author: HARRIS, Judge. BOOKOUT, Judge

text:
    JOSEPH A. KINARD v. STATE.
    1 Div. 576.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.
    Thomas M. Haas, Mobile, for appellant.

      William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

By agreement appellant was put to trial upon a “Solicitor’s Complaint” which charged that he did unlawfully possess Marihuana for personal use.

Appellant demanded a trial by jury. The jury returned a verdict finding the defendant guilty of the unlawful possession of Marihuana for personal use as charged in the Solicitor’s Complaint. The jury declined to assess a fine. The trial judge adjudged appellant guilty and sentenced him to imprisonment in the Mobile County Jail for six months.

Appellant made a pre-trial motion to suppress all the evidence taken from his person or his vehicle by law enforcement agents at or about the time of his arrest on the grounds that said evidence was illegally and improperly seized without a search warrant and without probable cause or legal excuse. A hearing on this motion was heard out of the presence and hearing of the jury.

The arresting officer, William Lundy, testified that he was employed by the Mobile Police Department on June 6,1974, and had been so employed for about four years. Around 9:00 P.M., on that date, he was on Highway 90 around Azalea Road and stopped a van truck for an I.D. check, that he turned on his blue light and the van pulled over just east of Highway 90 — just east of 65 on Highway 90, eastbound.

From the record:

“Q All right, sir. Would you please tell the Court what happened after you stopped that van?
“A I turned my blue lights on and the van pulled over just east of Highway 90 — just east of 65 on Highway 90, eastbound. I got out of the car, Mr. Kinard got out of the driver’s side of the van and started walking back towards me. We met between the van and the patrol car. I asked him for his identification and he showed me his driver’s license. We walked around to the passenger’s side and I opened the door on the passenger’s side where Mathis was sitting in the driver’s seat and Patsy Brunson was sitting on the cooler between the two seats right by the console.
“Q Was there a person that you later learned to be R. L. Dean in the back of the van?
“A Yes, sir; he was laying down in the back of the van.
“Q All right. When you referred to ‘Mathis,’ are you referring to James Matthews?
‘"A Right. James Matthews.
“Q All right. Now, please continue.
“A I shined my light in the van in front of James Matthews and the ash tray was open with — there was a cellophane bag with some small pills.
At this time, I got all of the subjects out of the van that were in the van, James Matthews, Patsy Brunson and R. L. Dean out of the back of the van. I asked them for their identification as they were standing beside the van. Each one of them gave me some form of identification.
At that time, my backup had arrived and we placed them in the back seat of my scout car. Then, we walked back up to the van, which my backup was Officer Robbins, and we got the cellophane bag out of the ash tray. Then, we reached up under the dash and got the rest of the stuff out.
“Q Tell the Judge what the rest of it was, if you remember.
“A To the best of my knowledge, it was a couple of prescription bottles with some pills in it and some more cellophane bags with other pills and some marijuana.
“Q What did you do then, if anything?
“A At that time we called for a C.I.D. Unit and a Sergeant had arrived.
“Q All right.
“A My Supervisor.”

On cross-examination he testified that he did not have an arrest warrant for anyone in the van and did not have a search warrant to search the van. He further stated that he did not stop the van because of any particular driving violation.

On re-direct examination he said he stopped the van to make an I.D. check and this was a normal function of his police duties from time to time. He further testified that when the driver of the van showed him his driver’s license, he asked him who owned the van and he said he was the owner.

The court denied appellant’s motion to suppress and the jury was brought back to the court room and the trial in chief got under way.

Officer Lundy testified to essentially the same facts before the jury as he gave on the motion to suppress as to stopping the van and the occupants thereof. In addition, he testified that it was a 1969 Ford van, tan in color, and had some type of build-up on the roof of it, and it stood out from other vans. That when he shined the light inside the van, he saw the ash tray was open and saw a cellophane bag in plain view with some small pink pills in it. He further stated that when the three men and woman were put in his scout car, that he told them they were under arrest. He said that the other contraband was up under the dash of the air conditioner duct. Aside from the pills he described the other material as follows:

“There was some.ground leafy type material was in one bag and there was a partially smoked what — it looked like sort of a cigarette with some other ground leafy material with some seeds of some sort in it.”

He further testified they turned over to Sergeant Moore at the scene everything they removed from the van; that he took' the four occupants of the van downtown, to the Detective Division of the Mobile Police Department. The van was towed to an uptown garage.

Police Officer Robert Moore testified that he worked in the Criminal Investigation Division of the Mobile Police Department and had been so employed for twelve years, that on the night of May 6,1974, he was on routine patrol and received a call by radio to meet Officer Lundy. When he arrived at the scene, Lundy told him what he had and showed him the pills he had found and how he had found them. Moore told Lundy they had probable cause to search the rest of the van. He said, “I was standing right behind Officer Lundy and Officer Robbin when they took assortment of pills and green plant material from underneath the dash in the air conditioner fan.” He said he had a conversation with the defendant in which the defendant admitted ownership of the van.

Moore further testified that he took everything that was removed from the van and carried it to Police Headquarters and turned it over to Officer Ronnie Meiers the next day. He stated that he advised each of the four occupants of the van of their rights individually. Moore Said it was standard procedure when booking people who were under arrest to have them empty their pockets; that appellant had a wallet, keys, and there was $192.00 in his wallet.

All of the above testimony was strenuously objected to by appellant’s counsel. The objections were overruled.

Dr. Nelson E. Grubbs, Assistant State Toxicologist in charge of the Mobile laboratory, was called as a witness for the state. At this point it was made known to the court that a stipulation had been entered into between the prosecutor and defense counsel that if Police Officer Ronnie Meiers was present, he would testify that Officer Moore gave him everything that was found and removed from the van and he delivered them to the toxicologist, Dr. Nelson Grubbs.

From the record:

“THE COURT: Members of the- jury, what a stipulation is, of course, would be an area where both sides of the case would say, we agree that these facts are part of the facts to be submitted to the jury, so you don’t have to worry about them. In other words, it is more or less stipulating as to certain evidence for you to receive and accept as a part of the evidence in this case. And what Mr. Haas said and what Mr. Valeska said about the stipulation would be for you to accept as evidence in the case in determining — in making your decision. All right, go ahead.”

The qualifications of the toxicologist were admitted by defense counsel and he testified that he received a package from Officer Meiers. He identified state’s Exhibit Number 1 as a plastic brown vial with a green top on it containing nine grams of Marihuana seeds and some packing material on top of it. He identified state’s Exhibit Number 2 as a plastic bag containing ground leaf material of Marihuana and ground seeds of Marihuana, and state’s Exhibit Number 3 containing the flowering top of Marihuana and a cigarette butt, commonly called a roach. These exhibits were introduced in evidence over objections of defense counsel that the proper predicate had not been laid, the proper identification had not been made, and the evidence was seized illegally by the officer. These objections were overruled as the toxicologist had testified that these exhibits had been in his exclusive possession since he received them and were not available to anyone else except Mrs. Pillman an employee of the laboratory who worked directly under his supervision.

Mrs. Alilee Pillman was called as a witness for the state and testified that she was employed by the State Department of Toxicology and Criminal Investigation in Mobile County. Defense counsel also admitted her qualifications.

This witness was shown state’s Exhibits 4, 5 and 6. She stated she received them from Officer Meier on May 7, 1974. She stated she made an examination and analysis of the contents of these exhibits and found Exhibit Number 4 contained gleanings of Marihuana. That Number 5 contained tablets of butysol sodium, a derivative of barbituric acid, and that Exhibit Number 6 contained lysergic acid, diethyla-mide, and phencyclidine. That the common names for these drugs are LSD and PCP. These exhibits were received in evidence over heated objections of appellant.

Sergeant Robert Moore was recalled and testified that all of the above drugs were removed from the van at the scene where Officer Lundy had stopped it. He further testified that appellant was re-advised of his rights at Police Headquarters and told the officer that he understood his rights and that the van belonged to him. Appellant signed a waiver of rights form.

The state rested and appellant made the following motions outside the presence of the jury.

“MR. HAAS: If it please the Court, the Defendant, the State having rested in the trial in this case, moves the Court to exclude the evidence presented in the case on the following grounds separately and severally: One, the State has failed to sustain its burden of proof; two, the State has failed to establish a prima facie case; three, there is a variance between the charge and the evidence that is presented and a variance between the evidence itself as to dates, times, and places; and I renew the motion to suppress the evidence as being — as having been illegally obtained. I further respectfully point out to the Court that this is a misdemeanor, a marijuana indictment. There is another charge pending in this Court against this Defendant which covers Exhibits # 4 and # 6 which have been introduced in this case and this is an overlap. It is in 31,662 in this Court in which this Defendant is charged with possession of various pills including LSD and barbiturics, and on all of those grounds separately and severally I move to exclude it.
“THE COURT: Any response from the State.
“MR. VALESKA: No response, Your Honor.
“THE COURT: I will deny the motions.
“MR. HAAS: We would respectfully except, and I renew my motion for a mistrial on the grounds that they are trying this Defendant on a misdemeanor, a District Attorney’s complaint charging possession of marijuana for personal use, and they are bringing in to evidence, evidence of felonies that are involved in other cases in this Court, as I have pointed out to Your Honor. It is pending on Judge Hodnette’s docket.
“THE COURT: Overruled.”

The lack of daylight requiring the use of a flashlight to view from the outside the contents of the van truck, does not constitute a search and make the plain view doctrine inapplicable in this case. Parks v. State, 46 Ala.App. 722, 248 So.2d 761; Sheridan v. State, 43 Ala.App. 239, 187 So.2d 294.

Possession is not limited to actual manual control upon or about the person, if under one’s power and dominion the thing is possessed. That the appellant had knowledge of the presence of the drugs can reasonably be inferred from his possession, control and ownership of the van. Lawson v. State, 38 Ala.App. 322, 82 So.2d 812; Seawright v. State, 52 Ala.App. 286, 291 So.2d 376.

Title 36, Section 59, Code of Alabama, provides that “every person, except those hereinbelow exempted, before driving any motor vehicle upon a public highway in this state, shall procure a driver’s license.”

Title 36, Section 65, Code of Alabama 1940, provides:

“Possession and display of license.—Every licensee shall have his license in his immediate possession at all times when driving a motor vehicle and shall display the same, upon demand of a justice of the peace, recorder, ■ a peace officer, or an officer or patrolman of the state highway patrol. However, no person charged with violating this section shall be convicted if he produces in court or the office of the arresting officer a driver’s license theretofore issued to him and valid at the time of his arrest.”

The above quoted section confers upon every law enforcement officer of the state express authority to stop a motorist on a public highway for a “routine spot check” of his driver’s license. To hold otherwise would do violence to the very language of this statute.

In Daniels v. State, 290 Ala. 316, 276 So.2d 441, Mr. Justice Bloodworth, writing for a unanimous court, said:

“Since the officers conducted a ‘warrant-less’ search, it cannot, of course, be upheld as valid unless it falls within one of the exceptions to the rule that a search must be conducted pursuant to a valid search warrant.
Notwithstanding the United States Supreme Court’s assertion that its cases on the subject of the extent of a search which may be made without a warrant following a lawful arrest ‘cannot be satisfactorily reconciled,’ it now seems to be fairly well established that there are at least six exceptions under which warrant-less searches have been held valid, viz:
(1) In ‘plain view,’ see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
(2) With ‘consent’ voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
(3) As ‘incident to a lawful arrest,’ see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
(4) In ‘hot pursuit’ or ‘emergency’ situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); State v. Sutton, (Mo.1970) 454 S.W.2d 481;
(5) Where ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and,
(6) In ‘stop and frisk situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 889 (1968).”

Two of the noted exceptions, (1) and (5), are applicable to the instant case. The officer shined his flashlight into the van and saw a cellophane bag with pink' pills in the open ash tray. This was in “plain view.” Because the van was movable “exigent circumstances” coupled with probable cause that other drugs might be found in the van afforded the officers probable cause to conduct a full search of the van on the highway.

Since appellant was tried for posj session of Marihuana for personal use only, a misdemeanor under the controlling statute, we think it was manifestly unfair and highly prejudicial to his case for the trial court to allow in evidence the “hard drugs” found in a search of the van and we would reverse and remand the case for a new trial. However, we are bound by the decisions of our Supreme Court. The opinion of the Supreme Court in Ex parte: State of Alabama Ex Rel. Attorney General (In Re: Brantly v. State of Alabama), 294 Ala. 344, 317 So.2d 345, released on January 9, 1975, concludes and stays our hand.

We find no reversible error in the record and the case is affirmed.

Affirmed.

TYSON and DeCARLO, JJ., concur.

CATES, P. J. and BOOKOUT, J., dissent.

BOOKOUT, Judge

(dissenting).

I respectfully dissent from the conclusion expressed by Judge Harris in this opinion.

The testimony, set out in the majority opinion, shows that the police officer got out of his patrol car and the driver of the van got out and started walking back toward him. The officer asked him for his identification and he showed the officer his driver’s license. The officer walked around to the passenger’s side and opened the door. He observed the occupants of the van and then shined his flashlight in front of Matthews, on the ash tray which was open, and saw a cellophane bag containing some small pills.

On cross-examination the officer testified that he did not have an arrest warrant for anyone in the van and did not have a search warrant. He stated that he did not stop the van because of any particular driving violation.

I

THE INITIAL STOPPING

I believe the officer had a legal right to inspect the driver’s license of the driver of the van pursuant to Title 36, Section 59, Code of Alabama 1940, although the recent Border Patrol decisions of the U. S. Supreme Court, infra, cast doubt upon even that.

As pointed out in the majority opinion, for a warrantless search to be valid it must fall within one of the enumerated exceptions spelled out in Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). The majority opinion is based upon the “plain view” exception and the exception of “exigent circumstances” existing coincidental with “probable cause.” I do not find that any of those exceptions existed in the instant search.

II

THE SEARCH

It is my opinion that everything the police officer did was legal up to the point where he went to the passenger’s side of the van and opened the door. Assuming he had the legal right to stop the van without probable cause to believe a violation of the law was taking place or had taken place, he could only perform that duty he was legally entitled to perform, i. e. check the driver’s license. When he opened the door on the passenger’s side, an illegal search commenced as he clearly had no probable cause to believe a violation of the law had taken place or was taking place. The officer’s own testimony establishes that he had no reason to stop the van except for a “routine I.D. check,” which we take to mean a driver’s license check.

In the first of the recent Border Patrol cases, the U. S. Supreme Court held that the Fourth Amendment does not allow a roving patrol to conduct warrantless searches of automobiles without probable cause or consent, away from the border or its functional equivalent. Almeida-Sanchez v. U. S., 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In that case, the appellant had been stopped by a roving patrol of the U. S. Border Patrol some 25 air miles away from the Mexican border, and a large amount of marijuana was discovered in his auto. There was no search warrant and no evidence that probable cause of any kind existed for the stop or subsequent search. The Court found that not even “reasonable suspicion” existed (which is sufficient in “stop and frisk” cases), and went on to state:

“It is settled, of course, that a stop and search of a moving automobile can be made without a warrant. That narrow exception to the warrant requirement was first established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. . . . Carroll has been followed in a line of subsequent cases, but the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobile or no automobile, there must be probable cause for the search.”

The Court in Almeida-Sanchez held that the marijuana discovered in appellant’s car should not have been used in evidence against him and reversed his conviction. The Court recognized there the magnitude of the illegal alien problem encountered by the government, just as former Chief Justice Taft had done earlier with the Prohibition Law enforcement in Carroll v. United States, supra. However, in both instances the Fourth Amendment rights prevailed in what the-Court termed the “constant tension” between the needs of law enforcement versus constitutional protection of the individual from certain excesses of official power.

On June 30, 1975, the U. S. Supreme Court released two additional opinions of considerable consequence on this subject. In U. S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) the Court expanded Almeida-Sanchez, to prohibit roving patrols of the U. S. Border Patrol from merely stopping and questioning occupants about their citizenship in areas' other than at the border or its functional equivalent, where the only ground for suspicion is the occupants’ apparent Mexican ancestry.

In U. S. v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), the Court further held the Border Patrol could not maintain a checkpoint away from the border where automobiles were stopped and searched, in the absence of consent or probable cause.

The Court, in these cases, draws a distinction between probable cause to search and the less stringent rule of “reasonable suspicion” to merely stop a vehicle without conducting a search.

In Brignoni-Ponce, supra, “two officers were observing northbound traffic from a patrol car parked at the side of the highway. The road was dark, and they were using the patrol car’s headlights to illuminate passing cars. They pursued respondent’s car and stopped it, saying later that their only reason for doing so was that its three occupants appeared to be of Mexican descent. The officers questioned respondent and his two passengers about their citizenship and learned that the passengers were aliens who had entered the country illegally.”

Again after recognizing the enormity of the illegal alien problem, the Court held steadfast to the principle that such a war-rantless search of an automobile must be based upon consent or probable cause. The Court did not prohibit all stopping of vehicles for the purpose of inquiring as to the nationality of the occupants. It did prohibit “stopping vehicles at random . or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.” Such stops may only occur if officers, “. are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” The Court then set out a number of factors which officers may take into consideration in deciding whether “reasonable suspicion” exists for initially stopping a vehicle, which inter alia includes the behavior of the driver, such as erratic driving or an obvious attempt to evade officers.

The Court concluded by finding that the officers in that case relied only on the factor that the appellant was of apparent Mexican ancestry which was insufficient to raise a reasonable suspicion to stop the car.

Thus, Brignoni-Ponce, supra, casts considerable doubt upon random driver’s license checks by police, however it is unnecessary to decide on such an issue in the instant case. Assuming the initial stopping of the van was legal, my objection goes to the subsequent search, which was not conducted with consent or probable cause.

In the Ortiz case, supra, where the war-rantless search of the appellant’s auto produced three illegal aliens hiding in the trunk, the U. S. Supreme Court stated: “A search, even of an automobile, is a substantial invasion of privacy. To protect that' privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search.” In that case the evidence did not show any special reasons for the officers to believe the vehicle contained aliens and the conviction did not stand.

In the instant case the arresting officer states without contradiction that he was conducting a “routine I.D. check” and had no reason to believe there was any violation of the law when he stopped the van. The evidence fails to establish that any additional facts came to the officer’s attention to give him probable cause between the time he stopped the van and the time when he opened the door of the van and began his search. The search was clearly without probable cause and therefore illegal.

Ill

THE PILLS AND THE PLAIN VIEW DOCTRINE

Another question arises of whether an officer seeing pills in plain view, without knowing what they are, may make an arrest and a more detailed search of an automobile. Our Supreme Court answers this question in the negative in the case of Shipman v. State, 291 Ala. 484, 282 So.2d 700 (1973).

Justice James N. Bloodworth, a nationally recognized expert on the subject of search and seizure, wrote the majority opinion in that case. In Shipman, an officer who was justified in stopping a vehicle to ask for an explanation regarding certain conduct, about which he had received a complaint, witnessed an occupant shift some cellophane packages from one hand to another and conceal them in his boot top. Whereupon the officer seized the packages, which ultimately were determined to contain heroin. The Alabama Supreme Court reversed, stating:

“For an item in plain view to be validly seized, the officer must possess some judgment at the time that the object to be seized is contraband and that judgment must be grounded upon probable cause.”
******
“It is well settled that one cannot make a search legal by what it turns up. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Dennis v. State, 40 Ala.App. 182, 111 So.2d 21 (1959). Furthermore, it has been held that for plain view to justify a warrant-less seizure, the incriminating character of the object must be apparent.”

The Supreme Court, in further explanation held, at page 488, 282 So.2d at page 704:

“The reason for this rule is apparent. If the rule were otherwise, an officer, acting on mere groundless suspicion, could seize anything and everything belonging to an individual which happened to be in plain view on the prospect that on further investigation some of it might prove to have been stolen or to be contraband. It would open the door to unreasonable confiscation of a person’s property while a minute examination of it is made in an effort to find something criminal. Such a practice would amount to the ‘general exploratory search from one object to another until something incriminating at last emerges’ which was condemned in Coolidge v. New Hampshire, supra. Ex post facto justification of a seizure made on mere groundless suspicion, is totally contrary to the basic tenets of the Fourth Amendment.
More importantly, the officer, if he were so justified in seizing items upon mere suspicion, could then hold the accused, as was done here, until the next day when the results of the toxicologist’s report was forwarded. Such would clearly contravene the Fourth Amendment.”

Justice Bloodworth’s opinion is cited and quoted in pertinent part in support of a similar holding by the Court of Special Appeals of Maryland in Dixon v. State, 23 Md.App. 19, 327 A.2d 516 (1974). In Dixon, the police officer, in attempting to make an “inventory search” of the defendant’s auto in the courthouse parking lot, looked into the back seat and observed two pills in plain view. He took the pills and had them tested and they were determined to be illegal barbiturates. The Maryland Court in reversing the conviction, stated inter alia:

“Even assuming a bona fide inventory and, therefore, a prior valid intrusion, it is clear that there was no probable cause to believe that the two pills here seized, albeit inadvertently spotted in plain view, were contraband or other evidence of crime.”

For cases of similar import see Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966); and United States v. Thomas, 16 U.S.C.M.A. 306, 36 C.M.R. 462 (1966).

The seizure of the pills from the ash tray in the van in the instant case, and the resulting detailed search it occasioned, clearly do not meet the test set down by our Supreme Court. For the foregoing reasons the motion to suppress should have been granted.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    In re Joseph A. KINARD v. STATE of Alabama. Ex parte Joseph A. Kinard.
    SC 1544.
    Supreme Court of Alabama.
    June 4, 1976.

      Thomas M. Haas and Neil L. Hanley, Mobile, for petitioner.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State, respondent.
   BLOODWORTH, Justice.

This petition for certiorari presents two issues for our determination:

1. Was there a valid warrantless seizure of the pills from petitioner’s vehicle by reason of the “plain view” doctrine?
2. Was the seizure of the marihuana, subsequently discovered after a war-rantless search of the vehicle, justified under the “exigent circumstances and probable cause” exception?

We answer both questions in the negative. We reverse and remand the judgment of affirmance of the Court of Criminal Appeals.

Simply stated, the facts are these. Officer Lundy stopped petitioner’s van truck solely for “an I.D. check.” The officer got out, as did petitioner, and they met between the vehicles where petitioner showed the officer his driver’s license. Whereupon, Officer Lundy walked to the passenger’s side of the van, opened the door, shined his flashlight in the front of the van and saw a cellophane bag, in the ashtray, with “some small pink pills” in it. Along with another officer, Lundy took the cellophane bag out of the ashtray, reached under the dash and took out a “couple of prescription bottles” with “some pills” in it, other cellophane bags of pills, and “some marijuana.” Petitioner was arrested and charged with possession of marihuana for personal use. He was convicted of this charge in this case.

We assume, without deciding, that the initial stopping of the vehicle “for an I.D. check” was lawful. We must agree, however, with the well-reasoned dissent of Judge Bookout who concludes that both the seizure of the pills and the resulting search and seizure of the marihuana contravened the Fourth Amendment to the United States Constitution as interpreted by the decisions of the United States Supreme Court, which we are constrained by law to follow.

At the outset it should be stated that the most basic constitutional rule pertaining to warrantless searches is that such searches

‘. . . are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exception . . . that the exigencies of the situation made that course imperative.’ ‘[T]he burden is on those seeking the exemption to show the need for it.’ [Footnotes omitted.]” [Emphasis supplied.]

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The “plain view” exception, under which the Court of Criminal Appeals justifies seizure of the cellophane bag of pills, must fail for two reasons.

First, there is no prior justification given for the “initial intrusion” by the officer into the van truck by opening the front door and shining his flashlight into the van where he observed the cellophane bag with pink pills in the open ashtray. [We do not suggest that the use of the flashlight in itself has any significance in this case. It does not.]

Of course, in nearly every case, evidence seized by police will be in “plain view” at the moment of seizure. Just because the officer sees something does not make it seizable under the “plain view” doctrine.

As the United States Supreme Court articulated the “plain view” doctrine in Coolidge, supra:

“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Cf. Stanley v. Georgia, supra, [394 U.S. 557] 571-572 [89 S.Ct. 1243, 22 L.Ed.2d 542] (Stewart, J., concurring).”

It is well-settled law that a search cannot be made legal by what is turned up by the search. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Thus, it is that, in the instant case, the facts articulated will not bring the case within the “plain view” doctrine because, first, there was no prior justification for the initial intrusion into the van by the officer.

Second, the “plain view” exception must fail because there are no facts shown to indicate that the incriminating nature of the object in “plain view” was apparent to the officer at the time of its seizure. We have held that

“For an item in plain view to be validly seized, the officer must possess some judgment at the time that the object to be seized is contraband and that judgment must be grounded upon probable cause. The record in this cause reveals that this requirement has not been met.”

Shipman v. State, 291 Ala. 484, 282 So.2d 700 (1973).

Furthermore, we agree with Judge Bookout that there were no facts to establish “probable cause” for the search and seizure of the marihuana under the “exigent circumstances and probable cause” exception, and therefore that exception too must fail.

In view of the result we reach, we need not write to the other issue raised — whether the Court of Criminal Appeals erred in following our case of Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975).

REVERSED AND REMANDED.

HEFLIN, C. J., and FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

MADDOX, J., dissents.


text:
    Joseph A. KINARD v. STATE.
    1 Div. 576.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
   AFTER REMAND FROM THE SUPREME COURT OF ALABAMA: REVERSED AND REMANDED on authority of Ex Parte Kinard, 1976, 295 Ala.-, 335 So.2d 924.


author: PER CURIAM.

text:
    William R. HERMAN and Myrtle Herman, his wife, Appellants, v. BOB WOSCHNIK CONSTRUCTION, INC., a Florida Corporation, Appellee.
    No. 76-1043.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Alexander Myers of Jacknin & Myers, Palm Beach, for appellants.
    William S. Wood, Tequesta, for appellee.
   PER CURIAM.

Upon due consideration of the briefs and record in this cause we are of the opinion that the trial court lacks jurisdiction to proceed on plaintiff’s complaint predicated upon a claim of lien because of the failure to allege that the affidavit required by Section 713.06(3)(d)l F.S. as a prerequisite to the institution of suit has been filed. See Brown v. First Federal Sav. & L. Ass’n of New Smyrna, 160 So.2d 556 (Fla. 1st DCA 1964); Potts v. Orlando Building Service, Inc., 206 So.2d 221 (Fla. 4th DCA 1968); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3d DCA 1975). However, we are of the further opinion that the allegations of the complaint state a cause of action for breach of contract. Mardan, supra; e. g. Cerniglia v. Davison Chemical Company, 145 So.2d 254 (Fla. 2d DCA 1962).

Accordingly, trial court’s order denying defendants’ motion to dismiss is affirmed as modified.

MAGER, C. J., and CROSS and ALDERMAN, JJ., concur.


author: McCAULEY, Associate Judge.

text:
    The TRAVELERS INDEMNITY COMPANY and Amos Samford, Inc., Appellants, v. HOWELL & KING, INC., Appellee.
    Nos. 74-1798 and 75-93.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.

      C. Jeffery Arnold, Arnold, Matheny & Eagan, Orlando, for appellants.
    Emery H. Rosenbluth, Jr., Subin, Shams, Rosenbluth & Moran, Orlando, for appellee.
   McCAULEY, Associate Judge.

This opinion consolidates two appeals; first, Case No. 74-1798 from the Final Judgment dated November 20, 1974, and Case No. 75-93 from the Amended Final Judgment of Costs, dated December 31, 1974; both Final Judgments are affirmed. Various points for appeal from the Final Judgment of November 20, 1974, being Case No. 74-1798, will not be discussed in this opinion and are per curiam affirmed. This court will briefly discuss the allowance of attorneys’ fees and costs in Case No. 75-93.

The non-jury trial in this cause was tried before the Honorable Maurice M. Paul, Circuit Judge, on four different dates in October and November, 1974, and Judge Paul found for the Plaintiff/Appellee in the amount of $34,416.55, subject to the counter-claim of Defendant Amos Samford, Inc., in the total amount of $18,050.00.

Subsequently, the trial court taxed costs and attorneys’ fees in the amount of $10,071.94 on December 31, 1974. The dispute arose as a result of the court’s allowance of Defendants’ counter-claim of $3,050.00 on written back-charges and $15,-000.00 for poor workmanship. Defendants/Appellants contend that Plaintiff/Ap-pellee was not the prevailing party and is not entitled to attorneys’ fees. We agree with the Circuit Court that Plaintiff/Appel-lee is indeed the prevailing party.

Sharpe v. Ceco Corporation, 242 So.2d 464 (Fla.App., 1970), cert. denied, 247 So.2d 324 (Fla., 1971), is controlling on this question. In Sharpe, as in the case sub judice, a concrete subcontractor sued to foreclose a lien and the general contractor counterclaimed. The court found for the subcontractor in his claimed amount and for the general contractor on its counter-claim (although not in the amount of the counterclaim). The trial court awarded the subcontractor attorneys’ fees which was a subject of the appeal. The Third District stated at 242 So.2d 465:

“Appellants contend the statute (§ 713.29, Fla.Stat., F.S.A.) did not authorize allowance of an attorney fee in this case. The statute provides for allowance of a reasonable attorney fee to the prevailing party in an action to enforce a lien under Chapter 713. Appellants argue that Ceco was not the prevailing party because its recovery was not the amount claimed, but a lesser sum. We view that argument as unsound. The prevailing party is regarded as that party who has affirmative judgment rendered in his favor at the conclusion of the entire case.”

This court in H. D. McPherson, Inc. v. Metro Electric of Orlando, Inc., 253 So.2d 878 (1971), stated:

“We interpret ‘prevailing party’ to be just that — the party who prevails”. Citing Sharpe v. Ceco Corp., supra.

In Midway Shopping Mall, Inc. v. Airtech Air Conditioning, Inc., 253 So.2d 900 (1971), the Third District Court stated at page 902:

“The prevailing party is regarded as that party who has an affirmative judgment rendered in its favor at the conclusion of the entire case.”

Appellant, Travelers Indemnity Company, contends that the attorneys’ fee should not be recoverable because it had issued a Payment Bond to substitute for the lien; this issue was laid to rest in Midway Shopping Mall, Inc. v. Corky Corp., 257 So.2d 905 (Fla.App., 1972). That action involved the foreclosure of a Mechanic’s Lien in which The Travelers Indemnity Company (Defendant herein) had posted a Payment Bond. An issue on appeal was:

“The Appellant’s third point urges that the trial court may not assess as an attorneys’ fee more than 12V2 percent of the amount for which judgment is awarded against the bonding company because of F.S.A. § 627.0905(2)”. (§ 627.0905(2) is the predecessor of § 627.756 cited by Defendant.)

The Third District Court of Appeal stated at 257 So.2d 907 and 908:

“We hold that F.S.A. § 713.29 is the governing section and that the attorney’s fees therein provided is not limited by the provisions of F.S.A. § 627.0905. Our reason for this holding is first as above pointed out that the mechanic’s lien act is to be construed liberally to afford laborers and materialmen the greatest protection possible with justice and equity. See Crane Co. v. Fine [Fla., 221 So.2d 145], supra. Second, it affirmatively appears from the admissions on file that the bond posted is a payment bond in which the bonding company agrees to make ‘ . prompt payment of all claimants . for all labor and material used or reasonably required for use in the performance of the contract.’ This obligation requires the bonding company to not only pay the amount of any lien claims established but also to pay those sums provided by the mechanic’s lien act in order to make a lienor whole in event it is necessary for the lienor to enforce his claim in court.”

The bond sub judice is even broader than the bond in the Midway Shopping Mall, Inc. v. Corky, supra. The subject bond states:

“ . . . may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant.”

The undertaking of the surety included all sums to be due claimant; § 713.29 included a reasonable attorneys’ fee. The trial judge correctly ruled, the Plaintiff is entitled to a reasonable attorneys’ fee.

Decision affirmed.

WALDEN and DOWNEY, JJ., concur.


author: MAGER, Chief Judge.

text:
    STATE of Florida, Appellant, v. Frank Junior WISE, Appellee.
    No. 75-1673.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.

      David H. Bludworth, State’s Atty., Ann E. Vitunac, Asst. State’s Atty., and Timothy S. Condon, Legal Intern, West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and James R. Merola, Sp. Asst. Public Defender, West Palm Beach, for appellee.
   MAGER, Chief Judge.

This is an appeal by the state from an order granting defendant’s motion to discharge under the speedy trial rule.

The state has denominated this appeal as “interlocutory”; although no issue has been raised regarding the propriety of this method of review we are of the opinion that an interlocutory appeal will not lie. An order granting a motion to discharge under the speedy trial rule is in the nature of final disposition of the proceeding in the trial court and subject to review by a plenary appeal. State v. Johnson, 287 So.2d 322 (Fla.App.3d 1973). In light of the constitutional pronouncement “that no cause shall be dismissed because an improper remedy has been sought” and in the exercise of this court’s discretion under the particular circumstances of this case the court will entertain this appeal even though improvidently styled as an interlocutory appeal. Article Y, sec. 2, Fla.Constitution; see also Shute v. Keystone State Bank, 159 So.2d 106, 108 (Fla.App.3d 1963).

The record reflects that on September 18, 1968, defendant was convicted of three counts of assault with intent to commit a felony, to wit: robbery, for which he was sentenced to three terms of 15 years each in the state correctional system to run concurrently. The defendant was committed to Glades Correctional Institution and in 1974 was participating in a community work release program.

On June 28, 1974 while on work release program it appears that defendant was fired from his job and while being transported back to the prison in a truck driven ' by an employee of the firm for whom defendant was working, defendant left the truck and allegedly was not seen again.

On July 2, 1974, an affidavit was filed setting forth the circumstances surrounding defendant’s departure and subsequently on July 10, 1974, an information was filed charging defendant with escape with capias thereafter having been issued.

On September 14, 1974 defendant turned himself in to the authorities. Trial on the escape charge was thereafter set for August 18, 1975. On the morning of the day of trial a hearing was held on defendant’s motion for discharge, the contention having been made that defendant was not brought to trial within one year after the date the information was filed. It was the state’s position, essentially, that the time periods in the pertinent portions of the speedy trial rule did not begin to run until after the defendant was re-taken into custody, i. e. September 14, 1974, and, furthermore, that defendant was not continuously available for trial upon the charge of escape until September 14, 1974.

The provisions of the speedy trial rule applicable to the instant situation are . Rule 3.191(b)(1) and Rule 3.191(e), F.R. Cr.P., which are hereinafter set forth:

“(b)(1). Prisoners in Florida; Trial Without Demand. Except as otherwise provided, a person who is imprisoned in a penal or correctional institution of this State or a subdivision thereof and who is charged by indictment or information, whether or not a detainer has been filed against such such person, shall without demand be brought to trial within one year if the crime charged be a misdemeanor or felony not involving violence, within two years if the crime charged be a noncapital felony involving violence, or if the crime charged be punishable by death; and if not brought to trial within such term shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime. The period of time established by this rule shall commence when the person is taken into custody as a result of the subject conduct or criminal episode, or when the subject charge of crime is filed, whichever is earlier, whether or not such period may commence to run before such person began to serve his term of imprisonment. The periods of time established by this section shall govern if the person is released from confinement while less than six months of such period of time for trial remains; if more than six months of such period of time for trial remains upon release from confinement, this section shall cease to apply and the rights of such person and of the State shall be governed by §§ (a)(1) and (2).”
*****•*•
“(e) Availability for Trial. The trial of an accused who is not available shall be held in abeyance while such person is unavailable. A person who has not been continuously available for trial during the term provided for herein is not entitled to be discharged; no presumption of nonavailability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish continuous availability during the term.
If an accused voluntarily removes himself from the jurisdiction of the court or otherwise acts to make himself unavailable for trial, the right to trial within the time herein provided shall on motion by the State be voidable by the court in the interests of justice. Upon such accused becoming available for trial and upon notice thereof by the accused or his counsel to both the court having jurisdiction over the trial and to the office of the prosecutor, or upon being retaken into custody, the time within which trial is to commence shall be as herein provided and begin anew.’’ .

From a reading of Rule 3.191(b)(1) it is clear that the one year period within which an accused must be brought to trial without demand commences either: (1) when the prisoner is taken into custody as a result of the subject conduct or criminal episode or (2) when the subject charge of crime is filed, whichever is earlier. It should be noted at the outset that Rule 3.191(b)(1) is applicable only in those circumstances where the accused “is imprisoned in a penal or correctional institution of this State.”

It is unclear as to what circumstances the framers of this rule contemplated when reference was made to condition (1) above, i. e. when the prisoner is taken into custody as a subject of the conduct or criminal episode. Since the rule on its face contemplates that the prisoner is already in custody and serving in prison in connection with a crime other than the one for which he is currently being charged, perhaps it may necessitate a formal announcement or pronouncement that “you are now in custody” for that portion of the rule to be applicable. It may also be contemplated that such rule was intended to apply to the circumstances where a defendant was admitted to bail either awaiting trial or awaiting the outcome of an appeal.

Whatever may have been the circumstance under which condition (1) was intended to apply seems unnecessary to determine inasmuch as the instant facts fall clearly within the language of condition (2), i. e. that the one year period commences “when the subject charge of crime is filed”.

The crime with which defendant was charged was committed while the defendant was “confined” (although admittedly an “escape” is inconsistent with and in derogation of custody or confinement). Cf. State v. Furlong, 1972, 110 R.1. 174, 291 A.2d 267; State v. Kiggins, 1972, 86 S.D. 612, 200 N.W.2d 243; 27 Am.Jur.2d, Escape, Prison Breaking and Rescue, p. 848 et seq. When defendant departed from custody on June 28, 1974 the one year period prescribed in Rule 3.191(b)(1), supra, commenced upon the filing of the information on July 10, 1974 charging defendant with escape. Unless this one year period was tolled or otherwise extended by virtue of some other applicable provision of the speedy trial rule, the one year period which commenced on July 10,1974 would have ended on or about July 9, 1974 thereby rendering the August 18, 1975 trial date ineffective.

It was the state’s contention at the hearing on defendant’s motion for discharge that the defendant was not “continuously available for trial” within the meaning of Rule 3.191(e) between July 10, 1974, the date on which the information was filed charging defendant with escape and September 14, 1974, the date on which defendant turned himself in to the authorities. Therefore, the one year period referred to in Rule 3.191(b)(l)(assertedly) did not commence until September 14, 1974 so that the trial date of August 18, 1975 was properly within the one year time period and in compliance with the speedy trial rule.

In support of this contention the state introduced a booking slip (which is not contained in the instant record on appeal) and the probable cause affidavit giving rise to the filing of the information. The affidavit stated, in part, that “defendant while on work release to Burnup & Sims Const. Co. failed to return to GCI on Friday when he was supposed to”.

A reading of Rule 3.191(e) concerning “Availability for Trial” reflects that the burden is placed upon the state to demonstrate a defendant’s nonavailability. See State ex rel. Kennedy v. McCauley, 265 So.2d 547 (Fla.App.4th 1972). The pertinent portion of the rule provides in part that

“The trial of an accused who is not available shall be held in abeyance while such person is unavailable. A person who has not been continuously available for trial during the term provided for herein is not entitled to be discharged; no presumption of non-availability attaches, but if' the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish continuous availability during the term.”

In our opinion the affidavit, coupled with the undisputed representations (at the hearing below) that defendant walked away from his work release program on June 28, 1974, later surrendering himself to the authorities on September 14, 1974, established prima facie evidence tending to show nonavailability thereby shifting the burden to the accused to come forward with competent proof establishing continuous availability. The uniqueness of the crime of “escape” like no other criminal charge creates a presumption of nonavailability. An escape presupposes an unlawful departure from custody or confinement completely in-apposite to and antagonistic to “availability”. While we would perceive some difficulty in a defendant coming forward with competent proof establishing availability for trial on a charge of “escape” nevertheless there may be some circumstances where availability may be proven. Nonetheless the fact remains that by virtue of uniqueness of the crime of escape an affidavit of probable cause for escape (and the information based thereon) is sufficient to establish a prima facie case of nonavailability.

Although the foregoing suggests a reversal of the order of August 18, 1975 granting defendant’s motion to discharge, there are other circumstances which constrain us to affirm. As heretofore noted, the state had one year from September 14, 1974, the date on which defendant surrendered himself, to bring defendant to trial on the crime charged. Rule 3.191(b)(1), supra. The period of defendant’s “nonavailability” was between July 10, 1974 and September 14, 1974. The record before us does not reflect any occurrences between September 14, 1974 and September 14,1975 that would suggest that this one-year period was either tolled or extended.

Defendant’s trial was set for August 18, 1975, which was within the one year period and on which date the trial court entered the order granting defendant’s motion for discharge. Rule 3.191 and sections 924.07 and 924.071, F.S., relating to appeals by the state, contain no language suggesting that an order granting a motion for discharge tolls the operation of the speedy trial rule. In addition, the rule and statutes are silent with respect to the filing of a notice of appeal from an order of discharge; such filing does not have the effect of tolling the running of the time sequences prescribed in the speedy trial rule. See Rule 3.191(d)(2), supra; sections 924.07 and 924.071, supra; see also State v. Glidewell, 311 So.2d 126 (Fla.App.2d 1975); State v. Williams, 287 So.2d 415 (Fla.App.2d 1973).

Therefore, absent a timely filed motion (after the order of discharge) extending the speedy trial period during the pendency and disposition of an appeal, the speedy trial rule is not tolled. Although the order of discharge was entered on August 18, 1975, nothing else occurred between August 18, 1975 and September 14, 1975; therefore the one year period prescribed in Rule 3.191(b)(1) expired on September 14, 1975. The record however reflects that on September 18, 1975 the state filed a notice of appeal from the August 18 order of discharge and a motion to extend the time for trial under the speedy trial rules which motion was granted by the trial court on October 8,1975. The filing of this motion after the time had expired under the speedy trial rule and the order entered as a consequence thereof were nullities and could not have had the effect of breathing life into a form that has since expired.

We are not unmindful of the language set forth in Eule 3.191 stating, in part, that “periods of time established by this Eule for trial may at any time be waived or extended by order of the court . . . ”. Eule 3.191(d)(2), FECrP. We are of the opinion, however, that the letter as well as the spirit of the rule would be violated if the phrase “at any time” permitted waivers or extensions after the time parimeters of the speedy trial rule had expired. The intended application of the phrase “at any time” was during the viable period of time sought to be extended and not after that time period had expired.

The speedy trial rule sets forth those circumstances under which the time sequences may be extended. Eule 3.191(d)(2), supra. See footnote 3. While there may be other factors which directly affect the running of the time sequences (see for example Eule 3.191(e) and (f), supra), the mere filing of a notice of appeal is not one of them. A timely order of extension is required. In this regard we are unable to find where the circumstances of the instant case, i. e. an order granting a motion to discharge, would constitute a “mistrial” or “order of new trial” within the contemplation of Eule 3.191(g) which provides for an automatic extension under certain specified circumstances of which the instant order is not one.

It might be well to additionally observe that Eule 3.191(d)(2) permits the periods of time established by the speedy trial rule to be extended by order of the court for “a period of reasonable and necessary delay resulting from proceedings including but not limited to . interlocutory appeals . . . .” Undoubtedly had the instant appeal been an “interlocutory” appeal and a motion timely filed, consideration of an extension would have been appropriate. See State v. Cannon and Holl-ingsworth, Fourth District Court of Appeal Case No. 75-1848 opinion filed May 14, 1976. But, even though the method of review being sought was a “plenary” appeal rather than an “interlocutory” appeal, we are of the opinion that a plenary appeal presents a circumstance within the contemplation of Eule 3.191(d)(2) (iv) so as to permit a timely filed motion to be entertained. See footnote 3. See State v. Williams, supra.

The uniqueness of the circumstances of this case which involve matters of first impression has necessitated a somewhat detailed consideration of the contentions of both parties. It is readily apparent that the present existing language of the speedy trial rule reflects the need for amendment or revision to embrace such circumstances as escapes, orders of discharge and plenary appeals. See special concurring opinion in State v. Glidewell, supra.

In conclusion we are of the opinion that the periods of time set forth in Rule 3.191(b)(1) not having been timely extended, the! order of discharge is hereby AFFIRMED. Cf. Brown v. State, 252 So.2d 842 (Fla.App.3d 1971).

AFFIRMED.

DOWNEY and ALDERMAN, JJ., concur.

      . It is the state’s position that the second condition should be read as follows: “or when the subject charge of crime is filed if the person is already in custody”. It is not the function of the court to rewrite the rules nor to ascribe a meaning to the rules which are not reasonably inferable. In order to interpret the rules as suggested by the state it would be necessary to resort to such “rewriting” or indulge in an inference or intent not otherwise gleaned therefrom.

      . Perhaps it would have been helpful if the state had presented evidence by testimony or affidavit that efforts were made to locate the defendant to no avail and that, particularly, defendant’s last known address was checked. However, it seems somewhat ludicrous to require this type of “evidence” to establish an accused’s nonavailability, where the very crime charged, i. e. escape, is analogous to concealment and nonavailability. Of course, at the very least, the state should have introduced the information upon which the affidavit of probable cause was based although this omission is not fatal. Cf. 13 Fla.Jur., Evidence, § 42.

      . FRCrP 3.191(d)(2). When Time May Be Extended. The periods of time established by this Rule for trial may at any time be waived or extended by order of this court (i) upon stipulation, signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, provided the period of ■' time sought to be extended has not expired at the time of signing, or (ii) on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined, or (iii) with good cause shown by the accused upon waiver by him or on his behalf, or (iv) a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pre-trial motions, for interlocutory appeals, and for trial of other pending criminal charges against the accused. For the purposes of this Rule, any other delay shall be unexcused.

      . We have not overlooked the state’s contention that it was not presented with a choice of either filing another information or appealing the order of discharge. In this regard see Carroll v. State, 251 So.2d 866 (Fla.1971). The defendant having been discharged because of the running of the speedy trial rule, the state had no other alternative method except a review by appeal. Admittedly, this is not a situation where the State has elected to pursue a course of conduct which may result in an extended disposition. Nevertheless, the lack of alternatives does not govern the operation of the rule; to avoid the expiration of the periods of time under the speedy trial rule the state should timely move for an extension. See State v. Williams, supra.

      .“ . . . We note that clause (iv) of subsection (d)(2) provides that an extension may be granted because of a necessary delay resulting from ‘proceedings including but not limited to ’ specifically enumerated circumstances.” State v. Wiliiams, Fla.App., 287 So.2d 415, 418.

      . The court expresses its appreciation to the Attorney General and the Public Defender’s offices for furnishing this court with supplemental briefs on the various aspects of this case.


text:
    Elizabeth H. GALL, Appellant, v. John R. GALL, Appellee.
    No. 74-1525.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1976.
    William P. O’Malley, Clearwater, for appellant.
    Loyd C. Mosley, Clearwater, for appellee.
   PER CURIAM.

The record in this suit for dissolution reflects that the parties had been married thirty years. They had four children, three of whom were grown. The youngest, a fourteen year old daughter, lives with her mother in the family home. The husband retired from the Air Force as a Colonel in 1970 and draws $790 per month retirement pay. This, together with what he earns driving a school bus, gives him a net monthly income of $1,156. The wife did not work while the parties were in the service, but upon the husband’s retirement, she became employed as a secretary. In this capacity, she now earns a net monthly income of $383. Except for a jointly owned home, neither party owns any substantial assets.

In granting dissolution, the court ordered the husband to pay the wife $150 per month plus medical and dental expenses as child . support so long as the minor child was living with the wife. Except for two motor vehicles, one of which was given to each party, the parties’ property was said to be jointly owed and thus held as tenants in common following the dissolution. The court declined to grant alimony.

The wife’s first contention with respect to the division of property is without merit. However, we believe the court erred in failing to make a provision for permanent alimony. Each party filed financial statements with the court which were substantially contradicted. Disregarding certain voluntary contributions he was making to an older daughter and before deduction of the $150 per month child support payment ordered by the court, the excess of the husband’s net monthly income over expenses was $414.50. Likewise, disregarding the child support payment, the wife’s monthly expenses exceeded her net income by $193.63. Furthermore, among the husband’s monthly expenses was $144 which' the court required the husband to pay on the house mortgage. However, the judgment provided that upon a suit for partition to compel the sale of the house owned by the parties as tenants in common, the husband would be entitled to recover one-half of the. mortgage payments. Therefore, in view of the fact that the court did not award the wife the use of the house while the minor child was with her, there was nothing to keep the husband from immediately bringing suit to partition the house, thereby reducing his monthly expenses by $77 and placing upon the wife the requirement of starting to pay for a place to live.

We believe this point is controlled by our decision in Lash v. Lash, Fla.App.2d, 1975, 307 So.2d 241. There is enough similarity in the facts of the two cases to dictate the. application of the same principles. In Lash, we said:

“There is apparently a feeling in some circles that the passage of the ‘no-fault’ divorce law in 1971 had the effect of abolishing permanent alimony except where the wife (or the husband, as the case may be) is unable to get a job. We know of no controlling decision to this effect and do not believe it to be the law. The only changes made with respect to alimony were to authorize its payment to either spouse and to permit an award of rehabilitative alimony. The fact that the legislature authorized rehabilitative alimony did not do away with permanent alimony. The provision authorizing rehabilitative alimony simply permits the judge in a proper circumstance to award support to a needy spouse for a limited period of time until she gets back on her feet and becomes self-sustaining. However, rehabilitative alimony presupposes the potential for self support. Reback v. Reback, Fla.App.3rd, 1974, 296 So.2d 541. Without this capacity there is nothing to which one can be rehabilitated. Schwartz v. Schwartz, Fla.App.3rd, 1974, 297 So.2d 117.
In recent years with the advent of equal employment opportunities for women, many women have been able to acquire higher paying jobs. To that extent there has been less need for the payment of alimony by their former husbands. Yet, it is still the law that where the wife demonstrates the need and the husband has the ability to pay, he is obligated to support her at a standard reasonably commensurate with that established by him during their marriage. Royal v. Royal, Fla.App.3rd, 1972, 263 So.2d 277; Preston v. Preston, Fla.App.3rd, 1968, 216 So.2d 31.
Where the parties are still quite young and have only been married a short period of time, a judge is understandingly reluctant to saddle the husband with the obligation of making permanent alimony payments for the rest of his life. At this point the wife is hardly in any different position than she was before she was married. However, in those cases where the dissolution comes about after many years of marriage, there are different circumstances to be considered. In the first place, it often happens that the wife has given up her career upon marriage in order to manage the home and raise children. Furthermore, in a marriage where the wife has stayed home, the husband has had the opportunity of enhancing his working expertise during the entire period of his married life; whereas, the wife, if anything, may now be less equipped for work than she was when she became married. . . . ”

In Sisson v. Sisson, Fla.1976, 336 So.2d 1129 (Opinion filed June 30, 1976), our Supreme Court recently reaffirmed the desirability of alimony in a proper case. See also Dash v. Dash, Fla.App.3rd, 1973, 284 So.2d 407.

The wife further complains of that portion of the final judgment which provided that “neither party is given primary custody of the children of the parties, said children remaining in their joint custody and being entitled to live with either party.” This provision could only apply to the fourteen year old daughter, since the other children had already reached their-majority. The preference of a mature child concerning the parent with whom he or she would like to live is entitled to considerable weight, but it cannot control the disposition of custody. Gregory v. Gregory, Fla.App.2d, 1974, 292 So.2d 50; Wilson v. Condra, Fla.App.1st, 1971, 255 So.2d 702. To give a fourteen year old girl the unbridled discretion to choose the parent with whom she will live invites the possibility of serious disciplinary problems.

Accordingly, the judgment is reversed to the extent that the case is remanded for the purpose of making an award of permanent alimony to the wife and entering an order awarding custody of the minor child to one party or the other.

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


author: PER CURIAM. SMITH, D. C., Associate Judge

text:
    Betty ANGELL, a/k/a Angell Rogers, Appellant, v. STATE of Florida, Appellee.
    No. 75-816.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Rehearing Denied Aug. 27, 1976.
    Fred Haddad, of Sandstrom & Hodge, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Linda Collins Hertz, Asst. Atty. Gen., and M. Ann Bradley, Legal Intern, Miami, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

MAGER, C. J., and CROSS, J., concur.

SMITH, D. C., Associate Judge, dissents with opinion.

SMITH, D. C., Associate Judge

(dissenting).

I respectfully dissent.

The appellant, Betty Angelí, a/k/a An-gelí Rogers, and one Rick Croll were charged with conspiracy to commit a capital felony, to-wit: murder in the first degree, the information charging that the said Betty Angelí, a/k/a Angelí Rogers and Rick Croll did unlawfully agree, conspire, combine or confederate with each other to kill and murder one Michael Rogers, a human being, from a premeditated design to effect the death of the said Michael Rogers, by shooting him with a handgun, contrary to F.S. 833.03 and F.S. 782.04. Prior to appellant’s trial Rick Croll entered a plea of no contest and at the time of appellant’s trial he was awaiting sentencing.

Appellant’s defense was that Rick Croll, her co-conspirator, never had any intent to kill Michael Rogers and without such an intent on his part there could be no conspiracy as charged.

Rick Croll was called as a witness by the State. On direct examination, he testified that one James Stass told him that Angelí wanted to talk to him. He and James met Angelí Rogers at The Everglades Bar. They were there for approximately an hour to an hour and a half. During that time she (Angelí Rogers) asked if he, Rick Croll, would like to make $3,000.00 and he said yes. She told him she wanted to put her husband, (Michael Rogers) out of the way, ■ wanted to kill him. He told her that he would let her know later on. When he and James Stass got to their home, they discussed the matter further and he told James he would kill Michael. James was to tell Angelí. Rick decided the best way to get rid of Michael was to shoot him. An-gelí said she would find out the best time and the best place. Angelí told Rick she wanted him to come over to her house, she wanted him to look at a gun. He went to the house, saw the gun and fired it. When Angelí asked if the gun would do the job, he told her any gun would do the job if you are close enough. Some week or week and a half later James Stass told him Angelí was next door. He, Rick, went to see her. She told him Mike was at the warehouse and that it would be a good time to shoot him. She asked, “Are you sure you can go through with it?” Rick said yes. Angelí drove him approximately three blocks from the warehouse, handed him a gun and dropped him off. Before Rick got to the warehouse, he changed his mind. “I didn’t feel like sitting the rest of my life in jail, I realized how stupid it really is.” “This is really stupid and I didn’t want any part of it.” He left the vicinity of the warehouse and went home. Some time later Jimmy Stass arrived home and he told him “I didn’t want no part of it.” Rick saw Angelí a couple of days later and told her “I didn’t want no part of it.” She told me not to welsh on her.-

Rick Croll was asked:

Q. Rick, at that time Angelí mentioned the money all the way up to the time you couldn’t go through with it because of whatever reason or change of heart, had you agreed to do it?
A. I had agreed to do it, yes.
Q. At the warehouse, you couldn’t?
A. No, sir.
Q. Way back there when you first— when you were first asked by Angelí at the Everglades all through this time, regardless of the fact you had agreed to do it, was there ever a time you were perfectly sure you could kill a man?
A. No, sir.
Q. Would it be a fair statement to say that by the time you had gotten to the warehouse you were still not sure you could kill somebody?
A. Yes, sir.
Q. However, Rick, when you were at the warehouse had you discarded that idea?
A. Yes, sir.
Q. That was because why?
A. I didn’t want to spend the rest of my life in jail. I have done dumb things before, but never nothing that dumb.
Q. You never told Angelí that, though, did you?
A. No, sir.
Q. Never told her you were having second thoughts after you agreed to it?
A. No, sir.
On cross-examination, he testified:
Q. . . .
Did I understand you to say there was never any time when you thought you could kill a human being during the period of time we are here concerned with?
A. Yes, sir.
Q. Is that correct?
A. Yes, sir.
Q. During the period of September 6th to November the 6th, ’74, during that period of time at least you never were convinced you could kill a human being, is that right?
A. Yes, sir.
Q. And, yet, I think you testified on direct examination that you did in fact agree to such a plan?
A. Yes, sir.
Q. Is it not true, Mr. Croll, that it was sort of — the whole thing was sort of an ego trip to you?
A. Sort of.
Q. But, yet in your discussions with Mr. Stass you did demonstrate through words spoken by you this really seemed more of a lark than anything else, an opportunity to prove you could carry out something as big as this, is that correct?
A. Yes.
Q. You had reservations personal to yourself as to whether or not you would do it?
A. Yes, sir.
Q. (By Mr. Fleet) Do I understand, sir, that your testimony to the jury when being questioned by Mr. Bogenschutz that at all times up to and including the night when you actually had the weapon and were walking down the railroad tracks by the warehouse, you had the intent to carry out this nefarious activity with Angelí Rogers?
A. No, sir.
Q. You did not have such an intent?
A. No, sir.
Q. Is it not true that in fact you never intended to carry out the plan?
A. Yes, sir.
Q. From the time that Angelí Rogers asked you if you would work with her for the purpose of assassinating Michael Rogers, you never intended to do it, did you?
A. No, sir.
Q. I wish to make something crystal clear, Mr. Croll. Whether you told Angelí about your lack of intent or not, there is absolutely no doubt in your mind that at no time between September the 1st and December the 1st of 1974 did you at any time intend to kill Michael Rogers?
A. No, sir.
Q. Is that correct?
A. Yes, sir.
Q. That is a correct statement?
A. Yes, sir.

As previously stated, appellant’s defense was that Rick Croll, her co-conspirator, never had any intent to kill Michael Rogers and without such an intent on his part there could be no conspiracy as charged.'

In 15A C.J.S. Conspiracy § 37, p. 731, the general rule is stated as follows: “If one person only feigns acquiescence in a proposal of another to pursue an unlawful enterprise, there is no conspiracy, since there is no union or concert of wills . .

In Delaney v. State, 164 Tenn. 432, 51 S.W.2d 485-487, the Court stated:

There can be no criminal combination or conspiracy unless at least two persons guiltily united or agree in the purpose to pursue the unlawful enterprise; and, if one of the two only feigns acquiescence in the proposal of the other, without criminal intent, there is no such agreement or concurrence in fact, and no conspiracy.”

The rule making the credibility and the weight of testimony questions for the jury applies notwithstanding there are contradictions or inconsistencies in the testimony of a particular witness, as, for example, where he gives two versions of a transaction, or has made statements calculated to impeach the correctness of observations to which he has testified, or where, on cross-examination, the witness contradicts himself or his testimony is inconsistent with his original testimony, . . and it is for the jury to determine which portion of his evidence or version of the matter they will believe. 88 C.J.S. Trial § 214c(2), p. 489.

Thus the testimony of the witness Rick Croll posed a jury question as to whether he ever had an intent to kill Michael Rogers.

The appellant requested the following instructions:

NO. 4
I instruct you that the statute under which this case is being tried requires that the State of Florida prove beyond and to the exclusion of every reasonable doubt that:
(1) the defendant and Richard Croll entered into an agreement to commit murder in the first degree, that is, that they did agree to effect the death of Michael Rogers, a human being, from a premeditated design.
(2) the defendant and Richard Croll actually intended to effect the death of the said Michael Rogers, a human being, from such premeditated design.
One person does not constitute an agreement within the meaning of the statute under which this case is being tried before you. There can be no conspiracy in the absence of an agreement between Angelí Rogers and Richard Croll as the issues have been framed in this case.
NO. 5
I instruct you that there can be no criminal conspiracy, sic) with one who secretly intends to frustrate the alleged conspiracy, citing Sears v. U. S., 343 Fed.2d 139 (C.A.5, 1965); U. S. v. Wray, 8 Fed.2d 429, (C.A.5, 1925); Moore v. State, 290 So.2d 603 (Miss., 1974).
NO. 6
In order to sustain a conviction of the Defendant in the case now before you, it is incumbent upon the State of Florida to prove, beyond and to the exclusion of every reasonable doubt, that both Richard Croll and Angelí Rogers possessed the necessary criminal intent to kill and murder Michael Rogers, a human being, from a premeditated design to effect the death of the said Michael Rogers. If you believe that the proof submitted to you is insufficient to sustain a finding that each of said persons, to-wit, Angelí Rogers and Richard Croll, did not-both possess such intent, then you must find the Defendant, Angelí Rogers, innocent of the accusations made against her in this case, citing Danielson v. United States, 321 Fed.2d 441, (C.A.9, 1963).
Requested Instruction No. 4 was amended to read:
NO. 4
I instruct you that the statute under which this case is being tried requires that the State of Florida prove beyond and to the exclusion of every reasonable doubt that:
(1) the defendant and Richard Croll entered into an agreement to commit murder in the first degree, that is,-that they did agree to effect the death of Michael Rogers, a human being, from a premeditated design.
One person does not constitute an agreement within the meaning of the statute under which this case is being tried before you. There can be no conspiracy in the absence of an agreement between Angelí Rogers and Richard Croll.

and was granted as amended. Requested Instructions No. 5 and No. 6, supra, were denied and were not covered in other instructions given.

A defendant is entitled to have the jury instructed on the law applicable to his theory of the defense if there is any evidence to support it. Stiglitz v. State, 4 DCA 1972, 270 So.2d 410.

In Laythe v. State, 3 DCA 1976, 330 So.2d 113, the Court stated:

“At the charge conference, defense counsel requested that the jury be instructed as to withdrawal from the conspiracy based on the defense that Laythe timely terminated her involvement well before Carter committed the offense. The court denied the instruction proposed by defense counsel, but acknowledged that, ‘somewhere in the deal, a person could withdraw,’ and suggested a different instruction on withdrawal. The state objected to any charge on withdrawal, the court reserved ruling and then decided not to instruct on withdrawal.
On appeal, defendant Laythe contends that the trial court erred in failing to include the defendant’s requested instruction or the court’s own alternative instruction on withdrawal. We agree. ‘However disdainfully the trial judge may have felt about the merits of such defense from a factual standpoint, however even we may feel about it, is beside the point.’ Koontz v. State, Fla.App. 1967, 204 So.2d 224, 227. A defendant is entitled to have the jury instructed on the law applicable to his theory of defense if there is any evidence introduced to support the instruction. Canada v. State, Fla.App.1962, 139 So.2d 753; Stiglitz v. State, Fla.App.1972, 270 So.2d 410. As stated in 41 C.J.S. Homicide § 368, where there is evidence in support of any defense offered by an accused which raises an issue of fact in his favor, ‘ . . . the court should present the issue by an affirmative instruction which fairly and fully declares the law applicable thereto . . and it is error for the court, while stating the charge on the evidence against the accused, to refuse or omit to charge the jury as to the defenses which are set up by him, and which there is evidence to support . . . ’
It appears from the record that there is evidence to support defendant Laythe’s defense of withdrawal. Accordingly, we reverse and remand for a new trial

In the case sub judice, regardless of how contemptuous, despicable or disdainful the evidence as a whole might be, the Court’s denial of defendant’s requested Instruction No. 4 as originally requested and its denial of No. 5 and No. 6, or the failure to give its own alternative instruction to the jury on the law applicable to the defendant’s defense, was error.

I would reverse and remand for a new trial.


author: HOBSON, Acting Chief Judge.

text:
    John S. BARTON, Appellant, v. Gordon P. BLITCH et al., Appellees.
    No. 75-345.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1976.

      Charles J. Cheves, Jr., of Cheves & Hazen, Venice, for appellant.
    Patrick E. Geraghty, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee Blitch.
   HOBSON, Acting Chief Judge.

Appellant filed his amended complaint against appellee Blitch and others in four separate counts. Count one alleged that appellee Blitch and one Mr. Ryerson maliciously conspired to defame appellant by accusing him of acts amounting to grand larceny. Count two did not include appel-lee Blitch in its allegations. Count three alleged Blitch libeled the appellant, and count four alleged Blitch slandered the appellant.

After extensive discovery appellee Blitch moved for a summary judgment. One ground therefor was that he was acting as an attorney in the employment of and at the direction of his client at all times material to the allegations of the complaint. The trial judge entered a summary final judgment in favor of appellee Blitch on said ground.

We have examined the record on appeal and find that there is a genuine issue as to the material fact that appellee Blitch was at all times material to the allegations of the complaint acting in the course and scope of his employment as an attorney. Therefore, the final summary judgment is reversed and the cause remanded.

REVERSED and REMANDED.

BOARDMAN and GRIMES, JJ., concur.


author: PEARSON, Judge.

text:
    T. C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1528.
    District Court of Appeal of Florida, Third District.
    July 23, 1976.

      Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PEARSON, Judge.

The appellant was adjudicated a delinquent upon a finding that he was guilty of grand larceny. Immediately prior to trial, the public defender, on behalf of the child, filed a motion to suppress certain evidence. The circuit judge denied the motion without a hearing thereon. The record of the subsequent hearing on the charge makes clear that there was a substantial question presented by the motion. We hold that the circuit judge committed reversible error in denying the motion without a hearing on the merits. See CrPR 3.190(h)(3).

The motion was legally sufficient and the circuit judge did not suggest by order or otherwise that it was not. The State suggests that the motion was denied because it was untimely. Although rule 3.190 permits the filing of a motion to suppress evidence at any time before trial, it is true that such a motion may not be used as a means of unreasonably delaying the trial. In such an instance, the trial judge could, in the exercise of his discretion and in order to provide a prompt and fair trial to both the defendant and the State, strike an untimely motion. Cf. Davis v. State, Fla.App.1969, 226 So.2d 257.

The circumstances of the instant case show that the motion could have been heard without an unreasonable delay. The witnesses on the motion were before the court and the motion could have been heard before proceeding to the merits. The evidence seized was the only evidence which connected the child to the larceny. We conclude that the denial of the motion without hearing was reversible error in that it deprived the child of due process of the law. See Foster v. State, Fla.App.1971, 255 So.2d 533.

Reversed and remanded for a new trial.


text:
    Eva SCHWARTZ, Appellant, v. Israel SCHWARTZ, Appellee.
    No. 74-1507.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.

      Eleanor Levingston Schockett, Miami, for appellant.
    Israel Schwartz, in pro. per.
    Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

Petitioner wife, Eva Schwartz, appeals a final judgment dissolving her marriage to Israel Schwartz and assigns error upon the financial provisions of the judgment. The primary point urged is that the trial court erred in awarding to the husband the business property which was held as an estate by the entirety. A review of the partial record before us shows that the wife claimed and received as lump sum alimony the husband’s interest in a substantial portion of the non-business property including rental property. The conduct of this cause brings the facts of this case within the scope of the rule stated in Walton v. Walton, Fla.App.1974, 290 So.2d 110, where the court of appeal held that the trial court is authorized to make a division of property even if held by the entireties if such a division is sought by one of the parties and tried without objection. But see Niemann v. Niemann, Fla.App.1974, 294 So.2d 415, and Newberger v. Newberger, Fla.App. 1975, 311 So.2d 176.

An additional point is presented urging that the court erred in failing to provide for the support of a 17 year old son who is being maintained in school by the husband. We think that no error is shown inasmuch as the wife tacitly agreed to the present arrangement and if the husband should change the circumstances by failing to follow the stipulation, a proper provision for the support during the remaining minority of the 17 year old can be made by the trial court upon petition.

The remaining points presented by the appellant have been considered and found not to present reversible error.

Affirmed.


text:
    Roberta McCahill McKENRY, Appellant, v. Carl E. B. McKENRY, Jr., Appellee.
    No. 75-962.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Emanuel Levenson, Miami, Julius H. Erst-ling, South Miami, for appellant.
    Gilbride & Heller, Miami, Carl E. B. McKenry, Jr., Coral Gables, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Roberta McCahill McKenry, respondent wife, takes this appeal from the property award of a supplemental final judgment of dissolution.

In the petition for dissolution of marriage, the husband, Carl E. B. McKenry, Jr., alleged special equities in the Virginia property owned by the parties by the entireties, and in the answer and counterclaim, the wife also claimed special equities therein. At the conclusion of the initial hearing, the trial court entered a final judgment of dissolution of marriage and by stipulation of the parties reserved jurisdiction “with regard to the division of or award of property.” Upon further hearing, the court entered its supplemental final judgment of dissolution in which the court found that the parties’ Coral Gables home, also owned by the entireties, and the Virginia property had approximately equal equity; that the Virginia property was acquired through the efforts of the husband and that having been raised in Virginia, the husband had a great affinity for that property. The court ordered that title to the Coral Gables home vest solely in the wife, and title to the Virginia property vest solely in the husband. It is from this judgment that the wife appeals.

The thrust of the wife’s appeal is that because of the absence of a finding by the court that the husband had a special equity in the Virginia land or that the wife had a special equity in the Coral Gables property, the court had no power to award the properties as it did. The husband contends, and the record so reflects, that there was an agreement by and between the parties to settle all matters except division of the properties and that this matter was to be determined by the judge without regard to special equities.

A trial judge is authorized to make a division of real property even if held by an estate by the entireties, if such division is sought by one of the parties and tried without objection. Walton v. Walton, Fla.App. 1974, 290 So.2d 110, 112.

The wife also contends that the court erred in failing to establish a resulting trust in the Virginia property in favor of the wife’s mother and, further, that it was error to enter a supplemental judgment of dissolution determining the parties’ real property rights, subsequent to the entry of the judgment dissolving the marriage. There was ample testimony in the record to support the finding of the trial court that the wife’s claim of a resulting trust in favor of her mother was not proved. The point as to reservation of jurisdiction to enter a subsequent judgment in this case is governed by Farr v. Farr, Fla.App.1971, 249 So.2d 761 and Kipnis v. Kipnis, Fla.App.1976, 330 So.2d 67, and will not be further discussed.

Affirmed.


author: SUMMERS, J.

text:
    STATE of Louisiana ex rel. Louis A. SOLARES v. Alwynn J. CRONVICH, Sheriff of Jefferson Parish, and Roland J. Vicknair, Warden, Jefferson Parish Prison.
    No. 58370.
    Supreme Court of Louisiana.
    July 29, 1976.
   In re: Louis A. Solares, applying for writ of habeas corpus and/or writ of mandamus.

Writ granted. Relator is not entitled to “good time” credit under R.S. 15:571.3. However, in the absence of a contrary provision in the probation order he is entitled to the work credit under R.S. 15:571.10. Accordingly, an evidentiary hearing is ordered to determine whether or not the defendant has consented to work and, if so, how many days of credit he has earned.

SUMMERS, J.

In my view the incarceration of Solares in the parish jail as a condition of his probation does not entitle him to work credit. Work credit is allowed those serving “sentences”. A condition of probation is not a sentence. In fact here, Solares’ sentence has been suspended.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Frank Anthony VANORSCHOT.
    No. 58384.
    Supreme Court of Louisiana.
    Aug. 2, 1976.
   In re: Frank Anthony Vanorschot applying for remedial writs.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction. The ruling of the trial judge is correct. Cf. La.Code of Criminal Pro. art. 572 & 578. The trial court has agreed to try this case during the month of August, 1976.

DENNIS, J.,

is of the opinion the writ should be granted to the extent of affording the defendant a full evidentiary hearing on whether he has been denied his right of a speedy trial.


text:
    STATE of Louisiana v. Peter VERDINE.
    No. 58431.
    Supreme Court of Louisiana.
    Aug. 6, 1976.
   In re: Peter Verdine applying for writs of certiorari, mandamus and/or prohibition.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.


text:
    Edward L. ARDOYNO, Jr., et al. v. Leonard S. UNGAR et al.
    No. 58447.
    Supreme Court of Louisiana.
    Aug. 10, 1976.
   In re: Leonard S. Ungar et al. applying for supervisory writs of certiorari, prohibition, mandamus and review.

Writ not considered. On the showing made, we will not interfere with the orderly proceedings of the courts below, the court of appeal having stayed all proceedings in connection with the trial judge’s order dated Aug. 6, 1976 until further orders of that court.


text:
    STATE of Louisiana v. David Joseph SYLVESTER.
    No. 58363.
    Supreme Court of Louisiana.
    Aug. 10, 1976.
   In re: State of Louisiana applying for writ of certiorari, mandamus and prohibition.

Writ denied. We find no abuse of discretion by the trial judge in his ruling denying the state’s motion for a change of venue.


text:
    J. George NOMEY and Advance Sporting Goods v. JACKSON PARISH POLICE JURY et al.
    No. 58472.
    Supreme Court of Louisiana.
    Aug. 12, 1976.
   In re: J. George Nomey and Advance Sporting Goods applying for writs of certio-rari, prohibition, mandamus and stay order.

Writ denied. Without prejudice to the right of applicants to test the validity of the election, see La.R.S. 26:590. On the: showing made the exercise of our supervisory jurisdiction at this time is not warranted.