police cruiser.

The circumstances known to the deputies were not of a sufficiently suspicious character as to permit them to stop the vehicle. Good faith is not enough. Terry v. Ohio, supra. Therefore, the fruits of the improper exercise of police power should have been suppressed. Mattier v. State, Fla.App.4th, 1974, 301 So.2d 105.

Reversed.

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

      . Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.