text:
    DADE COUNTY TAXING AUTHORITIES, Appellant, v. CEDARS OF LEBANON HOSPITAL CORP., INC., et al., Appellees.
    No. 51123.
    Supreme Court of Florida.
    Feb. 16, 1978.
    Rehearing Denied April 5, 1978.
    Stuart Simon, County Atty. and R. A. Cuevas, Jr., Asst. County Atty., Miami, for appellant.
    Robert E. Venney of Gunn, Venney & Buhler, Miami, ánd Andrew J. Mirabito of Frates, Floyd, Pearson, Stewart, Richman & Greer, Miami, for appellees.
   SUNDBERG, Justice.

This case is before us on certified question from the United States Court of Appeals for the Fifth Circuit, pursuant to Section 25.031, Florida Statutes (1975), and Florida Appellate Rule 4.61.

As appears from the opinion of the United States Court of Appeals (Dade County Taxing Authorities v. Cedars of Lebanon Hospital Corp., Inc., 546 F.2d 63 [5th Cir.1977]), the statement of the facts and the question certified are as follows:

Statement of Facts
In December, 1973, Cedars of Lebanon Hospital Corp., Inc. and its related corporate entities filed suit in Dade County Circuit Court seeking exemption from ad valorem taxes on properties adjacent to its existing hospital.
Five months later (in April, 1974) Cedars filed for Chapter XI rearrangement in federal bankruptcy court. The bankruptcy court thereupon enjoined further prosecution of all pending litigation, foreclosures, executions, etc. against Cedars. The local taxing authorities filed with the bankruptcy court proofs of claim totall-ing approximately $500,000 for 1973 and 1974 ad valorem taxes against Cedars and its related entities. They also moved the bankruptcy court for:
1. Leave to proceed with the pending state court tax cases; and
2. For a determination that the bankruptcy proceedings would not impair or diminish Cedars’ liability for 1973 and 1974 ad valorem taxes or any liens therefor.
The bankruptcy court authorized the filing of an adversary proceeding before it to resolve the question of tax exemption on Cedars’ property. An adversary proceeding was filed. After trial, the bankruptcy court entered a final judgment which exempted some of Cedars’ property and upheld ad valorem taxes levied on the remainder thereof.
The federal district court affirmed the bankruptcy court’s final judgment. This appeal ensued.
This appeal is directed to the court’s granting of tax exempt status to one particular parcel of Cedars’ real property (the Care Center) for the 1974 tax year.
The Care Center was designed to be used as a minimum . . . care [patient] facility adjacent to the acute care hospital. The purpose of the facility is to provide a limited care option for Cedars’ patients who do not require the extensive services and greater cost of a regular acute-care hospital provided in the main hospital. Structurally it is a motel-type facility with wider than normal corridors. It includes 112 rooms with a nursing station on the ground floor. The rooms resemble a typical motel room in layout and amenities, except that the bathroom contains a locking medicine cabinet, an emergency call system connected to the nursing station and grab bars.
Construction of the Care Center was completed in mid-1973. The building was issued a certificate of occupancy in August, 1973. It was issued a hospital license by the State of Florida one month before the tax date.
The Care Center was not utilized as a minimum . . care [patient] facility on January 1, 1974. No patients were admitted to the Care Center during the calendar year 1974.
During 1974, the rooms in the Care Center were used on a number of occasions for nonpatient occupancy. Some rooms were rented to businessmen and salesmen during the period January through April, 1974. In addition, some rooms were used to house Secret Service personnel during a visit of former President Nixon to the hospital complex in March 1974.
The local taxing authorities contended that the Care Center was not entitled to exemption for the 1974 tax year under Florida law as it was not actually used on the taxing date (or at any time during the tax year) for an exempt purpose.
Cedars contended that the intended future use to which the property will be put, in light of the fact that the property is designed for health care activity and that the terms of its FHA financing arrangement restrict it to such usage, is sufficient to qualify for an exemption.
The trial court accepted Cedars’ position and exempted the Care Center. This Order was affirmed by the District Court and this appeal ensued.
Question to be Certified
Where the Care Center is designed and restricted to hospital usage is it entitled to exemption from ad valorem taxation prior to actual use as such? (Footnote omitted)

For the reasons hereinafter expressed, we answer the question certified to us by the United States Court of Appeals for the Fifth Circuit as follows: The Care Center which, as of January 1, 1974, was designed for and restricted to hospital usage, but was not in actual use for hospital purposes, was not entitled to exemption from ad valorem taxation for the year 1974.

The taxable status of property is determined on January 1 of each year. See Section 192.042, Florida Statutes (1973). This is the date on which the tax assessor determines whether a particular parcel of property is entitled to exemption from taxation for the tax year. See Overstreet v. Ty-Tan, Inc., 48 So.2d 158 (Fla.1950). Exemption from ad valorem taxes is granted to nonprofit hospitals, among other facilities. See Sections 196.012, 196.192, 196.195, 196.196, and 196.197, Florida Statutes (1973). Appellant argues that the actual use of the Care Center as of the assessment date, rather than the use which appellees intended to make of the property at some future time, is determinative of whether an exemption should have been granted. Because the Care Center was not utilized as a hospital or other exempt facility as of January 1,1974, maintains appellant, the property should have been assessed for taxation for the 1974 tax year.

We agree that the actual use of the Care Center as of the assessment date, rather than its intended future use, controls the determination of whether the property qualifies for exemption from ad valorem taxes as a nonprofit hospital.

The “actual use” doctrine was enunciated in Lake Worth Towers, Inc. v. Gerstung, 262 So.2d 1 (Fla.1972), wherein this Court found that exemption was not warranted under circumstances similar to those present in the instant case. There, construction on a nonprofit home for the aged commenced prior to January 1 of the 1968 tax year. However, the building was not substantially completed until March, 1968. In June of 1968, the State Board of Health issued a license to petitioner, Lake Worth Towers, Inc., made retroactive to January 1 of that year, to operate a home for the aged. In April and again in August of 1968, petitioner requested from respondents, City Commissioners and taxing authorities of the City of Lake Worth, exemption from city taxes on the home. The requests were denied and the property was assessed for taxation for 1968. Petitioner then filed suit in circuit court seeking an order enjoining respondents from collecting municipal taxes on the property for 1968 or, alternatively, forcing them to reassess the property as unimproved for that year. In approving the circuit court’s denial of relief to petitioner, we stated:

[Sjection 192.04, F.S.1967 provided that “All real and personal property shall be subject to taxation on the first day of January of each year . . . Taxable status for the year also is determined as of that date. Overstreet v. Ty-Tan, Inc., Fla. 1950, 48 So.2d 158. To obtain total exemption, the property must be held and used [emphasis original] in a manner authorized by Section 192.06, F.S. Dr. William Howard Hay Foundation v. Wilcox, 1945, 156 Fla. 704, 24 So.2d 237. On January 1, 1968 Petitioner did not qualify under Section 192.06(14)(a) as a tax exempt home for the aged since the building was not in use as a nonprofit home for the aged. (Emphasis supplied) (Footnote omitted) 262 So.2d at 3.

In the case sub judice, as in Lake Worth Towers, Inc., supra, it is immaterial that the corporation intended to use the property for an exempt purpose subsequent to January 1; the controlling factor was that, as of the assessment date, it was not actually in use for such purpose. The fundamental principles of our democratic system mandate that every taxpayer contribute his fair share to the tax revenues. As this Court stated in Bancroft Inv. Corporation v. City of Jacksonville, et al., 157 Fla. 546, 27 So.2d 162, 170 (1946):

[T]his is a democracy in which every parcel of property is expected to bear its due portion of the burden of government, unless exempted by the legislature in the manner provided by Section 1, Article IX of the Constitution. Courts have no more important function than to direct the current of the law in harmony with sound democratic theory.

Accord, ITT Development Corporation v. Seay, 347 So.2d 1024 (Fla.1977); Williams v. Jones, 326 So.2d 425 (Fla.1975). Consistent with this democratic ideal is the maxim of statutory construction that the exemption laws are to be strictly construed. Straughn v. Camp, 293 So.2d 689 (Fla.1974); Haines v. St. Petersburg Methodist Home, Inc., 173 So.2d 176 (Fla.2d DCA 1965). Florida’s statutory law provides exemption for property “used” in an exempt manner. See Sections 196.012, 196.192, 196.195, 196.196, and 196.197, Florida Statutes (1973). Because the legislature has failed to expressly define the term “use,” however, it has been this Court’s responsibility to determine the meaning which the legislature intended to accord the term. We honored this responsibility when, in Lake Worth Towers, Inc., supra, we determined that actual use (rather than intended use) was required by the exemption laws. We reaffirm this conclusion today. The principles requiring taxpayers’ contribution of their fair share and strict construction of exemption laws, which were applied in both Lake Worth Towers, Inc. and the case sub judice, are not novel. These principles have also been adhered to by application of the “actual use” doctrine to homestead exemptions. Actual physical occupancy of a home as of the statutorily specified date has long been an essential ingredient of the homestead exemption right. See Croker v. Croker, 51 F.2d 11 (5th Cir. 1931); Solary v. Hewlett, 18 Fla. 756 (Fla.1882). Cf. Anderson Mill & Lumber Company v. Clements, 101 Fla. 523, 134 So. 588 (1931). In view of these precedents the nonexempt use to which the property was put subsequent to January 1,1974, is immaterial and does not constitute a consideration for our opinion today.

This Court recognizes the potential hardship inherent in the “actual use” doctrine. Unforeseen construction delays and the like may postpone actual use of a structure until after January 1, the assessment date. Although a use ordinarily recognized as exempt might commence in February of the tax year, for example, no exemption would be granted for that year because, as of January 1, the required use was not being made. We are also aware, however, of the hardship to owners of nonexempt property which would obtain by adoption of the “intended use” doctrine proposed by appellee. This doctrine would produce an increase in exemptions, thereby placing a greater proportion of the tax burden upon other classes of property. Absent a clear expression of legislative intent that the tax exemption statutes yield such a result we cannot, consistent with the previously described controlling precedents of this State, accept ap-pellees’ position.

In view of our negative answer to the certified question, we conclude that the bankruptcy court improperly determined that the Care Center was exempt from ad valorem taxes for the 1974 tax year.

It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 45450.
    Supreme Court of Florida.
    March 2, 1978.
    Rehearing Denied April 5, 1978.

      Richard L. Jorandby, Public Defender, Kenneth J. Scherer, Chief Asst. Public Defender and Lois J. Frankel and Craig S. Barnard, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen. and Michael M. Corin and George R. Georgieff, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

Subsequent to the decision of the Supreme Court of the United States, in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), this Court entered its order on May 6, 1977, establishing a procedure whereby the trial judge who imposed the death sentence was directed to file a response stating whether he imposed the sentence on the basis of consideration of any information not known to appellant. This order also provided that any application for relief pursuant to the United States Supreme Court’s ruling in Gardner v. Florida, supra, should be filed with this Court within thirty (30) days after the trial judge had filed his response pursuant to this Court’s directive.

On May 12, 1977, the trial court filed its response stating that in imposing the death sentence it “did not have any information whatsoever, either as listed herein or otherwise . . . which [the court] used as a basis for consideration in imposing the death sentence which was not known to the appellant and/or his counsel of record.”

In his application for relief, appellant argues that he has had no opportunity to deny or explain certain factual findings relied on by the trial judge in his sentencing order. The order, which set forth specific findings of fact on which the death sentence was imposed, states in part:

By his own admission the defendant was previously convicted of crimes on at least five occasions and the further undisputed evidence shows the defendant has a record involving crimes of violence . . . . [Emphasis supplied.]

Appellant contends that he has not been convicted on five previous occasions and that the evidence before the trial court did not show that he had been convicted of prior crimes involving violence but that he had only one previous conviction for rape in Tennessee in 1962.

The admission of five previous crimes to which the trial court referred in its sentencing order was appellant’s response during cross-examination. In response to the state attorney’s question regarding how many times he had been convicted of a crime, appellant stated: “Maybe five or more, I don’t know, something like that.” (R-926).

The Court finds this application for relief pursuant to Gardner v. Florida to be without merit. Appellant complains of nothing more than the use by the trial court of his testimony given at trial in sentencing the appellant. Appellant had ample opportunity to explain or refute his own testimony at trial.

It is so ordered.

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

HATCHETT, J., dissents.


text:
    Henry Arville NULL, Appellant, v. STATE of Florida, Appellee.
    No. 52789.
    Supreme Court of Florida.
    March 2, 1978.
    Rehearing Denied April 5, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Marsha G. Madorsky and Joy B. Shearer, Asst. At-tys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Morgan v. Cook, 344 So.2d 577 (Fla.1977).

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


author: LETTS, Judge. ANSTEAD, Judge, LETTS, Judge.

text:
    Harold BUTLER, Tom Byrnes, Joseph Destafano, Bruce Engel, Michael Petz, Peter Prior, Samuel Ramputi, Barry Schwartz, Martin C. Fay and the Sunrise Fire Fighters Association Local Union No. 2293, Appellants, v. John LOMELO, Jr., Mayor of the City of Sunrise, Florida, John Komasa, Chief of the City of Sunrise Fire Department, Cecil Shine, Prentiss Whiting and Lawrence Hoffman, Councilmen of the City of Sunrise, Florida, and the City of Sunrise, a Florida Municipality, Appellees (two cases). CITY OF SUNRISE, a Florida Municipality, Appellant, v. Harold BUTLER, Tom Byrnes, Joseph Destafano, Bruce Engel, Michael Petz, Peter Prior, Samuel Ramputi, Barry Schwartz and Martin C. Fay, Appellees.
    Nos. 75-2093, 75-2303 and 76-89.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    On Rehearing Dec. 28, 1977.

      Robert A. Sugarman, Howard S. Suss-kind and Joseph Segor of Kaplan, Dorsey, Sicking & Hessen, P. A., Miami, for Harold Butler et al.
    Arthur B. Parkhurst and H. Mark Purdy of Parkhurst, LaHurd & Purdy, P. A., Fort Lauderdale, for City of Sunrise et al.
   LETTS, Judge.

This case comes by way of an appeal by eight firemen claiming that they were “furloughed” by the city without a proper hearing thereby suffering a denial of due process. The trial judge denied all claims for equitable relief. The city is also appealing the jury verdict awarding damages for' mental anguish to the firemen, and the appeals have been consolidated.

We affirm in part and reverse in part.

We see nothing in the record to justify a reversal of the trial judge’s decision not to issue an injunction and not to grant the application for declaratory relief.

We have recently held that mere loss of employment is not a sufficient predicate for injunctive relief and cannot find the trial judge to be in error for holding likewise. State of Florida Department of Health and Rehabilitative Services v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977).

As to the declaratory judgment prayed for by reason of lack of due process, we see no abuse of discretion because the court below denied same. The Supreme Court of the United States has held that in order for a Federal court to entertain a declaratory judgment petition on constitutional issues, the proper enquiry is to determine whether a controversy still exists at the time the action is disposed of rather than at the time the petition is initiated. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). Applying this rationale to the case at bar, we note that by the time of trial all the remaining plaintiffs had secured alternative employment, so that the wrongs alleged at the time the suit was filed, for which the plaintiffs were compensated by a jury money verdict, have become moot. See also H. D. Garner v. DeSoto Ranch, Inc., 150 So.2d 493 (Fla. 2nd DCA 1963); and Florida Hotel and Restaurant Commission v. Marseilles Hotel Co., 84 So.2d 567 (Fla.1956).

Based on the foregoing, we affirm the denial of equitable relief without considering any other of the points raised.

Turning now to the question of the jury verdict, the record reflects that several of the awards exceeded the actual or compensatory damages because of an instruction to the jury that the plaintiffs were entitled to recover damages for their “mental distress, embarrassment and public humiliation.”

The law in Florida is crystal clear that damages for mental anguish are not available absent physical injury or unless the conduct complained of clearly exhibits wantonness, wilfulness or malice. Gilliam v. Stewart, 291 So.2d 593 (Fla.1974). It is true that this very court held otherwise in that same case, at our lower level, but we were sharply reprimanded for so holding and were reversed. As late as this year the Florida Supreme Court has reaffirmed its stand on this issue in Butchikas v. Travelers Indemnity Company, 343 So.2d 816 (Fla.1977).

In the case now before us we can perceive no wantonness or malice, express or implied, in the actions of the city council, nor did any physical injury result. Because of an economic crisis, the city cut its work force in many departments of which the fire department was but one. The men selected for furlough were chosen unanimously by all the ranking officers of the fire department after several hours oral and written evaluation.

The record of the subsequent appeal hearing before the city council does not reveal the presence of any wantonness or malice of the kind that would support punitive damages; also■ none, were prayed for in the complaint and no instruction on wantonness or wilful conduct given to the jury. The hearing was far from a model of good municipal procedure and decorum, and the participants on both sides were occasionally petulant and quarrelsome. Throughout, however, the city attorney repeatedly beat the same drum of which the following is but one example:

And I am saying to you (the council) that in my opinion — and I am not always right — but in my opinion I feel that the only thing that you can do is to release these men’s records to the individual. I feel that if any individual of the fourteen would like to come back before this City Council at a regular meeting or special meeting set by the Council — if he wants his record to be made public, and wants you and everybody else to consider it— that you accord him this right. If he is to be represented by counsel, of course, he is accorded that right, or you can make your decision this evening predicated upon the recommendations of the personnel in your own Fire Department. That is your decision to make. But I would not counsel you to release any information regarding any individual except to the individual himself and then he can consult with his attorney as to whether he wants that information released. I am not going to see you people get trapped into a libel or slander suit.

Apparently there was adverse information on some of the furloughed men in their employment records and evaluation sheets, hence the city’s reluctance to produce them in public prior to individual written consent. This refusal to produce, publicize or debate the contents of the evaluation reports and personnel records at that hearing constitutes the gravamen of the lack of due process charge. Such refusal may or may not have been the proper way to handle that particular hearing; however, we see no evidence of deliberately wilful or spiteful conduct by the council, or its attorney, which would warrant punitive damages, nor was the case presented to the jury on that basis. This being so, the instruction on mental anguish was erroneous under the Supreme Court ruling in Butchikas, supra and Gilliam v. Stewart, supra.

Reversed and remanded for the purpose of having the court modify the final judgment so as to reflect only actual compensatory damages to the eight men to whom the jury awarded a verdict. These compensatory damages appear to be adequately demonstrated in the record of the trial.

MOUNTS, MARVIN U., Associate Judge, concurs.

ANSTEAD, J., concurs in part and dissents in part, with opinion.

ANSTEAD, Judge,

concurring in part and dissenting in part:

I agree with the majority opinion except that I do not feel we can direct the trial court to determine the amount of “actual” compensatory damages. That is an issue for the jury and requires a new trial.

ON PETITION FOR REHEARING

LETTS, Judge.

The petition for rehearing is hereby granted and the final paragraph of the previous opinion is cancelled and the following substituted.

Reversed and remanded for a new trial on the issue of “actual” compensatory damages.

ANSTEAD, J„ and MARVIN U. MOUNTS, Jr., Associate Judge, concur.


author: ERVIN, Judge.

text:
    ENGEL MORTGAGE COMPANY, INC., Appellant, v. John R. DOWD, Appellee.
    No. DD-270.
    District Court of Appeal of Florida, First District,
    Nov. 22, 1977.

      F. B. Estergren, of Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellant.
    Thomas T. Remington, of Smith, Grims-ley, Barron & Remington, Fort Walton Beach, for appellee.
   ERVIN, Judge.

Appellee John Dowd, apparently in partnership with three others, started construction of a 26 unit condominium project in Okaloosa County. The construction loan on the project became due June 27, 1974. In December, 1973, appellant Engel Mortgage Company agreed to provide permanent financing for buyers in exchange for Dowd’s $14,000.00 commitment fee. The mortgage company’s commitment letter stated the terms of the financing and concluded, “This commitment will expire June 10, 1974.” The letter was addressed to Dowd individually and was accepted upon his signature only. Several contracts for purchase of the units were submitted to the mortgage company by Dowd and his partners between April and June 1, 1974. None of the prospective buyers was approved or the property closed before the June 10 deadline for financing. Dowd testified he returned the condominium project to the construction lender in August, 1974, in lieu of foreclosure. Dowd then brought an action against the mortgage company for its failure to provide financing for the purchasers, alleging breach of contract and fraud.

The first jury trial resulted in a mistrial, and in the second, a verdict was returned for Dowd in the sum of $49,356.00 compensatory damages.

Of the mortgage company’s seven points on appeal, only one merits comment. The mortgage company filed a post trial motion to vacate the judgment and dismiss the cause of action for lack of jurisdiction of the subject matter due to Dowd’s failure to join his three partners to the action whom Engel claims are indispensable parties. Without deciding whether the partners are indispensable so that a complete and efficient determination of the rights of the other parties is not possible without their joinder, we find the point has been waived by Engel.

Several cases have held the issue of the failure to join an indispensable party could be raised for the first time after trial or on appeal. For example, Chapman v. L. & N. Grove, Inc., 265 So.2d 725 (Fla. 2nd DCA 1972); Kephart v. Pickens, 271 So.2d 163 (Fla. 4th DCA 1972), cert. denied 276 So.2d 168 (1973).

Fla.R.Civ.P. 1.140(h), concerning the waiver of defenses, read prior to its amendment in 1973:

“(h) Waiver of Defenses. A party waives all defenses and objections which he does not present either by motion as herein provided or, if he has made no motion, in his answer or reply except (1) that the defense of failure to state a cause of action, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits and (2) that when it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter. The objection or defense, if made at the trial, shall be disposed of as provided in Rule 1.190(b) in the light of any evidence that may have been received.” (Emphasis supplied)

That Rule was amended effective January 1, 1973, and has omitted the language emphasized above: “the defense of failure to join an indispensable party may also be made by a later pleading, if one is permitted . . . .” The present Rule provides:

“(h) Waiver of Defenses.
(1) A party waives all defenses and objections that he does not present either by motion under subdivisions (b), (e) or (f) of this rule or, if he has made no motion, in his responsive pleading except as provided in subdivision (h)(2).
(2) The defenses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised in either a motion under subdivision (b) or in the answer or reply. The defense of lack of jurisdiction of the subject matter may be raised at any time.”

The Rule clearly contemplates four instances in which a party may raise the failure to join an indispensable party: first, in the responsive pleading, either the answer or reply; second, by a motion to dismiss under Rule 1.140(b); third, by motion for judgment on the pleadings; and fourth, at the trial on the merits. The Rule does not make allowance for a post-trial motion such as was made here. Those opinions allowing the late raising of the defense can be explained in at least two ways. First, the opinions were rendered prior to the 1973 amendment. The pre-1973 rule seems at first blush to support a late challenge by the inclusion of the emphasized language in the old Rule above. That language allows however only “later pleadings”, and not motions. Fla.R.Civ.P. 1.100 differentiates between pleadings and motions. For a very thorough explication of the subject, see Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974), cert. denied, 302 So.2d 414.

A second reason earlier opinions may have held that such objections were not waived by the failure earlier to assert the objections may be the holding in Martinez v. Balbin, 76 So.2d 488 (Fla.1954). That opinion, after appeal from a chancery order, held if the omitted parties were truly indispensable, the defect went to the substance of the appellant’s case, for the action cannot proceed without them. Therefore, the substantive defect could be raised for the first time on appeal. We are then faced with conflicting expressions by the Supreme Court, one in 1954 and the other by Rule adopted in 1973 which does not permit the matter to be raised after an adjudication on the merits. Such intent is clear from the committee note: “The intent of the rule is to permit'the-defenses to be raised one time, either by motion or by the responsive pleading, and thereafter only by motion for judgment on the pleadings or at trial. Subdivision (h) reflects this philosophy.”

We therefore bow to the later expression of the Supreme Court’s will and hold the mortgage company’s raising of the partners’ status as indispensable parties was untimely and has been waived.

Moreover it is obvious that Rule 1.140(h), as amended, does not contemplate the failure to join indispensable parties as a jurisdictional matter which may be raised at any time. Had Dowd brought suit in the partnership’s fictitious name, without naming the partners, the action, upon timely motion, would be subject to dismissal. Dowd’s nonjoinder of his partners by name would not however deprive the trial court from assuming jurisdiction of the cause. Aronovitz v. Stein Properties, 322 So.2d 74 (Fla. 3rd DCA 1975).

Engel’s remaining points are without merit and the judgment is in all respects

AFFIRMED.

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


author: LETTS, Judge.

text:
    Billy STORY, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-991 and 77-559.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1978.

      Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and James K. Green, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

Appellant was convicted for one count of sale and delivery of heroin and a second count of possession. We affirm in part and reverse in part.

Under the law of Roundtree v. State, 271 So.2d 160 (Fla. 4 DCA 1972), it might appear that the conduct of the police officers in this case constituted entrapment. Therefore, at this time, we recede from our prior opinion in Roundtree.

In the instant case, two undercover agents went to the door of appellant’s apartment and one officer testified, in the following manner, as to what transpired:

Q. Can you tell me who said what?
A. Okay. When we walked up there, “Hi, how you doing?” He exchanged greetings with us and asked us what did we want. We said we were there to buy some heroin.

Apparently, the defendant did not have any heroin on his person (or, at least, there is not the slightest evidence that he did) and he arranged to meet them later.

The later tryst took place in a parking lot where the defendant undertook to sell “four papers” of heroin to the agents and said, “Wait here, I’ll be back in about two minutes.” Apparently, the officers attempted to follow the defendant, but inexplicably lost his trail within a block, whereupon they returned to the parking lot. Simultaneously, the defendant also reappeared and the sale was consummated and the “baggie” delivered.

The general rule as to the defense of entrapment is set forth in Lashley v. State, 67 So.2d 648, 649 (Fla.1953), quoting from 22 C.J.S. Criminal Law § 45:

“One who is instigated, induced, or lured by an officer of the law or other person, for the purpose of prosecution, into the commission of a crime which he had otherwise no intention of committing may avail himself of the defense of ‘entrapment’. Such defense is not available, however, where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by one who had the requisite criminal intent.” (Emphasis supplied by the Supreme Court in Lashley). See also, Dupuy v. State, 141 So.2d 825, 826 (Fla. 3 DCA 1962).

The essence of appellant’s argument is that the police officers did more than merely furnish appellant with the opportunity to commit the offense. It is argued that appellant did not possess “the requisite criminal intent” because there was no evidence that the crime originated in the mind of appellant, and that, in fact, the origin of intent appeared to be with the law enforcement officers. In support of this argument, it can certainly be said that there was no evidence that appellant had previously been engaged in the sale of drugs and therefore, there was no express evidence of appellant’s predisposition to commit the offense.

Further support for appellant’s argument is clearly derived from Roundtree, supra. The facts of this case and Roundtree are virtually indistinguishable, and in Round-tree, this court held that the defense of entrapment should have prevailed. In Roundtree, the police officer had even testified that a few months prior to the consummated drug sale, the appellant had offered to sell the officer sómé marijuáná' (at that time the officer was not employed in any law enforcement capacity). This court held that such a prior intention to make a sale was too remote in time to establish that the intent to commit the subsequently consummated sale originated in appellant’s mind.

The greater weight of the case law establishes first, that the conduct of the officers in Roundtree and the instant case should be viewed as merely furnishing appellant the opportunity to commit the offense, and second, the defendant’s “original” intent or predisposition to commit the offense can be inferred from the defendant’s ready compliance with the police officers, or from his willingness to participate.

Once the evidence is introduced which suggests the possibility of entrapment, the State must prove that the defendant was predisposed to commit the offense charged. This will typically be done through the introduction of evidence of the defendant’s prior convictions or of the defendant’s reputation for engaging in certain illicit activities. See, e. g., Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); State v. Nelsen, 228 N.W.2d 143 (S.D.1975); United States v. Cooper, 321 F.2d 456 (6th Cir. 1963); Marion v. State, 287 So.2d 419, 422 (Fla. 4 DCA 1974) (dicta).

Similarly, evidence of the predisposition of the defendant to commit the offense can be established by evidence of the officer’s “reasonable suspicion” that the defendant was engaged in illegal activities. Cf. State v. Burrow, 514 S.W.2d 585 (Mo.1974). This will frequently be established through the tip of a reliable informant. See, e. g., Brosi v. State, 263 So.2d 849 (Fla. 3 DCA 1972).

However, proof of prior criminal activities, a reputation for such activities or reasonable suspicion of a defendant’s involvement in such activities, is not essential to proof of the defendant’s predisposition to commit the offense. Numerous cases have held or suggested that the predisposition of the defendant to commit a crime can be inferred from the defendant’s readiness or willingness to commit it. State v. Gurule, 194 Neb. 618, 234 N.W.2d 603 (1975); Eisenhardt v. U.S., 406 F.2d 449 (5th Cir. 1969). This willingness to commit the offense can be evinced from the defendant’s ready acquiescence in the criminal scheme suggested by the law enforcement officer. United States v. Williams, 487 F.2d 210 (9th Cir. 1973); Trice v. United States, 211 F.2d 513 (9th Cir.), cert. denied, 348 U.S. 900, 75 S.Ct. 222, 99 L.Ed. 707 (1954). In accordance with these principles, the Connecticut Supreme Court stated:

“Since the issue of entrapment raises questions as to the defendant’s state of mind, evidence may be adduced by either side tending to show that state of mind. [Citations omitted]. Thus, the state may introduce evidence as to an existing cause of similar criminal conduct on the part of the defendant, his already formed design to commit crimes of the general nature of that which he is charged, or his willingness to commit the crime as shown by his ready acquiescence in its commission.” State v. Whitney, 157 Conn. 133, 249 A.2d 238, 240-241 (1968) (Emphasis supplied).

Another revealing case is Berry v. United States, 116 U.S.App.D.C. 375, 324 F.2d 407 (1963). In Berry, a police officer approached the defendant on the street and asked him if he had any narcotics for sale. The police officer was accompanied by an individual who knew the defendant. There was no evidence that the defendant had committed any prior offenses or had a reputation for engaging in similar transactions. Yet, the court concluded that:

“Berry clearly was not entrapped into carrying a supply of heroin concealed in a chewing gum package from which he dispensed 15 capsules for $22.50 and 6 capsules for $9, in ‘ready compliance’ with what looked to him like a good opportunity to do some of the very business he was equipped and so ready to transact.” At 377, 324 F.2d at 409.

We recognize that in Berry,the defendant already had the contraband on his person, but in a case sonjewhat similar to the one at hand, a California appellate court refused to apply the entrapment defense and provided the following rationale:

“The record is clear from a reading thereof that appellant was not entrapped. The trial judge who saw and heard the witnesses testify by implication found that there was no entrapment. There was no undue persuasion, coercion or unusual enticement by the officers in this case. The appellant readily and without reluctance accepted the proposals for the respective sales.” People v. Ferguson, 261 Cal.App.2d 807, 68 Cal.Rptr. 431 (1968).

Likewise, in the instant case, the officers did not pressure appellant into participating in the transaction. Compare Kwasniewski v. State, 303 So.2d 373 (Fla. 1 DCA 1974) (undercover officer continually kept nagging the defendant to get him some marijuana); Stiglitz v. State, 270 So.2d 410 (Fla. 4 DCA 1972) (officer kept “bugging” the defendant until the defendant agreed to participate in the sale).

This lengthy discourse of non-Florida cases was necessitated by the absence of any Florida case law indicating whether proof of a defendant’s ready compliance with the offense proposed by an officer is sufficient to prove the defendant’s predisposition to commit the offense. The problem is compounded by the fact that some other courts have not answered this question in the affirmative. Thus, in United States v. Certain Quantities of Intoxicating Liquors, 290 F. 824, 826 (D.N.H.1923), the court indicated that the police must have a reasonable suspicion that a party is about to engage in the commission of the crime, or the original suggestion of crime must have come from the perpetrator.

In other jurisdictions, the predisposition of the defendant has been rendered irrelevant by the adoption of an “objective test” of entrapment which focuses solely on the nature and quality of the officer’s acts. People v. Asher, 67 Mich.App. 174, 240 N.W.2d 749 (1976).

However, the greater weight of authority, and the position that we adopt, is to the effect that the defendant’s predisposition to commit the offense can be inferred from evidence that the defendant readily acquiesced in the commission of the proposed offense. Such evidence existed in the instant case. One officer testified as follows:

Q. What was the conversation between yourself and the defendant?
A. Billy Story came up to the ear and leaned in the passenger side, the windows being down. He asked ‘what do you want?’ I advised him, as did Agent Riley, that we were interested in some heroin.
Q. What was his reply?
A. He said, ‘Fine. Wait here, I’ll be back in about two minutes.’

This was during their second meeting. Such testimony clearly creates the inference of appellant’s willingness to participate in the offense. Therefore, it can be said that appellant was predisposed to commit the offense and the police merely furnished appellant with the opportunity to do so. Under those circumstances, the defense of entrapment must fail.

Appellant was found guilty of both possession and sale of heroin. Since both charges stem from the same transaction, appellant cannot be sentenced for both offenses. Appellant should only be sentenced for the highest offense charged. Weeks v. State, 253 So.2d 459 (Fla. 3 DCA 1971). The sale or delivery charge carries a maximum 15 year sentence, as it is a second degree felony. Appellant received a sentence, of 7!/2 years in prison and 9V2 years on probation. This sentence was excessive by two years. Holmes v. State, 343 So.2d 632 (Fla. 4 DCA 1977). Therefore, we reduce the probationary period by two years.

Accordingly, the judgment of the trial court is AFFIRMED, and the sentence is AFFIRMED as modified.

DOWNEY and ANSTEAD, JJ., concur.

      . This quote is the officer’s version of what was said.


author: DOWNEY, Judge.

text:
    Donald R. STIPP and Cynthia M. Bourke, Appellants, v. STATE of Florida, Appellee.
    No. 76-1637.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1978.
    Rehearing Denied March 28, 1978.
    Alan Jay Braverman of Miller & Squire, Fort Lauderdale, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant Donald R. Stipp was charged with possession of various narcotics, and appellant Cynthia M. Bourke was charged with possession of cannabis. Motions to Suppress filed on behalf of the appellants were denied after an evidentiary hearing. Thereupon, appellants pleaded nolo conten-dere, reserving the right to appeal the denial of their motion to suppress.

Appellants suggest eight points for consideration on appeal. We have duly studied each of them and conclude that only three of these points warrant discussion.

Appellants contend the trial court erred in denying their motion to suppress the contraband which was seized because the search giving rise to the seizure was conducted pursuant to a search warrant issued by the municipal judge of the City of Plantation, Florida. Appellants argue that the police thought they were working on a felony violation so they were not trying to uncover a violation of a city ordinance; that a municipal judge’s authority to issue search warrants is limited to misdemeanors within the municipal boundaries. Therefore appellants say the municipal judge had no authority to issue the search warrant in this case.

The search warrant in question authorized a search of premises located in the City of Plantation. Chapter 29446 Special Acts of 1953 authorized the Municipal Judge of the City of Plantation, to issue search warrants for violations of municipal ordinances. In addition Sec. 17.26 of the ordinances of the City of Plantation makes it a violation of city ordinance for any person to commit within the corporate limits of the City any act recognized by the law of the State of Florida as a misdemeanor. The affidavit in question stated that the affiant believed the premises in question were being used for the illegal possession of narcotics and that cannabis may be found thereon. In State v. Williams, 227 So.2d 331 (Fla. 4th DCA 1969) this court held that evidence seized pursuant to a warrant properly issued by a municipal judge was admissible in a State Court felony prosecution. Upon the foregoing authority we see no reason why the search warrant issued in this case by a municipal judge should not be held valid.

Turning now to the second point to be treated, we note that the search warrant in question authorized the search of a particularly described house and the curtilage thereof. The affidavit described certain vehicles and a van which were observed in the curtilage and alleged to be leased by the suspects. Appellants complain that the trial court should have suppressed the evidence seized from a search of the vehicles and van found in the curtilage at the time of the execution of the search warrant. We find no fault with the trial court’s ruling. The two vehicles searched were leased to the suspects named in the warrant and the van was described in the affidavit for the warrant as being used for purposes that made it highly suspect that the van was hauling cannabis. In addition during the execution of the warrant appellant Stipp advised the officers the location in the house of the keys to the vehicles. Entrance to the van was had via an open door window. We think the search of these vehicles was authorized under the warrant since they were in the curtilage described and under the control of the suspects in the house. As was stated in Alexander v. State, 108 So.2d 308 (Fla. 1st DCA 1959):

“The Point now under consideration has been directly passed upon in other jurisdictions, and it has been uniformly held that where a search warrant authorizes officers to search a described building, together with the yard or curtilage on which the building is located, parked automobiles or other vehicles found in the yard or within the curtilage are proper subjects of search under the warrant. It has accordingly been held that evidence obtained by the search of automobiles or vehicles under such circumstances is admissible to prove the offense with which the defendant is charged.” Id. at 309.

In a more recent case in Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974) the court held:

“If the driveway parking area was part of the curtilage, and we hold that it was, was the automobile owned by appellant, the key to which was obtained from appellant’s apartment during the search thereof, properly the subject of a search pursuant to a warrant authorizing a search of appellant’s apartment and the curtilage? We answer in the affirmative.”
“We now hold that yards, courtyards, driveways and parking areas usually and customarily used in common by occupants of apartment houses, condominiums and other such complexes with other occupants thereof constitute a part of the curtilage of a specifically described apartment or condominium or other living unit thereof and that an automobile located on such common areas and identified by the use of keys obtained from the occupant of such specifically described apartment, condominium or other living unit is a part of that curtilage and subject to search upon the issuance of a valid warrant authorizing a search of the living unit and curtilage thereof.” Id. at 63, 65. See also Dunn v. State, 292 So.2d 435 (Fla. 4th DCA 1974).

Finally, appellants contend that the motion to suppress should have been granted because the affidavit upon which it was issued contained a number of statements of fact which were shown at the hearing to be incorrect or false. An affidavit for a search warrant would be vulnerable to such an attack if elimination of the false statements denuded the affidavit of sufficient facts to show probable cause. But, if after deletion of those erroneous facts, the affidavit still contains sufficient facts to demonstrate probable cause the warrant should be upheld. We have examined the affidavit with the foregoing rule in mind and find that after eliminating from consideration the untrue statements there were sufficient true facts to justify issuance of the warrant.

In view of the foregoing the judgments and sentences appealed from are affirmed.

CROSS and DAUKSCH, JJ., concur.

      . See also Opinion of the Attorney General 073-161.

      . State v. Knapp, 294 So.2d 338 (Fla. 2d DCA 1974); United States v. Morris, 477 F.2d 657 (5th Cir. 1973); United States v. Jones, 475 F.2d 723 (5th Cir. 1973); United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971).


author: MELVIN, Judge.

text:
    Marshall MOORE, Appellant, v. STATE of Florida, Appellee.
    No. GG-44.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1978.
    Rehearing Denied March 9, 1978.
    Michael J. Minerva, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MELVIN, Judge.

Appellant-defendant seeks reversal of a judgment and sentence imposed upon him April 14, 1977, based upon his plea of nolo contendere to a charge of unlawful possession of a controlled substance to wit, cocaine. The defendant, in due season, filed his motion to suppress the evidence seized by the police officer who arrested him and upon such motion having been heard and denied, entered his plea reserving the right to appeal the denial of his motion to suppress.

The record reveals that Officer Jefferson entered the men’s restroom at the Jacksonville Greyhound Bus Station for the purpose of checking with reference to drug activity and other unlawful behavior. The officer testified that the defendant was inside a locked pay toilet stall. The officer noticed that the defendant’s feet were pointing in a direction that was completely inconsistent with the location of a person’s feet using any of the facilities in the pay toilet. The officer then looked through a half-inch crack that existed between the door and the wall of the toilet stall and saw the defendant holding a belt in his mouth thus tightening the belt around his arm so that his veins would become extended. The officer further noted that the defendant was introducing into his veins some type of injection. Thereupon the officer, with the assistance of the manager of the station, unlocked the stall and placed the defendant under arrest. Inside the stall were found a cap cooker and a match box lying on the toilet paper container. These articles contained cocaine and were seized. The only question presented here for review is whether the surveillance by the officer and seizure of the articles under the circumstances stated, constituted an unreasonable surveillance and search; therefore, all matters observed and obtained by the officer incident to his arrest were not admissible in evidence.

The officer had a legal right to be in the public bathroom and to observe anything that was within his plain view. The record reveals the officer’s testimony:

“Q. When you stopped outside the toilet, how big a crack was there? [Crack between the toilet stall and the door]
“A. I’d say half an inch.
“Q. You were able to stand outside the stall and look through that crack, and in plain view, you saw him with the needle in his arm and his belt around his arm. Is that correct?
“A. Yes, sir.”

Further, the testimony of the officer revealed:

“Q. How far away from the crack were you? Did you have to get close to it?
“A. No, I didn’t have to peep. * * * so there’s about a three-foot aisle in between the wash basins and toilets, so by me walking down the middle of the aisle, it puts me about six or eight inches in front of the stall.
“Q. So you are about six to eight inches away?
“A. All I had to do was look as I walked by. . .

Article I, Section 12, Constitution of Florida, grants to all persons the right to be secure against unreasonable searches and seizures. Where an officer is in a place where he has the lawful right to be and he observes within plain view a person engaged in the commission of a felony, or engaged in an activity which causes the officer reasonably to believe that a felony is then being committed, the officer has a right then and there to arrest such person. Section 901.15(1)(3), Florida Statutes. The defendant urges, however, that the act of the officer in looking through the crack in the door constituted an unlawful search within the meaning of Article I, Section 12. It did not.

In State v. Coyle, 181 So.2d 671 (Fla. 2d DCA 1966), the court held that evidence obtained by a police officer looking through a grill work that had been installed in the public restroom for observations purposes did not render his testimony subject to being suppressed as having been obtained by an illegal search and seizure, where the same information could have been obtained by the officer or any member of the public, being in the public restroom and looking through an opening thus viewing a defendant engaged in an unlawful activity. In State v. Coyle, at page 672, the court held:

“. . . The term ‘search’ in its legal meaning implies a quest by an officer of law. It may be secret, intrusive, or accompanied by force. Ordinarily, observation of that which is open and patent is not a search. . . . ”

Further, at page 673, the court held:

. . The constitutional guarantee * * * does not prohibit all searches but only those that are ‘unreasonable’; nor is such guarantee circumscribed by any particular formula for determination of reasonableness of a search. Rather, in determining whether or not a reasonable and valid search was made, a court will be guided by the circumstances surrounding the search and the manner in which it was carried out. . . . ”

Then, at page 674, the court analyzed the decision of the United States Court of Appeals, Ninth District, in Smayda v. United States, 352 F.2d 251. That case involved the question of whether the view of an unlawful activity within a toilet located in Yosemite National Park constituted an unlawful search and seizure under the Fourth Amendment of the United States Constitution. The rangers in the Smayda case had reason to believe that homosexuals were using the restroom as a meeting place. They cut a hole over each of the toilet stalls for the purpose of observing whatever activity went on in the stall. The hole was screened to give the appearance of an air vent. The rangers carried out their surveillance and observed the commission of the crime that was the subject matter of that prosecution. The court measured the surveillance activities by the provisions of the Fourth Amendment, and held that the surveillance was not constitutionally offensive for that:

“(1) If the ranger’s conduct was a ‘search,’ defendants impliedly consented to it by doing what they did where they did it; and (2) what they did was no ‘unreasonable search’ within the meaning of the Fourth Amendment. * * *
“ ‘No ease has yet stretched the Fourth Amendment to make its restrictions applicable to a clandestine observation, by officers of the law, of what goes on in a public place. We decline to be the first court to do so, and we think that these stalls were, in essence, a public place. It makes no difference that in this case, as in Norton [People v. Norton, 209 Cal.App.2d 173, 25 Cal.Rptr. 676], and Young [People v. Young, 214 Cal. App.2d 131, 29 Cal.Rptr. 492], the officer was concealed. By using a public place appellants risked observation, and they have no constitutional right to demand that such observation be made only by one whom they could see.”

The court in Smayda ruled that if the defendants had in fact acquired some type of right to exclusive privacy in the “toilet stall” when they entered it, such right was subject to the condition in which the stalls were in, including spaces above and below the partitions and doors, holes in the walls and holes in the ceilings.

The officer did not owe the defendant any duty to announce that his activity was about to be observed. The defendant chose the toilet stall as a place where he would administer the shot of cocaine. His vision was not as keen or attentive as that of the officer. He selected a stall that had a one-half inch crack in the door through which one could easily observe his activity.

The defendant made a poor choice. He pointed his life and his feet in the wrong direction. The method of surveillance by the officer in this case was legal, his arrest of the defendant in the act of committing a felony was legal. The trial court therefore correctly ruled in denying the defendant’s motion to suppress. Therefore, the judgment and sentence appealed from are

AFFIRMED.

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


text:
    Rene GERARDO, Appellant, v. The STATE of Florida, Appellee.
    No. 77-257.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 29, 1978.

      Horton, Perse & Ginsberg, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

The defendant, Rene Gerardo, was informed against for the crime of intentionally receiving, retaining, disposing of, or aiding in the concealment of, stolen property, to wit: miscellaneous jewelry, without the consent of the owner, knowing that it had been stolen or under such circumstances as would induce a reasonable man to believe that the property had been stolen, all in violation of Section 812.031(1), Florida Statutes (1975). The defendant pled not guilty and moved to dismiss the information. The motion was denied. After a jury trial, a guilty verdict was returned and judgment and sentence were entered. This appeal is from that judgment.

The defendant was the president, stockholder and custodian of the books and records of a corporation known as K & G Jewelry, Inc., a Florida corporation, located in the Seybold Building in downtown Miami, Florida. K & G Jewelry, Inc., as its name indicates, sold jewelry to the general public.

Sonia Miller was the president of a corporation known as Sonny Miller, Inc., and at one time operated a jewelry sales and antique business at 6716 Collins Avenue, Miami Beach. Late on the last night in January or the very early morning of the first of February, 1976, Mrs. Miller was attempting to open and operate a jewelry and antique business. At that time, she had some $240,-000.00 of jewelry in boxes which had been placed into the area where she intended to open her new business. She left the jewelry in the store with the lights on and, with her daughter, went next door for something to eat. When she and her daughter returned at approximately 1:00 a.m.,'or shortly thereafter, on February 1, 1976, they found that the lock had been pulled off the front door, the door was open and, of course, the jewelry was gone. Mrs. Miller reported the theft.

Later, Mrs. Miller was in downtown Miami in the Seybold Building at K & G Jewelry. There, in the window, she saw an opal mosaic pin on a black velvet bust. She immediately recognized it as being a pendant that was among the jewelry stolen from her. She and a friend, Mr. Krum-holtz, went to K & G Jewelry and Mr. Krumholtz spoke to the defendant, introducing Mrs. Miller and advising the defendant that Mrs. Miller had seen some stolen jewelry in his window and would he please talk to her. Krumholtz left; shortly thereafter, the defendant said he would not talk to Mrs. Miller at that time and that she would have to come back later. Mrs. Miller then went downstairs to call the police. She testified that she was gone only about five minutes and that when she returned, the pendant was no longer in the window. She saw that the bust was still there but there was no jewelry on it. Later, Mrs. Miller and a policeman went back to K & G Jewelry, at which time the defendant denied knowing anything about the pendant. The police officer reminded him that it had been on a bust in his jewelry store window, but he insisted that he knew nothing about it. The police officer asked the defendant if anybody in the shop had sold the pendant and the defendant stated that he did not know, but inquired of two of his employees concerning whether or not they had sold the pendent out of the window. Both employees indicated they had not. A search warrant was obtained to search the K & G Jewelry premises. Mrs. Miller and the police officer then returned to K & G Jewelry where Mrs. Miller identified numerous pieces of jewelry that she said belonged to her and that were taken in the robbery of February 1, 1976.

Prior to the trial, on May 3, 1976, the State issued a witness subpoena duces te-cum directed to the Custodian of Records of K & G Jewelry, Inc., which defendant alleges was served personally upon him. On May 13, 1976, the return day of the subpoena, the assistant state attorney was advised by counsel for the defendant that he would not honor the subpoena and, on May 14th, the State filed a motion to compel production of the records, pursuant to the witness subpoena duces tecum served on the defendant. On May 19th, the defendant appeared before an assistant state attorney and produced the books and records as required by the subpoena duces tecum. By way of a motion to dismiss, the defendant contended that by complying with the subpoena he had been immunized from prosecution through Section 914.04, Florida Statutes (1975), and the applicable decisions construing that statute. The motion was denied.

At trial, evidence was presented by the State showing that the persons from whom the defendant said he had purchased the stolen items did not, in fact, sell them.

Defendant’s first two points are argued together. The first urges that the court erred in denying the motion to dismiss the information, and the second urges that the court erred in denying the motion for judgment of acquittal made at the conclusion of the State’s case and in failing to grant the defendant a new trial. The burden of the argument under these points is that the purpose of the subpoena, as reflected by the record, was to obtain evidence against the defendant personally, and because the defendant was the person required to produce the papers on which some of the evidence for his prosecution was based, he was, therefore, immunized by the provisions of Section 914.04, Florida Statutes (1975), from the charges brought against him.

We think that this contention is adequately refuted by the language of this court in State v. Deems, 334 So.2d 829 (Fla.3d DCA 1976), where we stated:

“Section 914.04, Fla.Stat., is designed to assure an individual’s constitutional privilege against self incrimination where such individual is subpoenaed or compelled to produce his own personal records. State ex rel. Byer v. Willard, Fla. 1951, 54 So.2d 179. However, a requirement for production of records of the corporation of which Deems was president would not violate Deems’ privilege against self incrimination and would not prevent prosecution under the statute. Davis v. State, Fla.App.1973, 281 So.2d 551; 79 C.J.S. Searches and Seizures § 37.”

It should be noted that defendant’s contention concerns statutory immunization and not any requirement that he give testimony against himself. The constitutional issue was not raised in the trial court and is not included here in the points on appeal. Nevertheless, we refer to the following cases as an indication that although the statutory privilege may attach to a defendant required to testify under subpoena duc-es tecum, the constitutional right must be asserted at the time of the taking of the testimony and if not asserted, the constitutional ground is not the basis for the exclusion at trial. See State v. Perkins, 349 So.2d 802 (Fla.2d DCA 1977); State v. Newsome, 349 So.2d 771 (Fla.2d DCA (1977); and Orosz v. State, 334 So.2d 26 (Fla.1st DCA 1976).

Defendant’s third and fourth points are argued together. They claim an insufficiency in the evidence. The burden of this argument is that there was no showing that the defendant knew or should have known that the items he retained in his store and offered for sale were stolen. Our review of the record convinces us that this position is untenable in that Defendant’s guilty knowledge is inescapable from his unexplained possession of recently stolen goods, the false statements given concerning the manner of acquisition, the futile attempts at concealment and the contradictory statements of fact given concerning the disposition of some of the goods which were observed but not recovered. It is well established that the possession of stolen property, together with other incriminating circumstances, is sufficient for a conviction of this crime. See State v. Graham, 238 So.2d 618 (Fla.1970).

The judgment and sentence are affirmed.

      . “914.04 Witnesses; person not excused from testifying in certain prosecutions on ground testimony might incriminate him; immunity from prosecution. — No person, having been duly served with a subpoena or subpoena duc-es tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty of forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.”


author: MILLS, Judge.

text:
    George THURSTON, Appellant, v. STATE of Florida, Appellee.
    No. GG-141.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1978.
    As Amended March 10, 1978.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Thurston was charged with aggravated assault and aggravated battery. He waived a jury trial and the trial court found him not guilty by reason of insanity. On 9 April 1976, pursuant to Fla.R.Crim.P. 3.460, the court ordered Thurston committed to the Department of Health and Rehabilitative Services finding that his discharge would be manifestly dangerous to the peace and safety of the people.

On 21 October 1976, the department notified the state attorney that it intended to present Thurston to a hearing examiner for continued hospitalization under the Baker Act. The hearing examiner held a hearing on 1 December 1976 at which the Department, Thurston and his attorney appeared. On 22 December 1976, he entered an order that in accordance with Section 394.467(4), Florida Statutes (1975), he was denying the request of the Department for continued involuntary hospitalization of Thurston, and that he was recommending the release of Thurston and return of his custody to the committing court for action required by Rule 3.460.

The hearing examiner did not forward copies of his order to the state attorney or the committing court. On 3 February, 1977, the Department sent a letter to the clerk of the committing court attaching a copy of the hearing examiner’s order and requesting that he deliver it to the court. A copy was not sent to the state attorney.

On 16 March 1977, Thurston moved for discharge on the ground that the State did not timely appeal the hearing examiner’s order. In the alternative, he moved the court to set a hearing to determine if he should be released on the basis of the hearing examiner’s order.

The court denied the motion for discharge but set the matter for hearing to determine whether Thurston should be released. After hearing the evidence, the court denied the motion and recommitted Thurston to the Department.

Thurston contends that the trial court erred in refusing to discharge him because the State did not appeal the hearing examiner’s order of 22 December 1976 and that at the subsequent hearing before the court the State failed to prove by clear and convincing evidence that Thurston continued to meet the criteria for involuntary hospitalization. Thurston further contends that the court’s retention of jurisdiction over him was improper because of the 1977 amendments to Section 394.467(5), Florida Statutes (1975).

Rule 3.460 states:

“When a person tried for an offense shall be acquitted by the jury for the cause of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause. If the discharge or going at large of such insane person shall be considered by the court manifestly dangerous to the peace and safety of the people, the court shall order him to be committed to jail or otherwise to be cared for as an insane person and such person shall be held in custody until released by order of the committing court, or may give him into the care of his friends, on their giving satisfactory security for the proper care and protection of such person; otherwise he shall be discharged.” Section 394.467(5) provides:
“(a) In the case'of auypatient who has been committed to a mental hospital pursuant to Rule 3.460 (Acquittal for Cause of Insanity), Florida Rules of Criminal Procedure, the committing court shall retain jurisdiction in the case.
(b) When a patient is committed pursuant to Rule 3.460, the administrator shall not release such patient without first notifying the State Attorney from the committing county at least 30 days in advance of the anticipated date of release. The State Attorney can request a hearing before a hearing examiner to be held within 15 days. A continuance not to exceed 5 days may be granted at the discretion of the hearing examiner. The State Attorney from the committing county shall represent the interest of the state at such hearing. The patient and his guardian or representative shall be informed of the right to counsel by the hearing examiner. In the event a patient cannot afford counsel in a hearing before a hearing examiner, the Public Defender in the county where the patient is being held or a court appointed attorney shall act as attorney for the patient. If, at a hearing, it is shown that the patient continues to meet the criteria for involuntary hospitalization, the hearing examiner shall sign the order for continued hospitalization pursuant to paragraph (f). If, at a hearing, it is shown that the patient does not continue to' meet the criteria for involuntary hospitalization, the hearing examiner shall sign an order allowing the release of the patient, which order shall not be effective until approved by the committing court.
(c) In all proceedings under this paragraph, both the patient and the State Attorney shall have the right to a finding by a jury. In these proceedings, evidence may be presented by the hospital administrator, the State Attorney, and the patient. The Florida Rules of Criminal Procedure pertaining to jury trials shall be applicable in all cases where the State Attorney or the patient has demanded a jury proceeding. The patient shall have the right to counsel'. In the event a patient cannot afford counsel, the Public Defender of the county in which the proceedings arise or court appointed counsel shall act as attorney for the patient. After hearing all the evidence, the jury, or in the case where a jury was not requested, the judge shall deliberate and render a decision based exclusively on whether the patient continues to meet the criteria for involuntary hospitalization pursuant to paragraph (l)(a) or paragraph (l)(b). If the patient does not meet either of these criteria, the jury, or in the case where a jury was not requested, the judge shall find that the patient should be released. The hearing provided for herein shall be held within 60 days from the date of notice of appeal; otherwise the patient shall be released in accordance with the order of the hearing examiner.”

The proceeding held by the hearing examiner on 1 December 1976 was held under the provisions of Section 394.467(4) and not under Section 394.467(5)(b). The hearing examiner clearly stated this in his order of 22 December 1976. The hearing examiner also understood and clearly stated that although he recommended the release of Thurston this could not be done without an order of the committing court. Rule 3.460 and Section 394.467(5)(a). At this point, the provisions of Section 394.467(5)(c) came into play. It was then necessary that Thurston move the committing court to approve the release recommended by the hearing examiner. There was no provision for an appeal prior to action by the committing court. There could be none because there was no final disposition of the case until this action was taken. The court properly denied Thurston’s motion for discharge because no appeal could be taken from the hearing examiner’s order of 22 December 1976.

We have not been called upon by Thurston or the State to determine the quantity of proof required to continue or to release Thurston from involuntary criminal hospitalization. Nevertheless, the record in this case discloses that the State proved by clear and convincing evidence that Thur-ston continued to meet the criteria for involuntary criminal hospitalization. Thur-ston argues, however, that the court erred in refusing to allow him to fully cross examine a psychologist witness on the reasons for her opinions. We agree. But, this was harmless error because the court who sat as the jury stated in its order that it ignored the testimony of this witness in arriving at its order. Excluding this testimony, there was still clear and convincing evidence to support the court’s order.

In its order recommitting Thurston to the Department, the court stated:

“In any event, the defendant shall not be released from the Department of Health and Rehabilitative Services without the written consent of this court. The provisions for release shall be governed by Florida Statutes, Section 394.467(5) and Fla.R.Crim.P. 3.460.”

Thurston contends this was improper because of 1977 amendments to Section 394.-467(5) which removed this authority. We do not agree. All actions taken in this case were taken before passage of the 1977 amendments and the 1977 amendments were not given retroactive application by the legislature. Foley v. Morris, 339 So.2d 215 (Fla.1976). The court properly retained jurisdiction under the existing law.

The order appealed is affirmed.

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


text:
    Antonio DE LA COVA, and Gary Latham, Appellants, v. The STATE of Florida, Appellee.
    No. 76-1848.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.

      Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

This appeal is brought by Antonio De la Cova and Gary Latham, who were code-fendants to an information charging them with (1) conspiracy, (2) unlawfully attempting to discharge a destructive device, (3) attempted second degree arson, (4) unlawfully possessing explosives with intent to harm, (5) possessing an explosive without a license, (6) unlawfully transporting explosives, and (7) unlawful display of a firearm. (Only De la Cova was charged under this seventh count.) During the progress of the trial, codefendant Latham withdrew his plea of not guilty and pleaded nolo conten-dere. The last point on this appeal which pertains to Latham is the point questioning the validity of the sentence. Both defendants were found guilty by the jury and were sentenced as set out, infra, in the portion of this opinion dealing with the sentences.

The appellants’ brief presents four points. The gist of the appellants’ argument under point one is that the trial court erred in failing to grant a continuance in mid-trial when the State granted immunity to the witness Miguel Peraza and announced its intention to call him as a witness. The facts upon which the motion for continuance was based are that the defendant De la Cova announced that he would rely on the defense of entrapment and would rely on Peraza, who was an informer for the F.B.I., as the active person in the conspiracy. When the defendant attempted to take Peraza’s deposition, Peraza took refuge in his Fifth Amendment privilege because charges were pending against him. Upon application to the court for aid, the trial judge ruled that Peraza would be required to respond to certain deposition questions having to do with his relationship with the F.B.I. and would not be required to respond to questions concerning his participation in the conspiracy and the crimes charged.

On the first day of trial, defense counsel moved for the production of statements of Miguel Peraza that had been revealed at his deposition and made to federal agents. These statements concerned his activities in this case. The State responded that it did not possess the statements made to federal authorities. Thereupon, the court denied defense counsel’s motion for their production. On the third day of trial, the State announced that because defendant De la Cova presented an entrapment defense during opening argument, the State had decided to use Peraza as a witness and, therefore, would grant him immunity. Upon motion of counsel for the defendant, the court denied a continuance to De la Cova but required the State to make Peraza available for deposition immediately. The deposition was taken and the statements made to federal authorities were secured and turned over to the defendant. The next day, counsel for defendant again moved for a continuance or a mistrial on the ground that he had not been able to have the testimony for use in cross-examination of the witness. The court denied the motions and the trial proceeded. Upon these facts, defendant claims reversible error, relying on Anderson v. State, 314 So.2d 803 (Fla. 3d DCA 1975); and Richardson v. State, 246 So.2d 771 (Fla.1971).

Our review of the record convinces us that appellant’s first point does not show reversible error because there is no showing of prejudice. The record does not reveal any particular in which the defendant might have used the statements or the deposition in order to bolster his cross-examination of Peraza or to support his defense of entrapment. The denial of a motion for continuance is a matter within the sound discretion of a trial judge. See Raulerson v. State, 102 So.2d 281 (Fla.1958); Henderson v. State, 90 So.2d 447 (Fla.1956); and Kitchen v. State, 89 So.2d 667 (Fla.1956). And where this motion is made in the midst of a trial, the decision of the trial judge will not be reversed in the absence of a clear showing of an abuse of discretion. See Fla.R.Crim.P. 3.190(g)(3). If the record revealed prejudice to the defendant because of the State’s change in tactics, our holding on the denial of a continuance might have been different. Prejudice cannot be presumed simply because the State used a witness known to the defendant after a late grant of immunity. A mistrial was not appropriate because the State did not disobey any rule of procedure or of fundamental fairness. Nevertheless, the situation is fraught with danger to a fair trial and each case must be judged upon its own facts in determining whether the trial judge has abused his discretion in allowing the trial to proceed. Cf. Pope v. State, 84 Fla. 428, 94 So. 865 (1923). In the present instance, the circumstances described did not deprive the defendant of any right or of a fair trial.

Appellant De la Cova’s second point urges error in the court’s denial of his motion for a directed verdict on count two, which charged an “. . . attempt to discharge a destructive device, in the vicinity of the structure located at 3458 Southwest 8 Street, with intent to do damage to said property, in violation of 77[7].04 and 790.161(2), Florida Statutes . . .” and on count three, which charged an “. attempt to commit a crime, to-wit: ARSON IN THE SECOND DEGREE . . . ” on the same structure, “. . .in violation of 77[7].04 and 806.01(2), Florida Statutes . ” If we were to reach these issues, we would hold that ownership of the premises described in the allegations of these statutory crimes is not an element of the respective crimes because the statute eliminates the element.

We hold that this point does not present reversible error because it was not raised in the trial court. A bare bones motion for directed verdict does not raise every possible claimed insufficiency in the evidence. Cf. G.W.B. v. State, 340 So.2d 969 (Fla. 1st DCA 1976). Here, the argument is made for the first time on appeal and ought not be considered unless it amounts to fundamental error. It clearly was not fundamental because the premises were fully described and no prejudice to the defendant could have occurred. The possibility of double jeopardy, as urged by the defendant, does not exist. Cf. Llano v. State, 271 So.2d 34 (Fla. 3d DCA 1972).

The third point urges that count two should have been dismissed upon defendant’s motion because it improperly charged the defendant with an attempt to commit the crime described in Section 790.161, Florida Statutes (1975). It is argued that Section 790.161 is an attempt statute and that, therefore, the charge of an attempt under the general attempt statute, Section 777.04, Florida Statutes (1975), was a charge of an attempt to attempt. This argument is not effective because the language of Section 790.161, in referring to attempts, speaks only of “. . . attempt to discharge . . . ” The defendant here was charged with an attempt to place or throw a destructive device. No error appears.

The fourth point challenges a part of the sentence. It is argued that the court erred in sentencing the defendants on counts two, three, four, five and six of the information. The defendants were sentenced as follows, with all sentences to run consecutively:

Count Crime De la Cova Latham
I. . . did unlawfully and feloniously 5 years 5 years agree, conspire, combine or confederate with each other to commit felonies under the laws of the State of Florida, to-wit: THE PLACING OR DISCHARGING OR THE ATTEMPT AT DISCHARGING OF ANY DESTRUCTIVE DEVICE, . . . ARSON, IN THE SECOND DEGREE, ... UNLAWFUL POSSESSION OF EXPLOSIVES, ... and UNLAWFUL TRANSPORTATION OF EXPLOSIVES ...”
II. . . did unlawfully and feloniously 15 years 15 years throw, place, discharge, or attempt to discharge a destructive device . ” in contravention of Sections 777.04 and 790.161, Florida Statutes (1975).
III. “. . . did unlawfully, willfully and 5 years 5 years maliciously attempt to commit a crime, to-wit: ARSON IN THE SECOND DEGREE . . . ” in contravention of Sections 777.04 and 806.01, Florida Statutes (1975).
IV. ". . . did unlawfully and feloniously 15 years Nolle keep, store, possess or distribute [a] prosequi certain explosive, to-wit: DYNAMITE, with the intent to harm life, limb or property . . ” in contravention of Section 552.22, Florida Statutes(1975)
V. “. . . did unlawfully, knowingly and 5 years 5 years feloniously have in their possession, [a] certain explosive, to-wit: DYNAMITE, without having a license or permit thereof . . . ” in contravention of Sections 552.101 and 552.22, Florida Statutes (1975).
VI. . . did unlawfully, knowingly and 5 years 5 years feloniously transport [an] explosive, to-wit: DYNAMITE . . . ” in contravention of Sections 552.12 and 552.22, Florida Statutes (1975).
Count Crime De la Cova Latham
VII. . . did unlawfully and feloniously 15 years Not charged display, use, threaten or attempt to use [a] firearm or carry a concealed firearm, to-wit: PISTOL, while . . ' . committing a felony ...” in contravention of Section 790.07, Florida Statutes (1975).

The defendants first urge that the trial court erred in imposing separate sentences on counts two and three because the elements of the crime alleged are identical. It will be noted from the above tabulation that count two charged the attempted placing of a destructive device in violation of Section 790.161, Florida Statutes (1975), and that count three charged attempted arson in violation of Section 806.01, Florida Statutes (1975). The testimony of the State’s witnesses proved that De la Cova and Pera-za met Latham on the evening of May 5, 1976, at Latham’s apartment in Boca Raton, Florida. They went together to Florida Atlantic University where they used a typewriter and then returned to Latham’s apartment. Upon leaving the apartment, they picked up defendant Bias Corbo (not an appellant here) on Miami Beach and then proceeded to Miami to the designated structure. De la Cova and Peraza exited the car and went to the front of the store. De la Cova had in his possession an explosive device. As De la Cova bent over to place the device, the defendants were arrested by police who had the building under surveillance. Peraza was allowed to escape by pre-arranged plan.

There can be no doubt that only one action or transaction was proved. The question is whether the same act can, in this case, be said to constitute two separate ■ crimes for which the defendants can be punished by consecutive sentences. We hold that although two separate crimes were committed, the defendants may not be sentenced to consecutive terms for the two crimes where the proofs of the elements of each crime do not differ under the facts presented. In Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975), in dealing with the sale of separate drug substances, the court held:

“The facts of the instant case show that the petitioner had possession of two separate drug substances, each of which constitutes in and of itself a separate violation of law. If multiple sentences are proper as set forth in Steele v. Mayo [72 So.2d 386], supra, Norwood v. Mayo [74 So.2d 370], supra, and Estevez v. State [313 So.2d 692], supra, they are proper in this instance, and we so hold. We recede from our decision in Foster v. State [286 So.2d 549], supra, to the extent that it conflicts with this opinion.
“We recognize that other states have mandated by statute that multiple or consecutive sentences are not to be imposed for offenses committed as part of a single transaction. E. g., California Penal Code § 654 (West 1970); Illinois Rev. Statute Ch. 38 § 1005-8-4(a) (1973); Minn. Statutes § 609.035 (1974). In the absence of a specific Florida statute, this Court adheres to the view expressed in its prior decisions in Steele v. Mayo, supra; Norwood v. Mayo, supra; and Estevez v. State, supra." [Emphasis added]

The holding in Foster v. State, 286 So.2d 549 (Fla.1973), from which the Supreme Court specifically receded in part, is as follows:

“We hold, therefore, that in light of the facts and circumstances of the instant case, the trial court erred imposing sentence of fifteen years on petitioner’s conviction of breaking and entering with intent to commit a felony, and imposing an additional concurrent sentence of five years on petitioner’s conviction of possession of burglary tools. In a case such as this, only one sentence may be imposed, and that sentence, obviously, cannot exceed that which could be imposed solely upon conviction for the highest offense contained within the transaction. We therefore must reverse the First District on this point.”

The holding in Estevez v. State, 313 So.2d 692 (Fla.1975); Norwood v. Mayo, 74 So.2d 370 (Fla.1954); and Steele v. Mayo, 72 So.2d 386 (Fla.1954); support the principle that multiple sentences are proper where there are two or more separate offenses growing out of the same criminal transaction.

We conclude that the “same transaction rule” has partial validity in Florida and that it still retains sufficient vitality to prohibit double punishment for the same series of acts where those acts, although constituting two crimes, have every element of proof of each of the two crimes in common.

It is next urged that the trial court erred in sentencing the defendants for the separate crimes of possession of explosives without a license and unlawful transportation of explosives. It is well settled that two divisible criminal acts have transpired when the defendant is in possession of a firearm when committing a burglary or when a victim is shot after an attempted robbery. See Yates v. State, 317 So.2d 462 (Fla. 1st DCA 1975); and Meeks v. State, 289 So.2d 479 (Fla. 3d DCA 1974). It is clear, therefore, that these defendants violated two separate statutes. The evidence shows that the explosives were in the possession of the defendants at the Boca Raton apartment and that they were transported to Miami. Therefore, they possessed the explosives prior to their transportation. The elements of the two crimes are distinct and each is made punishable by statute. Therefore, upon authority of Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975), we hold that no error appears upon the separate sentences for these two crimes.

Appellant De la Cova, as his last point, urges that the trial judge erred in sentencing him upon count four of the information because count four fails to allege a crime distinct from the crimes alleged in five and six of the information. By way of recapitulation, count four alleged that De la Cova possessed or distributed dynamite with “intent to harm life, limb or property.” The information recites that the act was done in violation of “552.22, Florida Statutes (1975).” Count five was for the possession of dynamite “without having a license.” Count six was for the transportation of dynamite. It is argued that no substantive provision of Section 552.22 makes it a crime to possess dynamite with intent to harm. The difficulty is that the section provides two separate penalties. First, possession with intent to harm is a second degree felony. Second, possession, or any other violation of the chapter, is a third degree felony. De la Cova was found guilty of both (count four and count five).

We think that the only reasonable reading of the statute is that there is but one crime, although two authorized punishments — one for possession with intent to harm and the other for simple unlawful possession. This court has pointed out that unlawful possession alone raises a presumption of possession with intent to harm. See Henry v. State, 344 So.2d 1311 (Fla. 3d DCA 1977). It is clear that this is a rebut-table presumption. Nevertheless, because there is only one crime, there can be only one sentence. Because, in this case, the evidence amply supports a finding of intent to harm property, the sentence on count four will stand but the sentence for unlawful possession without intent (count five) cannot.

Having considered each of the points presented, and finding no error in the judgments, we affirm the judgments as to defendant De la Cova and defendant Latham. It appearing as set forth above that the trial court erroneously sentenced each defendant to consecutive sentences on counts two and three, and it appearing that in such cases only one sentence may be imposed, which cannot exceed the sentence that could be imposed solely upon conviction for the highest offense contained in the transaction, accordingly, we reverse the sentence on count three, which is five years for each defendant for attempted arson in the second degree. It further appearing that the trial court erroneously sentenced De la Cova on count four and count five, we reverse the sentence of defendant De la Cova on count five, which is five years.

The judgments are affirmed and the sentences are amended by striking therefrom the sentences on count three of the information, and the sentence of defendant De la Cova on count five. The sentences as amended are affirmed.

Judgments affirmed; sentences amended.

      . Llano v. State, 271 So.2d 34 (Fla. 3d DCA 1972), decided under a prior statute and relied upon by the appellant, does not hold to the contrary but holds ownership was adequately established to withstand possible double jeopardy.

      . Section 790.161, Florida Statutes (1975), states:
      “Throwing, placing or discharging any destructive device or attempt so to do, felony; penalties.—
      It is unlawful for any person to throw, place, discharge, or attempt to discharge any destructive device, as defined herein, with intent to do bodily harm to any person or with intent to do damage to property, and any person convicted thereof shall be guilty of a felony and punished in the following manner: (1) When such action, or attempt at such action, results in the death of another person, the person so convicted shall be guilty of a life felony, punishable as provided in § 775.-082.

        (2) When such action, or attempt at such action, results not in the death of any person, but does result in personal injury to a person or in damage to property, the person so convicted shall be guilty of a felony of the first degree, punishable as provided in § 775.082, § 775.083, or § 775.084. A sentence not exceeding life imprisonment is specifically authorized when great bodily harm to another or serious disruption of governmental operations results.”

      . We note the enactment, after this sentence was imposed, of § 775.021(4), Fla.Stat. (Supp. 1976), which prohibits sentencing for multiple offenses when one or more offenses are included offenses.

      . “552.22 Penalties. — Any person who manufactures, purchases, keeps, stores, possesses, distributes, or uses any explosive with the intent to harm life, limb or property, shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084. Any person who shall in an application for a license or permit as herein provided, knowingly make a false statement, or who shall obtain explosives under a false statement, pretense or identification, or who shall knowingly otherwise violate any provisions of this chapter, or regulation promulgated pursuant to this chapter, shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.-084. Possession of explosives under circum-r stance? contrary to .the provisions of this chapter or such regulations shall be prima facie evidence of an intent to use the same for destruction of life, limb or property. Conviction under this section of any person holding a license or permit shall effect cancellation thereof.”