author: PER CURIAM. BOYER, Judge,

text:
    Melvin S. BOYER, Appellant, v. Julian BRANCHE, as Personal Representative of the Estate of Harriet Branche Boyer, Deceased, Appellee.
    GG-220.
    District Court of Appeal of Florida, First District.
    July 28, 1978.
    James P. Judkins and Ken Davis of Davis & Judkins, Tallahassee, for appellant.
    Doug B. Shivers of Cotten, Shivers, Gwynn & Daniel, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See In re Arner, 218 So.2d 471 (Fla. 1 DCA 1969).

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

BOYER, J., dissents.

BOYER, Judge,

dissenting.

I agree that the learned and able trial judge correctly interpreted and relied upon this court’s opinion in In Re Arner, cited in the majority per curiam opinion. However, in my view, that opinion espouses bad law.

Stability of the law is an important consideration and due deference should always be accorded the time honored doctrine of stare decisis. Nevertheless, when justice and experience demonstrates a precedent to be erroneous a court has the duty to squarely face the issue and recede. Such a position is all the stronger if a fresh approach is designed to achieve justice while the precedent does not. Certainty and stability are extremely important, but blind and dogmatic adherence to an unjust precedent not only defeats the very purpose of our system of jurisprudence, the pursuit of justice, but also encourages distrust and disrespect for the system.

The case sub judice is a case in point. Our precedent, while encouraging stability, promptness and expeditious disposition of probate proceedings, is contrary to the clear wording of the statute, in conflict with a decision of our sister court and is subject to abuse, the achievement of unjust results and even perhaps an instrument of fraud.

Harriet Branche Boyer died in June of 1974, leaving a Will which was duly admitted to probate. In that Will she appointed her brother, Julian L. Branche, as her personal representative. No provision was made in the Will for the decedent’s spouse, appellant Melvin S. Boyer. However, he apparently retained possession of, and claimed ownership of, various items of personal property after the death of his wife. Almost two years later, in June of 1976, the personal representative filed a replevin action against Melvin S. Boyer seeking to recover possession of those items of personal property, claiming them to be assets of the estate. Melvin S. Boyer filed an answer to the complaint in replevin. At the time of this appeal no further action had been taken in that proceeding. On the same day that the answer was filed in the replevin action, Melvin S. Boyer filed in the probate proceeding a petition for revocation of probate. After answer and hearing the petition for revocation was denied.

While the above mentioned litigation was pending, Melvin S. Boyer, on May 17, 1977, filed a notice of election to take dower. The personal representative moved to strike on the ground of untimely filing which motion the trial court granted, resulting in this appeal.

The controlling statute is 731.35, Florida Statutes 1973. Subsection (1) of that statute provides:

“In order to take dower, the surviving spouse must so elect by a signed instrument in writing, acknowledged or sworn to by the surviving spouse before any officer authorized to take acknowledgments or administer oaths and filed, within seven months after the first publication of the notice to creditors, in the circuit court where the estate of the deceased spouse is being administered. The clerk of the circuit court shall record all elections to take dower.”

Subsection (2) of the same statute provides:

“Should litigation occur involving a contested claim or the construction, admission to probate, or validity of the will, or on any other matter affecting such estate whereby the full and complete extent of estate assets subject to dower may be in doubt, the surviving spouse shall have seventy days from the date of the final termination of all proceedings in all courts in any such litigation in which to elect to take dower.”

Appellee contends and the majority holds, that this court’s decision in In Re Estate of Arner, 218 So.2d 471 (Fla. 1st DCA 1969) is dispositive. In that case, as in the case sub judice, no election to take dower was filed within the time prescribed by subsection (1) of F.S. 731.35. In that case, as in the case sub judice, litigation was commenced after expiration of the period provided in subsection (1) for the filing of an election to take dower, the result of which litigation would affect the full and complete extent of the estate. In the Arner case however, the widow did not file her election to take dower within the time prescribed by subsection (2) of F.S. 731.35 or after termination of the litigation contemplated by that subsection. Sub judice, on the other hand, that litigation has not yet terminated, therefore the widower’s election which was filed on May 17, 1977, as aforesaid, was clearly within the period provided by said subsection (2). Nevertheless, this court, though not so required under the facts of that case held in Arner:

“* * * We are of the opinion and so hold, that the filing of this petition [the petition for declaratory decree to determine the heirs, legatees, next of kin and rights in the homestead] did not revive the right to elect to take dower. That it was not the intent of subsection (2) of F.S. § 731.35, to extend the right to file election, unless the litigation was filed within the statutory time for filing such election, and such litigation precluded the otherwise timely filing or gave rise to doubts as to whether the widow should file or not. To hold otherwise would open the door to unreasonable confusion and reopening of many closed issues in an estate.” (218 So.2d at page 473)

The above quotation vividly demonstrates, therefore, that notwithstanding that the election was not timely filed in the Arner case even within the time prescribed by subsection (2) of the statute, the court nevertheless squarely and unequivocally held that subsection (2) was not effective to extend the time for filing an election to take dower unless the litigation therein contemplated was. filed within the time prescribed by subsection (1). It is interesting to note, however, that the author of that opinion felt it necessary to bolster the court’s position by the statement:

“Further, even if the declaratory decree had validly reestablished the widow’s right of election, she failed to comply with the 60 days provision for filing.” (218 So.2d at page 473)

Appellant, sub judice, while urging that the Arner case is in conflict with the clear wording of the statute and the obvious intent of the legislature, yet urges that that case is distinguishable on two grounds, viz: First, as already observed, the election was not filed within the period prescribed by subsection (2) of the statute and secondly, that the declaratory judgment action seeking to determine the heirs, legatees, next of kin and rights in the homestead was not such litigation as that contemplated by the specific wording of F.S. 731.35(2), whereas the ensuing litigation sub judice was and is.

Although appellant’s laudable attempt to distinguish the Arner case is well taken on the facts, it does not meet the bold holding of that case, as above quoted. We must, therefore, either affirm this case on the authority of the Arner decision or else candidly recede therefrom. I would, as already indicated, recede.

Prior to the decision in the Arner case, though not mentioned therein, our sister court of the Second District, in First National Bank of Birmingham v. McFarland, 200 So.2d 244 (Fla. 2nd DCA 1967), held under a factually similar situation that litigation relating to alleged assets of the estate which was commenced after the expiration of the period provided in subsection (1) of the statute extended the time for the filing of an election to take dower for the period provided in subsection (2) of the statute following entry of final judgment in that litigation. In my view that interpretation is correct.

In practice there is actually little reason for the personal representative of an estate to know whether or not a survivor will elect to take dower until such time as he is ready to pay claims and make distribution. No prejudice occurs to the estate nor the personal representative as a result of the belated filing of an election to take dower unless the delay adversely affects or frustrates the payment of claims or distribution. The surviving spouse, on the other hand, may be severely prejudiced by being required to make an irrevocable election prior to the time that the size of the estate is ultimately-determined. It was obviously with that thought in mind that the legislature adopted F.S. 731.35(2).

The reason for the seven months limitation for the filing of the election as provided in F.S. 731.35, Florida Statutes 1973, is in anticipation that by that time the size of the estate will have been determined and the personal representative will be ready to pay claims and make distribution. Experience demonstrates the wisdom of the legislature in making that assumption and teaches that in the vast majority of cases the second subsection of the statute has no applicability. However, the legislature, also in its wisdom, adopted the second subsection of the> statute as a safety valve to come into play in those extraordinary circumstances when the size and extent of the estate is late in being determined. It will be noted that the legislature did not incorporate any time period to trigger the applicability of subsection (2) of the statute. It becomes applicable at any time the size and extent of the estate, or the construction, admission to probate or validity of the will becomes uncertain. The door is thereby kept open for the filing of the election until 70 days from the date of the final determination of all proceedings in all courts in any such litigation. Although, as appellee contends, such a construction of the statute could lead to uncertainty were it abused, it goes without saying that all rights and privileges are subject to the exercise of good faith. Should it be made to appear that an action was commenced in bad faith for the sole purpose of reviving the period for the filing of the election then that lack of good faith could be raised as a defense to the belated filing of the election.

Examples, on the other hand, of the injustice which might well result from the construction of the statutes by this court in its Arner decision, notwithstanding the exercise of good faith, are too numerous to detail. Two such examples are sufficient to demonstrate the point: Assume, for example, a decedent dies leaving an apparent estate of $30,000.00 as reflected by the inventory and appraisal. His will leaves $20,-000.00 to his widow, which is more than she would receive by filing an election to take dower; therefore she files none. A year lapses and before distribution the executor discovers a theretofore unknown .asset worth $1,000,000.00 which is claimed and obtained via litigation. Applying the Arner construction the widow is bound to accept only $20,000.00 notwithstanding the estate is worth over $1,000,000.00. Under the Ar-ner construction the same result would be obtained even were it to appear that the executor purposely, intentionally and with malicious motive delayed “finding” the theretofore unknown and unreported asset. Clearly such a result was not intended by the legislature, but is cured by a proper construction of subsection (2) of F.S. 731.35.

In conclusion, I am of the firm view that we should recede from our holding in In re Estate of Arner, supra, and hold instead that subsection (1) and subsection (2) of F.S. 731.35, Florida Statutes 1973, mean what the say and afford alternative periods for the filing of an election to take dower and that the time provided by subsection (2) is not conditioned upon the litigation there contemplated being commenced prior to the expiration of the period provided by subsection (1).

I would accordingly, with all deference to the learned trial judge who correctly relied upon a precedent of this court; reverse and remand for further proceedings consistent with the views here expressed.

The appellee has filed a cross appeal. I agree that it is without merit.

I would deny the motion for attorney’s fees filed by the personal representative of the estate of Harriet Branche Boyer incident to services relating to this appeal, but without prejudice to the privilege of including same in any motion for attorney’s fees hereafter addressed to the trial court in the probate proceeding from whence this appeal eminates for services rendered to the estate.

      . F.S. 732.212, Florida Statutes 1977, now provides:
      “The election shall be filed within 4 months from the date of the first publication of notice of administration, but, if a proceeding occurs involving the construction, admission to probate, or validity of the will or on any other matter affecting the estate whereby the complete extent of the estate subject to the elective share may be in doubt, the surviving spouse shall have 40 days from the date of termination of all the proceedings in which to elect.”


source: Caselaw Access Project

author: BOYER, Judge.

license: Public Domain

text:
    Walter E. EASON and Walter Eason Realty, Inc., Appellants, v. Joseph P. LAU et al., Appellees.
    No. JJ-80.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1978.
    Wilfred C. Yarn and C. Everett Boyd of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.
    M. Howard Williams, Timothy D. Harley, of Williams, Gibson & Harley, Tallahassee, • for appellees.
   BOYER, Judge.

The primary issue to be resolved by this appeal from a partial summary judgment relates to the effect, if any, of chapter 75-108 (F.S. 768.31), known as the Uniform Contribution Among Tortfeasors Act on F.S. 768.041 (chapter 57-395 Laws of Florida).

By their amended complaint, appellees (plaintiffs in the trial court) sued Walter E. Eason, a real estate broker, Walter Eason Realty, Inc. and one Glenn Virgo, one of Eason’s real estate salesmen. The parties agree in their briefs that the type of tort alleged involves moral turpitude and an alleged breach of trust or fiduciary obligation. The plaintiffs filed a voluntary dismissal with prejudice as to the defendant Virgo. The remaining defendants, appellants here, then moved for summary judgment asserting that the voluntary dismissal was a release; that the defendants were sued as joint tortfeasors; and that the release of one joint tortfeasor was a release of all. The trial judge, in a thorough and well reasoned order, found that the defendants were joint tortfeasors (which finding was in accordance with an oral stipulation among the parties before the court); that the voluntary dismissal with prejudice as to Virgo was “tantamount to a release”; that F.S. 768.041 was neither expressly nor impliedly repealed by F.S. 768.31 and that F.S. 768.041 was applicable. The partial summary judgment here appealed was thereupon entered, holding that the dismissal with prejudice of Virgo did not discharge the other defendants.

We affirm.

It is clear that the defendants were charged as joint tortfeasors. The parties agree that under the common law a release or discharge of one or more joint tort-feasors was a discharge of all other tort-feasors liable for the same tort and that such principle of law was applicable in Florida until the adoption in 1957 of F.S. 768.-041. (See F.S. 2.01; Prosser, Law of Torts, 3rd Ed. 1964, page 69; and Atlantic Coastline Railroad Co. v. Boone, 85 So.2d 834 (Fla.1956), 57 A.L.R.2d 1186).

Fla.R.Civ.P. 1.420(a) permits a party to dismiss an action without order of court but provides that when the notice states that it is with prejudice the plaintiff is barred from bringing the action again as it is thereby considered to be an adjudication upon the merits. (See Drady v. Hillsborough County Aviation Authority, 193 So.2d 201 (Fla. 2nd DCA 1966) and Lomelo v. American Oil Company, 256 So.2d 9 (Fla. 4th DCA 1971)). We agree with the learned trial judge that a dismissal with prejudice under the rule is equivalent to or tantamount to a release. Reliance upon Martin v. Burney, 160 Fla. 183, 34 So.2d 36 (1948) and Salcedo v. Southeastern Natural Gas Co., 171 So.2d 398 (Fla. 3rd DCA 1965) for a contrary position is misplaced. Those cases are both factually and legally distinguishable and have no application sub judi-ce.

The query therefore becomes whether the dismissal or release of Virgo, a joint tortfeasor, also released by operation of law the other joint tortfeasors. Clearly under the common law such would have been the result. However in 1957 the Florida legislature adopted chapter 57-395, Laws of Florida (F.S. 768.041) which provides, in material part, as follows:

“A release or covenant not to sue as to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.”

In Sun First National Bank of Melbourne v. Batchelor, 321 So.2d 73 (Fla.1975) the Supreme Court of Florida reversed the Fourth District Court of Appeal which had held that the statute did not abolish the common law rule entirely and did not apply to an action for conversion, the Supreme Court holding that no tort was excluded by the legslature when it enacted 768.041.

It is apparent therefore and the parties so agree, that the common law rule was abrogated by F.S. 768.041 and that accordingly under that statute a release of one tort-feasor does not, and did not, operate as a release or discharge of the other joint tort-feasors. However, appellants contend that F.S. 768.041 was repealed by chapter 75— 108, Laws of Florida (F.S. 768.31) entitled the Uniform Contribution Among Tort-feasors Act. We must, therefore, examine the affect of that statute.

F.S. 768.31(2)(g) specifically provides that:

“This act shall not apply to breaches of trust or of other fiduciary obligation.”

As already stated, the parties agree in their briefs that the type of tort charged in the amended complaint sub judice involves moral turpitude and an alleged breach of trust or fiduciary obligation. The appellees argue, nevertheless, that the above quoted provision does not mean what it says and that the word “act” should not be construed as applicable to the entire statute but only to the particular section in which the word appears. We cannot, however, take such liberties with the language of the statute. We note that the subject statute is a “uniform” statute, having its genesis in a uniform act promulgated by the National Conference of Commissioners on Uniform State Law. The Florida legislature adopted the uniform act verbatim. (See 12 Uniform Laws Annotated at pages 57 through 107)

It syllogistically follows, therefore, that if the tort charged sub judice involved breach of trust or other fiduciary obligation and that F.S. 768.31 (the Uniform Contribution Among Tortfeasors Act) is not applicable to breaches of trust or other fiduciary obligation and if 768.041 is applicable to all torts, as held by the Supreme Court in the Batchelor case, then the conclusion is inescapable that F.S. 768.31 is inapplicable and F.S. 768.041 is controlling. F.S. 768.041 being controlling, the common law rule is inapplicable; therefore the release of Virgo did not operate as a release or discharge of the other joint tortfeasors.

Further, even if F.S. 768.31(2)(g) did not contain the recitation that the “act” shall not apply to breaches of trust or other fiduciary obligations, still that act (F.S. 768.31) did not repeal F.S. 768.041. While (but for the exception applicable to breaches of trust and other fiduciary obligations) the two statutes affect the same subject matter there simply is no repugnancy. In Banana River Properties v. City of Cocoa Beach, 287 So.2d 377 (Fla. 4th DCA 1973) that court, quoting from 30 Fla.Jur., Statutes § 152, said:

“ * * * However, before the courts will declare that one statute impliedly repeals another, it must appear either that there is positive repugnancy or such a nature that the two acts cannot, by a fair and reasonable construction, be reconciled or made to stand together, or that the later act revises the subject or was clearly intended to prescribe the only governing rule. In the absence of a positive repugnancy between the two statutes, before a repeal will be implied a clear legislative intention must be present. The mere fact that two statutes affect the same subject matter, which it is not clear that the later was designed to prescribe the only governing rules, is not sufficient. There should be no field in which the earlier statute can operate without conflict with the later.” (287 So.2d at page 379) (Emphasis added)

This court, in Walton County v. Board of Public Instruction of Walton County, 161 So.2d 45 (Fla. 1st DCA 1964) said:

“It is the settled law of this state that in order for a court to declare that one statute impliedly repeals another, it must appear that there is positive repugnancy between the two, or that the last was clearly intended to prescribe the only governing rule, or that it revises the subject matter of the former. Beasley v. Coleman, 136 Fla. 393, 180 So. 625. * *” (161 So.2d at page 46)

We recognize the similarity between the subject matter treated in F.S. 768.041(1) and subsection F.S. 768.31(5) of the Uniform Contribution Among Joint Tortfeasors Act, which provides:

“Release or covenant not to sue. — When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
“(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and,
“(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.”

We are also cognizant of the provision of said act which provides that “all acts or parts of acts which are inconsistent with the provisions of this act are hereby repealed.” But we simply find no inconsistency. F.S. 768.041(1) provides that a release or covenant not to sue as to one tortfeasor shall not operate to release or discharge the liability of any tortfeasor who may be liable for the same tort or death. F.S. 768.81(5) provides essentially the same but goes on to provide the effect of such a release. Since, however, F.S. 768.31 does not apply to breaches of trust or other fiduciary obligations that act simply has no' application to the case sub judice.

In a recent ease, Oldham, etc. v. Rooks, 361 So.2d 140 (Fla.1978), the Supreme Court of Florida, holding that when the legislature makes a complete revision of a subject it serves as an implied repeal of earlier acts dealing with the same subject unless an intent to the contrary is shown, said:

“There is a general presumption that later statutes are passed with knowledge of prior existing laws, and a construction is favored which gives each one a field of operation, rather than have the former repealed by implication. City of Punta Gorda v. McSmith, Inc., 294 So.2d 27 (Fla. 2d DCA 1974); State Department of Public Welfare v. Galilean Children’s Home, 102 So.2d 388 (Fla. 2d DCA 1958); accord, State ex rel. Myers v. Cone, 139 Fla. 437, 190 So. 698 (1939).”

Applying that decision sub judice, F.S. 768.-31 does not constitute a complete revision of the subject because, as observed already, it is inapplicable by its own wording to breaches of trust or other fiduciary obligations; the legislature is presumed to have known of the existing law, F.S. 768.041; and each statute yet has a field of operation.

In summary, we hold: (a) A dismissal with prejudice is tantamount or equivalent to a release, (b) The common law rule relating to release of a joint tortfeasor was abrogated by F.S. 768.041. (c) F.S. 768.041 was not repealed by F.S. 768.31 and is therefore yet in full force and effect, (d) F.S. 768.31 does not apply to breaches of trust or other fiduciary obligations.

AFFIRMED.

MELVIN and MILLS, JJ., concur.


author: BOOTH, Judge.

text:
    Nathaniel FIELDS, Appellant, v. STATE of Florida, Appellee.
    No. II-308.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1978.

      Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove and Martha J. Cook, Asst. Attys. Gen., for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court, Duval County denying appellant’s motion to suppress evidence seized in an inventory search and adjudging appellant guilty, on a plea of nolo contendere, of the offense of possession of a controlled substance: methadone. The well-reasoned order of the trial court denying motion to suppress sets out the facts, legal principles involved and the correct application of those principles to the facts here, in pertinent part as follows:

“The material facts are not disputed:

(a) The reason for stopping the Defendant was that a reliable confidential informant had informed the police officer that Defendant did not have a driver’s license.

(b) This information was received by police officer while the Defendant was eating breakfast and the car he had driven was parked at a restaurant. The police officer’s vehicle was also at or near the restaurant.

(c) After Defendant drove the car from the restaurant onto the puhlic street, the police officer stopped the Defendant. This occurred between 4:00 and 5:00 A.M. The car was stopped at the curb and was legally parked after the stop.

(d) The police officer asked the Defendant for his driver’s license and car registration. The Defendant was not able to produce a driver’s license or any other personal identification, but told the officer that the car belonged to his girl friend, and gave the officer her name.

(e) As the Defendant was going through the glove compartment the officer saw two other traffic tickets fall from the glove compartment. The officer had his spotlight on the glove compartment as it was opened by Defendant. The Defendant acknowledged that the traffic tickets were his and Defendant handed the traffic tickets to the officer upon request. They were for driving without a driver’s license.

(f) Officer placed Defendant under arrest for driving without a valid driver’s license and put him in back of the patrol car which the officer had driven. The car was locked.

(g) The passenger with Defendant also had no identification, so he too was placed in the locked patrol car. The passenger also told the officer that the car belonged to the Defendant’s girl friend. The passenger had no driver’s license with him.

(h) Officer noticed that the small plate with the serial number was missing, which the officer stated was against the law; Defendant states that he gave the officer the tag registration; the officer did not recall this but officer stated that he checked out the car ownership from the tag and found it was registered in the name of the person named by Defendant as the owner. This was done before the inventory was made.

(i) During the investigation, some friends of the Defendant (with whom he had been eating in the restaurant) drove up, but only stayed for a few seconds and left; there was no testimony as to whether those friends were asked to drive the car away or were offered the chance to drive the car away, or any communication between the occupants of the automobile and the Defendant. From the testimony, the friends did not stay long enough to be considered a factor in the Court’s ruling.

(j) Following the arrest, officer made an inventory of car since he intended to have it towed away. The officer testified this was done in accordance with standard police procedure.

(k) Officer did not ask Defendant for permission to inventory the car nor tell him that he was about to make an inventory of the car. According to the officer, the standard procedure under which he is obligated to proceed following an arrest, does not require him to make such inquiry of Defendant. The officer opened the trunk with keys which were in the car. The Defendant was not asked for permission to open the trunk or give permission to search the trunk.

(i) Defendant never objected to the inventory or suggested any alternative to the impoundment. During the period of the inventory, Defendant was in back seat of locked police car, and objecting to the search would have been difficult if not impossible.

(m) During the inventory, police officer found the controlled substance sought to be suppressed.

* * ‡ * *

3. The legal principles gleaned from these decisions [cited below] are:

A. Essential requirement to a valid inventory search is that the police have taken lawful custody of the vehicle in the first instance and that they act in good faith in conducting inventory rather than using it as a subterfuge for warrantless search. (Benton v. State)

B. The basis on which Courts uphold inventory searches, i. e., that under routine police procedure it is essential when impounding a car to inventory it and its contents for preservation thereof as well as to insulate the police and garage owner from responsibility in the event of theft or destruction. (Godbee v. State) [Case involved search not incident to arrest.]

C. Whether an inventory search is reasonable depends upon the totality of the circumstances. (G. B. v. State of Florida)

D. The reasonableness of any search without a warrant is measured from the standpoint of the conduct of the searchers. If their conduct is in some way reprehensible, or if they precipitate a search and are motivated therein solely by desire to ‘hunt’ for incriminating evidence, or if they do so without any plausible explanation or justification, the invasion is an unreasonable one. (Godbee v. State) [supra]

E. A silent arrestee need not be consulted as to his wishes concerning the care of his vehicle. (State v. Dearden)

F. Before an inventory search of a motor vehicle may be conducted there must be some necessity for impounding it. (Altman v. State)

G. Search conducted for the purpose of making an inventory of the contents of an automobile is not unreasonable within proscription of the Fourth Amendment if the totality of the circumstances demonstrates that a search is a bona fide inventory made in the course of ordinary police procedure, but such search will be unreasonable if it is utilized as a pretext to conduct an ‘exploratory’ search in order to hunt for incriminating evidence. (State v. Jenkins)

H. A valid inventory search may include a search into locked portions of the auto. (Godbee v. State) [supra] (Cady v. Dombrowski)

4. The cases decided by various courts as set forth above have been determined by the facts of each case, and it is difficult to reconcile all of the holding [sic] because each case has a slightly different set of facts. In the instant case:

(a) The event occurred in the middle of the night.

(b) Although there was another person with Defendant, neither he nor Defendant could produce a valid driver’s license, therefore there was no one to drive the car following the arrest.

(c) The car could have been locked and left on the street, which would not have constituted any traffic hazard.

(d) The auto was not registered in the name of the Defendant; even though it was registered under the name given to the officer by Defendant, such owner was not at the scene, nor was any evidence adduced that she could have come to the scene within a reasonable time during the middle of the night.

(e) There is no showing or indication of bad faith on the part of the police officer, nor is there any hint that this was an exploratory search in order to hunt for incriminating evidence.

5. The requirements set forth on page 94 of the Jenkins decision serve as general guidelines, yet on the facts of the Jenkins case, which are very similar to the facts of the instant case, the Court held that the inventory search was not unreasonable.

6. I distinguish the facts in this case from the facts in the Benton case because in the Benton case, the Court found that the officer did not have the vehicle in his lawful possession, and that the search was based on a pretextual arrest.

7. Further the Court finds that it is not mandatory to give the Defendant notice that the auto will be impounded and inventoried, nor is it mandatory to obtain the consent of the owner of the auto, or in this case, the Defendant who had lawful custody of the auto prior to the search. However, where the circumstances permit, the individual in custody should be advised of and given the choice of leaving the car in its location, contacting someone else to take charge or having it impounded.

8. Taking the totality of the circumstances into consideration, the Court finds that the police officer did not act improperly and that he impounded the car because it was reasonable in view of the circumstances, and that the inventory was done in the course of ordinary police procedure and was not pretextual.

ORDERED AND ADJUDGED that the Motion to Suppress is hereby denied.”

In the instant case, the validity of the arrest was not in question. Impoundment of the vehicle following arrest was valid even though the locked vehicle could have been left legally parked. The City remained subject to a claim by the absent owner in the event of theft or other damage to the vehicle or its contents and was not required to leave it parked on the street. The trial court found no evidence of improper use of the inventory search procedures by the law enforcement officer, and, considering the totality of the circumstances, held that the inventory search was not pretextual. We agree and the judgment below is, accordingly, AFFIRMED.

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

      . 329 So.2d 385 (Fla. 1st DCA 1976).

      . 224 So.2d 441 (Fla. 2nd DCA 1969).

      . 339 So.2d 696 (Fla. 2nd DCA 1976).

      . 347 So.2d 462 (Fla. 2nd DCA 1977).

      . 335 So.2d 626 (Fla. 2nd DCA 1976).

      . 319 So.2d 91 (Fla. 4th DCA 1971).

      . 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).


text:
    BVA CREDIT CORPORATION, a corporation, Appellant, v. John J. FISHER and Karen S. Garelick, as personal representative of the Estate of Ronald B. Garelick, Deceased, Appellees.
    No. DD-331.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.

      D. Chanslor Howell of Howell & Deas, Jacksonville, for appellant.
    Anderson M. Foote, Jr. of Ulmer, Murchison, Ashby & Ball, Stanley B. Gelman of Gelman & Rolfe, Jacksonville, for appellees.
   BOYER, Judge.

Appellant filed its complaint for damages against appellees, guarantors to appellant of all accounts due and owing to appellant by Thursday Publications, Inc. d/b/a The Jacksonville Chronicle based upon an equipment lease agreement under which Thursday Publications defaulted after making only one payment. The trial court entered final judgment in favor of appellant, but appellant, being dissatisfied with the amount of damages awarded, has appealed. The sole issue presented by this appeal is whether the trial court was correct in its conclusion that appellant, by re-letting the equipment covered by the lease and ultimately selling the equipment, made an election between two inconsistent substantive rights and thereby terminated its right to recover payments of rent which had not yet become due prior to re-letting.

By lease dated June 10, 1974, appellant leased certain equipment to Thursday Publications for a monthly rental of $520.72 over a period of 60 months. After making only one payment, Thursday Publications defaulted. By guaranty dated October 2, 1973, John J. Fisher and Ronald B. Garelick had guaranteed to appellant all obligations of Thursday Publications. The guaranty was by its terms unconditional and not to be impaired in any manner. According to appellant’s collection manager, appellant, after default by Thursday Publications, released the equipment to D & C Investments, Inc., by lease dated October 9,1974. After making three payments under the new lease, D & C Investments defaulted. Appellant then repossessed the property and sold it, after duly giving notice to ap-pellees of the impending sale. At trial, appellant sought damages totalling $25,-739.49 which figure was computed by subtracting from the total payments due under the lease with Thursday Publications the one payment made by Thursday Publications, the three payments by D & C Investments, and the proceeds from the sale of the equipment. The trial court concluded that Thursday Publications and, therefore, áppellees, owed appellant only three months rent under the lease.

The final judgment of the trial court rests upon two conclusions of law: First, that a lessor of personal property may retake leased property after default, lease it for the account of the lessee and recover the deficiency from the lessee only if the lease expressly reserves that right; second, that appellant’s re-leasing of the property to D & C Investments constituted an election between that remedy and recovering the difference between the sale price of the leased property and the balance of the payments due under the lease from appellees.

In concluding that there must be an express provision in the lease reserving the right of the lessor to take possession of leased personal property and to re-lease the property for the account of the lessee, the trial court relied upon Bidwell v. Carstens, 316 So.2d 264 (Fla.1975), Cutler Gate Building Corp. v. U.S. Leasing, 165 So.2d 207 (Fla. 3rd DCA 1964), and Monsalvatge and Co. of Miami v. Ryder Leasing, Inc., 151 So.2d 453 (Fla. 3rd DCA 1963). Those cases, however, do not stand for that proposition. In the two latter cases, the lessor, after the lessee defaulted, took possession of the leased property and brought suit for the full amount due under the lease. Neither case reveals an attempt by the lessor to re-lease the property or sell it.

In the Monsalvatge case the lessor declared the lease terminated. The appellate court, noting that fact, and that upon termination the lessee was obligated by the terms of the lease to return the equipment to the lessor, and did in fact make an offer to return, held that it would be inequitable and unjust to allow the lessor to have payment of all sums due under the lease and at the same time have the use and benefit of the leased property. In the Cutler Gate Building Corp. case the opinion reveals that the leased equipment was returned to the lessor “within a space of some three months after it had been placed with” the lessee. Citing and quoting from the Monsalvatge case, supra, the Third District there held that under the circumstances of that particular case the lessor’s damages should be limited to the rents which had accrued but remained unpaid at the time of the surrender or repossession of the equipment, together with interest, costs and attorney’s fees. The Supreme Court of Florida, in the Bidwell case, discussed both Monsalvatge and Cutler Gate. Although the court there quoted a provision of the lease there involved which authorized the lessor to take possession of the leased property and to re-lease it or sell it for the account of the lessee, it does not appear that the recitation of that lease provision was a necessary basis for the court’s holding. The Bidwell case is, however, analogous to the case sub judice. In that case, the lessor, after the original lessee defaulted, leased the property to a second lessee, who also defaulted and returned the leased property to the lessor. One year thereafter, the lessor sold the property and brought suit against the original lessee for the remainder of the payments due under the original lease, deducting therefrom the proceeds from the sale of the property. The trial court found for the. lessor, and the District Court affirmed. On certiorari, the Supreme Court also allowed recovery but determined that the lessor’s damages should be reduced by virtue of the beneficial possession by the lessor during the one year period which lapsed between the date of repossession of the property from the second lessee and the sale of the property. In none of the three cited cases is there a holding that the lessor’s remedy of taking possession of leased personal property after default and leasing it or selling it for the account of the lessee must be expressly reserved in the lease.

All parties assert applicability of the Uniform Commercial Code and rely upon various provisions thereof. Whether or not a bona fide lease not intended as a security agreement is governed by the Uniform Commercial Code we need not here determine because, first, as above recited, the parties have all stipulated to its applicability sub judice and, second, a provision of the particular lease here involved invokes the Uniform Commercial Code and provides for the execution and filing of a financing statement pursuant thereto. Clearly, F.S. 679.504 provides that a secured party may, after default, sell, lease or otherwise dispose of any or all of the collateral and apply the proceeds toward the satisfaction of indebtedness secured by the security interest under which the disposition is made. F.S. 671.201(37) defines “security interest” and provides

“ * * * Unless a lease or consignment is intended as security, reservation of title thereunder is not a ‘security interest’ * * * . Whether a lease is intended as security is to be determined by the facts of each case; * * * ”

The facts of this case reveal that the parties intended the particular lease here involved as security. The lease itself contained a specific provision (paragraph 13) providing for the filing of a financing statement “pursuant to the Uniform Commercial Code” which provision recited the purpose of such filing to be “to perfect lessor’s security interest”. Further, a financing statement designating appellant as “secured party” was in fact filed with the Secretary of State.

We conclude, therefore, that the principles of law applicable to mitigation of damages permits a lessor of personal property to re-lease the property or sell the property after default for the account of the lessee and recover the deficiency from the lessee whether or not the lease expressly so provides and that under the pertinent provisions of the Uniform Commercial Code, which is applicable under the facts of this case, the re-leasing and subsequent sale of the leased property did not constitute an election between inconsistent remedies. It necessarily follows that in this case, as in Bidwell v. Carstens, supra, appellant is entitled to recover from appellees a sum equal to the aggregate of the installments provided by the lease reduced by the installments actually paid under the original lease and the re-lease and reduced further by the amount realized from the sale of the leased property, plus interest, costs, and attorney’s fees. Attorney’s fees incident to the trial court proceeding and incident to this appeal shall be determined in the trial court and included in the judgment.

Reversed and remanded for further proceedings consistent herewith.

McCORD, C. J., and MILLS, J., concur.

      . The original defendants in the trial court and appellees here were John J. Fisher and Ronald B. Garelick. The latter died during the penden-cy of this appeal and his personal representative was substituted as a party appellee.

      . The guaranty provided, inter alia, that: “This is an unconditional guaranty of payment and not of collection. You may collect such indebtedness, or any part thereof, from undersigned (or any one or more of them) without first exercising your rights against obligor or any leased equipment or collateral. * * * You shall have the right to waive your rights against and to release any guarantor and any collateral without thereby affecting the enforcement of this guaranty against any of undersigned not expressly released.”

      .Appellant and D & C Investments, Inc. had been “brought together” by Ronald B. Garelick after the default by Thursday Publications.

      . This case is, by virtue of such notice, distinguished from Equilease Corporation v. Dickerson (Fla. 1st DCA 1978), Opinion filed May 16, 1976, Case No. GG-145. See also Barnett v. Barnett Bank of Jacksonville N.A., 345 So.2d 804 (Fla. 1st DCA 1977).

      . See DeVita Fruit Company v. FCA Leasing Corporation, 473 F.2d 585 (6 Cir. 1973).

      . See Southeast First National Bank of Maitland v. LeGrace Co., Inc., 359 So.2d 1223 (Fla. 1st DCA 1978). See also Barnett v. Barnett Bank of Jacksonville N.A., supra.

      .The record is clear that appellees, who were the guarantors of payment of the indebtedness created by the lease, were seasonably notified of both the reeasing and the sale: Therefore the principle of Barnett v. Barnett Bank of Jacksonville supra, was complied with.


author: PER CURIAM.

text:
    James E. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. HH-99.
    District Court of Appeal of Florida, First District.
    Sept. 27, 1978.

      Michael J. Minerva, Public Defender, and Stephen Lindsey Gorman and Sidney L. Matthew, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

An information alleged that appellant committed a sexual battery and in the process thereof used or threatened to use a deadly weapon contrary to Section 794.-011(3), Florida Statutes, (1975) (Count I) and further alleged that appellant committed a robbery contrary to Section 812.-13(2)(a) (Count II). Appellant was found guilty by a jury of sexual battery through the use of a firearm and of petit larceny, a lesser included offense of Count II. Appellant was orally adjudicated guilty of these offenses and was sentenced to imprisonment of ninety-nine years as to Count I and to a consecutive term of sixty days as to Count II. The written judgment and sentence, however, reflects that appellant was adjudicated guilty of “sexual battery” (rather than sexual battery through the use of a deadly weapon as charged in the information) and was sentenced to a term of ninety-nine years, but makes no disposition concerning Count II.

Appellant’s convictions are affirmed. The judgment is reversed and remanded with directions to the trial court to correct the judgment so as to conform to the jury’s verdict and to the court’s oral pronouncement. Appellant need not be present for this purpose.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


author: SCHWARTZ, Judge. KEHOE, Judge PEARSON, Judge

text:
    The STATE of Florida, Appellant, v. Henry ANDREWS and Robert Lee Richburg, Appellees.
    Nos. 78-825, 78-826.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.

      Janet Reno, State Atty. and George Vol-sky, Asst. State Atty. and Howard Blum-berg, Legal Intern, for appellant.
    Weiner, Robbins & Tunkey and Alan S. Ross, Robrish & Major, Miami, for appel-lees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The state appeals from orders discharging the defendants. We hold that the trial judge correctly concluded that the provisions of the speedy trial rule, Fla.R.Crim.P. 3.191(a)(1) precluded the state from further prosecution and therefore affirm the determinations below.

Andrews and Richburg were arrested by Federal Drug Enforcement Administration agents, on July 23, 1977 on charges of federal narcotics law violations arising from transactions between the defendants and the arresting agents, Brown and Johnson, which occurred on May 23, 1977 and June 1, 1977. The case proceeded in the Miami Federal District Court until, after the jury had been sworn and jeopardy had attached, the case was dismissed and the defendants discharged because of an irremediable defect in the indictment against them. Only then did Johnson and Brown bring the ease to the attention of state prosecuting authorities. On January 13, 1978, they appeared at the Dade County State Attorney’s office to give sworn testimony in support of informations and arrest warrants charging the defendants with violations of state law based upon the very same conduct for which they had been acquitted in the federal court. The informations were in fact duly issued on the same day, and the defendants were subsequently taken into state custody. Soon after, in March, 1978, the defendants moved for discharge under the speedy trial rule, on the ground that more than 180 days had elapsed since their federal arrest in July, 1977. The trial court granted their motions on April 10, 1978 and these appeals followed.

We think that affirmance is mandated in these cases simply by comparing the language of the applicable rule with the admitted facts. Fla.R.Crim.P. 3.191(a)(1) requires, of course, that a person charged with a felony must be brought to trial within 180 days. It provides:

“The time periods established by this section shall commerce when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.”

There is no question that both defendants were taken into custody on July 23, 1977 “as a result of the conduct . . . giving rise to the crime charged . . .,” and that July 23, 1977 is more than 180 days prior to the discharge. That should be the end of it.

The state contends, however, that the rule should be “interpreted” so as to accommodate the fact that both the state and the federal government may exercise “dual sovereignty” over a defendant, with each maintaining independent prosecutions for the same criminal conduct and with each proceeding unaffected by the other. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). This interpretation would require that the rule be read to provide that the defendant must be “taken into [state] custody” or “taken into custody [by state authorities]” ... in order to start the speedy trial time running. To hold otherwise, the state says, would be to countenance an “absurd” rule that federal authorities could completely frustrate Florida’s prosecution of crime simply, as in this case, by not telling state authorities of an arrest. We cannot agree.

The insurmountable difficulty which these contentions present is that they are directed to the wrong tribunal. It is apparent that the state asks us not to interpret the rule but to rewrite it; we simply lack the authority to do so. As the Supreme Court said, in dealing with the speedy trial rule in State v. Lott, 286 So.2d 565, 566 (Fla.1973):

“ . . . Sub judice, the trial court erred in failing to observe Rule 3.191(b)(1), which rule the state attorney had fully complied with, and in finding that this Court had abused its discretion in promulgating said rule. Rules of practice and procedure adopted by this Court are binding on the court and clerk as well as litigants and counsel.”

We held similarly in State v. Battle, 302 So.2d 782, 783 (Fla. 3rd DCA 1974), that “[t]he plain language of the rules promulgated by the Supreme Court of Florida are binding upon the trial and appellate courts.” It is not necessary to invoke the familiar doctrine that similar provisions are to be construed strictly against the state and in favor of the defendant, cf. Reino v. State, 352 So.2d 853, 860 (Fla.1977), to conclude that Rule 3.191(a)(1) says what it means and means what it says contrary to the state’s position.

We might note, however, that, apart from perhaps presenting an argument which might be made to the Supreme Court for an amendment to the rule, the practical effect of the holding in this case is merely to require that federal arresting authorities cooperate with Florida officials by telling them that an arrest has been made so that “dual” prosecutions could, if desired, be commence. This seems, on the face of it, neither an “absurd” requirement nor one which is too much to expect. While the state contends that it should not be penalized for the fault of the federal agents, surely the defendants may not be deprived of their rights under the rule when only governmental officials, of whatever jurisdiction, and not they, were responsible for the failure of the prosecution against them. Cf. Stuart v. State, 360 So.2d 406, 413 (Fla.1978).

Affirmed.

KEHOE, Judge

(dissenting).

I must respectfully dissent for the following reasons: The specific issue which this appeal presents for review is whether the arrest of appellant by Federal authorities for certain Federal offenses acted to commence the running of Florida Rule of Criminal Procedure 3.91 [speedy trial rule] for Florida offenses arising from the conduct giving rise to the Federal charges. The concept of “dual sovereignty” has been well established by the courts. For example, as described by Chief Justice Taft in United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922):

“We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.” 260 U.S. at 382, 43 S.Ct. at 142.

Based on the classic formulation of the “dual sovereignty” concept, the United States Supreme Court in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), held that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts. To outlaw successive prosecution would enable one sovereign to interfere with administration of the other’s criminal law. The Supreme Court reaffirmed this “dual sovereignty” concept during its past term in United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). There the Court held that Indian tribal courts and Federal district courts are not arms of the same sovereign for double jeopardy purposes.

In my opinion, against this background and absent some constitutional mandate not involved herein, implicit within Florida Rule of Criminal Procedure 3.191 is its application only to Florida criminal charges, involving Florida law enforcement, and involving Florida criminal episodes. Further, in my opinion, just as a Federal prosecution cannot bar a subsequent State prosecution of the same person for the same acts, I believe that appellees’ Federal arrest on Federal charges cannot act to commence the running of the Florida speedy trial time under Florida Rule of Criminal Procedure 3.191. Although I am unaware of any Florida authority directly on this point, The United States Court of Appeal, Ninth Circuit, in United States v. Cordova, 537 F.2d 1073 (9th Cir. 1976) relying on United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), ruled on a similar issue. There the court held that, although the defendant was arrested by state authorities on November 2, 1975, the determination of his right to a speedy trial for Federal charges, arising out of the same conduct,must be determined by reference to the later date of January 22, 1975, when Federal charges were initiated against him. In Cordova, the court clearly relied upon the “dual sovereignty” doctrine.

The trial court herein relied upon Bryant v. Blount, 261 So.2d 847 (Fla. 1st DCA 1972); and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1968); however, in my opinion, those cases are inapplicable as not involving “dual sovereigns;” therefore, I find them unpersuasive.

Further, I find no support in the record for the proposition that appellees were deprived of their constitutional rights to a speedy trial.

Based upon the reasons and the authorities set forth above, it is my opinion that, in the instant case, the 180 day period of Florida Rule of Criminal Procedure 3.191(a) had not expired as of the date of appellees’ supplemental motion to dismiss under the speedy trial rule; accordingly, the trial court’s order dismissing the cause and discharging appellees should be reversed.

PEARSON, Judge

(concurring specially).

Although I have signed the opinion authored by Judge Schwartz, I think it is necessary for me to add a qualification which would, I believe, limit the application of the present decision to the type of case with which we are here dealing. I would emphasize that it is clear in this case that the “state” prosecution was initiated by “federal” agents and that no element of an independent investigation was undertaken by the state authorities. The federal investigative officers were, for the purposes of this case, acting as the “agents” of the State of Florida in that the State’s action was the result entirely of the federal action.

      . Because of this conclusion, we pretermit consideration of the propriety of the lower court’s alternative holding that the defendants had been deprived of their constitutional right to a speedy trial.

      . There is no dispute that both defendants were “continuously available for trial” during the pertinent period.

      . The trial judge found below:
      “17. The Court finds that it is more than coincidental that United States Drug Enforcement Administration Agents Johnson and Brown waited until after the unsuccessful outcome of the Federal prosecution to initiate the present pending charges before this Court.”
      Sji Sfc * ífc *
      “21. Nothing in the record before this Court has shown that any impediment existed to prevent dual and simultaneous prosecutions for the criminal conduct or criminal episode giving rise to the offenses charged in the Informations filed before this Court and giving rise to the offenses charged in the aforementioned Federal Indictment. However, for whatever reason, no such dual and simultaneous prosecution was initiated. Not until an unfavorable result had been reached in the Federal Court did the arresting agents determine or decide to proceed with State charges against these Defendants for the conduct or criminal episode in question.”


author: HOBSON, Acting Chief Judge.

text:
    Wayne Walter MORRISON et al., Plaintiffs, v. James HUGGER et al., Defendants.
    No. 77-2096.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 1979.
    Rehearing Denied April 12, 1979.
    Michael Foster of Wagner, Cunningham, Vaughan & Genders, Tampa, for plaintiffs.
    Edward M. Waller, Jr. of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for defendants.
   HOBSON, Acting Chief Judge.

Plaintiff, Wayne Walter Morrison, as Administrator of the Estate of Kathleen B. Morrison, deceased, filed this action seeking to recover damages for the alleged wrongful death of his mother, Kathleen B. Morrison. The decedent was killed in an accident in Hillsborough County, Florida, on April 12, 1971, when her automobile was struck by a bus owned by defendant Wright Fruit Company, Inc. and driven by its employee James Hugger. The plaintiff brought this action against Hugger, Wright Fruit Company, Inc. and its insurer Florida Farm Bureau Insurance Company. At the trial of the cause, uncontroverted evidence was introduced that at the time of the accident Hugger was intoxicated and did not stop the bus in time to avoid running a red light and crashing into the decedent’s car. In addition, there was evidence submitted to the jury that the brakes on the bus may not have been working at the time of the accident and that prior to the accident Mr. Wright, the President and owner of Wright Fruit Company, was advised of problems with the brakes on the bus. Nevertheless, he instructed Hugger to use the bus during the weekend, when the accident happened, and have them repaired the following week. There was also evidence of cans of brake fluid found in the bus after the accident.

The plaintiff sought compensatory and punitive damages against Hugger and Wright Fruit Company. The jury was instructed, pursuant to the Standard Florida Jury Instructions, on compensatory damages. In addition, the jury was instructed that Wright Fruit Company was responsible for any acts of its employee while acting within the scope and course of his employment and also was instructed that if any defendant found to be liable to the-plaintiff acted with malice, moral turpitude, wantonness, willfulness or reckless indifference to the rights of others, the jury might in its discretion assess punitive damages against such defendant as punishment and as a deterrent to others. The jury was also instructed that it might assess punitive damages against one defendant and not the other or against more than one defendant in different amounts.

After deliberating, the jury awarded the plaintiff $40,000 in compensatory damages against Hugger and Wright Fruit Company, $40,000 in punitive damages against Wright Fruit Company and $5,000 in punitive damages against Hugger.

The court entered final judgment in accordance with the jury verdicts and, initially, entered a final judgment in the amount of $40,000 against Wright Fruit Company, Inc. and Florida Farm Bureau Insurance Company for punitive damages. Thereafter, the court entered an order vacating the judgment insofar as it purported to award punitive damages against Florida Farm Bureau Insurance Company.

In addition, in its order granting motion to vacate, the court ordered the parties to file whatever pleadings they deemed necessary in order to raise the question of insurance coverage of punitive damages so that the court might decide that issue. Pursuant to the court’s order, the insurance company filed its Post Trial Crossclaim and Counterclaim and Action for Declaratory Relief. Also pursuant to the court’s order, the plaintiff filed a Writ of Garnishment to be served upon the insurance company and an affidavit in support of the writ.

The question of insurance coverage of punitive damages in this case is dependent upon a determination of the basis upon which the jury awarded punitive damages in favor of the plaintiff and against Wright Fruit Company. If the jury’s award was based upon a determination that Wright Fruit Company was vicariously liable for punitive damages as a result of the conduct of its driver/employee Hugger, then there would be insurance coverage for the punitive damages. Travelers Insurance Company v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972). On the other hand, if the jury awarded punitive damages against Wright Fruit Company because of any act of wrongdoing or misconduct on the part of the employer/owner itself, there would not be insurance coverage for the punitive damages awarded against Wright Fruit Company. Sterling Insurance Company v. Hughes, 187 So.2d 898 (Fla. 3d DCA 1966).

The reason there is no coverage under the latter circumstance is not because of an exclusion in the policy but because it has been held that to provide insurance against an intentional act is against public policy. Nicholson v. American Fire & Casualty Ins. Co., 177 So.2d 52 (Fla. 2d DCA 1965); Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir. 1962).

The question certified to this court is restated as follows:

UNDER THE FOREGOING FACTS, DOES THE PLAINTIFF OR THE INSURER HAVE THE BURDEN OF PROOF OF ESTABLISHING UPON WHICH OF THE ABOVE BASES THE JURY AWARDED PUNITIVE DAMAGES AGAINST THE INSURED, WRIGHT FRUIT COMPANY?

The answer to this question will be determinative of the cause, as it is virtually impossible to determine upon which of these bases the jury awarded the punitive damages against Wright Fruit Company.

We fully concur with the trial court’s observation that this issue is without controlling precedent; however, we are inclined toward the view that the burden of proof was on the insurance company.

The insurance company takes the position that there is no coverage because of the fact that the punitive damages were predicated upon the conduct of the owner, insured, and therefore against public policy. Florida Rule of Civil Procedure 1.110(d) states that “a party shall set forth affirmatively . . . illegality . . . and any other matter constituting an avoidance ..” It is apparent that the insurance company is attempting to avoid the payment of punitive damages as being against public policy, or, being against public policy, it would be illegal to force them to pay the punitive damages. Since either position taken by the insurance company is an affirmative defense, the burden of proof should be on the insurance company to seek to develop the facts which would demonstrate that the coverage was inapplicable. In this case it would have been a simple matter to have requested a special verdict as to the basis for the punitive damages, and thereby the question would have been resolved.

The insurer’s reliance on Universal Underwriters Insurance Corp. v. Reynolds, 129 So.2d 689 (Fla. 2d DCA 1961), is misplaced. In that case we held that where a judgment includes elements for which an insurer is liable and also elements beyond the coverage of the policy, the burden of apportioning these damages is on the party seeking to recover from the insurer. Here there is a version of the facts under which the insurance would be applicable to the entire judgment. In Reynolds some of the damages were admittedly outside the coverage.

Because the facts are susceptible to a version which would fully support the insurance coverage and because there is no way to tell upon which basis the jury rendered its verdict, we believe that the judgment for punitive damages must fall on the insurance company.

Having answered the certified question, we remand this cause to the trial court for further proceedings consistent with this opinion.

RYDER and DANAHY, JJ., concur.


author: GRIMES, Chief Judge.

text:
    JOHN’S PASS SEAFOOD COMPANY, Appellant, v. Richard WEBER, Sr., et al., Appellees.
    No. 78-1156.
    District Court of Appeal of Florida, Second District.
    March 2, 1979.
    Rehearing Denied April 9, 1979.

      Richard E. Wolverton of Lyle, Skipper, Wood & Anderson, St. Petersburg, for appellant.
    Kenneth C. Deacon, Jr. and Irene H. Sullivan of Harris, Barrett & Dew, St. Peters-burg, for appellees.
   GRIMES, Chief Judge.

This appeal involves the question of whether a commercial lessor can exonerate himself from liability to his lessee for failure to comply with a fire code mandated by municipal ordinance.

The appellee (plaintiff) rented a slip at appellant’s (defendant) dock to moor his fishing boat. One night a fire on another vessel moored to the dock spread to the plaintiff’s boat. The plaintiff sued the defendant for the damage to his boat, contending that the defendant was negligent in failing to provide fire extinguishers and other firefighting equipment pursuant to the provisions of the Treasure Island City Code. As an affirmative defense, defendant pled the existence of a signed instrument in which the plaintiff agreed to hold the defendant harmless from all liability occasioned by the use of the dock, even if the harm were caused by the defendant’s negligence. Upon grounds of public policy, the court refused to permit this agreement to be introduced into evidence at the trial. The jury returned a verdict for the plaintiff in the sum of $10,000.

There is no need to quote the agreement because it quite clearly purports to exonerate the defendant from liability for its own negligence. When the terms are clear, Florida recognizes the validity of exculpatory agreements. University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973). The question here is whether the defendant should be permitted to contract away its responsibility to comply with the fire code when the person with whom the contract is made is one of those whom the fire code is designed to protect.

There are several Florida cases in which exculpatory clauses executed by a tenant in favor of his landlord have been upheld, but none of these dealt with the specific violation of safety codes. E. g., Rubin v. Randwest Corporation, 292 So.2d 60 (Fla. 4th DCA 1974); Middleton v. Lomaskin, 266 So.2d 678 (Fla. 3d DCA 1972). With the passage of Section 83.47, Florida Statutes (1977), the validity of an exculpatory provision for any purpose in a residential lease is in serious doubt. In any event, we have found no cases in which the point before us has been squarely addressed.

The defendant relies primarily upon Russell v. Martin, 88 So.2d 315 (Fla.1956), which involved an accident in which the plaintiff’s minor son was killed while riding his bicycle across some railroad tracks. The railroad had given the plaintiff a license to use the crossing as a private crossing, but the plaintiff had agreed in writing to save the railroad harmless from all claims arising out of the use of the crossing. The plaintiff stated that he would not rely on the railroad for signals or warnings of approaching trains. The railroad’s alleged acts of negligence were the operation of its train at a high speed in violation of a city ordinance and the failure to signal a warning of its approach. The supreme court construed the provisions of the agreement as exculpatory and affirmed a summary judgment for the railroad. The court rejected the plaintiff’s argument that the exculpatory agreement was void as against public policy.

We find the Russell case distinguishable because we do not believe the supreme court passed on the question of whether one can exonerate himself from compliance with the affirmative requirements of a safety ordinance. The public policy contention discussed by the supreme court was whether under any circumstances a common carrier could contract away its liability for its own negligence. The court held that the carrier could do so when acting in its private capacity.

In support of his position, the plaintiff points to Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959), in which the court held that a party could not contract away responsibility under the dangerous instrumentality doctrine. However, this case is beside the point because a third person who was not a party to the contract suffered the injury.

The emphasis of public policy in this sensitive area is indicated by the fact that in Florida the violation of a fire code is considered to be negligence per se. Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1976). We believe that the public policy of this state would be frustrated by permitting enforcement of exculpatory clauses of this nature as they relate to statutes or ordinances the very purpose of which is to insure the safety of the persons inhabiting the leased premises. That the lessor may still be subject to sanction by governmental authority is not enough. Moreover, our conclusion is not based upon any presumption of inequality of bargaining power. A lessor simply should not be permitted to exempt himself from responsibility to a lessee for damages resulting from the lessor’s negligence if such an exemption effectively immunizes the lessor from liability for breach of a positive statutory duty to protect the well-being of the lessee.

Substantial support for this position is found in other jurisdictions. See Annot., 49 A.L.R.3d 321, 351 (1973). In Boyd v. Smith, 372 Pa. 306, 94 A.2d 44 (1953), the Pennsylvania court refused to permit a landlord to use an exculpatory provision to escape liability for failing to provide a fire escape required by statute. An agreement to exonerate his landlord for negligence did not preclude an apartment tenant’s recovery for falling on the ice in an adjacent parking lot when a Michigan law required the landlord to keep the parking lot clear. Feldman v. Stein Building & Lumber Co., 6 Mich. App. 180, 148 N.W.2d 544 (Mich.Ct.App. 1967). In American States Insurance Co. v. Hannan Construction Co., 283 F.Supp, 988 (N.D.Ohio 1966), aff’d 392 F.2d 171 (6th Cir. 1968), the court held that the public policy of Ohio would be thwarted by the enforcement of an exculpatory provision relieving a landlord from liability to a tenant caused by the landlord’s failure to comply with the building codes for safe construction. The court noted that the public policy demanded this result despite the fact that in Ohio the violation of a building code is held to be only evidence of negligence rather than negligence per se.

In order that our holding not be misunderstood, we do not strike down all exculpatory clauses which exonerate lessors from liability for their own negligence. We simply hold that these clauses shall be ineffective to relieve the lessor from liability to the lessee where the lessee’s damages are caused by the lessor’s failure to comply with a penal statute or ordinance imposing a positive duty upon the lessor which is intended to protect the person or property of the lessee or the public generally. We also limit our holding to those violations which by their nature would constitute negligence per se. We need not pass on the question of whether the same rule would apply if the violation constituted only evidence of negligence.

AFFIRMED.

HOBSON and RYDER, JJ., concur.

      . The owners and captain of the adjacent boat were also sued, but those claims are not the subject of this appeal.

      . Our use of the words “public generally” recognizes the fact that many safety ordinances which are applicable to those who lease property to others contemplate the protection of a larger class of persons than simply the lessee.

      . This may further serve to distinguish Russell v. Martin, supra, because there the violation of the speeding ordinance would have presumably constituted no more than evidence of negligence. Clark v. Sumner, 72 So.2d 375 (Fla.1954).


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. David Allen MILLER, Appellee.
    No. 78-1553.
    District Court of Appeal of Florida, Second District.
    March 2, 1979.
    Rehearing Denied April 12, 1979.
    C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, Bar-tow, and William Murphy, Asst. Public Defender, Tampa, for appellee.
   DANAHY, Judge.

The state appeals from an order granting a motion to suppress evidence found in an inventory search of appellee’s truck. We agree with the state that the trial court’s ruling was in error.

The basic facts underlying this case are these. Officers Hanson and Lainio were sitting in their cruiser when they saw ap-pellee drive through a red light at the intersection of Nebraska Avenue and Linebaugh in Tampa. They motioned for him to stop, and he drove into the parking lot of No-land’s Glass Company.

When Officer Hanson asked appellee for his driver’s license, appellee gave him a license receipt. After some further discussion Hanson discovered that the license receipt was not appellee’s and arrested him for obstruction of justice. The two officers placed appellee in their cruiser and then inventoried the contents of the truck as they prepared to impound it. During the inventory process, they discovered a controlled substance, phencyclidine, which became the object of the motion to suppress.

The trial court granted appellee’s motion to suppress because it found that the police officers had failed to tell appellee that they were going to impound his truck. The state now argues that the court was in error because there was no evidence upon which the court could base its ruling, and we must admit that we are hard pressed to find any evidentiary support for the court’s finding. However, we need not consider this point further because, in any case, we do not think that a law enforcement officer has a duty to tell a silent arrestee that his car is being impounded. If we were to hold otherwise, we would not in any way be increasing a defendant’s protection against unreasonable searches and seizures. Consequently, we would be placing an unnecessary burden on the police in the already difficult situation which an arrest usually produces. Cf. State v. Dearden, 347 So.2d 462 (Fla. 2d DCA 1977) (holding that an officer need not tell a defendant of the options to impoundment).

Accordingly, we reverse the order granting the motion to suppress and remand the case for further proceedings consistent with this opinion.

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

      . Of course, what we have said should not be interpreted to mean that the police may in any way mislead a defendant as to their intention to impound or that a defendant may otherwise be denied the right to request a reasonable alternative to impoundment.


text:
    James Earl SHANKLIN, Appellant, v. STATE of Florida, Appellee.
    No. 78-654.
    District Court of Appeal of Florida, Second District.
    March 9, 1979.
    As Modified on Denial of Rehearing April 11, 1979.
    ’ Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

This is an appeal from a revocation of probation and subsequent sentence to five years imprisonment.

The appellant was originally charged with battery of a law enforcement officer contrary to Section 784.07, Florida Statutes (1976 Supp.). The information stated that appellant “did unlawfully and intentionally touch or strike a law enforcement officer. . ” Appellant pled guilty and was placed on probation. He was later charged with probation violation for filing his monthly reports late, for failing to make payments for the costs of supervision, and for committing the offenses of battery, resisting arrest and battery of a police officer.

At the revocation hearing, the appellant’s supervisor testified that appellant had filed his reports late for several months and that he was $40 in arrears on the costs of supervision. The supervisor acknowledged that appellant had told him that he was unable to work because of an injury and that he could not find a job. Appellant admitted both of these violations but explained that he could only work part time because of two previous stomach operations. He added that he made payments for costs of supervision when he could afford them. No evidence was presented concerning the criminal violations. The court revoked appellant’s probation on all these grounds and sentenced him to the maximum penalty of five years in the state prison.

Appellant first attacks his conviction on the basis that the court originally lacked subject matter jurisdiction to place appellant on probation. Appellant argues that because the information failed to allege that he “knowingly” struck a law enforcement officer he was never charged with a felony which would give the circuit court jurisdiction. The state points out that appellant failed to make this objection at the time he was originally placed on probation and that he is raising it for the first time on this appeal from the revocation order.

In Radford v. State, 360 So.2d 1303 (Fla. 2d DCA 1978), the information charging “battery on [a] police officer” was worded practically the same as the information in the instant case, though the Radford information referred to the misdemeanor statute proscribing battery. Our court held that because the information contained no allegation that the defendant had “knowingly” struck an officer, it alleged no more than the misdemeanor of simple battery. Hence, the circuit court had no subject matter jurisdiction, and the judgment was void. Even though the defect was not raised in the trial court, it was deemed jurisdictional and not subject to cure by waiver or consent. Accord Englund v. State, 368 So.2d 86 (Fla. 2d DCA 1979).

In Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972), the defendant pled guilty to a charge of possession of marijuana as condemned by Chapter 404, Florida Statutes (1971). The information was deemed insufficient to charge a felony because it failed to allege either that the defendant had previously been convicted or that the amount of marijuana exceeded five grams. The court pointed out that the information charged no more than a misdemeanor and held that the defect was jurisdictional.

We reached the same result in Waters v. State, 354 So.2d 1277 (Fla. 2d DCA 1978), even though the defect was not raised until an appeal from a probation revocation. The defendant had been purportedly charged with the felony of receiving stolen property, but there was no allegation of the value of the stolen property so as to differentiate the charge from a misdemeanor. Following a guilty plea, the defendant was placed on probation. Because the judgment was declared void, it was held to be subject to collateral attack. In the course of our opinion, we took heed to note that when the defendant pled guilty “there was no recitation of value in the factual basis outlined before the court, nor was there any other evidence before the court to supply the omitted allegation on this issue.” 354 So.2d at 1278.

How do these cases square with the unbroken line of authority in Florida to the effect that when an information does not wholly fail to state a crime, any defect therein is waived if an objection is not timely made? Tracey v. State, 130 So.2d 605 (Fla.1961); Sinclair v. State, 46 So.2d 453 (Fla.1950); Caves v. State, 302 So.2d 171 (Fla. 2d DCA 1974). The answer may lie in the premise that when a misdemeanor is clearly alleged, it is easier to conclude that the information wholly fails to state a felony.

In the case at hand, the information contained a specific reference to the felony statute of battery of a law enforcement officer. The appellant pled guilty pursuant to a plea bargain. The factual basis for the plea clearly reflects that the appellant knew that it was a police officer whom he struck. Even though there is no possibility that the appellant could have been misled by the defect in the information, do the precedents cited above require reversal? We think not.

In Lowman v. State, 303 So.2d 667 (Fla. 4th DCA 1974), the defendant was charged with assault with intent to commit rape and was later permitted to enter a plea of nolo contendere to the “lesser included offense of false imprisonment.” He was put on probation but he violated his probation. On appeal from the order revoking his probation, the defendant asserted that the court did not have jurisdiction to accept the nolo plea because false imprisonment was not a lesser included offense of assault with intent to commit rape. Our sister court agreed that false imprisonment was not a lesser included offense but held that, nonetheless, the court’s failure to require an amendment of the information did not deprive it of jurisdiction in the case.

The defendant in Burns v. State, 300 So.2d 317 (Fla. 2d DCA 1974), was charged, under Section 811.11, Florida Statutes (1971), with larceny of a calf. He later pled guilty to grand larceny. On appeal he contended that he could not be adjudicated guilty of a crime with which he was not charged. This court declined to treat the adjudication as void and held that the proceedings, conducted in open court and duly recorded, constituted a mutually agreeable amendment of the accusatory writ. Accord, Andrews v. State, 343 So.2d 844 (Fla. 1st DCA 1976).

On the same rationale, we hold that appellant’s plea of guilty to the crime of battery of a law enforcement officer, after the state had properly laid a factual basis, constituted a tacit amendment of the information to properly charge that offense. Once the information is deemed to have been amended, jurisdiction is no longer a problem, and the judgment cannot be collaterally attacked. The same result could not have occurred in Radford and in England, because there were no guilty pleas. Waters and Pope did involve guilty pleas, but in neither case did the record reflect a factual basis for the felony charge. Thus, it could not be said for certain that the defendants in those cases had not been misled by the defective informations.

We do, however, find it necessary to vacate two of the three grounds for the probation revocation. Because there was no evidence concerning the alleged crimes, appellant’s failure to remain at liberty without violating the law was not proven. Likewise, the appellant made an unrebutted showing of his inability to pay the supervision costs, precluding a revocation upon this basis. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979). Appellant’s failure to timely file reports was proven, but in view of the fact that the other two grounds for revocation must be set aside, we deem it advisable to remand the case in order that the court may have the opportunity to decide whether revocation is indicated solely upon this ground. See Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976).

REVERSED and REMANDED.

HOBSON and SCHEB, JJ., concur.


text:
    STATE of Florida, Appellant, v. Eduardo LOPEZ, Appellee.
    No. 78-1386.
    District Court of Appeal of Florida, Second District.
    March 9, 1979.
    Rehearing Denied April 9, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Emilio De La Cal, Miami, for appellee.
   GRIMES, Chief Judge.

This is an appeal from an order suppressing physical evidence.

The facts of the case, as presented through testimony given at the suppression hearing, are not in dispute. At about 10:25 p. m. on December 13, 1977, William Simmons, a security guard at the Remuda Ranch in Collier County, saw three trucks turning east off an old tram road which ran through the ranch onto Highway 41. The first was a yellow Ryder rental truck. Simmons immediately called the Collier County Sheriff’s Department and relayed his sighting to Deputy Sanders.

Sanders was familiar with the road of which Simmons spoke. It ended at a canal that connected with the Gulf of Mexico and had been the scene of several marijuana smuggling operations. Sanders relayed his information to Deputy Pent who was patrolling Highway 41 at the time. Pent spotted a yellow Ryder truck heading east and followed it. The truck was travelling between sixty and sixty-five miles per hour and swerving because a cap had come off one of the tires. Pent signaled the driver of the truck to stop. The truck continued for another mile and a half and then pulled off on the shoulder of the road.

The area in which the truck stopped was dark. As the driver (appellee) got out of the truck, Pent saw him move his right hand toward his rear pocket. Because of this action Pent drew his revolver and ordered appellee to place his hands over his head and walk to the rear of the truck. Appellee complied with this order, but as he reached the rear of the truck, he fainted and fell to the ground. The deputy ordered him to get up but as he tried to do so, he fell again in a faint. Pent then frisked him on the ground, handcuffed him and placed him in his patrol car. Pent described appel-lee as sweated, disheveled and tired. He also said that appellee’s pants legs were wet.

Deputy Pent noticed that the truck was heavily loaded. After appellee had revived, Pent asked him what was in the truck. Appellee replied that the truck carried driftwood which he had collected at the Remuda Ranch. Pent then asked appellee if he could search the back of the truck. Appellee said that he could and said that the key was in the ashtray or on the dashboard. Pent was unable to find the key in either place.

At this point, Deputy Sanders arrived on the scene. Sanders smelled the odor of marijuana in the truck. He too was unable to locate the key to the truck and, like Pent, he noticed that the truck was heavily loaded. He knew driftwood, even when wet, was not heavy enough to so weigh down the truck. Sanders also noticed a white sand peculiar to the Remuda Ranch area on the truck. He asked appellee to look for the key to the back of the truck. Appellee went through the motions of looking for it and then reported that he did not have it.

Lieutenant Keene then came to the scene, and he and Deputy Sanders drove to the Remuda Ranch. Once there, they located the tracks of dual wheel vehicles coming out of the tram road. Driving along they found reflectors stuck into the ground and plywood and wire mesh lying along the way. As they proceeded further they spotted a Hertz rental truck and several people fleeing into the swampy area around the canal. Through the open doors of the truck they saw a load of marijuana. They also found a Ford pickup nearby which contained a radio antenna, a pair of binoculars, a large chain and a swivel block.

At some point during his journey down the Remuda Ranch road, Lieutenant Keene called Deputy Pent and told him to bring appellee and his truck to the ranch. By the time Pent arrived, Keene and Sanders had found all the evidence of a marijuana smuggling operation. Because of this, they broke the lock on the doors at the back of appellee’s truck and found a load of marijuana which became the object of appellee’s motion to suppress.

After hearing the evidence the court found that the initial stop of appellee’s truck was proper because Deputy Pent had a well-founded suspicion of criminal activity. The court also found that the officers had probable cause to search the truck at the time they opened it. However, the court ruled that in order to move the truck from the point at which it was stopped to the Remuda Ranch, the officers had to have probable cause to search and that at this time the officers did not have probable cause. Hence, the court granted the motion to suppress.

We agree that Deputy Pent had a well-founded suspicion of criminal activity sufficient to allow him to stop appellee’s truck. State v. Payton, 344 So.2d 648 (Fla. 2d DCA 1977); State v. Othen, 300 So.2d 732 (Fla. 2d DCA 1974). The facts noted with respect to the truck after it was stopped together with appellee’s behavior tended to corroborate this suspicion. At the very least, the circumstances then known to the deputies were sufficient to permit them to detain the truck and its driver for the reasonable length of time necessary to verify appellee’s story by visiting the scene at the ranch where the truck had been. See State v. Bastardo, 347 So.2d 463 (Fla. 2d DCA 1977). Under these circumstances it was of little consequence whether the truck was held by the side of the road or driven back to the ranch. By the time the truck was opened the deputies had discovered first-hand evidence of the marijuana smuggling operation, so there was ample probable cause to believe that the truck contained marijuana. In the case of motor vehicles, if probable cause exists there is no prohibition to conducting a search and seizure without a search warrant either at the scene or back at the police station. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

In view of the position we have taken, it is unnecessary for us to pass on the court’s determination that the officers did not have probable cause to search the truck before it was moved. The order of suppression is reversed and the case is remanded for further proceedings.

HOBSON and BOARDMAN, JJ., concur.

      . There is an alternative basis upon which this search could be upheld. By the time the deputies had concluded their investigation of the truck by the side of the road, the appellee had already fainted twice. Deputy Pent testified that appellee was not capable of driving the truck in his condition. Therefore, even if the deputies were no longer suspicious that the truck was carrying contraband, they would have been remiss in their duties to permit ap-pellee to continue to drive on the public highways. Thus, the truck would have still been in their hands at the time probable cause was established.